Director of Public Prosecutions v Seddon (a pseudonym)
[2019] VCC 1535
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MASON SEDDON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 September 2019 |
| DATE OF SENTENCE: | 20 September 2019 |
| CASE MAY BE CITED AS: | DPP v Seddon (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1535 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Indecent act with child U/16 – Sexual penetration of a child U/16 – Contravene personal safety intervention order.
Legislation Cited: s145 Criminal Procedure Act 2009.
Cases Cited: Mills v R [1998] 4 VR 235
Sentence:Total effective sentence of four years and four months imprisonment with a non-parole period of two years and nine months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Director of Public Prosecutions |
| For the Accused | Mr A. Patton | Balmer & Associates |
HIS HONOUR:
1Mason Seddon,[1] on 19 September 2019 at the Melbourne County Court, you pleaded guilty to the following charges on indictment number K10598899:
Charge 1, an indecent act with a child under 16. This charge has a maximum sentence of 10 years' imprisonment;
Charge 2, sexual penetration of a child under 16. This charge has a maximum penalty of 10 years' imprisonment;
Charge 3, sexual penetration of a child under 16 years. That obviously has a maximum penalty of 10 years imprisonment; and
Charge 4, using a carriage service to menace, harass or cause offence. This is a Commonwealth offence. This charge has a maximum sentence of three years' imprisonment.
[1] A pseudonym.
2Pursuant to s.145 of the Criminal Procedure Act 2009, three related summary charges were transferred to this court with your consent. You pleaded guilty to the following related summary charges:
Summary Charge 8, contravene a personal safety intervention order. This charge has a maximum penalty of two years' imprisonment;
Summary Charge 9, contravene a personal safety intervention order. This charge has a maximum penalty of two years' imprisonment; and
Summary Charge 11, commit an indictable offence whilst on bail. This charge has a maximum penalty of three years' imprisonment.
Circumstances of your offending
3The prosecutor tendered an amended summary of prosecution opening dated 13 September 2019. This was Exhibit “A” on the plea. Your counsel accepted that this was a fair and accurate summary of your offending. At the time of these offences you were 19 to 20 years of age. The victim of your offending who I will refer to as “AZ” was between 12 and 13 years of age.
4The offending took place in 2016 and 2017. The victim, AZ, was friends with your younger siblings and aged between 11 and 13 or 12 and 13 at the time of this offending commenced.
5On an occasion in June or July 2016, when AZ was 12 years of age, she visited your siblings at the home you were then living in, which I now know your mother was in charge of the house at that time. You were babysitting your siblings and AZ.
6Sometime during that evening, your siblings went to bed and AZ went to the lounge room where you had been watching television. AZ sat on the couch and you moved towards her. You kissed her on the mouth. AZ kissed you back and pushed you and acted like nothing had happened.
7You said, 'Do you want to go outside? It's hot in here'. AZ said, 'Yeah, whatever', and the two of you then walked into the backyard where there was a tent erected. That act of kissing, is the charge of an indecent act with a child under 16.
8At some point AZ asked you how old you were and you told her that you were 17 years old. AZ and you then went into the tent where there was a mattress positioned on the floor of the tent. You sat on top of AZ, pushed her down and kissed her.
9You pulled AZ's pants down and she pulled them back up. You then pulled them down again, undid the zip of your jeans and put your penis in AZ's vagina. AZ did not know what to do and did not say anything. You continued to penetrate AZ's vagina for approximately two minutes.
10When you had finished you said, 'I'm going to get a drink and go to the toilet'. You left the tent and AZ put her pants back on and sat in the tent for three to four minutes. She then went into the lounge room where you were and you smiled at her and AZ said, 'I'm going to bed'. AZ then went to bed in a bedroom in the house. That was the charge of sexual penetration of a child under 16.
11The following morning AZ did not talk to you. AZ did not know if you had used any kind of protection during the penetration the night before.
12A week later you and AZ were on the bus and you asked her, 'Am I the first one or what?' AZ said, 'Yes, you're my first one'. Sometime after this you told AZ that you loved her and AZ began to like you in return. You started a relationship together which lasted for some two to three months.
13At the beginning of 2017, you moved into AZ's family home. You slept in AZ's bedroom and she slept either on the floor on a mattress or in another room in the house.
14On an occasion when you were living at AZ's home and she was 13 years of age, you and AZ were alone in her bedroom watching television. You had both consumed alcohol at that time. AZ was lying on a mattress on the floor and you were lying on the bed. You removed your clothing and picked up AZ from the floor and pushed her onto the bed. You pulled down AZ's pants, held her by the shoulders and put your penis in her vagina.
15On that occasion AZ did not know if you used any type of protection. Afterwards AZ grabbed a blanket and went into the lounge room. AZ did not say anything about what had happened to anyone as she thought that she would get into trouble. That was Charge 3, sexual penetration of a child under 16.
16AZ's mother became suspicious that there was something going on between you and AZ. She made enquiries with your siblings and they told her that you had kissed AZ behind her back. AZ's mother asked you to leave her house. You moved out of AZ's home and AZ became very upset about this. AZ ran away from home with you.
17On 26 January 2017, AZ was found in your company and the company of your siblings at the Roxburgh Park railway station by PSO officers. On 1 February 2017, an interim personal safety notice was obtained against you preventing you from having any contact with AZ. You were not at court when this order was made.
18On 15 February 2017, you left Australia and travelled to Thailand. The interim intervention order had not been served on you at that time.
19On 18 May 2017, at the Broadmeadows Magistrates' Court made an interim personal safety order against you in respect of AZ. The court ordered that this order be served upon your mother.
20On Thursday 8 June 2017, at the Broadmeadows Magistrates' Court made a final personal safety intervention order that is valid until 5 August 2021. You were not present when that order was made also, and was served on your mother.
21On 22 June 2017, you returned to Australia. Between 26 June and 29 June 2017, you sent text messages and called AZ on her mobile phone. You contacted AZ on 35 separate occasions in that period. That is summary offence Charge 8, contravene personal safety intervention order.
22Between 29 July 2017 and 31 July 2017, you telephoned or sent text messages to AZ on 65 occasions. AZ was annoyed that you had contacted her. AZ did not want to have any contact with you at this time and felt harassed by being contacted by you.
23You telephoned her from Queensland and said, 'Come live in Queensland'. Her response was no. You replied, 'You're not going to lose your family. You love me, I know you do. Stop saying all this crap bullshit. Just live with me. I'll pay for you, I'll send you money, I'll do whatever'.
24AZ replied, 'I'm over you. Just leave me alone'. You continued to ring AZ numerous times and she hung up the phone when you called. That was summary Charge 9, contravening a personal safety intervention order, including Charge 4 on the indictment, use carriage service to menace, harass or cause offence.
25On 16 September 2016, you were charged with family violence related offences and were granted bail at the Melbourne police station which was extended by the Sunshine Magistrates' Court on 29 November 2016 to
24 February 2017.26You were on bail when you committed the offences of Charges 3 and 4 on the indictment and summary Charges 8 and 9. In relation to the indictment Charge 4 and summary Charge 9, these charges are the same acts. The legal basis for those charges though are dissimilar.
27On 21 November 2017, you were arrested and taken to the Sunshine police station where you were interviewed by Detective Senior Constable Lynch. During the interview you denied any kind of sexual offending against AZ or sending her messages. You admitted that you knew AZ and that you had stayed at her home for a period of two to three weeks.
28You were interviewed again on 21 November 2017, and admitted that the intervention order had been served on you and that you were aware of its conditions. You have spent 198 days pre-sentence detention not including today.
Victim Impact Statement by AZ
29Your victim, AZ, filed a victim impact statement dated 12 September 2019. It was Exhibit “B” on the plea. AZ sets out how she was shocked and confused by your offending. She stated that at the time she thought that the offending was her fault. She stopped going to school because she was bullied by students after your 'relationship' was over. AZ says she has tried to commit suicide and on other occasions self-harmed. She has not seen a counsellor because she does not want to talk about the events that bring you to court here. She is trying to simply forget about it.
Victim Impact Statement by AZ’s Mother
30AZ's mother also made a victim impact statement dated 17 September 2019. It was Exhibit “C” on the plea. AZ's mother says that after this offending, AZ's attitude to life changed. She states that AZ was withdrawn from friends and family. AZ has left school because of this offending according to her mother.
31AZ's mother states that AZ uses cannabis to calm herself down after this offending. Her mother also states AZ does not want to have sex with her boyfriend because it reminds her of the experience with you. I note for completeness here that AZ turned 16 years old on 6 August 2019. AZ's mother states her relationship with her daughter has deteriorated because of your offending.
Personal Circumstances
32At the time of the offences you were 19 to 20 years old. You are now 23 years old. Your mother is a diagnosed schizophrenic who suffers drug and alcohol addiction. You are estranged from her and your siblings. Your father is an alcoholic who has been violent to you and other members of your family.
33Your parents separated when you were very young. After the separation of your parents you went to live with your grandfather, Ron Russell, until you were about 12 years old. At the age of 12, you were placed into the care of DHHS. Whilst in residential placement overseen by DHHS you suffered bullying and victimisation from other residents.
34In the correspondence between your grandfather and DHHS it is stated that your weight dropped from 63 kilograms to 42 kilograms. That is Exhibit “5”. It is also alleged you were sexually abused by a carer whilst you were in residential care. This matter was reported to police but you have not followed up on that allegation to date.
35At age 16 years you left DHHS care. You have travelled to Thailand with your grandfather. Whilst there you have developed a relationship with a Thai national. You have a three year old child with that person. Due to your family circumstances your education was disrupted. You attended a number of primary schools and completed your education at Year 8 at Keilor Downs College.
36You struggled academically at school and you are functionally illiterate. Upon leaving school you originally worked at Red Rooster and then moved over to McDonald's. There were extended periods of unemployment. You were unemployed at the time of these offences. You were drinking alcohol to an abusive level either in the form of a 2 litre flask of port or a 4 litre cask of wine on a daily basis.
37You also indulged in daily use of cannabis. This drug and alcohol abuse does not excuse your criminal behaviour but may in part explain why your judgment was impaired to the extent that it allowed you to offend in this manner on the first occasion.
38After your interview with police you left Australia to attend the birth of your child in Thailand. It is not put by the prosecution that your trip to Thailand was flight from the jurisdiction as a result of this offending. You overstayed your visa whilst in Thailand and breached your visa conditions whilst there by working.
39You were detained in immigration detention centre in Thailand for one month prior to being deported back here to Australia. The conditions in the detention centre in Thailand were horrific. Upon your return to Australia you were arrested and have been in custody for these matters since, as I said before,
6 March 2019.40Whilst in custody on remand you have been in protection due to the nature of your charges. You have been a billet in the forensic medical health unit and a baker in Ravenhall Correctional Centre. You have engaged in courses for safety, food preparation, traffic management and word processing under the Kangan Institute banner. The certificates were Exhibit “6” on your plea.
41You have had two positive results for buprenorphine whilst in custody but since June 2019 urine screens have had negative results. That was in Exhibit “4”. You will require rehabilitative support to deal with your drug and alcohol addictions.
42You reported to Mr Ball that you had used methylamphetamine over an extended period. That is also a matter that has to be dealt with in your drug rehabilitation. You were assessed by Mr David Ball, forensic psychologist, for the purposes of this proceeding. He prepared a report dated 3 September 2019. This was Exhibit “2” on the plea.
43Mr Ball stated that you had insufficient literacy and numeracy to attempt any psychometric personality instruments to assess you properly. His assessment is based on clinical review and intelligence testing. Mr Ball assessed you as having a full scale IQ of 76 which places you in the fifth percentile, meaning that 95 per cent of the population would perform better than yourself.
44Mr Ball did not find any evidence of psychotic symptoms or delusions.
Mr Ball's opinion was that you presented with symptoms consistent with unmanaged PTSD and minimal insight into your offending behaviour. In the course of your interview you expressed regret and remorse for your offending.45Mr Ball tested you to determine your risk of sexual recidivism. He assessed your actual risk of reoffending to all within the low to moderate range. You do not satisfy the DSM-5 diagnostic criteria for paedophilic disorder. Mr Ball's opinion is that you present with no impairment to your capacity for moral reasoning or culpability.
46I accept you have had a difficult upbringing but it has not been to the extent of reducing your moral culpability for these offences. You have no prior convictions despite your deprived upbringing. This is a basis for holding a realistic hope for your rehabilitation if you are treated for drug addiction and a sex offender's treatment program before and after you are released from custody.
47You have been in a stable relationship with Aaron Bennet for approximately one and a half years. Mr Bennet prepared a reference in support of yourself setting out the ongoing nature of your relationship and that was contained in Exhibit “3”.
Sentencing Considerations
48The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
49I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
50I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for the sentences at the time.
51I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
52Of course current sentencing practices are but one of the matters I take into account when deciding your total sentence.
53You have pleaded guilty to this charge. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending.
54Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
55Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.
56Further, your victim, AZ, is not required to give evidence in a trial. Likewise, her mother is also not required to give evidence in a trial. This would be a significant relief for both of them.
57You have no prior convictions and given your deprived upbringing you are to be given credit for not offending prior to these sad events. The sexual offending against children under the age of 16 years is inherently serious. The protection of children in our society from sexual abuse means that both general and specific deterrence are to be given full weight in sentencing calculus.
58The seriousness of your overall offending is indicated by the following factors:
(1), the age difference between your victim and yourself. In the first of the offending she was 12 and you were 19.
(2), in respect of Charge 3 the offending occurred in the victim's home.
(3), the victim was a visitor to your home for Charges 1 and 2 and she was a friend of your much younger siblings.
(4), a child under 16 cannot consent to sexual penetration and in this case gave no indication of consenting to any sexual acts with you.
(5), at all times you were aware of AZ's age.
(6), in respect of Charge 3 AZ was intoxicated and vulnerable within her own bedroom.
(7), the offending has caused distress and psychological harm to AZ.
59At the time of the offending you were a young offender. At the time of sentencing you are relatively young offender. The principles set out in the case of Mills' still have some application to your case despite the seriousness of your offending. In particular rehabilitation is to be enhanced and taken into account when fixing your total sentence.
60In this case you are to be convicted and sentenced to a term of imprisonment in respect of Charges 1 and 2. Pursuant to s.6B(2) that means that you are to be sentenced as a serious sexual offender for Charge 3. Section 6E of the Sentencing Act directs that unless ordered otherwise by the court any sentence imposed on Charge 3 is to be served cumulatively on any sentence imposed on you.
61A court may impose a disproportionate sentence to satisfy the sentencing consideration of protection of the community. In this case the prosecutor did not fall for a disproportionate sentence to be imposed pursuant to s.6 of the Sentencing Act.
62You have entered pleas of guilty to two Class 1 offences, that is Charges 2 and 3, and one Class 2 offence which was Charge 1 as defined under the Sexual Offenders Registration Act 2004. Pursuant to the provisions of the Sex Offenders Registration Act 2004 you are ordered to report for life under that Act.
63Pursuant to s.6F of the Sentencing Act you are sentenced as a serious sexual offender in respect to Charge 3.
64I regard your prospects of rehabilitation as good. You have no prior convictions. You are young. You have support factors of family and a partner upon your release from prison.
65Mr Ball assesses you as a low to moderate risk of reoffending. Mr Ball assesses you as not having paedophilic tendencies. If you are subjected to and participate in a sex offenders treatment program and complete them prior to the release from prison your chances of rehabilitation will increase.
66Further, if you undergo drug and alcohol rehabilitation treatment you have a better chance of rehabilitation. These are matters that the Adult Parole Board will consider when assessing your readiness for release on parole.
67In this case Charge 4 is a Commonwealth offence. I note that the acts underpinning this charge and summary Charge 9 are exactly the same. Whilst a legal basis for both charges is different it would be unjust not to make any punishment for these offences to effectively be served concurrently.
68In respect of Charge 4, I decline to fix a recognisance release order because the other State sentences imposed will exceed the three year period and hence a recognisance release order would be superfluous. The sentence for Charge 4, will commence on 20 September 2019, together with the base sentence of Charge 2, which is a State offence sentence.
69I have cumulated so much of the individual sentences to reflect the additional criminality for each offence but moderated the cumulation so as not to impose a crushing sentence upon you, as a young offender, and consequently offend the sentencing principle of totality.
70The sentencing principles of general and specific deterrence, denunciation of your criminal conduct and the protection of the community dictate that the only just sentence is a term of imprisonment with a non-parole period fixed to encourage and enhance your prospects of rehabilitation.
71Would you stand please?
72On Charge 1, you are convicted and sentenced to three months' imprisonment.
73On Charge 2, you are convicted and sentenced to two years and nine months' imprisonment. That is the base sentence.
74On Charge 3, you are convicted and sentenced to two years and nine months' imprisonment.
75On Charge 4, which is the Commonwealth offence, you are convicted and sentenced to three months' imprisonment, such term to be commenced on 20 September 2019.
76On related summary Charge 8, you are convicted and sentenced to three months' imprisonment.
77On related summary Charge 9, you are convicted and sentenced to three months' imprisonment.
78On related summary Charge 11, you are convicted and sentenced to six months' imprisonment.
79I order that, as I say, Charge 2 is the base sentence, so that is two years and nine months, and I order the following cumulation. One month of Charge 1, 15 months of Charge 3, one month of summary Charge 8, one month of summary Charge 9 and three months of summary Charge 11 be served cumulatively on one another.
80That is a total effective sentence of four years and six months' imprisonment. I fix a non-parole period of two years and nine months' imprisonment. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to six years and three months' imprisonment with a non-parole period of four years and six months.
81I declare that you have served 198 days pre-sentence detention not including today. Pursuant to s.464ZF I order that you undergo a sample procedure. What I will explain to you is this, Mr Seddon, the sample procedure is they take a buccal swab. That is they put a cotton bud inside your mouth and take a sample from you. The reasons for making that order are that the seriousness of the offending, that the order is by consent and that the granting of the order is in the public interest.
82In respect of the Sexual Offenders Registration Act as I have announced there are two Class 1 offences and one Class 2 offence that you are to report for life. That will be printed out shortly and your counsel will be taking that down to you and I note for the record pursuant to s.6F that you are sentenced as a serious sexual offender in respect of Charge 3.
83Is there anything?
84MR PATTON: Your Honour, I was just seeking to clarify the maximum penalty I think available for summary Charge 11 is three months' imprisonment.
85HIS HONOUR: Is it?
86MR PATTON: I am just furiously trying to read the Bail Act to check that. Yes, Your Honour, it is s.30B of the Bail Act, 'Offence to commit indictable offence whilst on bail, maximum penalty 30 penalty units or three months' imprisonment'.
87HIS HONOUR: Right.
88MS THORP: I apologise to the court, Your Honour, that there has arisen from my opening. I must have put down years instead of - thank you for picking that up.
89HIS HONOUR: Yes. In that case there is some good news. So I will sentence in respect of Charge 11 that will be a sentence of - thank you for correcting that, Mr Patton. I sentence you to a term of imprisonment of two months and one month of that will be cumulatively served. So that means your head sentence will be four years and four months' imprisonment.
90Can someone just check that for me?
91MR PATTON: Four years and two months I think, Your Honour.
92HIS HONOUR: Sorry, the cumulative, it will just be two months off the top I think.
93MR PATTON: Your Honour imposed six months for Charge 11.
94HIS HONOUR: I did and then I cumulated three.
95MR PATTON: Yes.
96HIS HONOUR: So what I have done is I have changed the sentence to two months and then cumulated one of those two months on the others.
97MR PATTON: So that the total effective sentence would then become four years and two months.
98HIS HONOUR: Four months? I have got four years and four months. Can I tell you how they are? So it is one month - if you can add them from the top? This is the cumulation I am just talking about, so Charge 1 is one month. The base sentence is Charge 2, 33 months. The next sentence, Charge 3, is 15 months. Nothing for four because it is concurrent.
99One month for Charge 8, one month for Charge 9 and one month for Charge 11. That should be four years and four months.
100MR PATTON: Sorry, Your Honour, maths was never a strong point.
101HIS HONOUR: That is okay, take your time, it is important we get this right.
102MR PATTON: I might even have recourse to a calculator.
103HIS HONOUR: As they say, every day counts.
104MR PATTON: Sorry, Your Honour is right, it is four years and four months.
105HIS HONOUR: That is okay.
106MR PATTON: Was there any adjustment to the non-parole period in light of that reduction?
107HIS HONOUR: No.
108MR PATTON: As Your Honour please.
109HIS HONOUR: That is just a draft of the order so that you understand. I will have the formal order printed so I can have the ‑ ‑ ‑
110MR PATTON: Yes, Your Honour.
111HIS HONOUR: So that you can assist your client with that. I will sign the 464 then.
112MR PATTON: If I could approach my client?
113HIS HONOUR: Yes, certainly, thanks, Mr Patton.
114MR PATTON: Thank you, Your Honour.
115HIS HONOUR: Thank you. Is there anything further?
116MR PATTON: No, Your Honour.
117MS THORP: No, Your Honour.
118HIS HONOUR: Thank you both. You can remove the prisoner, thanks. Thank you both for your assistance in this matter and thanks very much,
Mr Patton, for again fixing that last bit otherwise that is exactly right, I would have another correction and I thought I was so happy to get past the Commonwealth charge, Mr Patton, without breaching whatever we breach when we deal with Commonwealth matters.119It is none of my business but if the OPP can have a look at that sort of duplicity - I am using the term loosely - any avoidance of a Commonwealth matter on a State indictment is a great idea.
120MS THORP: Yes, my personal opinion I think.
121HIS HONOUR: Thank you very much. I will adjourn.
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