Director of Public Prosecutions v Sekulic

[2022] VCC 1669

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-01619

DIRECTOR OF PUBLIC PROSECUTIONS

v

MILLAH SEKULIC

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	19 & 25 August 2022
DATE OF SENTENCE:	30 August 2022
CASE MAY BE CITED AS:	DPP v Sekulic
MEDIUM NEUTRAL CITATION:	[2022] VCC 1669

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Sexual penetration with a child under 16 years - Bugmy principles enlivened - Long-term drug addiction intimately connected to deprived and traumatic background – Youthful offender – Standard Sentence Offence - COVID-19 pandemic.

Legislation Cited:      Crimes Act1958 s 49B(1)(a)(ii); Sentencing Act1991 ss 5(2), 6AAA, 48CA; Sex Offenders Registration Act 2004.

Cases Cited:Clarkson v The Queen (2011) 32 VR 361; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; The Queen v McKee (2003) 138 A Crim R 88; Williams v The Queen [2018] VSCA 171.

Sentence:                  Community Correction Order for a period of 2 years and 6 months, with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Warren (Plea) Mr R Pirrie (Further Plea) Mr P Triandos (Sentence)	Office of Public Prosecutions
For the Accused	Ms J Willard (Plea) Mr N Boyd-Caine (Sentence)	Law and Advocacy Centre for Women

HIS HONOUR:

Introduction

1Millah Sekulic, you have pleaded guilty to one charge of sexual penetration with a child under 16 years, contrary to s 49B(1)(a)(ii) of the Crimes Act1958, as amended by the Crimes Amendment (Sexual Offences) Act2016, which carries a maximum penalty of 15 years imprisonment. This is a rolled-up charge consisting of two occasions (Charge 1).

2You have also admitted your Criminal Record.

Circumstances of offending

3A prosecution opening was tendered on plea and may be summarised as follows:

4At the time of the offending, you were 20 years of age and you are now 22. You also went by the name ‘Jamillah’.

5William Croucher[1], the victim, was born in February 2005. At the time of the offences, he was 15 years old.

[1] A pseudonym.

6The victim met you in February 2020 through his then girlfriend, Rebecca Watts[2].

[2] A pseudonym.

7In February 2020, when Ms Watts and the victim first visited you at your home, Ms Watts told you how old the victim was.

8You began messaging with the victim and spoke on the phone.

9On Thursday 19 March 2020, the victim went to your house because he thought you had some ice. He arrived around 4:00pm or 5:00pm. Your cousin was also there at this time.

10When he arrived at your house, you and the victim smoked some ice together.

11You then had a shower, and you had an epileptic seizure while in the shower. After your shower, you went to sleep. Your cousin left around that time. By this time, it was around 6:30pm.

12You slept on a bed on the lounge room floor until around 8:00pm, and while you were asleep the victim slept on a couch in the spare room.

13At around 8:00pm you both smoked some more ice.

14After that, you started touching the victim sexually, rubbing your hands over his body. You told the victim how much you loved him and wanted him.

15You took the victim’s clothes off and then your own. You then put the victim’s penis in your vagina and you had penile/vaginal intercourse. It is these facts that relate to occasion 1 of 2 in relation to Charge 1.

16You and the victim then got dressed and went to sleep.

17The next morning, Friday 20 March 2020, the victim woke at around 10:00am. He had slept on a mattress in the lounge room next to you.  

18You got up on top of the victim and said you wanted to have sex with him again. You took the victim’s clothes off again and you had penile/vaginal intercourse a second time. It is these facts that relate to occasion 2 of 2 in relation to Charge 1.

19After that, you smoked some more ice with the victim. Later in the day, around 5:00pm or 6:00pm, you both went for a walk to get cigarette butts that have been discarded.

20You were out for about two hours and then returned to the house and the victim went to sleep.

21At some stage that evening, Ms Watts, who had been in custody, contacted the victim. After this, the victim told you he wanted to leave, and you became upset.

22

At some stage during the evening of 20 March or into the morning of

21 March 2020, you left the house for a time, but returned.

23You then had another seizure. The victim stayed with you until the seizure was over.

24At around 4:00am, the victim sent a message to Ms Watts asking her to call the police.

25At around 4:00am, police arrived at your home and found the victim there, and they left the premises with him.

26On 23 March 2020, the victim told his residential care worker  that he had had sex with you. At the time the pair were in a car driving.

27During the same car trip, the victim spoke on the telephone with his Child Protection Practitioner. The victim told her that he had had sex with his girlfriend’s friend a number of times and that she was 20 years old. He said her name was ‘Jamillah’.

28On 25 March 2020, the victim made contact with police and reported the sexual assault. He told Senior Constable West that he had smoked ‘shard’ with his girlfriend’s friend who was about 20 years old and that the pair had had “full sexual intercourse” and that this had occurred at your home in St Kilda.

29On 1 April 2020, the victim made his statement to police in the form of a VARE.

30On 13 May 2020, you were interviewed by police. You admitted that the victim had been at your house, that you had been smoking ice and that you knew he was “14 or 15 years old”, but that “he came on to me which is very hard to believe but it did happen”.

31Amongst other things, you told police that:

·you were introduced to the victim in around February 2020;

·the second time the victim came to your house was after you had been messaging on Facebook;

·when you first met the victim, he told you he was 14 or 15, but that you think he is 14;

·the victim knows you as Jamillah;

·you did not have ice with him;

·you did not have any discussion of a sexual nature with the victim, or any sexual contact with him, stating your cousin “was there most of the day and night”;

·you did not put his penis inside you and said “He tried to crack on to me, especially after I had a seizure”;

·the victim offered you a hug after your second seizure which you ultimately accepted after which, you kicked him out of the house, but he came back; and

·you said, “I never touched him in my life, I never would”.

Nature and gravity of the offending

32Sexual penetration of a child under 16 is an inherently serious offence reflected in the maximum penalty imposed by Parliament of 15 years imprisonment and also by the fact that Parliament has deemed this offence to be a Standard Sentence Offence, the standard sentence being 6 years imprisonment. I also note that the charge to which you have pleaded guilty to is a rolled-up charge incorporating the two instances of penetration.

33Sexual offending against a child often involves a gross breach of trust and it is commonly the case that there is a significant age difference and/or power imbalance between the victim and the offender. However, that is not the case here.

34In this instance, while the offending is serious, it is relevant that at the time of the offending the victim was 15 years of age and you were 20 years of age. In that regard the comments in Clarkson v The Queen are apposite, where the Court noted:

“…there are exceptional cases - for example, in a relationship between a 15-year-old girl and an 18-year-old boy - where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offences as less grave and the offender's culpability as reduced.”[3]

[3] (2011) 32 VR 361 [7] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA). Cited with approval in Rose v The Queen [2022] VSCA 112 at [49].

35Ms Willard, who appeared on your behalf, submitted that in this instance your offending falls in a lower category for a number of reasons including: that the offending was not premediated; that the victim was not groomed or coerced; and that there is no evidence of the victim being reluctant to engage in the sexual activity on both occasions.

36In all the circumstances, including your youth and immaturity which I will address further below, this case does fall within the category contemplated by the Court in Clarkson and as such, in my view, the offending is able to be considered as ‘less grave’ and your moral culpability is greatly reduced.

Personal circumstances

37You are currently 23 years of age. You are a Yorta Yorta, Gunai Kurnai woman. You were raised by your maternal grandmother in Healesville until the age of 8, when you returned to live with your mother. You report a very strong relationship with your grandmother. You are your parents only child, but you have two younger half-siblings born to your father, a sister and a brother.

38Melissa Walshe, Case Manager with the Law and Advocacy Centre for Women prepared a report dated 15 August 2022 after assessing you for the purposes of the plea. Ms Walshe’s report provides a helpful and concise history. You reported to Ms Walshe that growing up your father committed severe family violence against your mother, including an attempt to kill your mother when she was pregnant with you. Both of your parents have battled substance abuse and mental health issues, and have spent time in the criminal justice system. You report your father is currently incarcerated. 

39You attended three primary schools and five different high schools, leaving school midway through year 9. You completed year 10 at Indie College. You advise you were bullied at school and experienced racism.

40Your methylamphetamine use started at age 15 and has continued, sometimes daily, with short periods of abstinence. In the past you have experienced seizures, blackouts, hallucinations, and strong feelings of paranoia, and that you want support to stop using illicit drugs.

41When asked about your personal relationships, you reflected that every intimate relationship from the age of 15 years had been violent. You identified a correlation and escalation of your mental health issues and drug issues in response to this violence.

42Ms Walshe has been providing you with Alcohol and other Drugs (AOD) distraction and delay techniques and you have reported a significant decrease in your use of methylamphetamines. You also report disengaging from friends who use illicit drugs, and spending more time with your family. During this process, you were referred to Rainbow Muse Art Therapy. You have been granted individual art therapy sessions at no cost.

43Ms Walshe has also referred you to an AOD Counsellor, Ms Julie Walters, and you have been accepted into the Aboriginal Metropolitan Ice Partnership Program. Ms Walters prepared a letter for the court dated 12 August 2022 after assessing you on 10 August 2022, and states that you indicated to her that you were currently smoking methylamphetamine once every two to three weeks, and you were wanting support to cease use. 

44You were also assessed by psychologist Warren Simmons who prepared a report dated 26 July 2022. Mr Simmons notes that you reported your father put Valium in your bottle when you were younger, but you did not commence drug use of your own accord until the age of 13 when you were introduced to cannabis. You report you ceased using cannabis by 17.

45You told Mr Simmons that you have experimented with GHB and cocaine, but you have not continued using either. You have previously completed two community residential drug withdrawal programs with YSAS, and although you have experienced periods of abstinence, you have struggled to remain that way.

46You reported to Mr Simmons that you drank heavily at the ages of 16 and 17, becoming aggressive when intoxicated. Mr Simmons opines that you have shown insight into the connection between consuming alcohol and becoming aggressive, and this demonstrates that in his view, you have some prospects for rehabilitation. 

47

Mr Simmons is of the view that you meet the criteria for Stimulant Use Disorder, and that you have described symptoms of Post-Traumatic Stress Disorder (PTSD), anxiety, depression and traits of a borderline personality disorder. You revealed to Mr Simmons that in the past you were diagnosed with Oppositional Defiant Disorder, PTSD, anxiety and depression. In regards to your seizures,

Mr Simmons opines that they appear to be ‘related to [your] substance use.’

48You disclosed to Mr Simmons that you have been the victim of several sexual assaults in the past. Mr Simmons asserts your relationships have been unstable, and there is a history of your partners being abusive; physically, sexually and emotionally. Mr Simmons concluded that there is no evidence to suggest that you have any particular attraction to young males, however the pattern of abusive relationships as well as the clear instances of sexual assault that have occurred over the past decade, have meant that your understanding of normal sexual relations is disturbed.

49You have also been referred to The Living Free Project, which provides intervention to women in contact with the criminal justice system. You have been accepted for the project, which delivers long-term outreach support to assist in addressing the underlying causes of offending behaviour and enhance protective factors to reduce the risk of further contact with the justice system.

50

You have spoken to Ms Walshe about your desire to understand more about your culture as a Yorta Yorta and Gunai Kurnai woman. In this regard,

Ms Melissa Bickford, Aboriginal Community Officer has been contacted and is engaging with Aunty Caroline Briggs to find relevant Elder Mob connections for you. You have also been provided with information on various projects, services and social programs to engage with.

51

You have family support and a strong treatment plan around you, and your

Case Manager reports you have authentically engaged with your scheduled treatment appointments to date.      

Sentencing considerations

52Ms Willard highlighted a number of matters in mitigation.

53I first take into account your plea of guilty. The matter was listed for trial and the ground rules and special hearing were to commence before me on 13 April 2022. On that day you sought a sentence indication and following that indication, the matter resolved and you were arraigned on the same day. In the circumstances your plea, while not at the earliest opportunity, is still of great utilitarian value, saving court time and expense and importantly, saving the victim and other witnesses from having to give evidence.

54Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[4]

[4] Worboyes v The Queen [2021] VSCA 169 at [39].

55I take into account the fact that you have experienced significant disadvantage in your life from a very young age and I accept that the principles articulated in Bugmy v The Queen[5]  should be given weight in the sentencing consideration. As noted in Bugmy, the effects of a deprived background as you have experienced, do not diminish over time and should be given full weight in the determination of an appropriate sentence.

[5] (2013) 249 CLR 571, [44].

56Ms Willard submitted that your longstanding drug addiction is relevant, not on the basis of being causally connected to the offending, but on the basis that your long-term drug dependence, with its origins linked to your traumatic childhood, is relevant to your moral culpability and rehabilitation. In that regard Ms Willard referred to the well know authority of The Queen v McKee[6]. While the comments in McKee seem to rely on a causal connection - for example a drug trafficker trafficking to fuel a habit - the general comments of the Court, particularly those of Vincent J are apposite:

In the course of presenting their respective submissions, counsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs.  Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person.  I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape.  That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes.[7]  

[6] (2003) 138 A Crim R 88.

[7] The Queen v McKee (2003) 138 A Crim R 88 [21].

57In my view your long-term drug addiction is intimately connected to your deprived and traumatic background and has continued to influence your conduct in the way described in McKee. In that sense it forms part of your particular circumstances bearing on the question of your moral culpability and the considerations relevant to your rehabilitation.

58You are 23 years of age and were 20 at the time of the offending. As such, you are a youthful offender which must carry weight in the sentencing calculus. In addition to your age, you have a number of vulnerabilities including psychological conditions you are grappling with as a result of your deprived background. In the circumstances assisting you in dealing with these issues must take priority; rehabilitation must be a prominent focus.

59

Turning more specifically to your prospects of rehabilitation, it is clear from the material tendered you have shown that you are able to engage with a number of relevant support networks to assist you through what will inevitably be a difficult process. It should also be noted that you have some prior criminal history, however it is relatively limited and does not include any sexual offending. While still at an early stage, you have shown a commitment to change and it appears that you are beginning to appreciate the link between your difficult past

- including your drug addiction - and how that manifests in your conduct. As such in the circumstances while your prospects must be approached with some caution, if you are to remain on the path you are on and stay connected to the supports you have accepted, your prospects will undoubtedly improve.

60Deterrence both general and specific, remain prominent sentencing considerations. While the circumstances of this offending are relatively unique, as noted above, sexual offending against children is an inherently serious offence. Others must be deterrent from this type of conduct regardless of the circumstances.

61In addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act1991 ("Sentencing Act’), I must also take into account that Charge 1 is a standard sentence offence. The standard sentence on Charge 1 is six years. Based on the submissions of both the prosecution and the defence, it is self-evident that there is agreement that the sentence to be imposed falls below the standard sentence in all the circumstances.

62Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose on Charge 1 falls below the proscribed standard sentence.

63At the sentencing indication hearing, it was submitted on your behalf, that in the circumstances a community correction order is able to meet the relevant sentencing considerations. The prosecution did not take issue with that submission. I gave the indication that in my view a community correction order would be able to address the relevant and applicable sentencing considerations.

64In Williams v The Queen,[8] Priest JA and Hargraves JA said as follows:

As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.[9]

[8] [2018] VSCA 171.

[9] At [47].

65

I had you assessed for a community correction order and you have been found suitable. As part of that assessment you were also assessed by the

Court’s Mental Health Advice and Response Service who have recommended that any order should contain a mental health treatment condition in order to promote your rehabilitation and reduce the likelihood of reoffending.

Sentence

66Ms Sekulic, would you please stand.

67Millah Sekulic, on Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to a community correction order for a period of 2 years and 6 months.

68The community correction order will have both punitive and therapeutic components. You will be required to complete 150 hours of unpaid community work and engage in programs to enable you to further address your mental health concerns, your drug addiction and your specific offending. You will also be subject to supervision and Judicial monitoring.

69Pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.

70Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentence you to a period of 12 months imprisonment, together with a community correction order. 

71

Further, as Charge 1 is a Class 1 registerable offence, pursuant to the

Sex Offenders Registration Act 2004,

you will be required to comply with reporting obligations for a period of 15 years.

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