Director of Public Prosecutions v Sager
[2018] VCC 1206
•8 August 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-18-00619
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZOE SAGER |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 June 2018 |
| DATE OF SENTENCE: | 8 August 2018 |
| CASE MAY BE CITED AS: | DPP v Sager |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1206 |
REASONS FOR SENTENCE
---Subject: Sexual Penetration of a child under 16.
Sentence: Undertaking to be of good behaviour 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Glynn | Office of Public Prosecutions |
| For the Accused | Mr R. Davis |
HIS HONOUR:
1Zoe Sager, you have pleaded guilty to one charge of taking part in an act of sexual penetration with a child under the age of 16 years. The maximum penalty for this offence is imprisonment for 15 years. That should give you some indication of the seriousness of this kind of offending.
2The circumstances of your offending are contained in a prosecution summary dated the 7th of June 2018. That document was tendered in evidence and read in open court by the prosecutor Mr Glynn. Your counsel Mr Davis agreed that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. It is therefore not necessary that I here again set out in full what is contained in the summary and I will do so only in a very abbreviated way. These sentencing remarks need be read however in conjunction with what is contained in the summary.
3You were born on the 23rd of April 1999 and at the time of this offence you were aged 18 years and 8 months. At the time of the offending there was a gathering at your unit at which a number of invited guests attended. All of them were young people and alcohol was consumed, of which you consumed very little. Lachlan Fedele, who was then aged 19, engaged in penile vaginal intercourse with the victim in this matter who was aged 15. Either at the time of or shortly after that act was taking place you allowed the victim to penetrate your vagina with her fingers. After a short time you started to feel uncomfortable with what was happening and you left the room and went to your room and went to sleep.
4Your offending here, although serious because it involved offending against a child, in my view falls towards the lower end for offending of this kind. Your offending was of very short duration and you were the party penetrated. It was a stupid and spontaneous offence and can be distinguished from offending that is often planned and predatory. Your offending has none of those features. It was a silly act by a young offender in the context of a social gathering where alcohol was being consumed.
5In the days following the offending you became aware that the victim was alleging that she had been raped by Fedele and you were concerned for her wellbeing. You spoke with the victim’s mother and the police. The police followed up your enquiry by attending at your unit on 15th December 2017, when you told the detectives what had taken place, including making admissions as to your own involvement. You were later formally interviewed by police and made full admissions and you were later charged.
6The charges were listed for mention at the Magistrates’ Court on 22nd March 2018 and you entered a plea of guilty at that time.
7You have pleaded guilty to the charge at the earliest opportunity and that is to your credit. By your plea of guilty you have saved the time and costs of a trial and you have facilitated the course of justice. Importantly the victim has not been called upon to give evidence against you. For that you are entitled to a reduction in the sentence that will be imposed and this will be reflected in the sentence that I will shortly pass.
8You have admitted prior convictions from five previous appearances in the Children's Court between March 2014 and August 2016. Those prior matters are largely irrelevant in the sentencing process here, save for the appearance in August 2016 when you were dealt with for knowingly possessing child pornography and using online information to publish child pornography. On that occasion you were placed on probation for six months without conviction. I have concluded that was not a serious example of the offences charged. You have no prior convictions for having acted in a sexually inappropriate way with a child.
9You are to be sentenced as a young offender. That means that general deterrence has a lesser role to play and I must impose a sentence that has full regard to your rehabilitation. You acted responsibly in speaking to the police when you did, before any official complaint had been laid. You told the police everything they needed to know to charge you. That is evidence of genuine insight and remorse on your part for your offending and in passing sentence I have taken all of this into account.
10I received into evidence a number of reports that relate to you. It is not necessary that I go into a lot of detail about your background. The reports make it quite clear that your life has not been an easy one and you have been the subject of care and protection applications. A report prepared by the Department of Health and Human Services dated 21 October 2015 was prepared in support of an application to extend a protection order in relation to you. At that time you were in the care of your maternal grandmother with whom you had lived since you were aged 18 months. Your parents live in Queensland and you have had minimal contact with them. You have three half siblings. It is clear that because of the circumstances in which you found yourself you were exposed to the use of drugs and alcohol from a young age. In that report you were described as being “engaging and co-operative”. You were diagnosed as suffering Opposition Defiance Disorder, Attention Deficit Hyperactivity Disorder and you then displayed self-harming behaviours.
11A report from Jess Lawrence dated 6th June 2018 deal with your struggles to rid yourself of drugs and speaks of your problems with anxiety and depression. The author of that report speaks of your determination to achieve proper goals and it is very positive as to the steps you are taking to turn your life around. A further detailed report from Sarah Miles from Workways shows to me that you have actively sought out help and engaged with it. You have professional help available to you to overcome the difficulties that you have been forced to face in your life through no fault of your own.
12I received a report from psychologist David Ball dated 27th July 2018. He concluded amongst other things by saying this:
13"Ms Sager’s ability to be managed in the community currently presents with few challenges. She has engaged with Workways and has returned to her schooling. Notwithstanding her troubled past, she is now provided with what appears to be adequate psycho-social scaffolding from the public agencies she has engaged with. Her symptoms of personality disturbance remain at a moderate level and she stated that her substance dependence is over.
14Ms Sager is a young woman who presented with the capacity to rebuild her life. I consider her to be a low risk of sexual recidivism. I note that it was Ms Sager who initiated contact with the police over incidents that occurred at her residence in December 2017. She would benefit from continuing her treatment with the aims of drug relapse prevention, mood management and therapy aimed at the borderline and dependent aspects of her psychological functioning.”
15I accept and act upon the opinions of Mr Ball. You have clearly had a troubled life and I am satisfied you are making genuine attempts to turn your life around for the better. You committed this offence as a young offender. In my judgment the purposes of sentencing in a case such as this can be achieved by taking the course urged upon me by your counsel, that is, having been satisfied within s. 75 of the Sentencing Act 1991 that you committed the offence charged, without recording a conviction I propose to adjourn this matter for a period of 12 months upon you entering into an undertaking to be of good behaviour during that period and to attend court at a later date if called upon to do so.
16The offence is a category 1 offence for the purposes of the Sex Offenders Registration Act 2004 in the result that prima facie you are a registrable offender with reporting obligations for 15 years unless exempted from doing so pursuant to s. 11A and B of that Act.
17On the 18th June 2018 your solicitors gave notice to Victoria Police of your application to be exempted from the application of the Act. Here the victim was aged 14 and you were aged 18. The Victoria Police filed yesterday with the court a document entitled "Sex Offender Risk Assessment - Female Offender". The document is not signed and does not reveal the qualifications of the author. The document expresses some opinions without having stated the evidence upon which those opinions are based. I regard the document as highly prejudicial in the context of this case. It refers to totally unproven allegations under the heading of "Sexual Deviance". There is no evidentiary basis whatsoever for those allegations to have been stated in the way that they have. They are simply thrown up there for the court, doubtless to prejudice your application for exemption. I do not accept that document, which makes no recommendation at all.
18I prefer to act on the evidence of David Ball, who had the benefit of an extended consultation with you as well as copies of all of the other relevant documentation. He has opined, as I have said, that you are a low risk of sexual recidivism.
19As I have indicated, I regard your offending in committing this offence as being towards the lower end of the scale. When the offence was committed you were aged 18 years and 8 months and the victim 15. The victim did not suffer from any form of cognitive impairment and the application for exemption does not relate to more than one offence. There are no matters in my view that affect the application for exemption from the provisions of the Sex Offenders Registration Act2004.
20The evidence shows you are of low risk in my opinion of re-offending in this way and there is little or no risk to the sexual safety of members of the community in my opinion based on the evidence presently before the court.
21For these reasons I make a registration exemption order in respect of you and declare that you are not a registrable offender pursuant to s. 11A & 11B of the Act in respect of the offence of taking part in an act of sexual penetration of a child under 16 years of age.
22Ms Sager, you will have to enter into an undertaking to be of good behaviour for a period of 12 months; do you understand that?
23OFFENDER: Yes, Your Honour.
24HIS HONOUR: And that means that if you commit any offence punishable by a term of imprisonment you may be brought back before me, at which time I will have to re-sentence you. Do you understand that?
25OFFENDER: Yes, Your Honour.
26HIS HONOUR: Very well, come out of the dock if you would.
27I state for the purposes of s.6AAA of the Sentencing Act1991, had it not been for your pleas of guilty to the charge I would have imposed a term of imprisonment of 12 months with conviction.
28Feel free to leave the Bar table, gentlemen.
29COUNSEL: Thank you, Your Honour.
30HIS HONOUR: Thank you for your assistance.
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