Director of Public Prosecutions v Shaw

[2015] VCC 2003

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

CR-15-01348

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD RAYMOND SHAW

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	7 September 2015
DATE OF SENTENCE:	7 September 2015
CASE MAY BE CITED AS:	DPP v Shaw
MEDIUM NEUTRAL CITATION:	[2015] VCC 2003

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Offender	Ms K. Ballard	Doogue O’Brien George Pty Ltd

HIS HONOUR:

1Richard Raymond Shaw, you have pleaded guilty to one charge of sexual penetration of a child under 16 years old.  This offence has a maximum penalty of ten years imprisonment.

CIRCUMSTANCES OF THE OFFENCE

2At the time of the offence you were 24 years old.  Your victim, “FG”, I will refer to her as that, was 15 years old. 

3At the relevant time you were working in customer service at Dragon City Bowling which is in Hargreaves Street here in Bendigo.  Both your family and the family of “FG” were involved in league ten pin bowling.

4The two of your formed a relationship, just hanging out together, phone calls, text messages and of course Facebook messenger.

5In December 2012 to January 2013 you both engaged in role playing messages over Facebook about having sexual intercourse.  The arrangement was made to meet one morning after “FG”s mother had gone to work.

6The following morning at approximately 9:00 am you picked up your victim who was waiting outside her home address in a school uniform.  You drove the victim to your place, where you both proceeded to your bedroom and watched a movie. 

7During the course of the movie you digitally penetrated the victim’s vagina.  You rubbed her breasts and the outside of her vagina with your hand.  You gyrated your penis against the victim’s vagina whilst naked and you ultimately had vaginal intercourse with the victim utilising a condom.  You then drove “FG” home.  This charge is a representative charge.

8The second sexual encounter occurred approximately one month later.  The arrangements and the events were basically the same as the first occasion.

9In March 2013 there was further sexual activity between you and “FG” but no sexual penetration on that occasion.  These events contextualise your relationship but are uncharged acts. 

10It was not until 5 August 2014 that you were arrested and questioned by police about this offending.  The police seized your computer, memory sticks, hard drive for the computer and your telephone.  You were arrested by Senior Constable Barker and conveyed to Bendigo Police Station where he interviewed you in relation to this matter.

11During the interview process you were very co-operative with police and explained your actions in detail.  You then made full and detailed admissions in relation to your offending.

12During the interview a conversation took place between Senior Constable Barker and yourself.  Barker’s question, “So we just spoke about the risk.  Did you think of the consequences?”  You have answered, “I did, but I just pushed them to the back of my head.  I didn’t want them to put a hindrance on any chance we may have had, and I didn’t want to have the niggling feelings of that sort of stuff, but I spent days crying, knowing I shouldn’t be doing it and stuff, and that was probably the most I thought about the consequences and to do with the law, and even then it wasn’t much past “the law says I shouldn’t be doing it, but past that I tried not to think too much”.

13It is instructive and important to note the following passages from the record of interview.  I refer to Questions 18 and following.  The policeman had asked you some preliminary matters and then he has gone, “Yeah?” and your response is  “Then, yeah, just started to realise that I really liked her and it’s a pretty hard situation to come to grips with when you, you know, how old you are and”.  “What do you mean by that?” is the question.  “Well, I was 24 last year and realising that I was starting to get feelings for a 15 year old.  I – it really, kind of threw me.  I didn’t expect it”. 

14Question:  “Yeah?” “And yeah, I, yeah, wasn’t sure how to cope with it, but through talking with her and stuff I just started to feel more comfortable with it because she didn’t talk to me like- I dunno, she didn’t talk to me like it mattered, sort of thing”.  Question again, “Yeah?” “And I guess in my head it just started to think that way when I probably shouldn’t have”. 

15“When you say she didn’t speak to you like it- like it mattered, what do you mean by that?”  Your response was, “Well, there were times throughout talking to her and getting closer to her that I said, you know- and, yeah, I said to her, ‘You know, it’s kind of hard because I’m 24, we can’t do anything,’ and she said, ‘It’s just age, you know, and it doesn’t matter’. And being older than her I shouldn’t have listened to that and it’s - you know, I know that looking back on it definitely, but at the time everything felt right,  It didn’t feel horrible”.

16Question:  “Yeah?”. Your response: “It didn’t feel wrong, it just felt like somebody I really cared for.  We never really – we never dated purely because of the stigma that was attached to it, so we clearly knew that there was something wrong with it, but, you know, we progressed with the way we were acting anyway.  We never acted like that in public.  It used to be, we’d only do it when we got a chance to hang out - just the two of us, which was very few and far between.  I dunno, that’s – that’s about it, to do with the relationship side of it”.

17Then much later in the record of interview, this is a question, “How would you describe your behaviours in this regard?” and your answer was, “I by no means meant that in any way, shape or form. I - honestly, I struggled.  About three months when I started to realise that I was starting to have feelings with her. Like, I -  you know, I mean, I spent maybe three nights a week in my room actually crying because I knew that I shouldn’t have been having these feelings for her, and yet I was”.

18Finally after questions about a judge and jury by the informant, the informant has said, “If that’s to be the circumstances required. Is there anything that you would like to say at this stage, given that this will - potentially this could be played in front of a jury, this interview and possibly help explain your actions or explain it to us or any other parties that may listen to this at a later date?”  Your answer was, “I don’t know, I just - I mean, I’d like to make it so people could understand, you know, what I felt when I was doing it, but that’s practically impossible.  Probably the easiest way to summarise would be love, but, yeah”.

19These excerpts from the record of interview show that you understood the legal problem you faced with this relationship but it also shows your emotional immaturity and the fact that you cared for your victim. 

THE IMPACT ON THE VICTIM

20I was informed your victim, “FG” has been given the opportunity of making a Victim Impact Statement and has declined to do so, so I know little about the impact on her. 

YOUR PERSONAL CIRCUMSTANCES

21You have just turned 27 years old.  At the time of your offence you were 24 years old.  You have no prior convictions.  You have not offended since early 2013 when this offending occurred. 

22You have a supportive family.  You are the youngest of a sibship of four.  Three of your siblings live in Queensland.  You live with your mother and stepfather here in Bendigo.  You are currently employed full time at Bendigo Health in the Environment Department.

23When you were three years old your parents separated.  You have little or no contact with your biological father.  Your mother re-partnered with Mr Lawson when you were approximately seven years old. Fortunately, Mr Lawson has taken on the role as your father.  Both parents supported you here in court today. 

24Your early years were spent in Queensland.  You had primary education at Deception Bay, followed by two years of high school at Clontarf Beach High.  In the course of Year 9 you looked after your mother who had undergone back surgery.  At the end of Year 9 you left school. 

25You have always had employment since that time.  You have worked in factories as a truck jockey - that is my word – and a customer service officer.  Currently you work at the Bendigo Health in catering and cleaning.

26You have returned to your sport of ten pin bowling but in a completely different competition to your victim, “FG”. 

27I assess that at the time of your offending you were very immature for your chronological age.  This charge and the associated Court processes galvanised and enhanced your level of maturity so that you fully understand the gravity of your offence. 

SENTENCING CONSIDERATIONS

28The charge of sexual penetration of a child under 16 has at its core the protection of children.  Sometimes it is protection of children from themselves.  The offence is a serious offence and is usually met with a term of imprisonment as a penalty for offenders.

29The basic purpose for which a court may impose a sentence of imprisonment, just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community. 

30In sentencing you I must have regard to a range of factors such as the seriousness of your offence and your culpability for it, your personal circumstances and those of your victim.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as reasonably possible, that you as an offender are rehabilitated and reintegrated into society.

31Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea of guilty vindicates the public confidence in the legal process set up to protect the community. 

32As part of the governing principles to be considered in sentencing you, I must take into account current sentencing practices.  That inquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics applicable at the time of your sentence. 

33I have considered these statistics and current practices.  I am 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.

34In this case I referred to the recent authorities of Bruce Sherritt v The Queen (2015) VSCA No.1 and Dylan Elton Cole (A Pseudonym) v The Queen VSCA at 44 as recent pronouncements from the Court of Appeal in matters similar to this case.  Both of these authorities relate to offenders who have committed the crimes a long time before the sentence.  This highlights the limitations of using other cases and statistics as a direct guide to current sentencing practices. 

35You have pleaded guilty at the earliest possible time.  You have co-operated with the police at the time of your arrest and interview. 

36It is clear from your record of interview and of your plea that you have genuine remorse for your offending.  The prosecution urged the court that a community corrections order assessment be requested in your case.  Your counsel, Ms Ballard, forcefully submitted your lack of prior offending, no subsequent offending, strong family support, your ongoing employment and the genuine display of remorse all point to rehabilitation as being a most significant matter in your sentence.  You have been assessed suitable for a community corrections order.

37Would you stand please.

38On the charge of sexual penetration of a child under 16 years you are convicted and ordered to serve a three year community corrections order with the following conditions:

a)     That you be supervised

b)     That you receive individual sex offenders program under the Community Corrections Order

c)   That you undertake 200 hours of unpaid community work

39Under s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 12 months imprisonment.

40Pursuant to the Sex Offenders Registration Act you have to report for a period of 15 years as this is a Class 1 offence. 

41Is there anything else? 

42MS BALLARD:  As Your Honour pleases.

43HIS HONOUR:  Thank you, thanks very much.  You can take a seat.  We have just got to prepare the documents.  Ms Ballard, you can ‑ ‑ ‑ 

44MS BALLARD:  Thank you, Your Honour.

45HIS HONOUR:  ‑ ‑ ‑ go to the dock and explain to your client, thanks.

46MS BALLARD:  Thank you, Your Honour.

47(Community corrections order signed and acknowledged.)

48HIS HONOUR:  Mr Shaw, do you understand your obligations under reporting conditions for the Sex Offenders Registration Act?

49OFFENDER:  Yes.

50HIS HONOUR:  You have to comply with those, and if you do not, that could constitute a breach of your CCO and you will be back before me for sentence.  Do you understand?

51OFFENDER:  Yes.

52HIS HONOUR:  Thank you.  You are free to go.  Thanks very much, Ms Ballard.

53MS BALLARD:  Thank you, Your Honour.

54HIS HONOUR:  Thank you.  I will just get a copy of those documents for you. 

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