Director of Public Prosecutions v Shore

[2021] VCC 321

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-18-02356

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY SHORE

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 March 2021
CASE MAY BE CITED AS:	DPP v Shore
MEDIUM NEUTRAL CITATION:	[2021] VCC 321

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Jones	Office of Public Prosecutions
For the Accused	Mr A. Schwartz	Kurnai Legal Practice

HER HONOUR:

1Harley Shore, you have pleaded guilty before me to one charge of persistent sexual abuse of a child under 16.  The facts underlying are as follows. 

2At the time of the offending you were aged between 26 and 27 years of age.  The victim was aged between 14 and 15 years of age.  The victim made contact with you some time in early 2017 via the gay dating app Grindr.  You asked for his photograph.  The victim sent it and claimed that he was 19 years of age.  You exclaimed on the app that the victim looked young and a sexual relationship then commenced on a consensual basis - which is of course, no defence to this charge - comprising five occasions between 1 July 2017 and 29 June 2018. 

3On the first occasion, the victim was shopping a local IGA with his mother and he communicated with you via the Grindr app and told you where he was.  You told him, via the app, that you would be there soon and the two of you agreed to meet, again via the app, in the nearby toilets.  The victim told his mother he was feeling sick and needed to go to the toilets, where he met you.  There he performed oral sex on you, you performed penetrative sex and then oral sex on him. 

4

In your record of interview with police, you made admissions to these actions.  The prosecution accept that, at this time, you did not know the age of the victim, but the charge is based on you not having a reasonable belief that the victim was

16 years of age and therefore incapable of consent, given his appearance in the photograph and in person. 

5The second occasion occurred shortly after, where you and the victim agreed to meet some time later.  You agreed to drive to the victim's address.  The victim sneaked out of his bedroom.  The two of you met in the back yard and there the victim performed oral sex on you.  You masturbated to ejaculation and performed oral sex on the victim.  Again, you made admissions to this activity in your record of interview with police.

6The third occasion occurred when the two of you again agreed to meet up via the Grindr app.  You picked up the victim from his home and drove to a secluded area nearby.  The two of you then got into the back of the car.  You performed oral sex on the victim, the victim sexually penetrated you and, in your record of interview, whilst admitting to this particular incident, you told police only oral sex had occurred between the two of you. 

7I was informed by your counsel on the plea that, on this occasions, you made a specific inquiry of the victim of his age.  He told you he was 15 and you thereafter, ceased contact with him. 

8The fourth occasion occurred on the night of 28 June 2018, when the victim contacted you via Grindr.  The two of you, as a result of your decision not to have contact with the victim, had not seen each other for some time.  The victim told you he was having difficulty with his parents, in particular his father, and he asked you to pick him up, saying he needed somewhere to stay for a few days.  He told you he would, 'Literally play all night,' and would, 'Literally do whatever.'  You had some trouble recognising, apparently, who was sending you these messages, then realised it was the victim.  You agreed to collect him from his home.

9The two of you arrived at your house some time after 1 am on June 29, 2018.  The victim had a shower and joined you on the couch.  You asked him how old he was again and he told you he was 15.  You both then went to the bedroom, where you performed oral sex on the victim.  Other sexual acts, which are uncharged, occurred, including the use of a vibrator.  The victim then complied with your request to perform oral sex on you and you masturbated your own penis to ejaculation, as well as the victim's.  The two of you then went to sleep. 

10The next morning, the victim woke, at which time you had left the bedroom and was sitting on a couch.  He went and sat next to you.  You rubbed his leg, masturbated his penis and performed oral sex on him whilst you masturbated yourself and the victim then went to sleep.  In the record of interview you admitted to picking the victim up from his home and that oral sex had occurred.  In the meantime, the victim's parents had found a note which he had left and drove around the neighbourhood looking for him.  They then rang police and the victim's phone was traced to your address. 

11When police arrived at your home at about 12.45 pm, they found the victim asleep in bed.  They asked him some questions and then when they informed you he was only 15 you appeared shocked, saying you thought he was 18.  This was clearly untrue.  You said you had assumed the victim was 18 because he had a Grindr account.  Indeed, a Grindr account cannot be achieved by persons under 18 and it was clear that the victim had misled those running the app of his age. 

12The victim left with police and then participated in a video recorded statement where he detailed the offending that I have outlined.  You rang the victim at about 4 pm that day when he was still at the police station.  The call was recorded.  In it you asked the victim what he had told police, stressed that your accounts must be consistent and told him to tell police, 'What they needed to hear.'  You told the victim several times to say he had told you he was 18 and that there had only been one sexual encounter between you.  In that call, the victim said to you that the night before he had told you his true age.  You said that that had not happened, the victim said it had and then you said, 'We're going of the pretence that you're 18 via your profile.' 

13That evening, you participated in a record of interview with police where you made admissions to each of the occasions of sexual conduct alleged but said you thought the victim was 18.  You said you had only learned of his true age from police.  You said you knew that 16 was the legal age of consent.  You said you thought the victim was 17 or 18 years old because of his appearance and build but said you had specifically asked him his age the night before because of the victim's fight with his father and the way in which he appeared on that evening, and because, you said, you did not believe at that time that the victim had said that he was 18. 

14Once you were confronted with the recorded phone call, you swiftly admitted that you had become aware of the victim's age possibly the third time the two of you met.  This was via a conversation on Grindr where in fact you asked the victim his age and he said he was 15.

15The case against you is based on your decision to continue sexual activity with the victim, despite knowing his age.  This comprised two further occasions of sexual activity, including the last occasion where you confirmed, again, that the victim was 15 years of age.  You denied knowing that the victim was 14 when you first met him at the IGA, but did say ultimately to police that you thought he looked about 15 or 16. 

16The victim elected not to make a victim impact statement in this matter, however, victim impact statements were received from both of the victim's parents.  The victim's father read out his victim impact statement to the court.  It was clear that they were both extremely distressed that their son had engaged in this sexual activity with you at such a young age.  As a result of this activity and this offending being discovered, the victim was required to undergo testing for possible HIV, because on two of the occasions spoken of, the sex was unprotected.  Both parents expressed distress at being unable to protect their son from engaging in sexual activity in the way he had with you.  There is no doubt this offending had, and continues to have, an extremely distressing effect upon them.

17The standard sentence for this offending is 10 years imprisonment. The offence is a Category 1 offence, so the pursuant to s.5 paragraph 2G of the Sentencing Act a term of imprisonment must be imposed.  You will be placed on the Sex Offenders Register with reporting conditions for life. 

18

On 15 November 2018, you were committed for trial by way of straight hand-up brief; that is, no witnesses were called.  Plea discussions began soon after but did not resolve.  Eventually, a pre-recorded special hearing was conducted on

March 29, 2019.  Thereafter, various adjournments occurred.  Then in 2020, due to COVID restrictions, no trial was able to be listed.  You were eventually arraigned on a plea indictment on October 29, 2020 and then the plea heard before me several weeks ago.  It is clear that your plea is not an early plea, nevertheless, you are entitled to the utilitarian value of making such a plea and of saving the community the time and expense of a trial.  As a result of the special hearing, the victim did give evidence and was cross-examined.

19I now turn to your personal circumstances.  You are 29 years of age and you have no prior convictions.  You are one of five children raised by your parents in rural Victoria.  Your father is a boilermaker and your mother had the occupation of home duties.  They separated when you were 11 or 12 and you stayed with your father on weekends.  You had, it would appear, an extremely difficult childhood.  Throughout your school life you were relentlessly bullied both emotionally and physically for your weight and obvious homosexuality.  You were also regularly sexually abused by other older students, about which you told no-one.  You managed, however, to pass your VCE. 

20You then worked at McDonald's for five years, mainly on the nightshift.  You then worked at Autobarn as an accessory installer for five years.  You resigned from this position after being charged for these events and in the wake of your deteriorating mental health and the effects of a longstanding back injury.  You suffered two prolapsed discs in your lower back after being pushed out of a tree by your brothers.  You now live with your mother, paying her board. 

21You have used cannabis since your late teens and used amphetamines whilst you were working on nightshift.  You have used alcohol to significant extent, it would appear in order to medicate the mental health problems you have suffered for many years.  You were diagnosed by psychologist Aaron Cunningham as suffering significantly elevated scores for a number of worrying mental health conditions, including a Generalised Anxiety Disorder, Post-Traumatic Stress Disorder, Persistent Depression, and Major Depression.  You have, on eight occasions, since the age of 10 or 11, attempted suicide.

22Most significantly and critically in so far as my sentencing exercise is concerned, Dr Cunningham who gave evidence on the plea, including evidence of particular expertise in diagnosing in this area, diagnosed you as suffering from an Autism Spectrum Disorder.  This has never previously been a condition with which you have been diagnosed or treated. It is quite clear that this disorder has caused you enormous difficulties throughout your life in terms of your capacity to cope with others, to operate socially with peers and with family.  I am now going to turn specifically to Dr Cunningham's report in this regard.

23Dr Cunningham stated in his report, that in meeting the criteria for autism spectrum disorder you presented with the following difficulties. 

·Firstly, persistent deficits in social communication and social interaction across multiple context.  By this he meant that you presented with limited social connection.  He noted you would struggle to source and maintain relationships with peers, you avoid social interaction, you become anxious when having to communicate, you struggle to understand the thoughts and feelings of others and you present with, as the courts have heard many times in relation to people suffering from this condition, a largely egocentric view of the world. 

·Second, you have restricted, repetitive patterns of behaviour, interests or activities. 

·Thirdly, you have reported impairments from primary school.  In other words, Dr Cunningham found that you have suffered from this condition since early childhood.

·Fourthly, he noted these symptoms caused clinically significant impairment in social, occupational or other important areas of current functioning. 

24You told Dr Cunningham that you generally met your sexual partners through apps like Grindr, that your preference was for partners aged between 18 and 29.  What is important here is that, Dr Cunningham noted, you have struggled to identify the long-term consequences to your victim. 

25In her submissions to this court on sentencing, the prosecutor referred to a number of authorities which talk about why offending against children, even on a consensual basis, I will repeat again, where a child is under 16, consent is not a defence.  The reason why even consensual sexual relationships with underage children are so damaging, are outlined by the Court of Appeal in a number of decisions to which I now refer. 

26In Adamson v The Queen [2011] 47 VR 268 at paragraph 36 the court stated:

'The harm against which Parliament seeks to protect child victims, includes that which is likely to emerge in the future.  While the precise long-term consequences of premature sexual activity for any particular child are unknowable and impossible to predict, harm includes the increased risk of long-term consequences.  Those consequences are now well recognised.  It is not necessary to say that the presumed harm be discernible at the time of sentence.  The objective gravity of sexual offending against children rests upon the presumption that harm will occur, irrespective of whether it is immediate and manifest.'

27What the court there is referring to is that, premature sexual relations by a child are, at law, acknowledged to cause harm, whether it is immediate or long-term.  That can include an over-preoccupation with the sexual activity at a time when a young person is at a critical stage of development and meant to be involving him/herself in a number of activities and the acquiring of a number of skills that will benefit them in later life.  The ending of a relationship which has been a sexual relationship for a child under 16, particularly in a consensual sense, can have devastating consequences. 

28The mother of the victim in this case noted that, at some stages, her son has been suicidal.  This may well have to do with this young man's own grappling’s with his sexuality.  But that he, unfortunately, took the path of Grindr does not excuse your behaviour in continuing to have a sexual relationship with him after you discovered his age. 

29A sexual relationship can assume a significance well beyond what it is and cause emotional distress for a young person, which a more mature person simply would not.  That is a very brief and probably woefully inadequate description of the harm that can be done to a child who engages in sex before they are emotionally ready to do so.  I certainly accept that this happened to your victim in this case.

30

However, I regard the fact that you suffer from an Autism Spectrum Disorder as very significant and, indeed, critical in the sentencing exercise that I must undertake.  Dr Cunningham stated, 'In my opinion, Mr Shore understood the wrongfulness of his behaviour in a legal sense.  However, in the context of his Autism Spectrum Disorder, Mr Shore has impairments in his understanding of the significant consequences to the victim.'  He went on to say, 'In my opinion,

Mr Shore's Autism Spectrum Disorder did not impair his understanding that the behaviour was legally wrong, but resulted in impairment in his understanding of how seriously wrong his behaviour was with the consequences to the victim.  This moral reasoning impairment would increase Mr Shore's risk of offending, as he can struggle to determine the thoughts and feelings of others, as well as interpret appropriate social cues.'

31In his evidence, Dr Cunningham explained that passage that I have just referred to in this way:  That when the victim contacted you and asked for a place to stay, because of your Autism Spectrum Disorder, your reasoning would have been:  “well, we have had sex in the past, there is no reason why we shouldn't now”.  That is, your capacity to appreciate the vulnerability of the victim, your capacity to appreciate the effects upon him, to take into account the distressed state that your victim was in (although, there is no indication that the sexual activity was not consensual) was impaired by virtue of your Autism Spectrum Disorder. 

32To some extent, it is expected that members of the community do understand the impact of inappropriately early sexual activity on children under the age of 16.  I am satisfied you do not have that understanding.  I am satisfied there is a split between your legal appreciation of what is right and what is wrong. That was clearly demonstrated in the conversation you had with the victim in seeking to avoid the legal consequences of your behaviour. But there is a split between that capacity, which is a pragmatic capacity if you like, while the capacity to have an appreciation of the emotional effects on the victim, which I have referred to at some length, was gravely impaired.  I will return to this aspect in terms of its effect upon my sentencing decision shortly.  I do now, however, wish to return to the media reporting of this matter. 

33The reporting that did appear, in my view, was grossly misleading and inaccurate.  I allowed defence counsel a special hearing to address me in particular in this way.  The reporting flaunted your name across the headline in the edition published in your home town, it described you as a “fiend” and asserted you lured the victim away from his mother.  It is quite clear, as I have said, that the victim contacted you on that occasion. In criticising the media reporting, I am in no way seeking to trivialise the seriousness of your offending.  It is extremely serious offending for all the reasons that I have outlined and, it is quite clear in the maximum penalty of 25 years, that this is regarded as very serious offending and I do not resile from the seriousness of your offending for a moment. 

34But it is, in this case, incumbent upon this court to note that the reporting of this matter has been grossly inaccurate, did not refer to the consensual nature of this activity, did not refer to the victim's own misrepresentation of his age, did not refer to the fact that you sought to avoid contact with the victim  (although that does not excuse your later resumption of sexual activity with him).  The Daily Mail in particular was egregious.  The heading was, 'Teenage boy on a shopping trip with his mother is lured into a toilet by a man and raped as parents describe horror of waiting for AIDS tests results.'  Again, your offending is serious and you will be gaoled for it, but this reporting - and this was agreed to by both prosecution and defence - was so inaccurate as to warrant criticism from this court and special mention from this court.  I note, that, for example, in an article published in a local paper the heading was, 'Traralgon Grindr fiend Harley Shore pleads guilty to persistent sexual abuse of a child under 16.' 

35This was then followed by the sub-heading, 'A sex fiend lured a boy from his mother while the pair shopped at Gippsland IGA and sexually assaulted the victim in a toilet’. Clearly this is entirely inaccurate reporting. Together with the other publications I have referred to, in addition to causing you extreme emotional distress, this has led you to the view that, on your release from prison, you will be unable to return to live in the town where you have resided all your life.  In the circumstances - and this was not disagreed to by the prosecution - I regard that reporting as amounting to, what is referred to, as extra-curial punishment; that is, punishment for your offending beyond that imposed by this court.

36Again, this does not excuse your offending.  Again, you will be gaoled for your offending.  But I regard it as a moderating factor.  I have spent some time upon this because, in my view, the press have a responsibility to report matters accurately and, in this case, they have quite clearly failed to do so, and failed to do so in a significant way. 

37I return now to the factors which I must take into account in sentencing you.  Clearly, general deterrence is a principle to which this court must have regard.  As I have said, this is extremely serious offending, as denoted by the maximum penalty attached to this offending.  General deterrence is a principle whereby a court sends out a message to other persons who might be inclined to offend in the way you have offended; to send a message to those persons that, if they do offend in this way, they will be dealt with sternly. 

38Specific deterrence, that is, sentencing which has an effect upon you, Mr Shore, to make you understand that you cannot offend in this way, has some place in the sentencing exercise.  I have accepted the Autism Spectrum Disorder that I have referred to and from which you suffer, has impaired your capacity to understand, beyond in a legal sense, the wrongness of your offending but nevertheless, it is something you must understand and accept.  You did know that, at law, this was wrong and unlawful and nevertheless, you continued to offend against the victim. 

39You were assessed by Dr Cunningham as being a moderate risk of reoffending.  He did not find that you were hebephilic, that is, that you had a deviant attraction to adolescents.  His concern was that your abuse of alcohol - and he found that you had elevated clinical scores for alcohol abuse which, it would appear, you use in order to self-sooth or deal with your evident very difficult problems with depression and anxiety - would be the most significant factor in the possibility of you reoffending.  I make the remark now because you will, at some stage, be released on parole, but this is something that the post-sentence authority should attend to on your release.

40You have no prior convictions.  You have not offended since.  I regard you as having a good employment history and I regard your prospects of rehabilitation as positive.  However, it is my view that you do require psychological treatment.  You need to attend a sex offender's program to truly understand the aspects of offending against minors (not that I regard you as someone who particularly presents as a danger to minors in that sense), as well as treatment for substance abuse.  But overall, I do not regard you as posing a particular threat to the community at large, in particular underage teenagers, as long as those aspects of your life that I have referred to are attended to.

41I regard the mitigatory factors outlined in Verdins as having particular relevance in the sentencing exercise I must undertake.  I accept that your impairment affected your capacity, as I have said, to appreciate properly the harm that you were doing.  To that extent, I accept that there is some reduction in your moral culpability.  I also accept that there should be moderation in terms of the general deterrent aspect of the sentence I impose.  On the expert evidence, you have clearly suffered from Autism Spectrum Disorder all your life.  It has never before been diagnosed.  You have had no treatment for it; your symptoms therefore remain untreated and, in my view, ground 3 of Verdins has application in my view. 

42Turning back to moral culpability, I am satisfied that your Autism Spectrum Disorder impaired your capacity to appreciate the wrongfulness of your conduct, as I have said.  I have also referred to the aspect of specific deterrence, which I have said to you has application in your case.  Again, there is, in my view, to be some moderation, again, because of the Autism Spectrum Disorder.  And I find that grounds 5 and 6 have application in your case.  That is, I am satisfied that a sentence of imprisonment will weigh more heavily upon you than a person in normal health.  I am satisfied your physical condition will cause you difficulties, but more importantly, you suffer from depression, you suffer from anxiety and again most critically, you suffer from Autism Spectrum Disorder so that your capacity to read social queues, to effectively interact with other people in jail, will cause particular problems in your dealings with other prisoners and, as a result, prison will be more difficult for you in that sense. 

43I also am satisfied there is a serious risk that imprisonment will have a significantly adverse impact upon your mental health.  You clearly suffer significant and distressing mental health difficulties.  You have, as I have said, attempted suicide eight times in the past, once after you were charged with this offending. 

44To some extent, delay also effects my decision.  Much of that delay came about as a result of an early decision to conduct a trial rather than a plea, and I note that a number of adjournments were sought by defence.  However, the advent of COVID, the restrictions and the inability of trials to be conducted in this court have led to a considerable delay.  Firstly, you have not reoffended in that time, but secondly it is my view that the delay has also caused prolonged anxiety and suffering and I take that into account in a limited sense.

45Again, I stress that, in my view, the legislation assumes that adult persons in the community should know that they can cause harm to a young person by behaving as you did.  I accept that you simply did not have that appreciation and I regard that as a critical difference to the norm in the way in which I go about determining the offending in this case.  I also accept that, whilst extremely wrong, your actions in relation to the victim were not predatory.  You did not seek him out, you did not groom him, you did not seek to exploit his vulnerability in way, sadly, too often seen in these courts.  What you did to was continue in a relationship you should not have done, and I have said this a number of times in my sentencing remarks, that was gravely reprehensible. 

46In sentencing you, I also take into account a factor that is inevitably present in cases where children engage other victims of underage sexual activity and that is, the enormous distress that it causes their families.  This has an inevitable flow-on effect and it has clearly had a terrible effect, as I have said, on this boy's parents.  It is quite clear in the victim impact statement of both parents that not only are they distressed at the activity that took place, but they continue to suffer from feelings of guilt that they were unable to protect their son and it has clearly impacted on their relationship with their son.  I take that almost inevitable ripple effect into account in sentencing you. I also take into account the inaccurate and distorted press reporting on this case and the effect this has had on you.

47The factors that I have outlined in this case, in my view, are extremely significant, in particular, and I know I have said it over and over, the previously undiagnosed Autism Spectrum Disorder.  It was quite clear that Dr Cunningham is an experienced expert in the diagnosis and treatment of Autism Spectrum Disorder.  I accept his diagnosis of you and I accept what he has had to say, both in evidence and in his report, about the part the critical part, in my view, it had to play in your offending in the way you did and in particular in your continuing in this relationship in June of 2018. 

48In all the circumstances, taking into account both the mitigatory and punitive factors, I therefore sentence you as follows. 

49I sentence you to three years imprisonment.  I order that you serve 12 months imprisonment before becoming eligible for parole. 

50Pursuant to s.6AAA I declare that, had you not pleaded guilty, I would've sentenced you to a term of imprisonment of four years and order that you serve a minimum term of two years. 

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