Director of Public Prosecutions v Scott
[2024] VCC 1113
•03 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01201
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD SCOTT |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2024 | |
DATE OF SENTENCE: | 03 July 2024 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1113 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Sentencing – Sexual Assault Child Under 16 – low-level offending – Sexual Penetration Child under 16 – mid-range offending – Contravene Interim Personal Safety Order - Plea of Guilty – Opportunistic Offending - Intellectual Disability – Victim Impact – Criminal History - Verdins – Mild Intellectual Disability – Moderate risk of re-offending – Substance abuse – Rehabilitation – NDIS Support - Just punishment - Specific deterrence – Muldrock principles – Standard sentences – Sex Offender Registry.
Legislation Cited: Crimes Act 1958 (Vic); Personal Safety Intervention Orders Act 2010 (Vic); Intellectually Disabled Person’s Services Act 1986 (Vic); Disability Act 2006 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Roberts v The King [2023] VSCA 92; Stevens v The Queen [2021] VSCA 218; Muldrock v The Queen (2011) 244 CLR 120; Clifton v The King [2024] VSCA 82; Bugmy v The Queen (2013) 249 CLR 571; Brown v The Queen [2019] VSCA 286; Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260; DPP v WRJ [2009] VSCA 172; Cooke v The Queen [2021] VSCA 70; R v Dunn [2020] VSC 708; DPP v Grech [2016] VSCA 98; Boulton v R (2014) 46 VR 308; DPP v Tannous [2017] VSCA 91; DPP v Dalgleish (a pseudonym) [2017] 262 CLR 428.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. GRAY | Office of Public Prosecutions |
| For the Accused | Ms J. OLLQUIST | McFarlane Criminal Lawyers |
HIS HONOUR:
1Richard Scott, you have pleaded guilty to the following offences:
(a) Two charges of sexual assault of a child under the age of 16, contrary to s 49D(1) of the Crimes Act 1958 (Vic), which carries a maximum penalty of 10 years’ imprisonment; and
(b) Two charges of sexual penetration of a child under the age of 16, contrary to s 49B(1) of the Crimes Act 1958 (Vic), which carries a maximum penalty of 15 years.
2You have also pleaded guilty to seven summary charges of contravene interim personal safety intervention order, contrary to s 100(2) of the Personal Safety Intervention Orders Act 2010 (Vic), which carries a maximum penalty of 2 years’ imprisonment or a fine of 240 penalty units.
3You are to be sentenced on the basis of the Summary of Prosecution Opening dated 6 February 2024[1] which is an agreed document.
[1] Exhibit P1.
Procedural History
4Before summarising the circumstances of your offending, it is worth briefly revisiting the procedural history of your matter.
5Your matter was listed for sentence indication hearing before me on 26 February 2024.[2] That hearing proceeded with the opening read and submissions made by both prosecution and defence as to the appropriate sentence. At the conclusion of the hearing, it was evident that there was insufficient material concerning your intellectual disability before the Court, for me to indicate the appropriate sentence. I was particularly concerned that the report of Ms Cokorilo upon which your counsel relied, provided the court with inadequate information about your future risk of offending.
[2] Criminal Procedure Act 2009 (Vic), s 207.
6Your counsel enquired whether the sentence indication hearing could be adjourned to a later date to allow a court-ordered psychiatric report to be obtained. However, such a report is not able to be ordered unless and until a ‘court finds a person guilty of an offence’.[3] I advised your counsel accordingly and the Court was stood down to allow you to confer with your counsel.
[3] Sentencing Act 1991 (Vic), s 8A(1).
7After a short adjournment, I was informed by your counsel, Ms Ollquist that the matter would resolve as a plea of guilty on the factual basis set out for the sentence indication hearing. I listed the matter for arraignment on 7 March 2024 at which time you pleaded guilty to the above charges. I then ordered a Forensicare Report. I discuss the contents of that and the other reports the court has received later in these reasons.
The Offending
8There are two victims in this matter – Jean Hutchinson[4] and Kathie Ramsey[5] - and it is convenient to deal with the offending in relation to each in turn.
[4] A pseudonym.
[5] A pseudonym.
9Your offending took place between 31 July 2021 and 29 January 2022, during which time you were aged between 38 and 39.
Jean Hutchinson (Charges 1 & 2)
10In 2021, you were introduced to Ms Hutchinson, then aged 15, by her boyfriend, Micah.[6] At the time, she was having relationship problems with Micah. Ms Hutchinson ended her relationship with Micah at which time her family life became difficult for her.
[6] A pseudonym.
11After leaving her family home, Ms Hutchinson requested to stay at your address on a temporary basis until she could find alternative accommodation. She moved in on 31 July 2021 and left on 18 December 2021. You set up a single bed in the kitchen area of your unit for her to sleep on. While living with you, Ms Hutchinson told you that she was 15 years old on multiple occasions and spoke about her upcoming 16th birthday.
12While Ms Hutchinson was living at your home, you asked her : "can I ask you a question? When you reach 18 would you ever consider beindg with me or having a sexual relationship with me?". Ms Hutchinson felt uncomfortable and told you no.
13At some point you began to slap Ms Hutchinson on the buttocks. You did so in a flirty manner and said "nice ass" as you did it. This continued and occurred on multiple occasions throughout her stay at your home (Charge 1 – Sexual assault of child under the age of 16).
14On an occasion in approximately October 2021, Ms Hutchinson was falling asleep in your bed whilst you were on the couch in the lounge room. You entered the bedroom and got into bed behind her, with your stomach against her back. She was still awake at the time but froze in fear. You then placed your arm over her and began to rub your hand on her stomach area. She was wearing a loose t-shirt, loose tracksuit pants and underwear.
15Your used your fingers to push under her pants and moved your hand onto her vagina on top of her underwear. You rubbed Ms Hutchinson’s vagina from outside her underpants for approximately 15 seconds before she got up and left the room (Charge 2 – Sexual assault of child under the age of 16).
16The next day you apologised to her if you had touched her overnight and told her your hands sometimes do their own thing when you’re asleep.
Kathie Ramsey (Charges 3 & 4)
17After seeing a movie with Ms Hutchinson at Mid Valley cinemas, you were introduced to Ms Ramsey, aged 12.
18Ms Ramsey was experiencing behavioural problems at home. You offered to help her, inviting her back to your home regularly. She soon began to sleep overnight and later started staying for up to a month at a time.
19After being introduced to Ms Ramsey, you befriended her mother, Ms Murray[7], telling her you were Ms Hutchinson’s uncle which was untrue. You told Ms Murray that you could help with Ms Ramsey, and that you had kids of your own but couldn't see them. With Ms Murray’s permission, you began to regularly see Ms Ramsey at her home.
[7] A pseudonym.
20Throughout the period, you purchased various gifts for Ms Ramsey including clothing, an apple watch and underwear.
21Ms Murray observed that her daughter’s behaviour changed when you would come over – she would dress in revealing clothing, ask about her appearance and ask if her “boobs” looked big in her outfit.
22In January 2022, Ms Ramsey asked her mother if you could stay the night in her bed, using separate blankets. Ms Murray said no, however, changed her mind when Ms Ramsey became aggressive about her response. You slept on Ms Ramsey’s bedroom floor. This occurred on multiple occasions between January and February 2022. On the last occasion, Ms Murray found you in bed together and ordered you to leave.
23After the intervention of the Department of Families, Fairness and Housing (‘DFFH’) between April and May 2022, police executed a search warrant at your address on 17 June 2022. On arrival, police observed that you were on a face time call to Ms Ramsey of almost 9 hours’ duration. The call was terminated, and you tried to hide your phone.
24On the same date, you were arrested and interviewed at the Morwell Police Station and released pending enquiries.
25On the same day, you were served with a Personal Safety Intervention Order containing full no contact conditions. You were listed as the respondent and Ms Ramsey as the protected person. This order expired on 7 July 2022.
26On 2 August 2022, Ms Ramsey’s phone was seized by police. Analysis of the phone showed Ms Ramsey contacting you.
27Call charge records for your mobile number were obtained and revealed the following breaches of the intervention order by calls, or text messages from you to Ms Ramsey:
(a) 26th June 2022 – 4 calls / 55 messages (Summary Charge 7 – Contravene interim personal safety intervention order);
(b) 27th June 2022 – 1 call (Summary Charge 8 – Contravene interim personal safety intervention order);
(c) 28th June 2022 – 5 calls (Summary Charge 9 – Contravene interim personal safety intervention order);
(d) 29th June 2022 – 3 calls (Summary Charge 10 – Contravene interim personal safety intervention order);
(e) 1st July 2022 – 1 call (Summary Charge 11 – Contravene interim personal safety intervention order);
(f) 2nd July 2022 – 2 calls (Summary Charge 12 – Contravene interim personal safety intervention order);
(g) 5th July 2022 – 1 call (Summary Charge 13 – Contravene interim personal safety intervention order)
28On 26 June 2022, text messages from you to Ms RAMSEY included:
(a) "Ok Bub";
(b) "Love you to";
(c) "Ok bub love u";
(d) "Miss u" (on multiple occasions);
(e) "Xoxoxo";
(f) "Love u" and "Love u bub" (on multiple occasions);
(g) "Love u and miss u to"
29On the same day Ms Ramsey messaged: "I wanna bite u", to which you replied, "And more lol".
30On 17 August 2022, Ms Ramsey provided a Visual–Audio Recorded Evidence (VARE) interview. She ended this VARE as she felt uncomfortable.
31At a later point, Ms Ramsey contacted investigators, advising she was ready to participate in another VARE. The VARE was conducted on 30 January 2023.
32In January 2022, within days of Ms Hutchinson moving out of your home, you sexually penetrated Ms Ramsey’s vagina with your fingers (Charge 3 – Sexual penetration of a child under 16).
33Approximately 1 week later you penetrated her vagina with your penis (Charge 4 – Sexual penetration of a child under 16).
Arrest and Interview
34On 17 June 2022, you were arrested and interviewed in relation to Ms Ramsey. During the interview, you stated the following:
(a) You met Ms Ramsey through Ms Hutchinson’s boyfriend at the time and developed a friendship;
(b) Ms Ramsey is 12 years old and started to treat you like an uncle; you treated her like a niece;
(c) You slept at Ms Murray’s home once or twice, on the floor of Mark’s bedroom, and Mark was the only other person in the room;
(d) Ms Ramsey came to your address and stayed over a few times and slept in your bed while you slept on the couch;
(e) You acknowledged that DFFH had advised you to cease contact with Ms Ramsey;
(f) You admitted to being topless during facetime conversations with Ms Ramsey, however, it was after you showered and you don’t usually put a shirt on;
(g) You denied having any conversations about sexual activity and denied having any contact by phone of a sexual or inappropriate nature;
(h) You only bought Ms Ramsey "lollies and that, that's all really”.
35On 12 July 2022, you participated in another record of interview, this time relating to Ms Hutchinson. During the interview, you stated the following:
(a) You knew Ms Hutchinson was 15 years old;
(b) You denied sleeping in the same bed as her but stated she did sleep in your bedroom;
(c) You denied sexually assaulting her by slapping her on the buttocks;
(d) You denied sexually assaulting her by getting into bed with her and rubbing her vagina;
(e) You admitted you would hug and kiss her on the cheek as a hello or goodbye;
(f) You denied all the allegations in relation to engaging in any sexual activity with either girl.
Objective Gravity
36All sexual offending against children is serious as reflected by the maximum penalties for the offences to which you have pleaded guilty (10 years’ and 15 years’ imprisonment respectively). Such offending deprives children of the right to determine for themselves when they wish to become sexually active and with whom. It has lifelong effects.
37Ms Hutchinson was 15 years old. Your offending against her involved slapping her bottom and touching her vagina briefly on the outside of her underwear. As upsetting and humiliating as this must have been for Ms Hutchinson, they are lower level examples of the types of sexual assaults seen in this court.
38Ms Ramsey, on the other hand, had only just turned 12 at the time of your offending. This is a significant matter in the assessment of the objective gravity of your offending. As the Court of Appeal explained in Roberts v The King,[8] the offence against s 49B(1) of the Crimes Act 1958:
… captures ages from 12 years to 15.99 years. Axiomatically, all other things being equal, the younger the victim, the greater the objective gravity of the offending.[9]
[8] [2023] VSCA 92.
[9] Ibid, [16].
39Further, you were 38 -39 years of age at the time of the offending. You had children who were considerably older than Ms Ramsey. This age gap of 26 years adds to the objective gravity of your offending.
40The offending was of a different order from that committed against Ms Hutchinson. I consider your offending against Ms Ramsey to be towards the mid-level of the range of offending of this type.
41The breaches of the intervention orders are concerning as they occurred over a 2 week period and involved a number of phone calls and messages. However, there is no suggestion that you were threatening towards Ms Ramsey.
Moral Culpability
42Your moral culpability for this offending is considerable but must be moderated by your intellectual disability which I discuss later in these reasons. Your offending involved a degree of planning and subterfuge as you misled Ms Ramsey’s mother.
Victim Impact
43Both Ms Hutchinson and Ms Ramsey have provided Victim Impact Statements to the court.[10] Each eloquently describe the enduring impact of your offending on them.
[10] Dated 1 July 2024 and 18 January 2024 respectively.
44Ms Ramsey’s statement was read to the court. She told the court that your touch is stuck on her forever. She states that she was an innocent child and you took that away from her. She states that you ruined her emotionally, physically and mentally.
45Ms Hutchinson states that her trust for men and her happiness are gone. Her self esteem is damaged so that she does not want to go out in public. She states that she is so angry that she has had to endure so much pain and suffering because of one person’s actions.
46I have taken into account the impact of your offending on Ms Hutchinson and Ms Ramsey.
Personal Circumstances
47You are now 41 years old. The court has a report dated 1 February 2023 prepared by psychologist Ms Cokorilo in which she relates what you told her about your childhood. You told her you were born in Victoria and reported a positive relationship between your parents, who remained together until their death when you were in your mid-twenties. You are the eldest of a sibship of four. You were removed from the family home at age 15 due to ongoing conflict with your siblings and parents who could not manage your behaviour.
48The court also has a report dated 24 June 2024 prepared by the Forensic Disability Program. You have a lengthy engagement with disability services. The authors refer to departmental records which reveal a somewhat more troubling childhood than that related by you to Ms Cokorilo. Because it is based on written records, I will rely on this source.
49The report states that you have a complex family history with intervention by child protection when you were a child. You physically assaulted your mother and sibling as a child and these behaviours could not be managed at home leading to your removal from the care of your mother at age 11. You were placed in out of home care before returning to your mother after 12 months. This was followed by a further period of out of home care, which in turn was followed by a ‘transient and itinerant lifestyle during [your] adolescence and adult years’. The authors state that these experiences, in conjunction with a cognitive disability ‘appear to be contributing factors in [your] criminal trajectory’.[11]
[11] D1, 3.
50You ‘couch surfed’ with friends during your teenage years until you met the mother of your son at age 18, with whom you lived until age 21. With the exception of a nine-year period between the ages of 26 and 35, when you lived with the mother of your daughter, you have been predominantly homeless, couch surfing, living in a garage, and a caravan park. Since the breakdown of your most recent relationship, for the past four years before your removal, you have lived in a Department of Families, Fairness and Housing property.
51In 1998 you were diagnosed with a mild Intellectual Disability. Psychologist Tony Pastore determined that you had low-level adaptive skills. You were placed in a special needs school where you completed Year 9. You left secondary education in Year 10 due to chronic conflicts with teachers, stating that you were “angry all the time” as you were unable to complete the assigned work or understand instructions.
52You commenced Certificates I and II in Mechanics in your mid-twenties but did not complete them as you could not keep up with the learning requirements.
53You have never worked outside of custody and were granted a Disability Support Pension in 1999 on the basis of your intellectual disability. You are currently working in powder coating in custody.
54You have had two significant relationships in your life, each of which has brought you one child. You do not have contact with either of your children.
55You have a criminal record that dates back to 2000. However, you have never been before the courts in relation to any sexual offending.
Intellectual Disability
56In 1998 you were assessed as having an intellectual disability in accordance with the now-repealed Intellectually Disabled Person’s Services Act 1986 and as such, you are considered to have an intellectual disability within the meaning of the current Disability Act 2006.[12]
[12] Statement of Intellectual Disability dated 4 August 2022.
57To better understand your needs, the court requested and received a Justice Plan prepared pursuant to s 80 of the Sentencing Act 1991.[13] The plan was accompanied by a Disability Overview Report[14] prepared by officers of the Forensic Disability Program at the Department of Families, Fairness and Housing.
[13] Justice Plan dated 24 June 2024 (‘Justice Plan’).
[14] Dated 24 June 2024 (‘Disability Report’).
58The Report discloses that you have been a registered client of Disability Services since 1998 and have in the past accessed services. You were initially referred by your mother seeking help to manage your behaviours. The report notes that you only engaged intermittently between 1998 and 2011.
59You were sentenced to a Community Based Order with a special condition of a Justice Plan by this Court in 2009 for offences relating to arson. Although you were allocated a case manager, your case was closed in 2011 due to your non-compliance.
60The authors of the report note that you have attended all appointments with your current Disability Justice Coordinator and you ‘appear to be motivated to engage in Justice Plan recommendations’.[15] However, they also observe that this current motivation ‘is likely attributed to being in custody, and therefore [you] may require support to continue to engage with services post-release’.[16] In this regard, the authors inform the court that if you remain in custody for an additional period before you are released on to a possible Community Correction Order, Disability Justice Coordination ‘can contribute to any pre-release planning including liaising with other services involved to supporting [your] return to the community’.
[15] Ibid, 3.
[16] Ibid, 3.
61The Report also refers to your current NDIS plan and states that your allocated Disability Justice Coordinator has consulted with your NDIS support coordinator who commended your engagement with her while in custody. This is positive as the NDIS is a voluntary scheme. The Report’s authors consider that ongoing engagement with the NDIS is important to you, so that you can build on skills and capabilities to learn to live a prosocial life and thus reduce your risk of reoffending and further contact with the justice system.[17]
[17] Ibid, 4.
62The accompanying Justice Plan recommends a plan of available services aimed at reducing the likelihood of re-offending. The recommendations are:
(a) That you engage with a Disability Justice Coordinator participating in further planning as required;
(b) That you agree to any services or treatment identified by the Coordinator;
(c) That you agree to a referral to the Forensic Disability Clinical Services team and participate in the assessment process;
(d) That you participate in any offending behaviour programs as recommended; and
(e) That you participate in psychological intervention to address your complex mental health needs and to increase your adaptive coping skills.[18]
[18] Justice Plan (n 9), 2, 3.
63The department ultimately recommends these services and will monitor your participation and ‘advise appropriate authorities if the justice plan requires review’.[19]
[19] Ibid, 3.
Mental Health Generally
64You were referred by your lawyers to psychologist, Ms Cokorilo. Ms Cokorilo conducted a number of tests including the Wechsler Adult Intelligence Scale on which you scored 68 on the Verbal Comprehension Index and 69 on the Working Memory Index both of which are in the ‘extremely low range’.[20]
[20] Exhibit D1, [41]-[42].
65Ms Cokorilo diagnosed you with an Intellectual Disability noting the impact on your general mental abilities such as reasoning, problem solving, planning, abstract thinking, judgment and learning from experience.[21]
[21] Ibid, [44].
66Ms Cokorilo concludes that your impaired social functioning caused by your disability is relevant to your offending due to your reduced self-awareness and emotional self-regulation. She notes that your impaired mental functioning ‘may have implications for [your] moral culpability’.[22]
[22] Ibid, [55].
67Ms Cokorilo administered the SVR-20 test to assess your risk of future sexual offending. You rated low overall without any formal interventions.[23]
[23] Ibid, [64].
68Ms Cokorilo considered that it is likely that your mental state will continue to deteriorate in the absence of adequate treatment which you do not have available to you in custody.[24]
[24] Ibid, [66].
69At the court’s request you were assessed by Dr Simon Vincenzi, clinical and forensic psychologist at Forensicare who provided a report dated 15 April 2024.[25] I was seeking further information, especially about future risk.
[25] Exhibit D3.
70Dr Vincenzi administered both the Static-99 and RSVP tests and assessed you as a moderate risk of engaging in a future sex offence compared to other male offenders.[26] He considered that you require a moderate degree of case prioritisation.
[26] Ibid, [29].
71Dr Vincenzi considered the question of sexual deviancy to be difficult in your case. He noted that these are your first sexual offences at the age of 40. Taking into account your intellectual disability, the opportunistic nature of your offending and the effects of cannabis and alcohol lowering your behavioural inhibitory processes, Dr Vincenzi concludes that your offending ‘was not related to a longstanding deviant sexual interest that has been driving [you] toward actively pursuing a sexual relationship with a minor’.[27]
[27] Ibid, [32].
Alcohol and Substance Use
72Ms Cokorilo refers to your lengthy history of substance abuse noting that you reported heavy daily drinking from age 16. You had abstained between the ages of 32 and 35 but relapsed following the breakdown of the relationship with the mother of your daughter.
73You have used cannabis since you were 15 and have never engaged with Alcohol and Other Drug (AOD) interventions.
Rehabilitation Prospects
74It is often difficult to assess an offender’s future prospects. Nonetheless this is a very important part of the sentencing process to ensure the protection of the community.
75I have noted the assessments made by professionals of your risk of future offending. Both psychologists inform the court that the risk can be reduced by appropriate interventions.
76You informed Ms Cokorilo (in January 2023) that you do not have any meaningful supports. You told her that you had been linked with the NDIS while on remand.
77As your counsel submitted, there have been recent developments in your life while you have been on remand which paint a more optimistic picture.
78In particular, you have been linked with the NDIS and you have engaged with an Occupational Therapist and a Speech Therapist.
79Your NDIS Support Coordinator, Ms Murphy-Sampson, informs the court that she will support you post release and assist transition to the community and achieve your goals.[28]
[28] Letter dated 22 February 2024.
80As discussed above, the court requested a Justice Plan be prepared for you. This will also be in place to assist you post-release.
81I note that these supports will be available but I remain concerned about the absence of a clear housing plan.
82On the balance, given your lack of related prior offending and the supports that will be available to you, I assess your prospects as reasonable. I have sought to improve them by imposing conditions for you on your release from custody.
Sentencing Principles
83Section 5 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all the circumstances;
(b) To deter you or others from committing similar offences in the future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
84In your case, just punishment, specific deterrence and your rehabilitation assume significant weight. General deterrence is ordinarily very important in cases involving child sexual offending. However, it must be moderated in your case primarily due to your reduced moral culpability as a result of your intellectual disability.
85The relevance to the sentencing process of an accused having a diagnosed intellectual disability was explained by Priest and Kennedy JJA in the case of Stevens v The Queen[29] as follows:
As Muldrock makes clear, an intellectually disabled offender’s moral culpability will in most cases be lessened — although not necessarily eliminated — due to a reduced capacity to reason as to the wrongfulness of his or her conduct. The aspects of denunciation and just punishment in a sentence appropriate for a person of ordinary capacity will often — but, presumably, not always — be inappropriate for an intellectually disabled offender (and the needs of the community). So much is consistent with what had earlier been said in Verdins.
Moreover, in the case of an intellectually disabled offender, general and specific deterrence may — depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender — be moderated or eliminated as sentencing considerations.[30]
[29] Stevens v The Queen [2021] VSCA 218 (‘Stevens’).
[30] Stevens (n 21) [32] (citations omitted).
86In the case of Muldrock v The Queen,[31] the High Court had explained that, unlike cases in which an offender relies on a mental illness in mitigation of her or his moral culpability where it will generally be necessary to discern a causal relation between the illness and the offending:
… [s]uch a question is less likely to arise in sentencing a mentally retarded[32] offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence.[33]
[31] (2011) 244 CLR 120 (‘Muldrock’).
[32] The Court used the terms ‘mentally retarded’ and ‘intellectually disabled’ interchangeably.
[33] Muldrock (n 23) [54].
87The Court went on to explain that:
… [t]he retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[34]
[34] Ibid, [54].
88Where both Verdins and Muldrock are relevant, a sentencing court must assess both. Specific consideration must be given to an offender’s intellectual deficit ‘whether or not the evidence establishe[s] a distinct causal pathway to the offending, as is usually required for the application of Verdins principles’.[35]
[35] Clifton v The King [2024] VSCA 82, [51] (‘Clifton’).
89As you have both mental health concerns and an intellectual disability, I have considered both the Verdins and the Muldrock principles in accordance with these authorities.
90The childhood deprivation you suffered enlivens the principles in the case of Bugmy[36] to a moderate extent. That deprivation is also relevant to my assessment of your moral culpability.
[36] Bugmy v The Queen (2013) 249 CLR 571.
Statutory Considerations
Standard Sentences
91The offences to which you have pleaded guilty both carry standard sentences.
92In the case of sexual assault of a child under the age of 16, the standard sentence is 4 years’ imprisonment.[37] In the case of sexual penetration of a child under the age of 16, the standard sentence is 6 years’ imprisonment.[38]
[37] Crimes Act 1958 (Vic), s 49D(2A).
[38] Ibid, s 49B(3).
93The ‘standard sentence’ is the appropriate sentence for the middle range of seriousness taking into account only the objective factors affecting the relative seriousness of the offence.[39] This is but one of a number of considerations, a ‘guidepost’, to which the court must have regard along with the maximum penalties and all other relevant considerations.[40]
[39] Ibid, s 5A(1)(b).
[40] Brown v The Queen [2019] VSCA 286, [106].
94As part of the reasons for sentence, a court must explain how the sentence imposed ‘relates to’ the standard sentence.[41]
[41] Sentencing Act, 5B(5).
Matters in Mitigation
Guilty Plea
95You pleaded guilty at an early opportunity. This matter had resolved and was listed for Plea in the Magistrates Court in February 2023 when the informant advised further charges would be filed. The matter was adjourned for those charges to be filed, and ultimately, you pleaded guilty to those.
96Your plea of guilty is to your credit – you saved the prosecuting authorities time and resources, as well as those of the court, and more importantly you spared the victims the ordeal of giving evidence at your trial. I accept that this evidences a degree of remorse.
97Because your plea was indicated when the court was still affected by the Covid-related delays, you are entitled to the additional discount on sentence under the Worboyes principle.[42]
Verdins
[42] Worboyes v The Queen [2021] VSCA 169.
98Your counsel submits that all limbs of the so-called Verdins[43] principles apply to your case. The case of Verdins provides that impaired mental functioning is relevant to sentencing in at least six ways:[44]
(a) The condition may reduce an offender’s moral culpability for the conduct, calling for a reduction in the role of denunciation in the sentence imposed;
(b) The condition may have a bearing of the kind of sentence imposed, and the conditions in which it should be served;
(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender;
(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender;
(e) The effect of the condition at the date of sentencing may mean that the sentence imposed may weigh more heavily on the offender than it would on someone of normal health; and
(f) Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[43] R v Verdins [2007] VSCA 102, [32].
[44] Ibid.
99Your mental health is canvassed in the reports of Ms Cokorilo and Dr Vincenzi.
100Dr Vincenzi accepts that you meet the criteria for both generalized anxiety disorder and persistent depressive disorder. He considers that these disorders, in addition to your intellectual disability ‘appear to have impacted your ability to have healthy relationships and cope with emotional stress in a healthy way’. As a result, ‘a relationship with a minor was more appealing’.[45]
[45] Exhibit D3, [33].
101In response to why you pursued the relationship. you told Dr Vincenzi that you thought there was ‘”something there” between you and your victims’. Dr Vincenzi opines that this comment is indicative of your limited insight. While you understand that your behaviour was wrong, you probably don’t fully appreciate the potential for harm your behaviour posed to the victims.
102Dr Vincenzi also opines that neither your intellectual disability nor your mental health problems ‘prevented [you] from understanding how problematic [your] behaviour toward the victims was at the time’.[46] This is relevant to the application to you of Verdins limb 1 which I consider has some applicability.
[46] Ibid, [33].
Delay
103Delay also has a part to play in moderating the sentence I impose. As the Court of Appeal has repeatedly emphasised, marked delay between the apprehension of an offender and the resolution of a matter is a factor that will mitigate sentence,[47] provided that the delay is not attributable to the offender.[48]
[47] See, eg, Chandler v The Queen [2010] VSCA 338; Barrett v The Queen [2010] VSCA 133; R v Talia [2009] VSCA 260.
[48] DPP v WRJ [2009] VSCA 172.
104Your counsel provided the court with a chronology of your matter, under cover of submissions.[49] Your offending giving rise to charges 1 and 2 occurred between 31 July 2021 and 18 December 2021; your offending giving rise to charges 3 and 4 took place between 8 January 2022 and 29 January 2022. You were first arrested and interviewed on 17 June 2022 and then again on 2 August 2022.
[49] Outline of Submissions Upon Sentence Indication dated 21 February 2024, 1-2.
105I have taken the delay of this matter into account in accordance with the authorities discussed above.
Current Sentencing Practices
106Your counsel referred the Court to two cases and placed particular reliance on Cooke v The Queen.[50]
[50] [2021] VSCA 70.
107In Cooke, the 22 year old offender pleaded guilty to sexual penetration of a 14 year old girl. The offender had suffered a traumatic brain injury and was autistic. In sentencing him to three years and six months imprisonment, the sentencing Judge accepted that ‘some limited moderation’ of the offender’s moral culpability was called for.
108The Court of Appeal upheld an appeal and re-sentenced the offender to 12 months imprisonment[51] and a two year Community Correction Order. The court considered that the offending was confined to one episode, lacked aggravating features such as a very young victim and very wide age differential and therefore fell well below the mid-range of seriousness.[52] The offender’s relative youth and reduced moral culpability by ‘psychological factors which seem to have an organic origin’[53] meant that both specific and general deterrence needed to be ‘sensibly moderated’.
[51] The Court declared a period of 522 days be reckoned as a period of imprisonment served under the sentence: see at [38].
[52] [26].
[53] [33]-[34].
109In Roberts v The King,[54] the victim was 15 years and 7 months old and the offender was 22 at the time of the offending. There was no intellectual disability or other mitigation due to mental health. The offending occurred over a period of a week and involved several instances of sexual penetration without a condom. On one occasion, the offender impregnated the victim. This was described as a ‘seriously aggravating factor’ by the Court of Appeal.[55]
[54] [2023] VSCA 92.
[55] [17].
110A sentence of five years and six months was reduced to four years on appeal.
111Two cases with very different facts can hardly identify a ‘sentencing practice’. In any event, as explained by the High Court, a sentencing judge gains only limited assistance from earlier decisions.[56] Ultimately, all sentences are to be imposed having regard to the unique facts and circumstances of individual cases. Having said that, the cases to which the court has been referred have assisted me to gain an understanding of the sentencing principles to be applied and the factors that are aggravating and mitigating and have been taken into account accordingly.
[56] DPP v Dalgleish (a pseudonym) [2017] 262 CLR 428.
Consideration and Orders
112This is a difficult sentencing exercise. On the one hand, your offending is clearly serious and I have real concerns about your future risk of re-offending in light of your intellectual disability and complex mental health needs. On the other hand the usual sentencing purposes of specific and general deterrence must be sensibly moderated in your case having regard to those same considerations.
113Ultimately, the combined effect of the cases of Bugmy, Muldrock and Verdins means that I must moderate to an appreciable extent the role that specific and general deterrence play as sentencing purposes.
114I must also have regard to the principle of Parsimony, and not impose a sentence which is more severe than is necessary, to achieve the relevant sentencing purposes.
115You were assessed as suitable for a CCO in a pre-sentence report dated 13 May 2024. The author recommended that, if you are found suitable for a justice plan, that plan should form part of the CCO ‘to reduce the risk of your intellectual disability hindering [your] ability to complete [your] CCO’.[57]
[57] CCO Suitability Assessment Report dated 13 May 2024, 2.
116Ultimately I have concluded that the appropriate sentence to meet the sentencing purposes of just punishment, deterrence, community protection and rehabilitation is a combination sentence of imprisonment for 2 years and 6 months to be followed by a CCO of 18 months’ duration.
117The sentences I am imposing are less than the standard sentences for the respective offences. While I have taken into account those standard sentences, the sentences imposed reflect all of the matters discussed above and, in particular, matters personal to you.
118The specific orders I make are:
(a) On charges 1 and 2 (sexual assault), you are convicted and sentenced to a CCO for 18 months with the following conditions:
(i)treatment and rehabilitation condition;
(ii)supervision;
(iii)drug and alcohol condition;
(iv)mental health assistance; and
(v)a condition requiring you to participate in programs to reduce re-offending.
(b) On charge 3 (sexual penetration of a child under 16), you are convicted and sentenced to 2 years’ imprisonment;
(c) On charge 4 (sexual penetration of a child under 16), you are convicted and sentenced to 2 years’ imprisonment.
119On summary charges 7-13, you are convicted and sentenced to an aggregate term of imprisonment of 3 months’.
120The charge 4 sentence is the base sentence. 6 months of the sentence on charge 3 is to be served cumulatively on the base sentence. The remaining sentence is to be served wholly concurrently.
121The CCO will commence when you are released from custody.
122The total effective sentence is therefore 2 years and 6 months imprisonment and a CCO for 18 months.
123I am unable to impose a CCO unless you consent to me doing so and I explain to you the purpose and effect of the order, the consequences of breaching the order and the manner in which the order may be varied.
124The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment;
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order;
(c) You must report to the Bendigo Community Correctional Services within 2 working days of your release from custody.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change;
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, and
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
125I also attach conditions to the CCO. In doing so I have had regard to the principle of proportionality as well as the purposes for which a sentence can be imposed and the purpose of a CCO.[58]
[58] Sentencing Act 1991 (Vic), s 48A.
126If you contravene the order by not fulfilling the conditions, or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach. You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment. So you must make sure that while you are on this order you do not commit any further offences during the term of the order, which will be 18 months, that might incur a term of imprisonment, otherwise you would almost certainly be back before the court and re-sentenced on the charges that are before me.
127You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice via a Community Corrections officer as part of this order, you can also be charged with breaching the order.
128You may apply to this Court to vary a condition of the CCO if your circumstances change so that you can no longer comply with the Order or another reason set out in s 48M of the Sentencing Act.
129Do you understand the conditions and the consequences of breaching the CCO and how the order may be varied? Do you consent to the order being made?
130There is some paperwork that needs to be attended to.
131Pursuant to s 18 of the Sentencing Act 1991, I declare the period of 701 days be reckoned as a period of imprisonment served under this sentence. As a result the term of imprisonment to be served will be less than 12 months.[59]
[59] S 44(3).
132Although the total effective sentence exceeds 2 years, and not withstanding s 11(1) of the Sentencing Act 1991 (Vic), I have not imposed a non-parole period. I have applied s 11(1) of the Sentencing Act in accordance with the construction favoured in the case of R v Dunn.[60] In accordance with the decision of Croucher J I consider that I am ‘prohibited from fixing a non-parole period on the imprisonment component of the combination sentence’.[61] As his Honour observes in that decision, the amendment of s 44(3) of the Sentencing Act in 2017 strongly suggests that it is not contemplated under the scheme as it now stands that an offender would be released on parole to commence the CCO component of a combination sentence.[62]
[60] [2020] VSC 708 at [218]-[220] and Appendix [19]-[43]. I note also the decisions of DPP v Grech [2016] VSCA 98; Boulton v R (2014) 46 VR 308; and DPP v Tannous [2017] VSCA 91.
[61] [39].
[62] [31].
133Further, as the Court of Appeal explained in Boulton, a court should treat parole and CCOs as alternatives.[63]
[63] Boulton v R (2014) 46 VR 308.
134Pursuant to s 6AAA of the SA, I indicate that, but for your pleas of guilty, I would have sentenced you to 4 years in custody with a non-parole period of 3 years.
135You will be subject to the reporting conditions of the Sex Offenders Register for life.[64]
[64] SORA, s 34(1)(c).
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