Director of Public Prosecutions v Schnell (a pseudonym)
[2023] VCC 447
•23 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLE SCHNELL (A pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 February 2023 |
| DATE OF SENTENCE: | 23 March 2023 |
| CASE MAY BE CITED AS: | DPP v SCHNELL (A pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 447 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charge of sexual penetration of a child under 16 – child aged between five and six at time of offending – single incident of short duration – found guilty at trial – no criminal history – difficult childhood during Sudanese civil war – strong ties to Victorian Sudanese community – offending out of character – excellent prospects of rehabilitation – good character consideration – Class 1 offences – Reporting obligations for 15 years
Legislation Cited: Sentencing Act 1991 (Vic); Sex OffendersRegistration Act 2004 (Vic)
Cases Cited:R v Fidler [2006] VSCA 17; R v Chan [2006] VSCA 125; Verdins v R (2007) 16 VR 269; Boulton v R [2014] 46 VR 308; DPP v Reynolds [2022] VSCA 263
Sentence:24 months’ imprisonment, non-parole period of 14 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr A. McCowan | Office of Public Prosecutions |
| For the Accused | Mr J. Barrera | Marco Man & Associates |
HIS HONOUR:
Introduction
1At the outset, I propose to sentence you, Mr Schnell[1], to 24 months' imprisonment and fix a non-parole period of 14 months' imprisonment. I will now explain how the sentence is reached.
[1] A pseudonym.
2After a trial, a jury found you guilty of sexual penetration of a child under 16. The jury also found the child was under 12 at the time of the offending.
3The proceeding was adjourned on several occasions while you changed your legal representatives.
4The child is Priscilla Kean[2]. Her evidence was given in the form of Visual Audio Recorded Evidence or VARE and at a special hearing.
[2] A pseudonym.
Circumstances
5When she was five or six, she was playing in the front yard of her home with her three siblings. She went inside for a drink of water. There was man inside the house in her father's living room. He was seated on a couch. He wore a suit with black pants. He said 'You didn't say hi to me before. Come, greet me'. She went over to him and shook his hand. He asked her name and questioned her about her schooling. Both he and she were speaking in English. He picked her up and put her on his right thigh. While doing so, he put his hand into her 'front part' or vagina under her underpants and touched the inside of her vagina: 'he was just, like circling it and stuff'. She felt scared. He used the 'pointy finger' of his left hand. She thinks his finger entered her 'hole' but not deep. He did this for about 5 minutes. It did not hurt. He withdrew his hand and told her she could go. She got her drink, went outside and resumed playing. She did not tell her siblings because she was 'little'.
6Her mother and 'aunties' were in the house at the same time but in what she describes as the children's living room. Her grandmother was in the backyard at the time.
7During the interview, she drew a diagram of her house.
8She had never met the man before. The man was tall, about five feet, 10 inches. In colour, he was black, quite dark. He came from Sudan. She thought he had two gold teeth at the back of his mouth. She could see because he was close to her. She thinks of him as an 'uncle'. She believes he has a daughter named ‘Martha’[3]. Martha was playing with them outside.
[3] A pseudonym.
9In about August 2018, she told her brother, Robert[4], what happened. He is a year older than her. He was six or seven at the time. When asked why she told Robert then, she said:
'Because I really wanted to tell someone because I felt like that thing he was doing was wrong.'
[4] A pseudonym.
10A few days later, she told her mother. To her mother, she said the man had a gold tooth and a daughter named ‘Martha’.
11She has seen this man twice since the incident, once at his home in Benalla[5].
[5] A pseudonym.
12By their verdicts, the jury were satisfied of the fact of sexual penetration of a child under 12 and you were the offender.
Criminal history
13Except for a minor traffic infringement, you have no criminal history. The traffic infringement has no bearing on my sentencing.
Victim impact statements
14The victim, or complainant, and her mother made impact statements.
15Victim
16The victim's statement is dated 29 October 2022. Because of your actions, she no longer calls people 'uncle'. She now feels extremely uncomfortable in the presence of men, especially older men.
17She remembers the incident whenever she enters or leaves the house. Her mother cannot afford to move homes.
18She has seen you twice while shopping. On one of the occasions, she was fearful to walk past you.
19She concludes her statement:
'Due to this issue I have missed days of school and added stress from hearings, meeting people, travelling to the city, and writing this letter. This will forever stick with me and I have to learn to grow with it and that some men are just disgusting.'
Mother
20The statement of the victim’s psychological mother was also made on 29 October 2022. From the time her daughter told her of your offending, she faced a dilemma. She was afraid to report the disclosure to the police for she feared it would bring shame to her family, including the victim and herself: 'Because in my community, my people don’t talk about these things and keep things private. When you talk about these things in public, this brings great shame.'
21She resolved the dilemma by remembering her duty as a mother to protect her daughter physically, mentally, and emotionally. She reported your offending to the police.
22As she anticipated, there was a community reaction. She was immediately questioned by three people from her community as to why she reported the matter.
23The mother has always put on a brave face for her daughter even though internally she struggles. She is alone, receiving no support from her community. She is very depressed and takes anti-depressant medicine. When very depressed, she cannot perform the simple tasks of daily living. She is deeply indebted.
24Her thoughts are always on her daughter. She fears how her daughter might react. She has asked her son to keep an eye on her daughter and tell her if something irregular happens.
25She feels guilt through her failure to protect her daughter and now has lost trust and faith in people.
Personal
26You are now 57. You were between 46 and 47 at the time of the offending. You were born in the Sudan.
27At the age of five, your father was killed in an attack upon him because he was a government official. You described his death as occurring during the first Sudanese civil war. You saw your father’s body dragged through the community. During that or associated attacks that night, 26 other government officials were killed. Your mother fled to North Sudan. You did not see her again until you were 19.
28Despite the absence of your parents, you were able to complete primary and secondary school education.
29After leaving school, you worked as a tax collector between 1983 and 1985. In 1985, you were transferred to North Sudan and, fortuitously, avoiding what you call the second Sudanese civil war. Between 1985 and 1990, you worked as a co-ordinator in the transportation of goods. Between 1990 and 1997, you worked in Customs in North Sudan.
30Meanwhile, between 1995 and 1996, you completed a course at the Sudanese Police College. In 1998, you completed an honours degree in law at the Al Neelain University in Khartoum. By this stage, you had reached a senior position in the Sudanese Department of Justice, Police and Customs, attaining the rank of Lieutenant-General.
31In 1998, you fled the Sudan for Egypt. The government tried to force you to join the Islamic section of the Ministry and, as a practising Catholic, you refused. Presumably, this involved renouncing Christianity and adopting the Islamic faith.
32In Egypt, and for three and a half years, you acted as a volunteer with the United Nations to assist people fleeing the Sudan.
33In 2002, you emigrated to Australia. Between then and 2008, you worked in car manufacturing. In 2008, you were injured at work and received weekly payments of compensation until 2013. You were carrying part of a motor vehicle with a fellow employee when the fellow employee lost his grip and you bore the full weight of the part. You injured your back.
34At present, the effects of the injury remain but are stable: that is, they are neither improving nor deteriorating. Your general practitioner expects you to continue to suffer from chronic lower back stiffness and daily back pain. She expects the condition to worsen as you age with increasing wear and tear[6]. You take medicine daily to relieve the symptoms, which are otherwise disabling. From time to time, you receive physiotherapy treatment when the level of pain increased. Unless you receive in prison a firm bed and pillows, the condition of your back will worsen. Since it may take time to ensure such arrangements, then the state of your back may worsen.
[6] Report dated 24 July 2022.
35Having obtained a private security individual operator licence, you worked in a security control room until March 2019 when the licence was suspended after you were interviewed by the police over the offence of sexual penetration of a child under 16[7]. The letter notifying you of the suspension anticipated a disciplinary hearing. I assume one was held and your licence was cancelled.
[7] Letter dated 6 March 2019.
36At the request of the Sudanese community, you provided the personal security for the South Sudanese Minister of Foreign Affairs during that person’s visit to this country.
37You have worked voluntarily with the Victoria Police Taskforce and other organisations to steer Sudanese youth away from crime.
38You played an active role in ensuring the proper conduct of the plebiscite which led to the creation of South Sudan as a sovereign state.
39You are separated from your wife. You are the father of seven children. They are aged between 26 and 40. Your eldest son suffers from a brain injury. You are close to your children.
References
40References were tendered on your behalf.
41The reference from Nicholas Varnham[8] speaks highly of your contribution to the Nuer community in Victoria. The reference of Benjamin Vaga[9] traces your history with particular emphasis on your activities in Victoria. Although neither author seems aware the reference will be used in this proceeding, that does not detract from its effect.
[8] A pseudonym.
[9] A pseudonym.
42On the other hand, Hayden Merx[10] and Carl Magnusson[11] are acutely conscious of the allegation. Mr Merx is the chairperson of the Sudan Peoples’ Liberation Movement-10, Victorian Chapter. One wonders what is the purpose of such an organisation following the creation of South Sudan but the author does speak of your work with Victoria Police. Pastor Magnusson speaks highly of your moral character.
[10] A pseudonym.
[11] A pseudonym.
Discussion
Purposes
43Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
44Sexual offences against children are seen as one of the most serious offences, requiring significant punishment. This is reflected in the maximum penalty for the offence. It can be expected the offending will have significant and long lasting effect on the child. Your offending troubled the victim for years before she told her brother. Her impact statement points to a continuation of the effect upon her. To repeat, as she says:
'This will forever stick with me and I have to learn to grow with it and that some men are just disgusting.'
45General deterrence and denunciation are important sentencing purposes for this type of offending.
46It is now many years since you committed this offence. It has been months since the jury’s verdict. In all that time, you have not re-offended.
47The offending was out of character. You enjoy the support of your children and friends. You work voluntarily within the Sudanese community for its betterment. Your mental health is unimpaired. You do not misuse substances. Your prospects of rehabilitation are excellent and, accordingly, the sentencing purposes of specific deterrence and the protection of the community from you receive lesser weight.
48The fact you will be subject to the reporting obligations of the Sex OffendersRegistration Act 2004 for 15 years is a matter which the law prohibits me from considering. Section 5(2BC) of the Sentencing Act provides:
'In sentencing an offender a court must not have regard to any consequences that may arise under the Sex Offenders Registration Act2004 or the Worker Screening Act 2020 from the imposition of the sentence'.
49Your counsel quoted from two judgments of the Court of Appeal. In R v Fidler[12], Charles JA did not decide whether a court could consider the effect of reporting on certain purposes of sentencing. In the second judgment, R v Chan[13], Nettle JA considered it could not.
[12] [2006] VSCA 17.
[13] [2006] VSCA 125 at [17] to [19].
Maximum penalty
50The maximum penalty for the offence is 25 years’ imprisonment.
Gravity
51In determining the gravity of your offending there are a number of matters I must take into account.
52The very young age of your victim is already factored into the maximum penalty, namely, 25 years’ imprisonment. This is the second highest maximum penalty prescribed by our law for a criminal offence. However, the difference in your respective ages is significant. She was between five and six and you were between 46 and 47.
53The offending occurred in a single incident of short duration. It was spontaneous. There was no planning by you, but it occurred at her home where she should feel safe.
54The nature of the penetration meant there was no risk of pregnancy or, indeed, a sexually transmitted infection.
55Apart from the act of penetration itself, there was no violence or threat of violence.
56You did not breach any trust. You did not, as some do, attempt to silence the victim by inducements, threats, or any other means.
COVID-19
57It is difficult to determine the present effect of the pandemic in custodial facilities. Although the restrictions may have been reduced and still exist, there is nothing before me to establish the extent. This is a consideration of minor weight.
Good character
58Until this offending, you enjoyed good character for many years. You should be given credit for your previous good character. Again, you have been of good character since. Although most of the adjournments of this proceeding have been caused by you, you have nevertheless answered your bail on each occasion, sometimes arriving early to the courthouse. These matters also should be credited.
Verdins
59You do not rely upon any of the principles or limbs stated in the case of Verdins v R[14].
[14] (2007) 16 VR 269.
Current sentencing practice
60Your counsel summarised 13 sentencing decisions in this Court where the penalties imposed ranged from a community correction order of three years’ duration to three years’ imprisonment wholly suspended for three years. He submitted I should impose a community correction order for the offence.
61The sentencing disposition of a sentence of imprisonment wholly or partially suspended is unavailable for your offence owing to when it occurred.
62In those instances where community correction orders were made, the offender had pleaded guilty to the offence or offences. In fact, where there were suspended sentences of imprisonment, they were preceded by guilty pleas. At any time, generally speaking, a guilty plea requires a significant discount on the sentence that would otherwise have been imposed.
63Your counsel, as I say, seeks a community correction order. In the case of Boulton v R[15], the Court discussed this sentencing option:
'Axiomatically, imprisonment is a sentence of last resort. As s5(4) of the Actmakes clear, such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s ‘just desserts’ for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence the community.
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.'
[15] [2014] 46 VR 308 at [111] to [115].
64However, as noted recently by the majority of the Court in DPP v Reynolds[16]:
'The punitive effects of a CCO (even of some duration and with onerous conditions) cannot be compared with a gaol sentence. Imprisonment is ‘uniquely punitive’ principally because it involves ‘the complete loss of liberty’. As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing'.
[16] [2022] VSCA 263 at [108].
65The punitive and deterrent aspects of sentencing are exactly what is required in your case. The offence should never be committed. Within the bounds of proper sentencing, my sentence should promote the sentencing purposes of general and specific deterrence, protection of the community and denunciation of the offending itself. Although I would not, as I have already said, give much weight to the purposes of specific deterrence and the protection of the community from you.
66Sometimes, a community correction order with therapeutic conditions is appropriate for person who maintains his or her innocence but is found guilty. The purposes of just punishment, general deterrence and denunciation require me to set aside that sentencing disposition as appropriate.
67A sentence of imprisonment is the only appropriate sentence.
Sentence
68On the charge of sexual penetration of a child under 16, I sentence you to two years' imprisonment.
69I will set a non-parole period of 14 months' imprisonment.
70There is no pre-sentence detention.
Sex Offenders Registration Act
71The offence of sexual penetration of a child under 16 is a Class 1 offence for the purposes of the Sex Offenders Registration Act 2004. You will be subject to the reporting obligations under that Act for 15 years.
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