Director of Public Prosecutions v Schliefert

[2023] VCC 936

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 22-01206

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDDIE THOMAS SCHLIEFERT

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2023
DATE OF SENTENCE:	5 June 2023
CASE MAY BE CITED AS:	DPP v Schliefert
MEDIUM NEUTRAL CITATION:	[2023] VCC 936

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Found guilty at trial – Sexual assault of a child under the age of 16 – Intellectually disabled and vulnerable young victim – Transgender and Aboriginal offender – Standard sentencing regime – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 s 49D; Crimes Amendment (Sexual Offences) Act 2016; Sentencing Act1991 ss 5, 18; Sex Offenders Registration Act 2004 s 34.

Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins [2007] VSCA 102.

Sentence:                  Imprisonment for a period of 306 days.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Ms A Wong	Victoria Legal Aid

HIS HONOUR:

Introduction

1Eddie Thomas Schliefert, you have been found guilty by a jury of a single charge of sexual assault of a child under the age of 16 contrary to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016. (Charge 2)

2You have also admitted your criminal record.

Circumstances of the offending

3At the plea hearing an agreed prosecution opening was tendered which reflected the circumstances surrounding the charge for which you were found guilty. That opening may be summarised as follows:

4You were born in 1977 and were 40 years old at the time of the offending. You presented as a man and were biologically male at the time, but you now identify as a woman and take the name Stephani.

5You had no fixed place of abode at the time of the offending and were residing temporarily behind a tattoo studio in Norlane. You modelled your appearance on a recreation of the Jared Leto ‘Joker’ character from the Suicide Squad movie with distinctive green hair, tattoos and clothing. 

6The victim in this matter was born in 2002 and at the time of the offending was 15 years of age. She resided at a Department of Health and Human Services (‘DHHS’) residential care unit and is diagnosed with an intellectual disability.

7Prior to this offending, the victim did not know you well but had seen you around Geelong.

8On 1 October 2018 at approximately 8.00 am, the victim left her address where she was staying with a relative. After she did not return home as expected, she was reported missing. The victim had a history of running away from home, which had prompted the DHHS to intervene in her care. The victim would sleep rough in various locations in Geelong. She describes occasions of camping in the grounds of the Parish of Christ Anglican Church on Moorabool Street (‘church’), but that she would also move around to different spots. The victim had a tent which she would hide in a bush.

9The victim first met you in the Geelong Mall area. You were the first to approach her, introducing yourself as ‘Eddie’ and giving the victim a cigarette. She stated she thought you seemed like a ‘pretty cool chilled guy’.

10The victim stated that you called yourself ‘the Joker’ and had multiple tattoos, including the word ‘damaged’ tattooed across your forehead. She described you as having green hair, wearing a purple shirt, black pants and a coat ‘like a suit’ with steel cap boots. The victim also recalled seeing you wear ‘chunky rings and a big belt buckle’.

11You asked about the victim’s personal circumstances, and she told you she was living on the street and was aged 15. She describes you as following her around everywhere. On one occasion she was sharing her tent with a friend, who was 14 or 15 years old. The victim noticed you were outside the tent. Every time the victim went to the toilet block, you followed her. The victim thought this was weird, so she told you to leave and asked you how you had found the place. You told her you saw the two of them there and thought you could be there.

12On another occasion camping, when the victim still thought you were ‘cool’, you came into the victim’s tent to share cigarettes and you had general conversation. You left some time later to go to the toilet and the victim did not see you again that night.

13On the night of 1 October 2018, the victim was camping in the grounds of the church. You had set up your tent near the victim. The victim was sitting near her tent listening to music when you came over and offered the victim alcohol, which she declined. The victim states she had consumed ‘MD caps’ which made her feel happy. You came and sat very close to the victim and put your hand on her leg.

14The victim felt uncomfortable and went back to her tent to sleep. You asked if you could come into the tent. The victim replied, ‘No, I’m in my own space’. Despite this, you came into the tent. The victim then said she was going to pee. You said ‘can you wait’ and grabbed the victim’s wrist tightly with your hand. The victim said she would be back. She went to the toilet and when she came back, she asked you to ‘hop out’ and you did so. The victim then got in the tent and fell asleep.

15After a time, you entered the victim’s tent and lay down next to her. The victim woke to find your hand touching her. The victim pretended to be asleep at this time.

16You then moved your hands up the victim’s top and felt and squeezed her breasts under her bra. You then felt the victim’s buttocks. The victim turned to her side facing the tent wall away from you. (Charge 2 – Sexual assault of a child under 16)

17You then began to remove your belt and took your penis out of your pants and tried to cover the victim’s mouth with your hand. The victim panicked and kicked you in the stomach, grabbed some belongings and ran out of the tent, fearing she was about to be raped. You yelled out ‘get back here’.

18The victim started crying. She felt scared of you and hid in a dumpster before making her way back to the Geelong CBD where she met up with unknown friends, until the victim’s sister’s ex-boyfriend found her in the Geelong Mall and encouraged her to go in the car with him to the police station. 

19At around 8.45 pm on 2 October 2018, the victim went to the Geelong Police Station and was identified as a missing person.

20The victim did not make disclosures to police at this time.

21Several weeks later the victim was at her mother’s house having a conversation with her sister when she made a disclosure about what had occurred.

22On 30 October 2018, the victim made further disclosures to her DHHS case worker, in which she provided further details of events and a description of the alleged offender and nominated him as ‘Eddy’.  

23The victim made a VARE statement on 6 November 2018 at Geelong SOCIT.

24On 5 December 2018, you were interviewed in relation to the matter. You were not charged at this time. You stated:

(a)   that you had met the victim in the ‘Mall’;

(b)   you felt protective of her and smoked ‘rollies with her’;

(c)   you stayed in a tent behind the church near the victim’s tent and a ’14 year old guy, who she had sex with’; and

(d)   the tent was provided to ‘all three of them’ by a woman known to you as ‘Joanne’ but you never slept in it;

25You also denied the allegations.

Nature and gravity of the offending

26Sexual assault of a child under the age of 16 carries a maximum penalty of 10 years imprisonment reflecting the serious nature of the charge. It is also a standard sentence offence where the standard sentence is 4 years imprisonment.

27Further, it is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.[1]

[1] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, [47], referring to Clarkson v The Queen (2011) 32 VR 361, [3].

28In this instance the victim was vulnerable and suffered from an intellectual disability. She was residing at a DHHS residential care unit from which she had absconded. The victim would sleep in various locations including the grounds of the church where she would set up a tent. In the time leading up to the offending you entered the victim’s tent in circumstances where she had clearly conveyed to you that she did not want you there. You then sexually assaulted her in the way described. While not part of the offending, what you then did was remove your penis from your pants and tried to cover the victim’s mouth. The victim was able to break free and run, stating that she feared she would be raped.

29Ms Wong, who appeared on your behalf at your trial and at the plea, conceded that the offending is serious, but pointed out that it was of short duration, lacking other features of aggravation that may be present in more serious examples of the offence.

30In my view, while I accept that your offending does not represent the most serious example of an offence that may be captured by this charge, as noted, it is still by its nature serious offending.

Victim impact statement

31A victim impact statement was prepared by the victim and tendered on the plea. In her statement, the victim describes how your offending has left her ‘[too] scared to leave the house’ and unable to have a fulfilling social life due to anxiety. She is also now distrustful of males and unable to sleep properly due to nightmares.

32I have taken the content of the victim impact statement into account.

Personal circumstances

33You are now a 45 year old transgender woman with, as far as you are aware, seven siblings, with whom you do not have a relationship. Born in NSW, you were removed from your parents at the age of six months and placed in multiple foster care placements until you were adopted at age seven. Your biological father exposed you to trauma and neglect in your early months, and sexually abused you as a child. He ultimately died in prison in 2007 whilst serving a sentence for murder. You reconnected with your biological mother when you were 21 and further reconnected with her more recently in 2021. She passed away in December of that year in Queensland, leaving you grief-stricken. Shortly before her death, your mother told you she was Aboriginal. You believe you are a Wiradjuri person and have expressed a desire to reconnect with your culture. You have participated in the Torch program, which provides cultural support to First Nations people in prisons.

34Your adoptive parents, being paranoid that your biological father would seek you out, were very protective of you; you felt you grew up without friends and were isolated for much of your childhood. You left home at age 16 and since then have experienced intermittent periods of homelessness.

35Your primary schooling was disrupted due to the high volume of foster care placements. You left school in Year 9 and went on to hold various positions in factories, supermarkets and landscaping, in addition to working as a chef’s assistance. More recently you have survived on the disability support pension due to your mental health. You currently live in the Melbourne CBD with your nephew, although in the past you have lived in Bundaberg and Brisbane.

36You have had both female and male partners and were most recently in a relationship with a fellow prisoner at Hopkins Correction Centre. You have reportedly fathered three daughters, now aged between 20 and 22 years, but question your paternity. Your support network now consists primarily of your nephew and the services provided to you through Drummond Street, WestCASA and the Beyond Bricks & Bars Project at Flat Out, a community organisation providing specialist social work support to incarcerated transgender and gender diverse people.

37You have suffered two serious head injuries in the past, both rendering you unconscious for unknown periods of time. It is uncertain whether these incidents caused permanent damage but you report having issues with both short and long term memory.

38Your mental health history is protracted and marked by self harm and suicide attempts. You began self harming when you were about 15 years old and made two suicide attempts at 17 and 24 by overdosing on prescription medication. You sought support in 2005 for your self-harming tendencies by admitting yourself to a psychiatric hospital in Western Australia, where you remained for two weeks. This remains your only psychiatric admission.

39You have a history of drug dependency. You started using methamphetamines around 10 years ago as a form a self-medication, and your usage increased following your mother’s death in 2021. You have also been alcohol dependent at various points in your life, although you have reduced your usage in the last few years. You have been undertaking weekly AOD counselling with outreach counsellor Jodie Allen at Thorne Harbour Health through a referral by your case manager Max Castle of Flat Out. Ms Wong states that you have been sober since your release on bail in February of this year, and have made progress through your engagement with Ms Allen. I note there is no evidence that you were drug or alcohol affected at the time of the offending, although you were leading a transient lifestyle and would use drugs or alcohol intermittently if your finances permitted it.

40In 2021, as noted, you discovered that you are Aboriginal. You believe that you are a Wiradjuri person. The Wiradjuri people are from central New South Wales, which includes Wagga Wagga where you were born. You have expressed a desire to connect more with your culture.

41You were assessed by psychologist Daniella Kocic on 28 April 2023. Her report, dated 19 May 2023, was tendered on the plea and comprehensively explores your psychiatric history and current profile. Ms Kocic is of the view that you display symptoms consistent with diagnoses of Post Traumatic Stress Disorder (‘PTSD’), Borderline Personality Disorder and Alcohol and Stimulant Use Disorder, noting you would also meet the diagnostic criteria for Complex PTSD. Ms Kocic assessed your risk of reoffending as moderate, on the basis of your criminal priors, substance use and severe mental illness, noting that your risk profile is elevated due to your reluctance to receive treatment. She notes your stable housing situation with your nephew and continued engagement with services provided by WestCASA, Drummond Street and Flat Out as protective factors, adding that you recognise this engagement as being critical for your continued psychological stability. Ms Kocic ultimately opines that you would benefit from intensive psychotherapy aimed at developing techniques to more effectively manage your depressive and trauma symptoms, for which you have self-medicated in the past.

42Tendered on the plea were three letters of support provided by your social workers Max Castle (Flat Out), Jodie Allen (Thorne Harbour Health), and Molly Lovatt (WestCASA and Drummond Street). All three attest that you have genuinely engaged with their services, and it is understood that you will continue working with Mr Castle and Ms Lovatt towards your long term rehabilitative goals. You have also recently begun hormone therapy to treat your gender dysphoria at the Turn the Corner Clinic with Dr Nick Silberstein, who specialises in transgender healthcare.

43You have prior criminal history in Victoria, Queensland, New South Wales and Western Australia. Your history consists largely of assault and dishonesty matters. While you have no prior history of sexual offending, on the plea your counsel informed the court that you have a subsequent conviction for possession of child abuse material for which you were sentenced in the Magistrates’ Court in December 2022.

Sentencing considerations

44Ms Wong submitted that as a transgender person, you are particularly vulnerable to harm and abuse in prison and are at a heightened risk of sexual or physical assault. You report that whilst on remand for these matters, you were sexually assaulted and harassed, and also subjected to transphobic treatment. At various points, due to your status as a transgender woman, you were held in solitary confinement or in a protection unit. Your counsellors and social workers noticed a deterioration in your mental and physical health whilst you were in custody, which included re-engagement in self-harming behaviours. I take these matters into account in the sentencing discretion and accept that your time on remand was more onerous for you due to your status as a transgender woman.

45I take into account the fact that you have experienced significant disadvantage in your life from a very young age and I accept that the principles articulated in Bugmy v The Queen should be given weight in the sentencing consideration.[2]  As noted in Bugmy, the effects of a deprived background as you have experienced, do not diminish over time and should be given full weight in the determination of an appropriate sentence.[3]

[2] (2013) 249 CLR 571.

[3] Ibid [44].

46It was also submitted on your behalf that based on Ms Kocic’s conclusion that imprisonment would likely weigh more heavily on you than a person without your mental health conditions, Verdins principle 5 is enlivened.[4] Mr Devlin, who appeared on behalf of the Director of Public Prosecutions, did not take issue with this submission. I accept that Verdins principle 5 should be given weight in the sentencing calculus.

[4]R v Verdins [2007] VSCA 102.

47You have maintained your innocence in relation to this offending. Nonetheless, since being granted bail following the trial, you have made the most of the opportunities that have been given to you. You have actively engaged in the supports offered to you with your particular complex needs and vulnerabilities. In my view if you are able to continue engaging with these supports, your prospects of rehabilitation can be assessed positively.

48General deterrence and denunciation of your conduct are the prominent sentencing considerations in this instance. In the circumstances, protection of the community and specific deterrence must also be given some weight.

49In addition to the matters that I am required to take into account under s 5 of the Sentencing Act1991 (‘Sentencing Act’), I must also take into account that sexual assault of a child under 16 is a standard sentence offence. The standard sentence for that charge is 4 years imprisonment.

50Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose will fall below the standard sentence.

51Ms Wong submitted that the appropriate disposition is a term of imprisonment that does not exceed the time you have already served on remand for this matter, being 306 days. Mr Devlin did not take issue with this submission.

52In my view, the time you have served is sufficient to meet the relevant sentencing considerations.

Sentence

53Ms Schliefert, would you please stand.

54Eddie Thomas Schliefert, also known as Stefani Schliefert, on Charge 2, sexual assault of a child under 16, you are convicted and sentenced to 306 days imprisonment.

55Pursuant to s 18 of the Sentencing Act, I declare that 306 days be reckoned as the period of imprisonment already served under the sentence I have imposed.

56Pursuant to s 34(1)(b)(ii) of the Sex Offenders Registration Act 2004, because the offence which you have been found guilty of is a Class 2 offence, and the fact that you were sentenced for another Class 2 offence in December 2022, you will be subject to a reporting period of 15 years.