Director of Public Prosecutions v Ryan
[2023] VCC 652
•28 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01039
Indictment No. J12930305.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIEN RYAN |
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2023 | |
DATE OF SENTENCE: | 28 April 2023 | |
CASE MAY BE CITED AS: | DPP v Ryan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 652 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Indecent act upon a child under 16 – Historical sexual offence – Victim known to the offender – Significant impact on victim – Breach of position of trust – Big Brothers Big Sisters Program – Late plea of guilty – Genuine remorse – Letter addressed to victim – Delay as a mitigating factor – Suspended sentence as an available disposition
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sex Offenders Registration Act 2004 – Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013
Cases Cited:Adamson v The Queen (2015) 47 VR 268 – R v G [2009] 1 AC 92 – Talbot (a Pseudonym) v The Queen [2016] VSCA 218 – DPP v Toomey [2006] VSCA 90 – R v Sposito Unreported, Court of Criminal Appeal, 8 June 1993 – R v MJ [2000] VSCA 66 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – CD v The Queen [2013] VSCA 95 – Phillips v The Queen (2012) 37 VR 594 – R v Kilic (2016) 259 CLR 256 – DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – Arnold (a Pseudonym) v The Queen [2013] VSCA 298 – Crouch (a Pseudonym) v The Queen [2019] VSCA 30 – DPP v Watton [2003] VSCA 10 – R v Coffey [2003] VSCA 155 – R v Hill (a Pseudonym) [2023] VSCA 844 – DPP v Ballinger (a Pseudonym) [2018] VCC 2263 – DPP v Wilkinson (a Pseudonym) [2019] VCC 303 – DPP v Bannister (a Pseudonym) [2022] VCC 891 – DPP v Jenkins [2019] VCC 126 – DPP v Purcell [2016] VCC 574 – DPP v Peters [2016] VCC 1592 – DPP v Bravery [2016] VCC 504 – DPP v Lean [2019] VCC 1770
Sentence: Three year Community Correction Order with 500 hours unpaid community work and fined $5000.00
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Abbey Hogan, Solicitor for the Public Prosecutions |
| For the Accused | Mr T Marsh | Emma Turnbull Lawyers |
HIS HONOUR:
1Damien Ryan, you have pleaded guilty to an indictment containing one charge of indecent act with a child under 16.[1] The maximum penalty for this offence is 10 years’ imprisonment.[2]
[1] Contrary to s 47(1) of the Crimes Act 1958 (‘CA’) as amended by the Crimes (Sexual Offences) Act 1991 (‘C(SA)A’).
[2] Pursuant to CA s 47(1) as amended by C(SA)A.
The Facts
2The victim, Aaron Peters[3], met you through the Big Brothers Big Sisters program in 1990. This program matches volunteer adults to be friends and mentors to Peters people requiring additional support. Your offending conduct occurred in the context of that relationship.
[3] A pseudonym
Background
3Mr Peters lived with his mother and his three older siblings. His parents separated when he was four years old and he subsequently had no contact with his father. After the separation, the family moved to Heidelberg and then another north-eastern suburb of Melbourne.
4Mr Peters repeated grade 2 at a primary school. He stayed at the school until completing grade 6 in 1992. The school recommended him for the Big Brothers Big Sisters program. His mother applied for the program and he was accepted in December 1989. At the time, he had no father in his life and his brothers did not spend time with him. He was to be matched with a ‘big brother’ who had similar interests, being camping, fishing, and going to amusement parks.
5Mr Peters was matched with you in 1990. You and Mr Peters were introduced at the Big Brothers Big Sisters program. After that, you took Mr Peters on outings on weekends every 2 to 4 weeks. You and Mr Peters went to the Fun Factory in Prahran or fishing for trout at the Murrindindi river near Yea. You picked Mr Peters up, dropped him home, and you talked to him about what was going on in his life.
6At that time, you were living at an address in Eltham with your parents. On occasions, Mr Peters went to your house for lunch or dinner or to family gatherings. On two occasions in 1991, he stayed overnight for a sleepover at your parents’ house. Mr Peters grew to trust you, as you were a fatherly figure in a position of trust.
7You spent time in the United States, departing on 13 June 1990 and returning on 12 December 1991.
8In December 1991, arrangements were made for Mr Peters to meet you at the airport after you returned home from America. He stayed overnight at your house in Eltham, the first time he had done so.
The offending
9During the school holidays in January 1992, when Mr Peters had just turned 12 years old, you took him on a Big Brothers Big Sisters camping trip to country Victoria. Another ‘big brother’ called Matthew Jackson[4] attended the camp, as well as other ‘big’ and ‘little’ brothers.
[4] A pseudonym
10Mr Peters recalls he slept in the middle of a three-man tent with the you and Mr Jackson. Throughout the night you rubbed and fondled Mr Peters’ genitals and penis over the top of the sleeping bag. You also tried to put your hands inside Mr Peters’ sleeping bag twice. Mr Peters had an erection from the fondling. He was scared and tried to huddle in a ball to stop you touching him, but when he rolled on his back the touching continued.
11At first light Mr Peters looked over at you, as you were fondling him over the sleeping bag. You had your eyes open and were looking at Mr Peters, who rolled over away from you. This offending occurred against a backdrop of sexual interest by you towards Mr Peters during the period you were both in contact.
12Early in the morning, Mr Peters got out of the tent, ran off and hid behind a tree. Mr Jackson remained asleep.
13Mr Jackson subsequently found Mr Peters who appeared upset and angry. Mr Jackson encouraged him to say what was on his mind. Mr Peters told him what had happened. Mr Jackson recalls that what was reported was along the lines of ‘wandering hands’ and touching him in the genital area; he did not report skin to skin contact.
14Mr Jackson and the other ‘big brothers’ decided to discontinue the camp. He drove the victim back to his home, via the Big Brothers Big Sisters program office in Windsor. There the matter was reported to the program coordinator.
15The coordinator took some contemporaneous handwritten notes in relation to what had occurred. On 3 January 1992, after Mr Peters, Mr Jackson and you came to the office from the camp, the coordinator spoke directly with Mr Peters. Mr Peters told him that during the night he woke up to find your arm on him, that it happened a number of times, that your arm moved down his body and rested on his private parts while he was sleeping on his back.
16The coordinator then spoke to you. You said that you believed Mr Peters. You claimed that at times your arms waved around as you slept, and a couple of times during the night you might have woken up and found your arm resting on Mr Peters. You stated your actions in sleeping that way were stupid and irresponsible, and that although it was inadvertent, you were wrong to invade Mr Peters’ private space.
17The coordinator phoned the victim’s mother to arrange for her to be home. Inside the house, Mr Peters told his mother what had happened on the camp. He said that you had been fondling him and did so five or six times. The last time it happened he got up and went out of the tent.
Subsequent events
18Ms Peters spoke to the overall coordinator of Big Brothers Big Sisters program, and the match between you and Mr Peters was discontinued. The overall coordinator took Mr Peters to a sexual assault counselling service but she ultimately did not take it further with police.
19As part of the discussions you had with the first coordinator about the camping trip, you provided him with two letters addressed to Mr Peters, with a cover note to the coordinator saying they were to be forwarded on to Mr Peters.
20On 9 January 1992, the first coordinator notes you asked him if you could write a letter to Mr Peters. On 20 March 1992, the first coordinator wrote in a note of a phone call she had with the victim’s mother in which she told her you had written a letter a few weeks earlier and it had not been sent.
21In the first shorter letter addressed to ‘Dear Shaun’, you wrote you were ‘sorry the match has ended and … for the reasons it ended’ and wished him good luck.
22In the longer letter addressed to ‘Dear Shaun’; you wrote:
a. You guessed he may still be a little upset over what happened between you.
b. That Mr Peters should not think he did anything wrong or should be to blame in any way.
c. You had said, the morning after, that what happened was wrong and your fault.
d. You made a big mistake, and still can’t explain why it happened.
e. You were going to see a counsellor to see why it happened.
f. This had never happened before, and you thought you and Shaun had a natural healthy firm friendship.
g. You let their friendship down, as what happened was not part of a normal happy relationship between friends.
h. You should never have let happen what happened.
i. For this you apologise.
j. Hopefully you will learn why it happened so it will never happen again.
23Mr Peters did not know of the existence of these letters until the day of your arraignment.
24In 1995 Mr Peters, then aged 15, reported the allegations to police. He went with his mother to Greensborough police station. He made a sworn police statement on 3 October 1995. He disclosed that at the camp during the night, you had touched him on the penis ten times. He told the police he did not want the matter investigated at that time.
25You were interviewed by police on 6 February 1996 but records are not available, usually being destroyed after 7 years.
26Mr Peters reported the matter again to police in August 2017.
Arrest and interview
27You attended Boroondara police station on 14 May 2018. You were interviewed under caution and stated ‘no comment’ to all allegations, as was your right.
Victim Impact Statements
28Two victim impact statements (‘VIS’) were tendered, one made by Mr Peters and one made by his mother.
29Mr Peters did not attend the plea hearing. According to his VIS, he has suffered 31 years of unresolved childhood trauma. He feels this is unforgivable.
30Your offending has deeply impacted him. He describes his life as getting worse and worse over the years and rates his mood, wellbeing and enjoyment of life as a 1 out of 10. Mr Peters says he tried to take his own life in 2008 and that he wishes his attempt had been successful. He currently suffers from anxiety, depression, social anxiety and adjustment disorder with depressive mood.
31Mr Peters has an inability to deal with confrontation and stressful situations. He has had a series of failed relationships and has a 16 year old daughter whom he has not had contact with for over eight years. He does not communicate with his family. He does not celebrate special occasions such as birthdays or Christmas and has very few friends. Mr Peters describes himself as a recluse who does not fit into society.
32He struggles with his emotions every day. He struggles to sleep at night and when he does, he suffers from nightmares involving what you did to him. He wakes up every morning feeling like he has been hit by a truck. This leaves him exhausted and he feels he would not be able to work full time as a result.
33Mr Peters was expelled from high school in Year 9 after turning to drugs and alcohol to deal with his mental health issues. This has adversely impacted his career prospects, and he currently works as a tradesperson in a trade he neither enjoys nor derives any satisfaction from.
34Because of your offending conduct, Mr Peters suffer from a number of physical impacts. He went through delayed puberty. He slept curled up in a ball every night for six years. He feels his body has not fully developed and this has affected his relationships.
35Mr Peters’ mother did not attend the plea hearing. In her VIS she explains how angry she was as a result of the way her son was treated by the Big Brothers Big Sisters program, an organisation she placed her vulnerable son in the care of. Mr Peters’ mother says she was lied to and told if she reported your offending to the police, it would go nowhere.
36She says that Mr Peters has suffered from depression and suicidal thoughts for over 30 years and that she has suffered along with him. Mr Peters told her he attempted to take his life some time ago. She was shattered to hear that he had driven to Mt Buller at night with the intention of jumping off the tower, but changed his mind. She believes that if this offending had been resolved 30 years ago, there may have been a different outcome for her son.
37Mr Peters’ mother says he still has nightmares to this day. She hopes he receives some closure one day, but she doubts he will until he gets some help. Her greatest wish is to see her son happy again.
38The impact of your crime committed against the young and vulnerable Mr Peters, demonstrates, yet again, the severe and lasting impact sexual offending by adults has against innocent children. On behalf of the Victorian community, I denounce your offending conduct in the strongest possible terms.
39In Adamson v The Queen,[5] the Victorian Court of Appeal quoted with approval from the judgment of Baroness Hale in R v G[6] where Her Ladyship said:
More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.[7]
[5] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA).
[6] [2009] 1 AC 92.
[7] Ibid 108–9 [48]–[49]. See also Clarkson v The Queen (2011) 32 VR 361, 370–1 [32].
40Earlier, the Victorian Court of Appeal reaffirmed the important role that restorative justice plays in the criminal justice system. In Talbot (a Pseudonym) v The Queen[8] the Court approved the statement of Vincent JA in DPP v Toomey[9] concerning the notion of social rehabilitation. In Toomey Vincent JA said:
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[10]
[8] [2016] VSCA 218 [39] (Weinberg and Osborn JJA).
[9] [2006] VSCA 90.
[10] Ibid [22] cited in DPP v DDJ (2009) 22 VR 444, 454 [40].
41Accordingly, I take into account the severe impact of your crime on Mr Peters in sentencing you. Clearly, your offending has had profoundly traumatic, protracted and life changing consequences for him and his family.
Offence Seriousness
42Indecent assault upon a child under the age of 16 is a serious criminal offence carrying a maximum penalty of 10 years’ imprisonment.
43Sexual offending by adults against vulnerable children is a ‘most serious blight on society’.[11] The Victorian Court of Appeal, and its predecessor, have emphasised on numerous occasions the harm sexual offending against children causes to the innocent victims and the community at large.[12] As Hedigan AJA, adopting an earlier statement of Marks J in R v Sposito,[13] put it in R v MJ:[14] ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate’.[15]
[11] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh’).
[12] See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DDJ 453–54 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 310 [83] (Priest JA, Maxwell P and Whelan JA agreeing); Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]–[28] (Maxwell P and Redlich JA).
[13] Unreported, Court of Criminal Appeal, 8 June 1993, p 4.
[14] [2000] VSCA 66.
[15] Ibid [17]. See also DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’).
44Your offending conduct involved a gross breach of the trust you owed to the victim and his mother as a trusted ‘Big Brother’ and family friend. You knew the victim was a vulnerable youth, who lacked an appropriate male adult role model in his life. You knew this was why the victim was referred to the program in which you were a mentor. I reject your counsel’s submission that you were not in a position to exercise power and control over Mr Peters. You were.
45While your conduct was opportunistic, it was entirely non-consensual and unwelcomed. I accept there was no skin to skin contact made during the commission of the offence; however, you were persistent throughout the night and the contact you made with the victim’s genitals was not fleeting. You had ample opportunity to desist but you did not. Yours was not a momentary lapse. Moreover, there was a significant disparity in age between you and your victim. Your victim was aged 12 and you were 25 years old. I accept the offending was not accompanied by the use of force or threats of force.
46I assess your moral culpability to be relatively high. I do not accept your counsel’s characterisation of this offending as being at the lowest end of the range for this crime. I allow, yours was much less serious conduct than is often encountered in cases of indecent act with a child. Ultimately, I assess this offending as low-range, but not at the lowest end of the range.
47Just punishment and general deterrence remain important sentencing considerations,[16] as does denunciation of such conduct in order to preserve community standards.[17] I consider specific deterrence and protection of the community need be given little, if any, weight in sentencing you.
[16] See eg Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA) (‘Browne’); Toomey [10] (Buchanan JA, Vincent and Nettle JJA agreeing); Ryan v The Queen (2001) 206 C.L.R. 267, 283 (McHugh, J).
[17] See Dalgliesh [129]; Browne [71] (Robson AJA); Toomey [10]; Ryan 283 (McHugh, J); DPP v G [2002] VSCA 6 [9]–[10] (Winneke P).
Personal Circumstances
48You were assessed by Associate Professor Glen Hosking. He has been your treating clinical psychologist since December 2017. From then until mid-2018 you saw Associate Professor Hosking either weekly or fortnightly. Throughout the later part of 2018 and 2019 this reduced to every six to eight weeks. From 2020 to present, you have seen him every three to six months.
49Associate Professor Hosking prepared a ‘Psychological Report’, dated 8 March 2023, which was tendered at the plea hearing by your counsel.[18]
[18] Ex D2.
50You were born on 19 November 1966 and are currently 56 years of age. You grew up in a Catholic household and your family, as well as broader societal networks, were openly homophobic. Your mother would make negative comments about homosexuality, such as that if any of her children were gay, she would ‘burn his balls off’. At school, staff and students would also denounce homosexuality.
51Although you have identified as homosexual since you were approximately 15 years of age, it took many years for you to able to fully accept your own sexuality. The offending occurred during that period of inner conflict. Whilst this in no way excuses you, it does help to contextualise the circumstances in which you came to offend on this occasion in such an uncharacteristic manner.
52Positively, you are now in a supportive relationship. Your partner is aware of these proceedings and has been present at several court hearings, including the plea hearing and today.
Education and employment history
53You were educated within the Catholic school system and graduated from Parade College in 1983. You then attended Monash University and completed a Graduate Diploma of Tourism.
54You have a significant and excellent work history. You have held a number of highly responsible positions within the tourism sector. From 1996 to 1999 you were the Tourism Business Facilitator for Small Business Victoria, before becoming Manager of Tourism Investment. From 2003 to 2012, you were then the Executive Officer of Western Melbourne Tourism, and from 2012 to present you have been self-employed within the tourism industry.
Mental health
55You told Associate Professor Hosking that since early adolescence you have experienced long periods of depressive symptoms. Associate Professor Hosking reported you meet the diagnostic criteria for major depressive disorder, severe, recurrent episode, the symptoms of which are you can experience:
a. low and impaired moods;
b. little interest and motivation in daily activities;
c. irritability and agitation;
d. low energy;
e. thoughts and feelings of worthlessness and inadequacy; and
f. passive suicidal ideation.
56Your condition, according to Associate Professor Hosking, has had a significant impact on your social life and employment.
57It was only when you were around 30 years of age that you fully accepted your sexuality. Associate Professor Hosking notes that the distress you have felt about your sexual orientation has affected your mental health and overall functioning. He reports that you:
internalised negative views about homosexuality and explicit homophobia and this shaped [your] self-concept as being someone who is defective and lacking in worth.
58Further, based on what you expressed to Associate Professor Hosking about your mental state at the time of the offending, the report concludes that you
struggled to reconcile [your] sexual orientation and the homophobic and negative attitudes around [you], leading to a regressed functioning and emotional immaturity.
59Associate Professor Hosking is of the opinion that you repressed your sexual attraction to men, resulting in immense psychological angst. These factors are likely to have contributed to your offending behaviour, as opposed to an attraction to people under the age of 16.
60With Associate Professor Hosking’s assistance you have engaged in cognitive behaviour therapy, rational emotive behaviour therapy and client centred psychotherapy which have led to improvements in your mood, increased motivation, fewer thoughts of suicide and more positive thinking about yourself.
61In therapy, you have also explored the psychological factors that may have been pertinent at the time of your offending, as well as how to manage stress and anxiety related to the offence and these legal proceedings.
62Although your mental health has improved, and Associate Professor Hosking expects that you will continue to engage in psychological therapy, he considers you still demonstrate vulnerability and that a custodial sentence will be more burdensome on your than a prisoner without your mental condition and will likely result in a worsening of your condition. Accordingly, I am satisfied that Verdins principles 5 and 6 are engaged in your case, but to only a limited extent.[19]
[19] See R v Verdins (2007) 16 VR 269, 276 [32.5] (Maxwell P, Buchanan and Vincent JJA).
63You have no prior criminal history and you have no subsequent convictions or matters pending. This will be discussed further below where I deal with your mitigating circumstances.
Mitigating Circumstances
64You pleaded guilty to one charge of indecent assault upon a child under the age of 16 years on 15 February 2023. While this is a relatively late plea, I accept it has utilitarian benefit, particularly in the COVID-19 environment.[20] Importantly, you have saved the victim the trauma of giving evidence in court. Your plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[20] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
65I accept that, if you are imprisoned, you will experience a greater level of custodial hardship as a result of COVID-19 restrictions which apply to all prisoners in this State for the foreseeable future.
66Material was placed before me regarding the efforts you have made towards your rehabilitation. Your counsel submitted that your prospects of rehabilitation are not a matter of speculation but have been demonstrated over time.
67I have had regard to the contents of the character references provided by Mark Ryan, Clare Ryan, Paul Myers and Sergeant Brenden Bettess. I accept you have not reoffended since committing the present offence, which occurred some 32 years ago. In the meantime you have led an exemplary and productive life. Accordingly, you fall to be sentenced as a person of otherwise good character. I do not consider s 5AA of the Sentencing Act applies in your case because I am not satisfied beyond reasonable doubt that your previous good character or lack of previous findings of guilt or convictions was of assistance to you in the commission of the present offence.
68I also accept you have developed a supportive relationship with your partner, who understands the current proceedings, and that you have maintained stable employment for most of your life. These are protective factors.
69Associate Professor Hosking reports that the likelihood of you reoffending is very low and that you do not pose an ongoing sexual risk to young people. Accordingly, I access your prospects of rehabilitation as being excellent.
Delay
70As your counsel submitted, the effect of delay is a mitigating circumstance in your case. A complaint was made to police in 1995, however you were not charged at that time. You were interviewed 26 years later, in 2017, and charged in 2018. Five years have elapsed since you were charged.
71It is over 30 years since the offence took place. You are now much older and an entirely different person. The significant delay between your offending and sentencing is highly relevant, considering you are older now than you would have been if you were sentenced closer to the time you committed the present offence.[21] This must be balanced against the effect the delay has had on your victim, and therefore cannot be my primary consideration.[22] As I have stated previously, your offending has had a considerable impact on the victim and his mother.
[21] R v AP [2009] VSCA 249, [6]–[10] (Maxwell P and Buchanan JA).
[22] R v DD [22].
72As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[23]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[24]
[23] (2013) 40 VR 436.
[24] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
73As I earlier observed, you have excellent prospects of rehabilitation and you have not reoffended in any manner since the present offence occurred.
74So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you anxiety and stress. I take the punitive effects of delay into account in your favour.
Genuine remorse
75I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
76According to Barbaro v The Queen,[25] the offender must satisfy to the court that there is ‘genuine penitence and contrition and a desire to atone’.[26] True remorse is a question of fact and is determined on the balance of probabilities.[27] In many cases the most compelling evidence of remorse comes from offender’s testimony.[28]
[25] (2012) 226 A Crim R 354 (‘Barbaro’).
[26] Barbaro 365 [38].
[27] R v Cooper (1998) 103 A Crim R 51, 55; R v Gillick [2000] VSCA 127 [20].
[28] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44].
77In CD v The Queen,[29] Harper JA quoted his earlier observations in Phillips v The Queen[30] where his Honour said:
[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy – in the form of a very substantial reduction in what would otherwise be an appropriate sentence – is very likely due.[31]
[29] [2013] VSCA 95 [36] (‘CD’).
[30] (2012) 37 VR 594, 621 [101].
[31] Ibid [97]–[101].
78Your counsel submitted, your plea of guilty aside, you have demonstrated true contrition and remorse through your contemporaneous letter of apology and your ongoing treatment with Associate Professor Hosking. You expressed to Associate Professor Hosking that you are distressed about the many challenges Mr Peters has experienced as a result of your offending. According to Associate Professor Hosking, you demonstrate an understanding of the impact your behaviour has had on the victim, who was a vulnerable child.
79In your longer letter to the victim you wrote that he did not do anything wrong and should not blame himself. You apologised for what had occurred and acknowledged that it was your fault. You also recognised that you had let Mr Peters down and wrote that you would seek counselling to understand why you had offended.
80The content of your letter has moved me to accept there is sufficient evidence before me to make a finding in your favour that you demonstrate genuine contrition and remorse for your offending conduct and an appreciation of its wrongfulness.[32] You demonstrate a willingness to develop insight into the reasons behind your offending conduct, victim empathy and, through your rehabilitative efforts with Associate Professor Hosking, a preparedness to address your problems in a meaningful manner in the future.
[32] See Barbaro 364–65 [32]–[38] (Maxwell P, Harper JA and T Forrest AJA); R v Kumar (2002) 5 VR 193, 225–26 [139]–[140] (Eames JA); Koch v The Queen [2011] VSCA 435, [52], [55] (Maxwell P, Buchanan and Neave JJA agreeing); Delich v The Queen [2014] VSCA 66, [41]–[43] (Nettle, Neave JJA and Sifris AJA).
81For these reasons, I am satisfied there is an increased likelihood of your ultimate complete rehabilitation,[33] and specific deterrence and protection of the community need be given little, if any, weight in my sentencing synthesis.[34] As I said earlier, I assess your prospects of rehabilitation as being excellent.
[33] CD [36] quoting Phillips [97]–[101] (Harper JA).
[34] Barbaro 365 [39] (Maxwell P, Harper JA and T Forrest AJA); CD [36]–[37], [43] (Harper JA).
Application of Sentencing Principles
82I have had regard to current sentencing practice in relation to the present charge as informed by the decisions of the High Court of Australia in R v Kilic[35] and DPP (Vic) v Dalgliesh (a Pseudonym)[36] and the Victorian Court of Appeal decisions in DPP v Zhuang[37] and DPP (Cth) v Thomas.[38]
[35] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[36] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[37] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA) (‘Williams’).
[38] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
83Your counsel provided several comparable cases to which I have had regard, including Arnold (a Pseudonym) v R,[39] Crouch (a Pseudonym) v The Queen,[40] DPP v Watton,[41] R v Coffey[42] and R v Hill (a Pseudonym).[43] I have also had regard to other cases of a similar nature, including DPP v Ballinger (a Pseudonym),[44] DPP v Wilkinson (a Pseudonym),[45] DPP v Bannister (a Pseudonym),[46] DPP v Jenkins,[47] DPP v Purcell,[48] DPP v Peters,[49] DPP v Bravery[50] and DPP v Lean.[51]
[39] [2013] VSCA 298 (Warren CJ, Priest and Coghlan JJA).
[40] [2019] VSCA 30 (Kyrou and Weinberg JJA).
[41] [2019] VSCA 10 (Whelan, Beach and Hargrave JJA).
[42] [2003] VSCA 155 (Callaway, Buchanan and Eames JJA).
[43] [2023] VSCA 844 (Priest, Forrest and Hargrave JJA).
[44] [2018] VCC 2263 (Brookes J).
[45] [2019] VCC 303 (Mullaly J).
[46] [2022] VCC 891 (Carlin J).
[47] [2019] VCC 126 (Mason J).
[48] [2016] VCC 574 (Lawson J).
[49] [2016] VCC 1592 (Smallwood J).
[50] [2016] VCC 504 (Smallwood J).
[51] [2019] VCC 1770 (Hampel J).
84When sentencing for historic offences, the Victorian Court of Appeal has concluded that for the purposes of the Sentencing Act, ‘current sentencing practices’ refers to those in effect at the time of sentencing, not those which existed at the time an offence was committed.[52] The Court has also said that ‘current sentencing practices’ is not limited to the actual term imposed in a given case, but also includes ‘the weight and effect given to particular sentencing considerations in the exercise of the sentencing discretion’.[53] Use of current sentencing practices must then take place alongside an awareness of the maximum penalty that applied at the time of the offending.
[52] See Stalio v The Queen (2012) 46 VR 426, 432–33 [11]–[12], 445 [78] (Neave and Osborn JJA and King AJA) (‘Stalio’).
[53] See Mush v The Queen [2019] VSCA 307 [108] (Maxwell P and Kaye JA).
85Moreover, the principle of equal justice requires that sentencing practices at the time of the offending conduct remain relevant.[54] Accordingly, I have had some regard to material on historic sentencing statistics provided by the prosecution from Sentencing – State and Federal Law in Victoria, 1st edition, by Richard Fox and Arie Freiberg (Melbourne: Oxford University Press, 1985) pages 526–528 and the Sentencing Statistics Higher Criminal Courts Victoria from 1990 to 2002.[55] Although, I note the limited utility of such material in determining sentencing practices at the relevant time.[56]
[54] Stalio [52]–[54].
[55] Victoria, Attorney-General’s Department, Court Management Division, Management Information Section (Melbourne, various dates).
[56] See DPP (Vic) v Maynard [2009] VSCA 129, 53 (Ashley, Redlich and Kellam JJA).
86While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[57] I also accept that, while it is now impossible to discern accurately what sentencing practices were at the time of the offending conduct in this case, they were generally much lower than the present range of sentences for the same or similar offences.[58]
[57] Dalgliesh 450 [68] (Kiefel CJ, Bell and Keane JJ with Gageler and Gordon JJ agreeing).
[58] The Queen v AMP [2010] VSCA 48 [34] (Neave and Redlich JJA).
87Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of indecent assault upon a child under 16 and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
88The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victims and your personal circumstances.
89Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for this offence. However, I consider little, if any, weight need be given to specific deterrence and protection of the community. As I observed earlier, I assess your prospects for rehabilitation as being excellent
90You are a registrable offender under the Sex Offenders Registration Act 2004 because you fall to be sentenced for one Class 2 offence as defined in that Act.[59] Registration is mandatory and the relevant reporting period is eight years.[60]
[59] Sex Offenders Registration Act 2004 (‘SORA’) s 3 and Schedule 2 clauses 5A and 26A.
[60] SORA s 34(1)(a).
91The present charge is not part of the standard sentencing scheme, nor is it a category 1 or category 2 offence as defined in the Sentencing Act.
92The parsimony principle requires I not impose a sentence that involves your confinement unless I consider the purpose or purposes for which this sentence is imposed cannot be achieved by a sentence that does not involve your confinement.[61]
[61] See Sentencing Act (‘SA’) s 5(4).
93At the plea hearing, your counsel submitted that if your matter had been dealt with at the time the offending occurred, you would not then be facing a term of imprisonment. According to your counsel, the disposition open to me is at the lower end of the sentencing range and would include a good behaviour bond, fine or community correction order. In particular, your counsel submitted a fine or a community corrections order without recording a conviction was the appropriate sentence.
94However, the prosecutor made forthright submissions that a sentence of imprisonment is the only appropriate sentencing disposition. He submitted that the present offence is an example of mid-range offending on the basis that you breached Mr Peters’ trust and, despite not touching his actual skin, you manipulated Mr Peters to the point where he got an erection and was frightened. The prosecutor submitted that a wholly suspended sentence was open to me.
95As the Victorian Court of Appeal observed in Boulton v The Queen:[62]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[63]
[62] (2014) 46 VR 308.
[63] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (emphasis added).
96I consider, in light of the objective seriousness of your offending conduct, your culpability for it, the impact of the offence on your victim and your personal circumstances, a community correction order together with a substantial fine is the appropriate sentence in this case.[64]
[64] See SA s 43.
97Having regard to the matters set out in s 8 of the Sentencing Act, I exercise my discretion not to record a conviction in your case.
Stand up Mr Ryan
On the charge of indecent act with a child under 16 (charge 1) you are without conviction sentenced to a community correction order for three years commencing today to perform 500 hours of unpaid community work and a fine of $5000.00. The fine is referred to the Director, Fines Victoria for management and collection.
In accordance with s 6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you 12 months’ imprisonment wholly suspended for two years.
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