Director of Public Prosecutions v Shields (a pseudonym)
[2022] VCC 95
•7 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN SHIELDS (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 January 2022 |
| DATE OF SENTENCE: | 7 February 2022 |
| CASE MAY BE CITED AS: | DPP v Shields (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 95 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of grooming for sexual conduct of a child under 16 - two charges of supplying a drug of dependence to a child – grooming charges involved short periods – gravity of the grooming charges relatively low – gravity of the drug charges greater – prospects of rehabilitation assessed as very good
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited:Verdins v R (2007) 16 VR 209; Bugmy v R (2013) 249 CLR 571; Worboyes v R [2021] VSCA 169; DPP v Herrmann [2021] VSCA 160
Sentence:Six months imprisonment and a Community Correction Order for two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Piggott | Office of Public Prosecutions |
| For the Accused | Mr J. Murphy | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Mr Shields[1], at the outset, I propose to sentence you to 6 months’ imprisonment and, with your consent, place you on a two-year Community Correction Order. I will now explain how I arrived at those sentences.
[1] A pseudonym.
2You have pleaded guilty to the following charges:
(a) two charges of grooming for sexual conduct of a child under 16. There is a charge for each of two children; and
(b) two charges of supplying a drug of dependence to a child. Again, there is a charge of supplying to each of the same two children. These charges are rolled-up charges.
3The maximum penalties for these charges are:
(a) grooming for sexual conduct of a child under 16 – 10 years’ imprisonment or a fine of 1,200 penalty units;
(b) supplying a drug of dependence to a child – 15 years’ imprisonment or a fine of 1,000 penalty units.
Circumstances
4The circumstances of your offending are set out in considerable detail in a document entitled “Summary of prosecution opening for plea hearing”, which is Exhibit A.
5The children, Eva Carr[2] and Marcy Carr[3], the victims of your offending, were at the times of your offending aged 13 and 15 respectively. They are sisters. You were then aged 45.
[2] A pseudonym.
[3] A pseudonym.
6Police went to the children’s home on an unrelated matter. As result of something said by their mother and comments by Marcy, a police member, Senior Constable Lockyer, inspected Marcy’s mobile phone. Three days later, Marcy’s mother sent a message to the policewoman of further contact between you and Marcy.
7That evening, the policewoman applied for, and was granted, a Personal Safety Intervention Order, where you were the Respondent. The Order prevented further contact between you and Marcy. It appears this order was served on you the next day.
8Also on that next day, the policewoman spoke to Eva and showed her messages sent by you. The policewoman applied for a Personal Safety Intervention Order against you to protect Eva and obtained an Order that day.
Charge 1
9The above sets out the circumstances surrounding the initial police involvement. The following details the circumstances surrounding the offences to which you have pleaded guilty.
10During 2019, you were introduced to Marcy by her schoolfriend, Grace Walton[4]. During that year and 2020, Marcy visited you at your home many times. You added her to your Facebook messenger account.
[4]A pseudonym.
11In March 2020, you sent a message to Marcy saying:
“hey hook me up with your mum.”
12In mid-March, you wrote to Marcy:
“don’t lie to me please Marcy coz I’m really sad and lonely and I miss holding a beautiful woman and making love to her all night.”
13Marcy replied, thinking you are referring to her mother:
“My Mum has a man to hold her already.”
14You replied:
“So Marcy would you make love back to me I will make you fill (sic) beautiful and only treat you with respect.”
15Her reply is disdainful:
“That’s fked nat I’m with Marc[5].”
[5]A pseudonym.
16After adding pictures of emojis of vomiting, she added:
“Down for some money but not that.”
17You reply:
“ok I will give you money if you let me go down on you and that’s it.”
18Marcy replies:
“U shouldn’t be saying dat shit like dat don’t u understand” and “but why did you have to be sexual about it.”
19You then say:
“ok then Marcy you want money yah do you really no anyone that would do that with me.”
20Between 14 March and 5 April 2020, your communication with Marcy became more sexually explicit. You asked her to have sex with you for $200. You said you would pay her $200 to “go down” on her. You asked her to make love to you and you would make her feel beautiful and would treat her with respect. Her reply was again dismissive:
“wtf cunt. Go drop”.
21You knew her age at the time.
22Marcy introduced you to her younger sister, Eva. You communicated with Eva through your Facebook messenger account.
23These circumstances constitute Charge 1.
Charge 3
24You first contacted Eva on 25 March 2020 but received no reply.
25On 3 April 2020, you wrote to her, saying:
“you have nothing to ever worry about because you have the most beautiful eyes and hole rounded eyes to and cute freckles please don’t take it the wrong way…I would never hurt you or ever let you get hurt ever like you’re a good girl I would treat you like a princess.”
26In that conversation, you ask Eva if she wants to come down for a “mull”, to which she agrees. You encourage her not to tell Marcy because she will ruin their good time.
27On 4 April, you ask Eva to go to Werribee[6] with you. She declines. You ask her about asking her friend if you can cut firewood on the friend’s father’s property. Then you ask her if she wants to make $100, to which she says:
“Nah I don’t want ya money.”
[6] A pseudonym.
28You reply:
“Good girl Eva thank you for saying that…that’s how I no (sic) you’re a very good girl but what I was going to say you have to give me a kiss true sorry ha.”
29You ask her whether you are in trouble with her and she says “no”. You then ask:
“So you are going to give me a kiss then.”
30There does not seem to be a reply but on the same day, you sent Eva a photograph of a man’s chest which you identified as your own and also said:
“Fuck sorry didn’t mean to send that to you” and “Not bad for my age true.”
31Later again on the same day, you offered Eva $200 to kiss you, to hold you all night without any sex, just the once, with no-one knowing and you would get the motel room. You particularly did not want Eva telling her sister because she takes things the wrong way.
Charges 2 and 4
32These are three occasions comprising the rolled-up Charges 2 and 4. They occurred between 1 March 2020 and 30 April 2020.
33First, you picked up Marcy and Eva in your utility from a bus stop. You then travelled to your home to collect a pair of scissors to cut the cannabis. You then drove to a car park where the girls smoked about 3 to 4 grams of cannabis in your utility over a period of about 3 hours.
34At one stage, you tore a $50 note in half and gave a half to each girl. Marcy did not want it so you gave the halves to Eva.
35Later, you drove to Hoppers Crossing[7] to collect a friend of Eva. The friend had a bong with her. You then went to a bush area. Marcy was now very stoned. The friend left. You asked Eva for a kiss. She replied:
“No. What the fuck.”
[7] A pseudonym.
36You kept asking her why not but she ignored you. You gave each girl a big bud of cannabis. The conduct relating to your request for a kiss is a part of Charge 3. The other circumstances represent the first occasion of Charges 2 and 4.
37Second, the next day, you picked the girls up from the same bus stop. You drove to a house in Tarneit[8] where you obtained 3 grams of cannabis, which you gave to Eva. You then bought cigarettes so the tobacco could be mixed with the cannabis. You then went to Truganina[9] and smoked the drug. Each of you became high on it.
[8] A pseudonym.
[9] A pseudonym.
38At about 7 pm, you dropped the girls near their home. You kept asking Eva for a kiss and sent her sexual messages including a message which said:
“Now both of you owe me a kiss.”
39The next day, you bought for them a packet of cigarettes and $30 worth of cannabis. You delivered these items to them at the bus stop.
40Third, a few days later, you picked up the girls from the same bus stop and drove them to a pine forest. You provided the cannabis which you all smoked. You were there for only 30 minutes. You again gave the girls a $50 note which you ripped in half, saying “spend it wisely”.
41On 23 April 2020, your home was searched and a mobile phone, a camera, SIM cards and an SD card were seized.
42You were arrested and interviewed. You said you met Marcy once and saw Eva among a group of people only once. In effect, you denied texting Eva and Marcy. You did not help the police during this interview.
43On 8 July 2020, you were charged and summonsed to court. After several adjournments, you were committed to this Court on the basis of the contents of the brief of evidence. There were also several adjournments in this Court until 12 July 2021 when you indicated an intention to plead guilty to the charges. This relieved the necessity for the Court to consider the application of s32 of the Evidence (Miscellaneous Provisions) Act 1958 or conduct a ground rules hearing.
44As your counsel pointed out, on 14 May 2021, you offered to plead guilty to the two grooming charges where the drug allegations formed part of the circumstances of the grooming charges. Although not accepted, your offer did encompass the overall circumstances of the offending.
45In terms of the processes of criminal courts, starting with the charging of the offences and ending with a trial, your pleas were entered at about the mid-way point. They were not early or late.
Criminal history
46You have an extensive criminal history. Between 14 August 1995 and 19 December 2019, you have appeared in a court on 33 occasions and were convicted or found guilty of 149 charges.
47In 2000, 2001 and 2015, you served periods of imprisonment up to six months on four occasions.
48In the main, you have committed dishonesty, street and drug offences. You have no prior convictions or findings of guilt for sexual offending or supplying drugs of dependence to children.
Victim impact statements
49Both girls, and their mother, have provided victim impact statements. All are brief. Marcy speaks of feeling stressed, anxious, worried and drained. She finds it hard to go out.
50Eva is anxious and worries about seeing you and other “creepy men” as she puts it. She has lost her trust in men. She becomes very anxious when she sees you in the street. She fears you will stop and speak to or yell at her. She fears repercussions from your “associates” who have questioned her.
51The emotional reaction of their mother has ranged from anger to sorrow, causing her anxiety and stress. Unfortunately for her, Child Protection has become involved and she finds this very time consuming.
Psychiatrist
52Remy Glowinski is a consultant psychiatrist. At the request of a Magistrate at Bendigo, he interviewed you on 18 March 2014[10]. You had pleaded guilty to charges including recklessly causing injury and contravening a Family Violence Intervention Order.
[10] Report dated 31 March 2014.
53You told Dr Glowinski of your efforts to harm yourself, starting when you were 13. Dr Glowinski saw the scarring left by some of your attempts:[11]
“…his abdomen, which had about 6 separate linear, well healed scars perhaps 10cm in length…there was scarring on his right cheek…”
[11] Report at paragraph 6.
54At 13, you slashed your stomach with a broken bottle after hearing that your brother had been imprisoned. Since then you have frequently harmed yourself as a means of “letting out the pain”. Mainly, you cut yourself but you also burn yourself with a cigarette lighter.
55To Dr Glowinski, you had a significant personality disorder with anti-social and borderline traits and substance dependence disorders relating to heroin and cannabis.
56Dr Glowinski observed:[12]
“Mr Shields did not seek out psychiatric care until after the death of his brother in 2006. However it appears that there were difficult behaviours including self harm from adolescence which I believe can be understood in the context of his personality disorder. His childhood abuse provides a context for the later experience of psychiatric symptoms, including Post Traumatic Stress Disorder (PTSD). He provides a description of symptoms consistent with PTSD after the death of his brother.”
[12] Report at paragraph 39.
Psychologist
57Jeffrey Cummins is a clinical and forensic psychologist. At the request of your solicitors, Mr Cummins interviewed you on 8 November 2021.
58What struck Mr Cummins from the beginning was your dissociated personality style.
59Apart from how you appeared during your interview, Mr Cummins also used two assessment tools to determine your risk of relevant re-offending. He assessed you as a low-moderate risk of sexually re-offending against an underage person. In this regard, there are five categories – low, low-moderate, moderate, moderate-high and high.
60Mr Cummins diagnosed you as suffering from two recognised psychological disorders – major depressive disorder; and post-traumatic stress disorder. The former is of moderate severity and is recurrent. He did not speak of the severity of the latter but thought it probable you suffered from a form of this disorder, a complex Post-Traumatic Stress Disorder. Although he did not diagnose it, he thought your symptoms indicated a chronic personality disorder. He even suspected the existence of an acquired brain injury due to your drug usage.
61Mr Cummins made two significant observations:
(a) your mental health will deteriorate while you are in prison. He adopted what you told him:[13]
“…he felt ashamed, embarrassed and overwhelmed that he had committed the offences of grooming. He stated he did not know how he would be able to cope with being again imprisoned and, worse still, being held in prison on protection.”
(b) you have very significant mental health problems which would have played some significant role in your offending behaviour.
[13] Report dated 17 November 2021 at paragraph 53.
62Mr Cummins noted you receive treatment under a mental health care plan and, in light of his assessment of your risk of re-offending, recommended offence specific treatment.
Personal Circumstances
63You are now 46. You are the youngest of four children. You have two sisters and had a brother, James[14], who died in a motor vehicle collision in 2006. You believe he was murdered by the other driver and were distressed by that person’s acquittal at trial. Your father, who was very strict with you, blames you in some manner for the death of your brother. The death of your brother has profoundly affected you. You told Dr Glowinski in 2014:[15]
“… ruined my life, my relationships and it has shattered me. He was the only person I could speak with.”
[14] A pseudonym.
[15] Report at paragraph 15.
64Your parents are still alive and living together.
65Your childhood was an unhappy one. You were frequently physically disciplined by your father, apparently at the instigation of your mother.
66You completed Year 11 at the high school. You were bullied at school. You struggled with reading and writing. Despite being sexually abused by a female teacher between Years 7 and 9, you do not believe the abuse has damaged you.
67After leaving school, you worked for seven years at a smallgoods manufacturer[16] and then for two or three years driving trucks for your father. There has been other work involving welding and chainsaws, for which you have obtained certificates. In about 2014, you started to receive a disability support pension.
[16] A pseudonym.
68You started smoking cannabis at 15 and have continued this habit over the years to the present time at varying, but always significant, levels. You started using heroin at 24 and it is unclear when you started with methamphetamine. You have undertaken at least 12 detoxification programmes during your 20s and 30s. Since May 2020, you have been on a methadone program and your current daily dosage is 30 mg. Between 2009 and 2014, you were on a methadone programme. For the last 6 years, you have been prescribed Seroquel, an anti-psychotic medicine.
69You have two significant relationships. The first started when you were 18 and lasted 12 years. You were frequently mentally and emotionally abusive towards your partner and she left you after you were imprisoned. Your second relationship lasted eight years, ending in about 2012.
70There have been two children of your relationships, Leon[17], aged 23, and Gemma[18], aged 14. You now have three grandchildren. You see Leon almost daily. You have not seen Gemma for years but hope to resume contact this year.
[17] A pseudonym.
[18] A pseudonym.
71You live alone in a flat provided by the housing section of the Department of Families, Fairness and Housing. You have lived in this flat for some time.
Discussion
72Section 5(1) of the Sentencing Act 1991 (“the Act”) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender’s rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in;
(e) to protect the community from the offender.
73In most cases, one or more of those purposes are relevant. It is true in your case.
74Plainly, the purposes of deterring you and deterring others from committing these or similar offences are important. The community cannot tolerate people committing the offences you have committed. My sentences should have such a deterrent effect. My sentences should manifest a denunciation of these offences. They should also protect the community from you. However, as I will explain shortly, your prospects of rehabilitation are very good. As such, the purpose of protecting the community from you assumes a lesser importance since an aspects of this purpose will be achieved through your rehabilitation. For if you are truly rehabilitated, you will not re-offend by committing these or similar offences again.
75Section 5(2) of the Act sets out factors which I must, if they are relevant, take into account in sentencing you.
Gravity, culpability and degree of responsibility
76In relation to the grooming charges, there is an obvious difference in your age and those of the two victims. Each of the grooming charges involved short periods: with Marcy, about three weeks; with Eva, a few days. There was no subtlety in your grooming actions. They consist of a series of suggestions and requests, which were not well received.
77Objectively, the gravity of the grooming charges is relatively low while the gravity of the drug charges is greater for it saw both girls becoming intoxicated or “stoned”.
78As to your moral culpability, I will discuss that in the context of your counsel’s submissions regarding the case of Verdins v R[19].
[19] (2007) 16 VR 209.
79In describing your offending as “situationally motivated and opportunistic”, Mr Cummins is able to reject you as having a sexual attraction to underage females and reject you as suffering from the sexual disorders of paedophilia or hebephilia.
80In relation to the drug offences, a mixture of your psychological state, your beliefs about Marcy, Eva and their mother, somehow you did not even think supplying drugs to these children was a criminal offence.
81Analysing your life in terms of the factors raised in Bugmy v R[20] and Verdins v R is somewhat artificial in your case. Your father was a severe disciplinarian with you at least. You do not speak with him now. Your mother encouraged him yet you love your mother still. You have a long history of self-harm, starting at the very young age of 13.
[20] (2013) 249 CLR 571.
Guilty pleas
82Returning to your pleas of guilty. I accept they are indicative of your remorse for your offending.
83In almost every case, a plea of guilty deserves a mitigation of the sentence which would be otherwise imposed. At the very least, it avoids the need for a trial. This saves the time and expense of a trial. It allows other trials to be heard earlier than would otherwise be the case. It avoids the need for witnesses to give evidence, which, generally, is a distressing task and would be for the girls and their mother in this case.
84Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently. This has prompted the Court of Appeal in a case of Worboyes v R[21] to explain that pleas of guilty are worthy of a greater discount of the sentence if made at this time. It is worth quoting a passage from the Court’s judgment which shows the emphasis it placed on pleas of guilty in this time of restriction:[22]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[21] [2021] VSCA 169.
[22] [2021] VSCA 169 at [35].
85As your counsel submitted, you were originally charged on summons and then bailed following the committal hearing. At no stage were you in custody. If you had sought to contest the charges or any of them, then a trial may have been a long time coming. Your pleas of guilty are the very thing the Court in Worboyes is talking about.
86Notwithstanding their timing, but noting them as being evidence of remorse, they entitle you to a significant discount on the sentences you would have received in their absence.
Prospects of rehabilitation
87I accept that you are sorry for your offending and recognise the traumatic effect of your offending on the victims. You told Mr Cummins of your inability to understand why you offended but appreciate the need for more counselling.
88I note the strong relationship between you and your son, Leon, and his wife and their children. It is a strong factor in relation to the question of rehabilitation.
89My sentences will assist your reformation through deterrence and then the measures to assist your rehabilitation.
90Overall, as I said earlier, your prospects of rehabilitation are very good.
Bugmy
91Your counsel referred to Bugmy v R[23]. Your childhood experience of violence has affected you severely, translating into at least your personality disorder. In your case, the Bugmy considerations are subsumed into the matters I will now discuss.
[23] (2013) 249 CLR 571.
Verdins
92Your counsel relies upon each of the six propositions stated in Verdins v R[24]. Whether any proposition applies, and the extent to which it applies, depends on what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by you at the relevant time.[25]
[24] (2007) 16 VR 209.
[25] DPP v Herrmann [2021] VSCA 160 at paragraph 49.
93Mr Cummins saw you as suffering three disorders. One involved depression, another anxiety and the third, your underlying personality. There is also a substance disorder due to your addiction to cannabis.
94Seven years earlier, Dr Glowinski diagnosed the personality and post- traumatic stress disorders. Now, and in 2014, in combination, you are depicted as a deeply disturbed person.
95At the interview, the first thing Mr Cummins noted was what he called your very dissociated personality style. He did not then spell out what he meant. However, as you read his report, you begin to understand what he meant. He noted your marked difficulty in remaining focussed on the topics, going off on tangents and needing his help to refocus. Your short and long term verbal memory was unreliable. You appeared confused with the order in which events occurred. Years earlier, Dr Glowinski saw your self-harm, starting when you were 13, in terms of your personality disorder.
96During cross-examination, Mr Cummins agreed a dissociated personality disorder included a sort of detachment from connection with other people. Broadly, this disorder causes you to lack the ability to perceive things accurately and make proper judgments.
97Except for specific deterrence, I agree each of the propositions in Verdins’ case apply to you. Together, they require a significant amelioration of the sentences. They also require a close regard to your rehabilitation.
98While few would identify with you because of your complex of psychological disorders, my sentences must act to deter you from re-offending in this or in similar ways. You told Mr Cummins of your fear of imprisonment, especially as you expect to be a protected prisoner.
Totality
99Usually, the totality principle applies where a person is sentenced for a series of largely unrelated offences. In your case, the offences are related in the sense that they involve the same children but in different forms of your criminal behaviour. Nevertheless, the principle must always be remembered whenever a person is sentenced for multiple offences.
Community Correction Order
100On 18 January 2022, a Community Corrections Officer assessed you as suitable for a Community Correction Order. He also assessed you as a high risk of
re-offending. He recommended conditions relating to rehabilitation and supervision. The rehabilitation condition regarding mental health is supported by a psychiatric nurse.Housing
101You have lived in your residence for some time. It is provided through a relevant government department. You have good relations with at least two of your neighbours for they speak highly of you. Stable accommodation is essential for the purposes of rehabilitation. Without it, rehabilitative efforts can be largely wasted. Your counsel raised the loss of your accommodation if you are absent for more than six months. If I sentenced you to more than six months’ imprisonment and you lost that accommodation, I daresay the relevant department would find you other accommodation for otherwise you would be homeless and without the financial means to obtain accommodation in the private market. But that does not mean it would be in Tarneit, being a relatively small community. If not, you would lose your community contacts including those of your neighbours. This is a significant factor.
Sentence
102On each of Charges 1, 2, 3 and 4, I will sentence you to six months’ imprisonment. These sentences will be served concurrently.
103Subject to your consent, in addition, on Charges 1, 2, 3 and 4, I will sentence you to a Community Correction Order of two years’ duration, which commences after your release from prison, with these conditions:
(a) you are supervised, monitored and managed as directed by the Secretary;
(b) you undergo assessment and treatment (including testing) for drug abuse or dependence;
(c) you undergo mental health assessment and treatment;
(d) you undertake a program or programs that addresses factors related to your offending behaviour; and
(e) finally, you be monitored by the Court to review your compliance with the order.
104The last condition is called “Judicial Monitoring”. Owing to your personality disorder in particular, complying with the conditions of a Community Correction Order will not be easy for you. Reviewing your compliance will assist you in carrying out the conditions of the order. If you consent to the order, you must appear before the Court for the first review on 7 November 2022 at 9.30 am.
Section 6AAA Declaration
105If you had not pleaded guilty but had been found guilty after a trial, I would have sentenced you to a total of 12 months’ imprisonment with the same Community Correction Order.
Sex Offenders Registration Act
106Since the offence of grooming for sexual conduct with a child under 16 is a Class 2 offence under the Sex Offenders Registration Act 2004, I will order you to comply with the reporting obligations under that Act. Since you have been found guilty of two Class 2 offences, the period of your reporting obligations will be 15 years.
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