Director of Public Prosecutions v Sedgley
[2020] VCC 1353
•27 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02493
CR-19-02544
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN SEDGLEY |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2020 | |
DATE OF SENTENCE: | 27 August 2020 | |
CASE MAY BE CITED AS: | DPP v Sedgley | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1353 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: sexual penetration of a child under 16 years - failure to comply with reporting obligations under the Sex Offender Registration Act 2004 - standard sentence – general deterrence - subject to the community corrections order at the time of the offending – offence committed while on bail - not satisfied moral culpability reduced by intellectual and psychological characteristics - utilitarian benefit of plea – COVID-19 – high risk of general sexual reoffending
Legislation Cited: Sex Offender Registration Act 2004; Sentencing Act 1991; Criminal Procedure Act 2009
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Bugmy v The Queen [2013] HCA 37;
Sentence: four years and 10 months’ imprisonment and I fix a period of two years and six months’ imprisonment – 6AAA: seven years’ imprisonment with a non-parole period of four and a half years’ imprisonment - subject to the provisions of the Sex Offender Registration Act 2004 for life
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Goding | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HIS HONOUR:
1 Stephen Sedgley, on 4 August 2020, you pleaded guilty to an indictment containing three charges, being: sexual penetration of a child under 16 years (Charge 1); and failing to comply with reporting obligations under the Sex Offender Registration Act 2004, (Charges 2 and 3). You admitted your criminal record. The maximum penalty for sexual penetration of a child under 16 years is 15 years’ imprisonment. Pursuant to the provisions of the Sentencing Act 1991, the offence of sexual penetration of a child under 16 years is a Standard Sentence Offence and the standard sentence for this crime that 'is in the middle range of seriousness' is six years’ imprisonment and unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least 60 per cent of the head sentence, in respect of a Standard Sentence Offence. The maximum penalty for failing to comply with reporting obligations under the Sex Offender Registration Act is five years’ imprisonment. In addition, you pleaded guilty to the related summary offence Charge 6 as amended, being commit indictable offence whilst on bail. The maximum penalty for that offence is three months’ imprisonment.
2 The application of the standard sentence provisions was considered by a Bench of five Justices of the Court of Appeal in Peter Brown v R [2019] VSCA 286. At paragraph [4] of the judgment of the court it opined:
'The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
• is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
• does not affect the established ‘instinctive synthesis’ approach to sentencing;
• does not require or permit ‘two-stage sentencing’; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing'.
3 Later, at paragraph [7] of the judgment, the court opined:
'In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors'.
4 Later, at paragraph [25] of the judgment, after reviewing the authorities, the court opined in respect to the non-parole period for a standard sentence offence that:
'These passages may be distilled into a number of propositions, as follows:
1. The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.
2. In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
3. Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a)"without reference to matters personal to a particular offender or class of offenders’; and
(b)‘wholly by reference to the nature of the offending".
4. The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.
5. The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending.
6. The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence'.
5 You have a relevant criminal history in that on 23 July 2018, you were convicted and sentenced for one charge each of knowingly possess child pornography and communicate with a child under sixteen. You were sentenced to a community corrections order for a period of 18 months. That order was breached and confirmed on 26 November 2018. You were subject to the community corrections order at the time of the current offending.
6 On 26 November 2018, you were convicted and fined $300 for one charge of failing to comply with reporting obligations under the Sex Offender Registration Act. On 1 March 2019, you were convicted and fined an aggregate penalty of $500, for two charges of failing to comply with reporting obligations under the Sex Offender Registration Act. Further, at the time of your offending, you were on bail. Offending whilst being the subject of a community corrections order and whilst on bail, are aggravating features of your offending.
7 Tendered as Exhibit A and read aloud in court was the Amended Summary of Prosecution Opening Upon Plea. In short, at the time of your offending, you were aged 21 years. You are presently aged 22 years. At the time of the offending that constitutes Charge 1 on the indictment, your victim was 15 years of age. On Saturday 17 August 2019, your victim attended an address at Eaglehawk for an informal gathering. Your victim, like most of the other people who attended the function, consumed alcohol. At the time of your offending, you were aware that your victim was 15 years of age for she had told you so.
8 During the early hours of Sunday 18 August 2019, you and your victim were on the same couch. You kissed your victim on the lips. Subsequently you got on top of your victim’s body, pulled her pants and underwear down and penetrated your victim’s vagina with your fingers and then your penis and engaged in intercourse with her. (Charge 1). Some aspects of your offending were observed by other persons present at the party.
9 During the morning of 18 August, you and a friend drove to a nearby supermarket together. You told your friend that you and the victim fucked and that 'I can turn lesbians straight'. Your friend replied, 'No you guys wouldn’t have because she’s a virgin'. You replied, 'Well I took that'.
10 Charge 1 was committed while you were on bail and this is an aggravating feature of your offending.
11 In respect to Charges 2 and 3, owing to your conviction at the Bendigo Magistrates’ Court on 23 July 2018, you were a registrable offender pursuant to the provisions of the Sex Offender Registration Act 2004. Your reporting period was 15 years. Under your obligations, you were required to report to police contact with children and that you regularly slept at the address at Eaglehawk, where you committed Charge 1. In each instance, you failed to do so.
12 Your victim reported the matter to police and provided a VARE statement on 25 August 2019. On 4 September 2019, you were arrested and participated in a record of interview. During the interview, you denied the allegations made against you. You stated that you met your victim on the night of the gathering, that you did not know her age and never had any physical contact with her. You further denied making the admissions made on the morning following your offending.
13 You were remanded in custody following your arrest on 4 September 2019. As at the date of your plea, you had spent 335 days in custody. However, during that period, you were sentenced to a total effective sentence of two months and 14 days’ imprisonment on 21 February 2020. Accordingly, as at the date of your plea, you had spent 260 days by ways of pre‑sentence detention. Accordingly, I must take care in the application of the principle of totality.
14 Steven Sedgley, you are 22 years of age. You along with your two younger brothers were raised primarily by your father. You have older half siblings. It was put on your behalf that you had a very unstable, chaotic and disadvantaged childhood. Your family moved around a lot when you were young, you instructed the psychologists that you recalled your parents fighting when you were young and your father being violent. You mother abandoned your family when you were young as she was a heavy drug user and would come and go intermittently from the family home. Your father was left with the sole care of you and your siblings from about 2003. However, as he was an interstate truck driver, he was often away from home. It was put on your behalf that you suffered verbal and physical abuse at the hands of your father, including the use of a strap.
15
The Department of Health and Human Services (DHHS) was involved with your family from an early stage. Exhibit 3 on the plea is a report from Families First that was the result of from approximately two and a half months of supervision, involving 104 hours of contact between the author of the report and you and your family. You were about 13 years of age at the time of this intervention and in the report submitted by Mr Anderson, he recorded that any allegations against your father in respect to physical violence, were unsubstantiated. He noted that you had been abandoned by your mother and were vulnerable to the risk of possible harm. He opined that your basic needs were met in the family home; that you ate regularly and healthy meals that were prepared by your father. Mr Anderson reported that you had a strong attachment to your father and that you were a happy and active teenager. He further reported that you were bullied at school. Despite this, Mr Anderson reported that your emotional and behavioural development as that of a normal level for a boy of your age. Further, he reported that your father had a positive attitude to his children, which was described as 'a loving relationship with his three youngest children (Stephen, Justin and Cain)'. However,
Mr Anderson did report that your father in the past, had been the cause for the children to be unsafe with the use of physical discipline. It was this discipline that caused Child Protection intervention.
16 You attended many primary schools and when you were aged nine years, you were assessed by Belinda Dan of OzChild as operating at the 'borderline' range of intellectual functioning, (see Exhibit 6). You attended both primary and secondary schools in Ballarat and you instructed Ms Mynard, clinical psychologist, whose report dated 6 June 2020 (Exhibit 12) on the plea, that in Grade 6 you recall that you began smoking cannabis and fighting at school. You were sent to Ballarat Secondary School and your behaviour and attendance at that school deteriorated to the point where you were transferred to the Ballarat Learning Exchange Program that appears to have had a curriculum to which you were suited and which may have catered for the fact that you are dyslexic (see Exhibit 7, medical certificate dated 23 March 2017 under the hand of Dr Shaker Issa). It is to be noted that this disability was not referred to by Ms Mynard in her report, nor by Dr Laura Anderson, clinical neuropsychologist, in her report dated 3 August 2020, (Exhibit 13) and the diagnosis of dyslexia is a relatively recent one.
17
After the completion of the plea, I was provided with the report of
Leigh Johnston, psychologist, dated 8 July 2012 (Exhibit 15) that reported on you when you were aged 14 years and nine months. Mr Johnston reported, under the heading Summary in respect of you:
'A significantly large amount of variability was found between the scaled scores on the Verbal Comprehension Index and the Perceptual Reasoning, Working Memory and Processing Speed Indices, therefore the FSIQ [full-scale intelligence quotient] cannot be reported'.
18 Subsequently in his report he opined:
'The results suggest that Stephen experiences adequate skills for thinking and reasoning with verbal information. Stephen’s responses on verbal items demonstrated his knowledge and awareness of conventional standards of behaviour and level of development of moral sense. This suggests that Stephen has the capacity for common sense verbal reasoning to solve problems in social situations'.
19 It appears that you found life at the Ballarat Learning Exchange Program more to your liking. However, your father purchased a house in Bendigo and your family moved there. You attended school in Bendigo. However, you ceased attending school in Year 8 after three weeks, having been expelled for fighting with another child during which a teacher was hurt. You then moved on to an alternative program at the Flexible Learning Option Centre run by Anglicare which you attended for twelve months. The activities at this institution included woodwork, horse riding and the making of mud bricks. You obtained a job on a farm as a learning experience, but relapsed back into cannabis use and ceased going to that program. Sometime after this, you qualified as a shearer having completed a program of two weeks duration in sheep shearing. I was informed that you obtained work travelling around shearing sheep and alpacas.
20 You instructed Ms Mynard and Dr Anderson that you commenced using cannabis at the age of 13 and by the age of 16, were using methylamphetamine. There have been times in your life where you have been abstinent from methylamphetamine, however, you have always been a cannabis user.
21 Dr Anderson’s report, apart from reciting the history that you provided to her, is limited by the circumstances in which she assessed you, that is, by way of video link. This limited the tests that you could undertake. Dr Anderson merely corroborates the assessment made of Ms Dan so many years ago.
22 You instructed both Ms Mynard and Dr Anderson that you had no recollection of your offending. This statement does not sit well with the denials that you made to the police in your record of interview, nor your bragging in relation to your offending against your 15 year old victim on the morning of 18 August 2019. I do not accept that you do not recall your offending.
23 As to your employment history, you worked as a tyre fitter at Wedderburn Tyre Service from 2012 to 2013. Between 2013 and 2016, you worked casually as a builder’s labourer. You also worked as a shearer from time to time. In 2017, you worked as a general hand for a chicken breeder, a position that you held for some seven months or so. Your periods of employment have been interspersed with periods of unemployment during which you received Centrelink payments.
24 There have been two significant relationships in your life. The first relationship commenced when you were 16 years of age and there is a child of that relationship, Zachston. DHHS became involved with your family and once you were placed on the Sex Offenders Register, this placed severe restrictions on your access to your son. I was informed that you moved out of the house that you shared with your partner, Chelsea, and this led to a period of you living in your car and in tents for a period of approximately 12 months or so. You have not seen your son, Zachston, since he was 12 months of age.
25 At the time of your offending, you were in a relationship with a girl named Tegan who was pregnant with your child. Since your remand in custody, the child Ashton has been born. You have not seen your son since being remanded in custody because of the involvement of DHHS in the protection of that child.
26 You have two significant health issues, the first being that you are completely deaf in your left ear. The second is that at the age of 15 years, you suffered a heart attack which caused you to be admitted to the Royal Children’s Hospital and then the Alfred Hospital. You underwent keyhole surgery in order to drain fluid from your heart. You recently suffered another cardiac incident in the week before your plea. You were taken to the Ararat Hospital, then transferred to the Ballarat Hospital, where you spent three days in the Cardiac Unit followed by two days on a ward. You were transferred back to the hospital at the Hopkins Correctional Centre for a night and then discharged back into general population on 29 July 2020. I was informed that you will now need monthly check ups in respect to your heart condition.
27 Tendered as Exhibits 5 and 2 were reports in respect of your mother’s health, establishing that she suffers from serious psychiatric disorders, as well as serious physical ailments. These reports are consistent with her history of abandonment by her of you and your family.
28 At the time of consulting Ms Mynard, you expressed a high level of stress and anxiety. You were tested for ADHD and met the criteria for that affliction. You also reported experiencing from time to time, symptoms consistent with psychosis. Whilst in custody, you have been treated with Zoloft and you reported to Ms Mynard that its effects were beneficial to you.
29 Whilst in custody, you have been assaulted on more than one occasion. Despite this, you worked in the bakery at Ravenhall Correctional Centre for six months, as well as attending the gymnasium regularly, which has had the effect of causing you to put on a considerable amount of weight. You entered custody weighing 49 kilograms, but now weigh 83 kilograms, a weight gain of 34 kilograms, or in the old measures, your weight has changed from 8 stone 10 lbs to 13 stone weight.
30 Ms Mynard noted that on presentation in May this year, that you spoke rapidly and without break, tangential in your topics of conversation, often talking about cars and fixing them up. This presentation is markedly different to the way that you presented to Dr Anderson in August of this year.
31 Both Dr Anderson and Ms Mynard describe you as emotionally immature.
32 Ms Mynard opined:
'Mr Sedgley’s lack of self-awareness, low emotional intelligence, a tendency towards impulsivity and his borderline cognitive function, were all factors that contributed to his offending. Mr Sedgley appears to have little self-awareness and high impulsivity. This is a very common issue for people who suffer from ADHD, only in the moment, without being particularly aware of their own thoughts, intentions and how they feel. Mr Sedgley’s judgment may have been impaired during the offending and his ability for clear thinking also reduced. His impulsivity means that he has significantly impaired ability for consequential thinking, reduced self-monitoring skills and ability to challenge his own inappropriate behaviours'.
33 By contrast Dr Anderson opined:
'With regard to his offending behaviour, in my clinical opinion, Mr Sedgley’s cognitive profile does not preclude him from the capacity of understanding right from wrong or from making reasoned and informed decisions. In fact, he presents as quite an insightful young man. However, Mr Sedgley’s cognitive profile does indicate he is likely to have a less sophisticated level of information processing and problem solving. Additionally, the most significant feature of Mr Sedgley’s presentation is his relative emotional immaturity'.
34 Ms Millar, solicitor who appeared on your behalf, submitted both orally and in writing, that all limbs of R v Verdins (2007) VR 269 applied to you because of your ADHD, borderline cognitive functioning and low emotional intelligence, which combined amounted to impaired mental functioning.
35 Bearing in mind the assessment of Dr Anderson, I am not satisfied that your moral culpability for your offending is reduced by your intellectual and psychological characteristics. However, because of your limited intellect, general deterrence should be moderated to some extent. However, you need to be specifically deterred from further offending.
36 Whilst it is plain from the reports of Ms Mynard and Dr Anderson that you would benefit from intensive treatment that will not be found within a custodial setting, I am unable to find that your condition at the date of sentencing means that the sentence that will be imposed on you, would weigh more heavily on you than an offender in normal health. Further, there is no suggestion that the state of your mental health will deteriorate whilst in prison.
37 You are a youthful offender, being aged but 22 years. Despite your prior criminal history and your current offending, you still have years of maturation to undergo, before you could be described as an adult. Any sentence that is imposed on you, must be one that looks to your rehabilitation. This is particularly so, as some anti-social attitudes that you presently hold, may become entrenched while in prison, owing to exposure to other prisoners.
38 In respect to your pleas of guilty, you accepted the straight hand-up brief at committal mention and entered pleas of not guilty in December 2019. In February 2020, you were granted leave to cross-examine witnesses pursuant to s.198A of the Criminal Procedure Act. The date of the s.198A examination was set for 26 March 2020, however, the date was vacated due to the COVID‑19 pandemic. You offered to plead guilty on 20 March 2020. Accordingly, your plea cannot be described as an early one. However, it has utilitarian benefit and you are entitled to the benefits that flow to you from your plea, being its utilitarian benefit and that it is some evidence of your remorse.
39 It was submitted by Ms Millar, the principles enunciated in Bugmy v The Queen [2013] HCA 37, apply to you due to your background of disadvantage. Your instructions to both Dr Anderson and Ms Mynard do not sit easily with the contents of Exhibit 3, the report by Families First of the Department of Human Services, Child Protection. You were untruthful to both Ms Mynard and Dr Anderson in respect to your recollection of your offending. Your predisposition to blame external factors for your conduct, leads me to have considerable doubt about the accuracy of your description to Dr Anderson and Ms Mynard of your childhood, that would support a finding that you suffered profound childhood deprivation and that you are 'marked' by a background of disadvantage. However, some allowance must be made for the abandonment of you by your mother and its adverse effects on you and your father’s inability to care for you more competently than he did owing to his occupation as an interstate truck driver.
40 Tendered as Exhibits 8 and 9 were a negative urine analysis dated 26 September 2019 and certificates of courses that you have undertaken whilst in custody that included, 'Cannabis and Me', 'Building Better Relationships Program', 'Ice and Me', 'Healthy Coping' and 'Life Skills Program'. These courses were undertaken prior to the outbreak of the COVID‑19 pandemic and I was informed that you have enrolled in a number of courses all of which have been cancelled, owing to the pandemic. In addition, all prisoners are currently under very strict regimes of confinement and this is likely to last for some time into the future and I must take that fact into account in arriving at an appropriate sentence in your case.
41 In respect to the offending the subject of Charge 1, your offending is a serious example of its kind. However, as set out in Ms Millar’s sentencing submissions, as well as in her oral argument, many of the aggravating features that often appear in offending of this kind are absent in your case. However, Ms Mynard assessed your risk of general sexual reoffending as high and accordingly I must take protection of the community from you into account, in arriving at an appropriate sentence in your case.
42 My interpretation of the Standard Sentence legislation is that I am required to identify fully the facts, matters and circumstances which bear upon the judgment which I have reached as to an appropriate sentence in your circumstances. I have endeavoured to do this in the reasons set out above.
43 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
·On Charge 1 – to four years and six months’ imprisonment;
·On Charge 2 – to six months’ imprisonment; and
·On Charge 3 – to six months’ imprisonment.
44 I order that two months on each of the sentences imposed on Charges 2 and 3, be served cumulatively upon each other and upon the sentence imposed on Charge 1. This results in a total effective sentence of four years and 10 months’ imprisonment and I fix a period of two years and six months’ imprisonment, as the period of imprisonment that you must serve before you become eligible for parole.
45 In respect to the related summary offence, you are sentenced to one months’ imprisonment.
46 I declare that you have spent 284 days by way of pre‑sentence detention, not including today.
47 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to seven years’ imprisonment with a non-parole period of four and a half years’ imprisonment.
48 I direct that you be subject to the provisions of the Sex Offender Registration Act 2004 for life. Now Ms Goding and Ms Millar, is there anything that arise from my sentence?
49 MS GODING: Your Honour just for the sake of completeness, confirming that the related summary offence is to be served wholly concurrently - - -
50 HIS HONOUR: That is right.
51 MS GODING: - - - with the indictable sentences? Yes, thank you.
52 HIS HONOUR: Yes. Ms Millar?
53 MS MILLAR: Nothing further, Your Honour.
54 HIS HONOUR: Now Madam Prison officer, can you hear me?
55 PRISON OFFICER: Yes.
56 HIS HONOUR: Could you be permitted to leave the room in order to enquire as to whether that document concerning the Sex Offender Registration Act documentation is at your records department?
57 PRISON OFFICER: So was it faxed or mailed?
58 HIS HONOUR: It was sent by email.
59 PRISON OFFICER: Email? Okay, I'll just ask that officer, but I'm not sure if they were able to chase it up as we still have to stay in the room. So I haven't been - I haven't been able to chase it up, no.
60 HIS HONOUR: Very well.
61 PRISON OFFICER: But we - once I've left this room, I can chase it up for you.
62 HIS HONOUR: Would you be kind enough to do that please?
63 PRISON OFFICER: Yeah.
64 HIS HONOUR: Are you able to leave the prisoner in the room and chase that document up for me?
65 PRISON OFFICER: Just hold on a second, I'll speak to my officer.
66 HIS HONOUR: Thank you very much.
67 PRISON OFFICER: Sorry, would it have been emailed to records?
68 HIS HONOUR: Yes.
69 PRISON OFFICER: Yep, all right.
70 HIS HONOUR: Thank you.
71 PRISON OFFICER: Just a second. I've got the paperwork.
72 HIS HONOUR: Thank you very much indeed for your help. Now Mr Sedgley, - - -
73 OFFENDER: Yes.
74 HIS HONOUR: - - - you are probably familiar with that document because you've signed one or more of them before. You are simply signing a document acknowledging receipt of that paperwork, which sets out your obligations under the Sex Offender Registration Act. So if you would be so kind as to sign it. Thank you very much for that. Now Madam Prison Officer, if that could be scanned and sent to my associate. The original can remain in Mr Sedgley's personal property, so that - - -
75 PRISON OFFICER: Yep.
76 HIS HONOUR: - - - he has that to remind him of his obligations and the copy that is sent back to the court, I will sign and that will formalise this procedure and I want to thank - - -
77 PRISON OFFICER: Okay.
78 HIS HONOUR: And I want to thank you for your assistance very much.
79 PRISON OFFICER: No worries.
80 HIS HONOUR: Yes. I will stand down now till 10.30 till the next matter.
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