Director of Public Prosecutions v Sanford

[2015] VCC 939

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00341

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE SANFORD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2015, 3 July 2015, 9 July 2015
DATE OF SENTENCE:	9 July 2015
CASE MAY BE CITED AS:	DPP v Sanford
MEDIUM NEUTRAL CITATION:	[2015] VCC 939

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms E. Finnigan	OPP
For the Accused	Ms S. Poulter	Matthew White & Associates

HIS HONOUR: 

1Lawrence Sanford, on 18 May this year, you were convicted by a jury of one charge of assault and two charges of sexual penetration of a child under the age of 16 years.  You have no prior convictions and I am advised you have no matters pending.  You are now 20 years of age and were 18 years of age at the time of the offending.  Clearly, you are still a young offender.

2I take into account that you were not charged for approximately nine or ten months and delay is of some significance in your particular situation.  It is of even more significance when it is a delay involving a person, who at that time, was 18 going on 19.  Because you ran a trial, you do not have the usual or often benefit of a plea of guilty.  There is no suggestion of remorse and you do not get any utilitarian benefit.  The situation is that you maintain that you did not commit the offending and, in my view, have shown little or no empathy for the complainant.

3Firstly, because of the nature of the offending, you will be placed on the Sex Offenders Register and I advise you that reporting conditions will be for a period of 15 years.

4The circumstances of the offending are basically set out in the Crown opening.  I, of course, had the benefit of watching and hearing the trial and having heard the evidence of the complainant.  I share the jury's view that beyond reasonable doubt she was telling the truth about what occurred.

5In August 2013 at approximately one o'clock in the morning, you sent the complainant a message on Facebook.  You asked her to meet up with you later.  You had known for a few weeks and you knew full well that she was under the age of 16.

6She was at her home, left and walked to a milk bar in Narre Warren.  You were dropped off there by a man from whom we heard evidence.  She got to that milk bar and met you.  The pair of you then walked to the Strathaird Reserve.  As you were walking through a park, you asked her if she wanted to have sex and she said no.  You continued walking to the Strathaird School, which borders that reserve.  You lifted the complainant over the fence of the school because she was unable to do it herself and you then climbed the fence.  In her evidence she said that you had said that you wanted to have a look at the school.

7Once inside the school, and it is my understanding it was surrounded by this wire fence, you again asked her to have sex with you and she said, "I don't know."  She said that she was scared that she could not get out of the school, as I have just indicated.  She ran and hid.  You were shouting for her and eventually caught up with her.  There is some cross-examination as to how that occurred and I accept her version of it.  She said, in her statement, that you sounded angry and, in court, essentially, said much the same.

8You said to her, essentially, "I don't care.  You're having sex with me."  You then took hold of her and, on her evidence which I accept, choked her.  You had both of your thumbs on her neck and squeezed for about 30 seconds.  That is the circumstance of the charge of common assault.

9She said that she kicked at you and you let her go.  You then told her to take off her clothes, which she did.  She put them on a lunch table next to her in the school grounds.  You told her to turn around and bend over, which she did.  She kneeled on a seat and bent over holding the table.  You, on the evidence, then pulled down your pants and inserted your penis into her anus.  She said this caused her pain and she screamed.  She said that you continued to thrust your penis back and forth.  She said that she was crying.

10After a period of time, you told her to turn around and told her to lie down on the table and you then put your penis in her vagina.  She said that your phone essentially went off and you answered it and the two of you then left.  She said that you had told her that you had not ejaculated inside her.  She put her clothes back on.  You lifted her back over the fence and she walked home and you walked off in the other direction.  In these circumstances, I do not need to go into the detail of what was said to witnesses of first complaint and the like.  The jury clearly accepted what she had to say and you stand convicted of these matters.

11As to the violence involved in the common assault that immediately preceded the acts of sexual penetration, as I said during the course of discussion, I accept her evidence that she was not consenting, but you are not to be sentenced for rape.  That is, you are not to be sentenced on the basis that you were aware she was not consenting.  You get the benefit of the doubt in relation to that.

12However, the circumstances are such that the sexual penetrations were preceded by quite significant violence and terror was caused essentially to the complainant.  It could hardly be said that you believed she was consenting to the choking.

13In this scenario, you were 18 and she was 14.  That is not a great age difference, but again, as I pointed out during the course of discussion, this type of offending often occurs in the circumstances where the ages are close together of a relationship.  That is not the situation here and I do not accept in this circumstance that she was complicit, if it can be put that way, in the sexual offending.  That is not to say that consent by itself moderates, but I sentence for the overall circumstances of what occurred and as I indicated to counsel, who agreed, I propose to impose an aggregate sentence in this situation.  It is a serious example of sexual penetration.  I had other cases pointed out to me in relation to it.  This matter, as I say, is a serious one.

14It calls for the application of general deterrence.  Specific deterrence, in your situation, I would be surprised if you did this again but there must also be denunciation and an appropriate punishment.

15I have before me the victim impact statement of the complainant, who describes the ongoing difficulties that this has caused her, both in a psychological sense and the distress that continues.  She said that she still has flashbacks about the night and sometimes finds that she cannot sleep.  She has to pick up her little brother from that school and that causes her difficulties and bad memories.  She points out that she still has that memory, but she is trying to get on with her life and wants to become a nurse.  The offending has certainly had a serious and significant effect upon her and I take her victim impact statement very much into account.  I thought that as a witness, she was truthful, did not exaggerate and did her best.

16Clearly in the circumstances such as this, the only victim impact statement I have is from her.  Of course, I saw her father give evidence during the course of the trial and his distress and anger at all this was patent.

17Through all this, you still deny it and the complainant was put through a trial where essentially she was called a liar.

18In my view, as I have said to counsel, a period of detention is inevitable.  I am well aware of the authorities, Boulton and subsequent authorities.  There is also the recent decision of McGrath.  Matters were community corrections orders have been either given or given after short periods of incarceration usually involve matters of some distinction or significance.  This offending, in my view, is such that even taking into account the principles outlines in Boulton, the community would demand that there be a period of detention.  The only question is to whether it is a period of detention with a parole period or with a community corrections order.

19Your counsel argued strongly that I should be giving a community corrections order in any event with no further period of incarceration.  My initial view was that a Youth Justice disposition would be appropriate and the Crown did not demur from that position.  Whether it has become clear that that is not a viable option for reasons I will go into later, and accordingly an active custodial sentence is the only one that can satisfy all the aspects of sentencing, bearing in mind the gravity of what you did.

20I then turn in more detail to matters personal to you.  Tendered on your behalf were a number of references, including one from your sister, which was impressive.  There is also a report from Mr Cummins, a psychologist and reports from a neurologist and your GP.

21Your circumstances are such that from a young age you have real difficulties in life.  You and your sister were effectively adopted out in rather unusual circumstances.  You have had real health difficulties since very early on and I accept on the material before me that you continue to do so in terms of a back complaint.  Various diagnoses would appear to have been made over the years and I take into account very much the material contained in those reports as to your physical condition.

22I accept on the material from Dr Hill and the material from Mr Cummins that adult gaol for you would be more onerous than it would be for a person of more mature years and I take that into account.  There is nothing else in those reports which gives rise to any of the other principles outlined in Verdins, and accordingly I take that no further.

23Importantly, you have no prior convictions and you have nothing pending.  You have had difficulties at school.  You have had various jobs and have worked and, I accept, have worked well at them.  I do not need to go into those histories at this stage.  As your counsel said, you do have prospects for rehabilitation and at the age of 20, I will certainly not regard that as anywhere near extinguished.  The risk of you reoffending is at the upper end of moderate as was pointed out by Mr Cummins, whose report I take into account in its entirety.

24He said, "It is my opinion his overall risk of committing further sexual offences falls at the upper end of the moderate risk category, which indicates his current risk is assessed as moderate to high.  In my opinion, his current risk is assessed as moderate to high primarily on the basis of the age difference between him and the victim, his current age, the fact that there was violence involve and the fact that there was both anal and vaginal penetration.  It would be anticipated that his risk level would be likely to reduce if he actively participated in and benefitted from participation in a sex offender treatment program."  I accept that that would indeed be the case.

25I initially had you assessed for Youth Justice and received from them a detailed and through report.  Mr Cummins had described you being a relatively confident and assertive 20 year old and that was the opinion of he who interviewed you in respect of Youth Justice.  I accept, in that report, that you displayed no motivation for counselling and that you presented as being age appropriate, very confident and self-assured.  You are not regarded as being appropriate for Youth Justice because that is a rehabilitative course of action and you, in denying the offending and saying that programs would be of no use to you, essentially, were obviously not prepared to participate in that respect.

26The opportunity of cross-examining on that report was given and was declined.  As I say, it is a report which is in some detail and it causes me concerns insofar as you are concerned.  I do take into account, however, it was pointed out to me this morning by your counsel in the report of Dr Hill that you can present with a sense of bravado.  Even allowing for that, that bravado has now carried on for a significant period of time.

27The risk of you reoffending is as I have described.  The prospects of you rehabilitating will depend upon, to a certain extent, your capacity to participate in some sort of sex offenders program.

28I have taken into account all of the matters in the references and as I have said, it can be stated simply that this offending is just too serious for you to be released on a community based disposition and I have reduced the sentence that I would have given you significantly by reason of those mitigating factors.  However, at the end of the day, it is a sexual offending on a person who is some years younger than you, in the early hours of the morning, in circumstances where you deny still even having been there and put the complainant through the ordeal of a trial.  You do not have a plea of guilty.  You do not have remorse.  All those factors, of course, have to balance out.

29In the end, what I have determined is in your particular situation, I will give you that opportunity to rehabilitate by way of a community corrections order after you have undergone a period of incarceration, which reflects the seriousness of what you have done.  You have now been in custody for some six days and that may well have been the salutary lesson to you.

30I am not sure whether you will undergo the sentence in protection as was potentially suggest in the Youth Justice report, but I am aware that even though it may be closed at the moment, there are sufficient protection systems within the gaol, and I take that into account, also when I am looking at it being a more difficult proposition for you than it would be for other prisoners.

31In any event, taking all those matters into account, you are sentenced on those three charges to an aggregate sentence of imprisonment of 18 months to be followed by a community corrections order with conviction for a period of two years with the conditions that are outlined in that community corrections report, which I have received and which finds you favourable.

32The conditions will be treatment and rehabilitation for drug and alcohol.  Programs to reduce reoffending, which will incorporate a sex offenders program, I anticipate, as well as supervision.  By this result, you get certainty of release from custody and you get the opportunity guaranteed, if you like, for you to perform or carry out those rehabilitative programs.  Clearly, with those programs and with the supervision, there is a punitive aspect to this CCO, which enables me not to have to give you a head sentence and I take all those matters into account.

33The matters which I must take into account by reason of s.5(4) are ones that have real no applicability to you.  You say that this offending had nothing to do with drugs or alcohol or anything like that and I simply say that I have viewed those matters and do not regard them as being anywhere near sufficient as a complete punishment in your personal circumstances.

34I direct that six days be reckoned as having been served under this sentence and, if you now are prepared to, enter a community corrections order to commence upon your release.  That order is made.

35What I probably should do in this scenario is make an exhibit, it will be a Crown exhibit of the Youth Justice Report, which will be Exhibit B and also the Community Corrections report because I have taken those matters into account as well, Exhibit C.

36#EXHIBIT B -    Youth Justice Report.

37#EXHIBIT C -    Community Corrections Report.

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39There are no other ancillary orders that have to be made?

40MS POULTER:  No, Your Honour.

41MS FINNIGAN:  No, Your Honour.

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