Director of Public Prosecutions v Smalley
[2023] VCC 456
•28 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON SMALLEY |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2023 | |
DATE OF SENTENCE: | 28 March 2023 | |
CASE MAY BE CITED AS: | DPP v Smalley | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 456 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty; Sexual penetration of a child under the age of 16; Sexual assault of a child under the age of 16; Sexual penetration of a child aged 16 or 17 under care, supervision or authority; Sexual assault of a child aged 16 or 17 under care, supervision or authority; Offender martial arts instructor who sexually offended against student/co-instructor; 6 month period of offending; Significant harm caused to victim; Early plea; Genuine remorse; Offender with unusual psychological make up with symptoms of Borderline Personality Disorder and Autism Spectrum disorder; Verdins principles engaged; Totality; Rehabilitation and protection of the community; Whether in the interests of justice to allow for a relatively early opportunity for release on parole.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Brooks v The King [2023] VSCA 4; DPP v Zampetti [2020] VCC 628; DPP v McCoy [2019] VCC 680; DPP v Wesley Ellis [2016] VCC 1246; DPP v Gee [2016] VCC 1675; DPP v Scott [2016] VCC 1675; DPP v Gray [2019] VCC 700; DPP v Hawkins [2017] VCC 1943; R v Worboyes [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269; R v Sulemanov [2007] VSCA 288.
Sentence: Total effective sentence of 3 years 7 months’ imprisonment, non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Mr P. Morrissey SC with Ms J. Swiney | Anthony Isaacs Criminal Lawyers |
HIS HONOUR:
Introduction
1Aaron Smalley, on 14 February 2023 you pleaded guilty to 5 charges of sexual assault of a child under the age of 16, 1 charge of sexual penetration of a child under the age of 16, 8 charges of sexual penetration of a child aged 16 or 17 under care, supervision or authority and 2 charges of sexual assault of a child aged 16 or 17 under care, supervision or authority.
2At the time of the commission of these offences you were 26 years of age. The complainant, Jessica Bradley,[1] was between the ages of 15–16. Over the time you knew Jessica, she had been a student, a volunteer instructor and then a paid martial arts instructor whom you employed. Leading up to the offending, Jessica came to feel that you were the only adult figure that she could trust. In the period October 2019–mid-2020, you abused that trust by sexually offending against her on multiple occasions.
[1] A pseudonym.
3Jessica reported these matters to police in March 2021. She discussed the offending with you in a recorded “pretext” call of 3 May 2021 in which you apologised for the way you had behaved towards her. You were arrested and charged on 19 August 2021. At that time, you participated in an interview with police in which you confessed to the offending.
4At your plea hearing Ms Duckett, on behalf of the Victorian Director of Public Prosecutions, tendered an Amended Summary of Prosecution Opening for plea of 15 August 2022 which became Exhibit A. Mr Morrisey SC, who appeared with Ms Swiney on your behalf, accepted that that summary was accurate and could form the factual basis for sentence. The description of your offending which follows is largely based on that summary.
Background
5From an early age you were a keen participant in martial arts training. You started as a student at Ultimate Martial Arts in Heathmont when you were about 8 or 9 years of age. You were described as a very dedicated student. As you got older you progressed into leadership roles, initially as a volunteer instructor and ultimately as a paid instructor. When you were 18 or 19 you took over the running of the teenage program at the school.
6Jessica was born in November 2003. When she was 10, her primary school arranged for Ultimate Martial Arts to attend the school to provide the students with some lessons in martial arts. You were one of the instructors who attended at the school and provided those introductory classes. Jessica enjoyed the lessons and after some negotiations with her mother about dropping another hobby she was enrolled at Ultimate Martial Arts in February 2014. She was still just 10 years of age.
7Jessica became a keen student and you were one of her teachers. After some time Jessica took up another form of martial arts known as extreme martial arts. You were the instructor for those classes and developed a friendship with her. She clearly looked up to you as her coach.
8As a measure of Jessica’s regard for you, she was required to complete a school assignment about a significant adult person who had had a positive influence on her life. She chose you and emailed some questions to you, the answers to which provided the basis of her essay.
9In 2017, you and another young instructor from Ultimate Martial Arts in Heathmont took over another martial arts school in Templestowe which was run under the name “Project Motion”.
10In around April 2018 you asked Jessica whether she might assist you in the classes you gave at Project Motion. After discussing the proposal with her mother, Jessica agreed and started working for you on a voluntary basis. At that time she was 14. When she turned 15 in November of that year she was paid for her work.
11Jessica usually attended Project Motion four times a week after school. There was a room at the back of the building where equipment was stored, and where instructors would place their bags. Jessica would do her homework between lessons on a desk in that room.
Offending before Jessica’s 16th birthday
12Over the weekend of 26–27 October 2019 you were involved in a Fitness Expo held at the Melbourne Convention and Exhibition Centre. You asked Jessica to assist you at the Expo and she obtained her parents’ permission to do so. Early that Saturday morning you picked her up from her house and drove her to the Convention Centre. In setting up the stand you realised that you needed a tablecloth or something similar to cover the table at the stand. You then went with Jessica to some nearby shops and purchased a bedsheet to be used to cover the table.
13On the way back it started to rain heavily and you both took shelter. Whilst doing so, you told Jessica that you were cold and gestured for her to give you a hug. She moved towards you and you hugged her for an extended period that made her feel uncomfortable and awkward. As you then walked back to the Convention Centre you used the wrapped bedsheet to tap her on the bottom three times. The package split and Jessica recalled you remarking to her, “What is your arse made out of?”
14On the following morning you again collected Jessica from her home and drove to the Convention Centre. On the way you told her that your girlfriend always massaged your neck whilst you were driving. You asked her to do the same, which she did. When you arrived at the Convention Centre, you told the complainant that you used to be a masseuse and offered to give her a massage. You suggested that you could give her a massage on the rear seat, but after reflecting that it might look suspicious, you went into the Expo.
15That evening, after the Expo, you and Jessica had dinner with some colleagues. Whilst driving her home, you again got her to massage your neck. Jessica complained that she had sore feet after standing for most of the weekend and you offered to give her a massage. She said that would be good and you told her you would pull over somewhere near her home.
16You then parked your car in the car park of a swimming complex known as Aquanation in Ringwood. You both moved to the rear seat of the car where Jessica sat with her back to you. You massaged her back but after a while moved your hands under her bottom and rubbed her bottom over her clothing. You then placed your hands over her shoulders and onto the front of her body and groped her breasts with your hands. That conduct constitutes Charge 1 – sexual assault of a child under the age of 16.
17At that moment, the complainant’s father called to find out where Jessica was. She answered the phone and told her father that she was only minutes away. You then drove her home.
18The following day, 28 October 2019, Jessica attended at Project Motion after school. When she put her school bag in the back room you came into the room and asked her for a hug. She agreed and you hugged her for quite some time until someone came into the room and you quickly moved away. After her classes finished she went to the back room to retrieve her school bag at which time you approached from behind, placed your hand around her waist and groped and squeezed her bottom. That conduct was not the subject of any charge.
19On 29 October 2019, Jessica again attended at Project Motion and at the conclusion of her classes she went to the back room to retrieve her school bag. As she bent over slightly to pack her bag, you approached her from behind and grabbed her hips and started grinding your body against her body for a minute or two. That conduct constitutes Charge 2 on the indictment – sexual assault of a child under the age of 16.
20Jessica described herself as freezing and not saying anything as you did this until her father called. She then told you she had to leave.
21On 31 October 2019, Jessica again went to the back room to collect her bag after classes. On this occasion you were already in the room. You approached Jessica from behind and squeezed her breasts over her clothing for approximately a minute. That conduct constitutes Charge 3 on the indictment – sexual assault of a child under the age of 16.
22You then moved your hand down to her hip and started grinding your body against her bottom. She described feeling your penis against her body as you rubbed against her. She told you a couple of times that she had to leave before you stopped. That conduct constitutes Charge 4 on the indictment – sexual assault of a child under the age of 16. Jessica then left and was picked up by her father.
23The next day, 1 November 2019, you asked Jessica to walk with you to some nearby basketball courts in order to speak with her privately. You asked her when she turned 18 and she jokingly told you that you could start dating each other in 20 days’ time when she turned 16. You explained that you were not sure how you would fit Jessica in to your life because she was 15 and because you had a girlfriend. You told her that you had feelings for her and that you were planning on breaking up with your girlfriend. You told her not to tell anyone about that discussion.
24From that day on until 19 November 2019, you used every time you were alone in the back room with Jessica to grope her breasts and grind your body against her body. Over time you began to kiss Jessica on the lips and grope her breasts under her clothing.
25On 14 November 2019, Jessica finished her Year 10 exams and was able to leave school early. She contacted you and arranged to meet you at Project Motion. When you both arrived you were the only persons present. You suggested that you play a game of Pokémon cards as a strip game. Although you lost a number of times you did not take off your clothes. You then went and sat on the floor with your back against the mats in the back room. You motioned for Jessica to sit on top of you with her legs straddling you and facing you. You kissed her on the lips and then grabbed her waist and moved her body backwards and forwards over your erect penis. That conduct constitutes Charge 5 – sexual assault of a child under the age of 16.
26You then groped her breasts before placing her hand on your penis and then had her perform oral sex on you. You ejaculated into her mouth which she recalls as being “gross”. That conduct constitutes Charge 6 – sexual penetration of a child under the age of 16.
27On the first Saturday night after Jessica turned 16, she had a birthday party at her house for her family and friends. You, and other people from Project Motion attended that party.
Offending after Jessica’s 16th birthday
28On 4 December 2019, Jessica went with you to your mother’s house in Mooroolbark. Your mother was not home at the time. You had discussed with Jessica engaging in sex at your mother’s house and on the way stopped off at Coles in order to purchase some condoms.
29Once inside your mother’s house you took Jessica into the lounge room. She lay on the carpet whilst you pulled her dress up and took her underwear off. You then penetrated her vagina with your penis using a condom. This initially hurt Jessica and she asked you to “give her a minute”. You stopped moving your penis but kept it inside her vagina and then continued until you ejaculated.
30You then suggested having a shower together. Once in the shower, you stood behind Jessica and without saying anything to her you penetrated her anus with your penis. Jessica described this as painful and her body as tensing up. You told her to relax and continued to penetrate her anus until you ejaculated over her back. You asked Jessica how it was, and she responded that it was weird. That conduct constitutes Charges 7 and 8 – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
31Sometime shortly after that occasion, Jessica went back with you to your mother’s home. Again, your mother was not at home. You told Jessica to get undressed in the living room and then had a shower with her. On this occasion you penetrated Jessica’s vagina with your penis whilst using a condom until ejaculation. That conduct constitutes Charge 9 on the indictment – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
32Jessica recalled that whilst you were in the bathroom you thought you heard your mother come home and panicked. You wrapped a towel around yourself in order to check if she had come home. In the end, it was a false alarm and your mother was not in the house.
33Between 9 December 2019 and – 8 January 2020, Jessica travelled to the United States. You also travelled overseas to Egypt with your then-girlfriend, leaving on 25 January 2020 and returning on 8 February 2020. You told the complainant that you had broken up with your girlfriend but because you had prepaid the overseas trip, you had decided to go ahead and travel together as friends.
34In between the two trips, Jessica visited you at your apartment in Bundoora. She had told you that she had recently purchased some new bathers and you told her that you wanted to see them on her. Whilst at the apartment, you took Jessica into your bedroom where you penetrated her vagina with your penis using a condom. That conduct constitutes Charge 10 on the indictment – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
35On 17 January 2020, Jessica travelled to your apartment by public transport and remembers purchasing doughnuts at Eastland on the way. Once at the apartment you had sex with Jessica in the same manner as you had previously. That conduct constitutes Charge 11 on the indictment – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
36After you had returned from Egypt, Jessica continued to attend at Project Motion three to four times a week to receive training from you and to assist in running classes. When the opportunity arose you would continue to grope Jessica’s breasts and bottom when you were alone in the back room.
37After the COVID-19 lockdown began you were not able to see Jessica in person but maintained contact with her via video chats. During those chats you would often ask the complainant to engage in sexualised behaviour whilst you masturbated. After you had finished you would direct Jessica to delete the video chats and to send proof that the chats had been deleted.
38As the COVID-19 restrictions started to ease you invited the employees from Project Motion over to your apartment for a games night. You arranged for Jessica to arrive early. When she did so you watched television with her on the couch and whilst doing so rubbed her thighs and massaged her vagina over her leggings. Jessica had been self-harming by cutting lines across her legs which she did not want you to see and so kept pushing your hands away. She told you she just wanted to “chill”.
39You then suggested that you have a shower together. Once in the shower you started to rub your erect penis against her bottom. Jessica thought that you wanted to anally penetrate her again and said to you “how is that chilling?” She then got out of the shower got dressed and went downstairs. That conduct constitutes Charges 12 and 13 on the indictment – sexual assault of a child aged 16 or 17 under care, supervision or authority.
40When you came downstairs you were annoyed with Jessica and told her to go for a walk until the others were due to arrive.
41On another occasion shortly after the games night, Jessica came to your apartment and you again had a shower with her. On that occasion you penetrated her vagina with your penis and also placed your penis into her anus. Jessica recalls that the anal penetration hurt but she felt that she could not complain because you were her boss and she remembered how annoyed you had been with her on the previous occasion when she did not want to do anything. That conduct constitutes Charges 14 and 15 on the indictment – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
42Sometime shortly after that occasion you arranged to meet Jessica at a park in Heathmont. You walked around talking for a while and then returned to your car and drove to the Ringwood Scout Hall where you parked your car. You then asked Jessica to perform oral sex on you and for that purpose moved to the back seat. You then penetrated Jessica’s mouth with your penis before driving her home. That conduct constitutes Charge 16 on the indictment – sexual penetration of a child aged 16 or 17 under care, supervision or authority.
43On 1 August 2020, Jessica sent you a message informing you that she had realised her relationship with you was wrong and that she was ending it.
44At all times after Jessica turned 16 and you engaged in sexual activity with her, you were training her in martial arts and she acted as an assistant instructor in some of the classes you taught at Project Motion – it follows that throughout that time Jessica was under your care, supervision or authority.
45In late 2020 or early 2021 Jessica disclosed her relationship with you to other colleagues at Project Motion, including your business partner. She reported the matter to police in March 2021.
46In the recorded telephone conversation Jessica had with you on 3 May 2021, she questioned you about the nature of your relationship with her and the difference in age. The recording of that conversation was played in court during your plea hearing. When asked by Jessica whether you knew it (the relationship) was wrong, you responded, “…nothing will probably ever excuse it at all and obviously not a day goes by that I have not regretted it at all,” and further, “I cannot express in words how incredibly sorry I am… I don’t think I could ever express how genuinely sorry I am for absolutely everything”.
47When you were interviewed by police on 19 August 2021, you agreed that you were in the position of someone whom Jessica looked up to and trusted. You told police that you had been going through a rough patch with your then-girlfriend and became attracted to Jessica. You said that you thought she was okay with your initial sexual contact with her, but you acknowledged that she would also have been confused because you were her coach and mentor.
48You made full admissions to engaging in oral, penile/vaginal and penile/anal penetration with Jessica at the various locations she described.
Victim Impact
49Jessica provided a victim impact statement together with a report from a child and adolescent psychiatrist which was written just a month or so after she had told you that she was ending the relationship because she believed it was wrong.
50Jessica feels as if the most crucial years of her teenage life were taken from her through her involvement with you. She feels hurt, angry and betrayed and is constantly anxious. She had loved training and participating in martial arts but she had to stop because she found that she could not attend class without having a panic attack. Overall, there has been a severe psychological reaction to this offending which has impacted her family, her relationships with her peers and her academic performance. She puts it simply in these words: “This has all greatly affected my life and will continue to in the future.”
51You should understand that the impact your offending has had on Jessica is a very important consideration in the formulation of the sentence that must now be imposed.
Personal History
52You were born in June 1993 and are now 29 years of age. As I have indicated, you committed these offences when you were 26 years of age. You have otherwise never been in trouble with the law.
53You grew up in the Kilsyth area where you lived with your parents and two sisters. You describe your childhood as generally happy – you were not exposed to family violence or any other kinds of abuse – although you recall times when you felt that you were a disappointment to your parents. As you grew up, your father worked as a bricklayer whilst your mother worked in administration. You were closest to your mother because your father tended to work long hours.
54Both of your sisters appear to have done well. One works for the same company as your mother, whilst the other lives in New South Wales and is studying nursing.
55When you were 17 your parents separated. Initially, you went to live with your father, but that relationship deteriorated when he re-partnered. You returned to live with your mother until you left the family home when you turned 25.
56You went to primary and high school in the local area. You were apparently a poor learner because you had difficulty listening and concentrating. As a consequence, your literacy and numeracy skills are not well-developed. You did not enjoy school, partly, it would seem, as a result of being bullied because you had a speech impediment. You were able to complete Years 11 and 12 in the Victorian Certificate of Applied Learning (VCAL).
57Socially, you were immature. Your friends tended to be quite a bit younger than yourself. In a personal reference written by your mother, she explained that your family recognised that you appeared to struggle with self-esteem when you were in your early primary school years. You were encouraged to take up Karate in the hope that this would build your confidence and self-esteem.
58Your mother explained that over the next 20 years, martial arts became your world. It was where you trained, where you worked and where you built friendships with people of all ages. You dedicated yourself to the sport and became completely absorbed by it. It essentially became your identity.
59The type of martial arts in which you trained is not internationally recognised in the same way as martial art disciplines such as Karate, Tae Kwon do or Judo. However, you trained hard, perhaps as much as 45 hours per week, since the age of 14. You acquired your black belt after 7 years and by the age of 14 you began to volunteer as a coach. You continued in that role until you were 18. From that time on you were employed as an assistant coach until you started your own martial arts school in 2018. You were regarded as an encouraging and enthusiastic teacher.
60As a consequence of your involvement in this offending you have lost the life you have led for the last 20 years or so. You cannot now practice martial arts, you have lost your business and you have lost most if not all of your friends. That said, it is clear that you have not lost the support of your family.
61Five personal references were tendered in support of your plea. All of the referees were aware of the offending for which you must be sentenced.
62I have already referred to your mother’s reference which has been particularly helpful. Your sister, Alex, provided a similarly helpful reference in which she described the difficulties that you experienced at the time of your parents’ separation. Despite those difficulties, you appear to have shown resilience and discipline through your work, albeit she believes, as do all of your referees, that you were particularly immature and naïve.
63One of your work colleagues, Timothy Farley, provided a reference in which he explained he had known you for the last 10 years. He described you as being generous, kind, respectful and ambitious. To his observation, your dealings with students and employees has always been professional and appropriately supportive.
64Two further references were provided by the mothers of students you had taught, Cherrylin Rigoni and Bronwyn Cook. They had both had an opportunity to observe you consistently over a number of years. Ms Rigoni worked at the business you owned as a manager/administration officer for approximately two years. She saw you as being more comfortable with people younger than yourself and that although you were passionate about your work, you certainly presented as being immature for your age and quite naïve. She believes that you are deeply remorseful for your offending and that your mental health has deteriorated considerably.
65Ms Cook, a former Victorian police officer who had previously worked in the sexual offences unit, brought that experience to bear in her description of your character. She has known you for eight years and regards you as kind hearted, loving, caring and, at times, naïve. She says that she had spoken at great length with you about the inappropriateness of your relationship with Jessica and that whilst you may not have comprehended the imbalance of power at the time, you certainly do now.
66For the purposes of this plea you were assessed by Ms Pamela Matthews, Forensic Psychologist, who provided a report of 23 January 2023.
67When you described your offending you told her that at the time you thought you were in a genuine relationship and that you “didn’t have any idea of power or authority”.
68Ms Matthews saw the factors contributing to your offending as including opportunity, supporting cognitive distortions, psychological stress, difficulties with intimate and non-intimate relationships and features of Borderline Personality Disorder and Autism Spectrum Disorder. She believed that the Borderline Personality Disorder symptoms were at a low level and likely to resolve as you get older. Your immaturity and preference for younger friends was consistent with the Autism Spectrum Disorder diagnosis.
69She developed her opinion in the following way:
“It is the writer’s view that Mr Smalley’s difficulty with forming and maintaining adult intimate relationships and relationships, in general, and his behaviour towards the complainant, are related to his failure to consider the impact upon the complainant of his sexual advances as an authority figure, to understand and recognise the discomfort of the complainant, i.e., reading subtle emotional behavioural and verbal cues, and his deficits in empathy, are directly related to either or both of the diagnoses as mentioned above; i.e. Borderline Personality Disorder and Autism Spectrum Disorder. These diagnoses’ features, as mentioned earlier, play a direct role in Mr Smalley’s offending.”[2]
[2] Report, Pamela Matthews, 23 January 2023, p 10.
70Ms Matthews concluded by venturing the view that your immaturity and social difficulties, such as not being astute to read emotions or understand nuanced cues, is likely to be a cause of problems with other prisoners and staff in a custodial environment and may well make your time in custody quite difficult.
71In the latter part of 2022 you attended on a psychologist, Daria Sizenko, for the purposes of commencing sex offender treatment. You were encouraged to challenge some of the “cognitive distortions” that helped you rationalise this offending.
72In her report of 7 February 2023, Ms Sizenko states:
“Mr Smalley acknowledged that [Jessica] would have been negatively affected by his offending and would likely experience struggles with trust, difficulties with developing future relationships, as well as emotional regulation and mental health concerns. He expressed that he would like to apologise to [Jessica] and was hopeful she is receiving the support she requires.”[3]
[3] Treatment Report, Daria Sizenko, 7 February 2023, p 2.
73During your treatment with Ms Sizenko you stopped minimising your behaviour and appear to have improved your understanding of the impact the offending can have. Even so, further treatment is required to consolidate the progress you have made.
Defence submissions
74In his submissions on your behalf, Mr Morrissey SC quite properly acknowledged that this offending was too serious to evade a term of imprisonment, even if served in combination with a Community Correction Order. That was so for a number of reasons, including, the inherent seriousness of this type of offending against children, the maximum penalties and the fact that the offences of sexual assault of a child under 16 (Charges 1–5) and the offence of sexual penetration of a child under the age of 16 (Charge 6) are both standard sentence offences where the sentences prescribed are four and six years respectively.
75You also fall to be sentenced as a serious sexual offender after Charge 2[4] such that protection of the community will become the primary purpose for imposing sentence and the presumption as to concurrency is reversed.[5]
[4] Sentencing Act 1991 (Vic) s 6D(a).
[5] Ibid s 6E.
76That said, there were powerful matters in mitigation. Your remorse, it was argued, was palpable. In the pretext call of 3 May 2021 to which I have already referred your manner, tone and the substance of what is said, all suggest a genuine regret for the offending. In August 2021 you participated in a record of interview over a period of 6 ½ hours involving 2,116 questions. Towards the end of that interview, having listened to the allegations in detail, you told investigators, “I had, like no idea that this is how she felt or she thought”.[6]
[6] Record of interview, 19 August 2021, Q2083; Depositions, p 805.
77At question 2,093 you were asked:
Q: “So looking back do you think that your behaviour in your decisions are appropriate or acceptable in any way?”
A: “No, no, definitely not. Like, it’s hard hearing from her perspective. I had no idea that that’s what she was feeling or thinking the entire time.”[7]
[7] Depositions, p 807.
78At question 2,105 you were asked:
Q: “…what do you think the long-term impact of this relationship will have on [Jessica], on her self-esteem and self-confidence and her mental health?
A: “I’ve got no idea. Like, I hope she’s gunna be O.K. I – I never wanted to hurt her or any – anything like that or be mean to her, or it seems to me having a – a power level in the relationship or anything like that. Like that – yeah, I never – never wanted that. I can’t believe it’s like – like – hearing it from her perspective makes me sound like an absolute monster. Yeah, so I just feel actually more or less just beyond terrible …”[8]
[8] Depositions, p 809.
79Those confessional statements demonstrating remorse were backed up by an early indication through your legal representatives that you were prepared to plead guilty to an appropriately framed indictment which, it was said, is precisely what you did. Moreover, sparing the complainant the ordeal of cross-examination and saving the time and expense of a trial must reduce the sentence that might otherwise be imposed substantially. Beyond those considerations, a further “perceptible amelioration” of sentence was required because the Court must now manage a large number of criminal trials which have been delayed and/or disrupted by the pandemic.[9]
[9] R v Worboyes [2021] VSCA 169, [39].
80Mr Morrissey suggested that the lack of insight indicated by some of the comments you made to Jessica in the pretext call and the police interview was not surprising given your unusual psychological make-up. Ms Matthews’s findings as to your lack of social maturity, Autism Spectrum Disorder and Borderline Personality Disorder were the main constituents of that make-up. Those conditions, it was submitted, played a direct role in your offending and as such they operate to reduce your moral culpability and moderate the need for emphasis on general deterrence. It was submitted they also engage propositions five and six discussed in Verdins.[10] Importantly, there was no indication of sexual deviancy.
[10]R v Verdins & Ors (2007) 16 VR 269.
81I have described the fact that for you from an early age martial arts had been much more than just a hobby or, later, a job. It had become your identity and had helped you navigate your way in the world. Counsel argued that the loss of that life was a punishment you have had to endure well beyond any penalty that the Court might now impose – it was a significant extra curial punishment.
82As to your prospects for rehabilitation, it was said that you have done everything you possibly could to ensure you have a future to go to when released. You initially spent 26 days in custody before being released on bail and, once released, you completed a barista course and started your own coffee trailer business. You also volunteered at an organisation in Coldstream, Animal Aid, putting in many hours until you were eventually offered paid employment in the same capacity.
83In addition, you have the very strong support of your family, all of whom attended your plea hearing. Although Ms Matthews assessed you as a moderate risk of reoffending, it is reasonable to expect that risk would diminish with treatment. Your prospects should therefore be regarded as excellent.
84Taking all those matters into account, it was submitted that a moderate head sentence should be imposed together with what was described as “a generous allowance of eligibility for parole”.
Prosecution submissions
85Ms Duckett argued there were a number of factors associated with this offending that rendered it particularly serious. They included the following:
· you had known the complainant since she attended training when she was as young as 10;
· you occupied a position of care and responsibility over the complainant such that she regarded you as a significant adult person in her life;
· you breached the trust that had been placed in you by her parents;
· your offending was not spontaneous; rather, it was considered;
· your offending was frequent and sustained for a period of approximately six months;
· your offending involved different types of penetration;
· your offending took place in various locations contrived to keep the relationship secret; and
· your offending caused tangible harm to the complainant.
86For these reasons, it was submitted that your conduct fell into the mid/upper-range of seriousness for offending of this kind. This was to be contrasted with the defence position which put the seriousness of your offending in the low/mid-range.
87Although it was suggested that, arguably, there may have been a degree of manipulation in your responses during the pretext call, on the whole the prosecutor accepted that you appeared remorseful and through your plea have accepted responsibility for this offending.
88Ms Duckett did not take issue with the matters raised by Ms Matthews in her psychological assessment of you, although it was pointed out that it was not unusual for offenders in this type of context to lack maturity. That said, it was acknowledged that the principles in Verdins have some applicability to your circumstances. There should, however, only be a “minimal” reduction in moral culpability, although it was accepted that prison is likely to be more burdensome for you.
89Ms Duckett pointed out that the protection of the community will become the primary sentencing purpose after sentences imposed in respect of the second charge. That is appropriate, it was submitted, because the sexual abuse of children by people in positions of trust or responsibility is a particularly heinous form of offending and deserves severe punishment. Likewise, the sentencing purposes of denunciation and general deterrence need to be prominent in the sentencing synthesis.
90The prosecutor submitted that the offending was of such seriousness that there could be no other penalty other than the imposition of an immediate term of imprisonment with a non-parole period.
Findings
91I accept, as Ms Duckett submitted, and as Mr Morrisey conceded, that there can be no other sentence other than the imposition an immediate term of imprisonment with a non-parole period.
92Mr Morrissey’s concession was, in my view, entirely appropriate and realistic. It echoes an approach that was recently countenanced by the Court of Appeal in Brooks v The King:[11]
“Advocates are entitled to canvass all sentencing options open when pleading on behalf of a criminal offender, but for their submissions to carry any force, unrealistic optimism should be avoided. It can cause unnecessary anxiety and disappointment to an accused and his or her family, and may lead to sentencing error that will require correction by this Court — on occasions to an applicant’s ultimate disadvantage.”
[11] [2023] VSCA 4 at [31] per Niall and T Forrest JJA.
93The seriousness of this type of offending is manifest and reflected in the maximum penalties. Those penalties are as follows;
- The maximum penalty for sexual assault of a child under 16 is 10 years’ imprisonment and has a specified standard sentence of 4 years.
- The maximum penalty for sexual penetration of a child under 16 is 15 years imprisonment and has a specified standard sentence of 6 years.
- In respect of sexual penetration of a child aged 16 or 17 under care, supervision or authority, the maximum penalty is 10 years’ imprisonment. No standard sentence is prescribed
.- As to the offence of sexual assault of a child aged 16 or 17 under care, supervision or authority, the maximum penalty is 5 years imprisonment and no standard sentence is specified.
94I should say something more about the standard sentence offences which relate to the offending before Jessica turned 16.
95Section 5A(b) of the Sentencing Act 1991 specifies that a standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. It is a legislative guidepost to be taken into account in much the same way as other legislative guideposts such as the applicable maximum penalty or current sentencing practice.
96As s 5B(3) makes clear, the standard sentence does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence, nor does it affect the instinctive synthesis approach.
97If I determine that it is in the interests of justice to impose a shorter non-parole period than specified in s 11A(4)(c) of the Act (i.e. 60% of the head sentence), I must give reasons for doing so. Likewise, I must state how the sentence imposed relates to the standard sentence.
98Finally, I must only have regard to sentences previously imposed, unless they involve standard sentence offences.[12]
[12] S 5B(2)(b); This is not the case however with respect to the offending which occurred after Jessica turned 16.
99Plainly, those sentencing parameters, that is, the maximum penalties and standard sentences, warn in no uncertain terms of the price to be paid for engaging in sexual offending against children.
100In assessing current sentencing practice I have had regard to the following decisions: DPP v Zampetti,[13] DPP v McCoy,[14] DPP v Wesley Ellis,[15] DPP v Gee,[16] DPP v Scott,[17] DPP v Gray,[18] and DPP v Hawkins.[19] With the possible exception of Scott, most of those decisions are factually quite different. Nor are those differences particularly instructive.
[13] [2020] VCC 628;
[14] [2019 VCC 680;
[15] [2016] VCC 1246;
[16] [2016] VCC 1675;
[17] [2020] VCC 629.
[18] [2019] VCC 700.
[19] [2017 VCC 1943.
101In Scott, the offender owned and ran a gym. The complainant joined that gym as a 16-year-old. She excelled at training, spent a lot of time at the gym, was offered casual employment as an instructor and, in that setting, perhaps echoing the trajectory of this case, became sexually involved with the offender over a two-or-so-month period. The offender was sentenced to six months’ imprisonment in combination with a Community Correction Order. The personal circumstances of the offender were quite different and did not involve offending when the complainant was under 16.
102In many of the other comparative cases, sentences have been imposed for representative charges, or course of conduct charges, which have not been charged in this instance, making useful comparison all the more difficult. It seems to me that the principle of totality has a much more important role to play in formulating your sentence.
103The law presumes that this kind of offending will harm the child victim. In this case there is no need to presume. Jessica had a severe psychological reaction with a wide-ranging and damaging impact on her quality of life. That damage was borne of exposure to quite a lengthy period of sexual offending that left her feeling confused and highly anxious. Whilst that harm illustrates the seriousness of this kind of offending in general, it also illustrates why your offending in particular is so serious.
104Parents of children in circumstances such as this are entitled to expect that their children will be cared for and protected rather than sexually exploited. Likewise, the children themselves are entitled to feel that their enthusiasm, their eagerness to please, their lack of social experience and their trust, will not be abused. That is why it is necessary to prioritise the protection of the community, especially children, as the main purpose in sentencing you.
105I appreciate that, in respect of the offending that occurred before Jessica turned 16, she was only a matter of weeks away from her 16th birthday and it might be argued that that circumstance lessens the gravity of that offending.[20] However, it remains the fact that right throughout this offending you were in a position of care, supervision or authority and it is the abuse of that position of responsibility which is at the heart of this offending. Moreover, as Ms Duckett pointed out this was not spontaneous offending, the manner in which you set about engaging in this conduct was very considered.
[20] See however Vincent JA’s comments to the contrary in R v Sulemanov [2007] VSCA 288 at [20].
106As to the competing contentions that this offending fell into the upper mid-range or lower mid-range, I am not sure that kind of characterisation is helpful in this case. In Weybury,[21] Priest JA suggested that attempts to “shoehorn” particular cases into categories of seriousness such as “upper”, “middle” and “lower” “…are often calculated to obscure the essential nature of the sentencing task”.[22]
[21] DPP v Weybury [2018] VSCA 120.
[22] Ibid at paragraph [54], in dissent but not as to this point.
107I think that is so in your case because you must receive multiple sentences for the individual incidents the subject of each charge, whereas in most of the comparative cases where devices like representative charges or course of conduct charges are used, one sentence can be imposed to reflect all or most of the offending.
108Suffice to observe, I think, that any offending of this type is inherently very serious, and there is nothing about your case which renders it anything less than very serious.
109On the other hand, there are a number of significant matters that will mitigate your sentence.
110I accept that your own immaturity and unusual psychological make-up impaired your capacity to fully appreciate the harm that flowed to Jessica from engaging sexually with her. That impairment reduces your moral culpability, and the need to emphasise general deterrence, to a modest degree – but that is not to suggest for a moment that you did not understand that what you doing was very wrong.
111I also accept that you are remorseful for causing the harm that you have. Whilst your insight has perhaps been a work in progress, I do not regard your responses in the pre-text call as manipulative. I listened carefully to that recording and I am satisfied that when you told Jessica you were genuinely sorry for what you did, that was the fact.
112You followed up those admissions with a confession to the police in what was a co-operative and very lengthy record of interview. You have sought treatment and otherwise facilitated the course of justice through your plea of guilty. On that basis, I am well satisfied that your remorse is genuine. That finding enhances your prospects for rehabilitation and reduces the need to emphasise the sentencing purposes of specific deterrence and protection of the community. Although I note that in your case there appears to be a strong argument that your continuing rehabilitation provides the best prospect of ensuring the protection of the community.
113As to your prospects for rehabilitation I accept they are very good if not excellent. Building on the remorse you have shown, I am satisfied you have done all that you could to build a new future for yourself once you have served a term of imprisonment. You have the support of your family and I accept that you are highly motivated to apply yourself to treatment and gain productive work.
114I am also satisfied that your plea of guilty was indicated at a very early stage in proceedings. I accept your counsel’s submissions that you have saved the community the resources required to conduct a criminal trial, the complainant was spared the ordeal of cross-examination, and your plea is all the more valuable given that it has been entered at a time when this Court must manage a large number of cases delayed by the pandemic. For those reasons your plea of guilty will substantially reduce the sentence that would otherwise be imposed.
115Your immaturity, your social difficulties and, in particular, your inability to read situations and people are, I accept, likely to cause problems for you in a custodial setting that will render the experience of prison more burdensome than it would for a person of normal health. The fifth principle identified in Verdins is therefore engaged and will mitigate the penalty to be imposed.
116I do not, however, accept that the sixth principle is engaged because there does not seem to be sufficient evidence of a serious risk that imprisonment will have a significant adverse effect on your mental health. That said, you require ongoing treatment and your unusual psychological condition is an important feature of your personal circumstances.
117That last matter aside, I am persuaded that your circumstances, as I have set them out, justify the imposition of a sentence which allows for the opportunity for release on supervised parole at a relatively early stage in your sentence. In your circumstances that seems to me to be the best way of giving appropriate weight to the rehabilitative/community protection purposes of your sentence whilst still allowing for the need to deter and denounce what you have done.
Sentence
118Commencing with the offending that occurred before Jessica turned 16 and taking all relevant matters into account, you will be sentenced as follows:
119On Charge 6, sexual penetration of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 18 months.
120On Charge 5, sexual assault of a child under the age of 16, which occurs on the same occasion as Charge 6, you will be convicted and sentenced to a term of imprisonment of 6 months.
121I must now declare that for the purposes of the balance of the sentences now imposed you fall to be sentenced as a serious sexual offender.
122On Charge 1, sexual assault of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 6 months.
123On Charge 2, sexual assault of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 6 months.
124On Charge 3, sexual assault of a child under the age of 16, you will be convicted and sentenced to a term of imprisonment of 6 months.
125On Charge 4, sexual assault of a child under the age of 16, which occurs on the same occasion as Charge 3, you will be convicted and sentenced to a term of imprisonment of 6 months.
126I note that the sentence that I have imposed on Charge 6 is lower than the standard sentence of 6 years for that offence. I further note that the sentences I have imposed on Charges 5, 1, 2, 3 and 4 are lower than the standard sentence of 4 years for that offence. Having regard to my assessment of the relative seriousness of these offences, your plea of guilty, your remorse, your unusual psychological make-up, your personal circumstances more generally and your prospects for rehabilitation, I have formed the view that the terms of imprisonment imposed for those offences is appropriate.
127Moving to the offending that occurred after Jessica turned 16, you will be sentenced as follows.
128On Charge 7, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
129On Charge 8, sexual penetration of a child aged 16 or 17 under care, supervision or authority, which occurs on the same occasion as Charge 7, you will be convicted and sentenced to a term of imprisonment of 12 months.
130On Charge 9, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
131On Charge 10, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
132On Charge 11, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
133On Charge 12, sexual assault of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 4 months.
134On Charge 13, sexual assault of a child aged 16 or 17 under care, supervision or authority, which occurs on the same occasion as Charge 12, you will be convicted and sentenced to a term of imprisonment of 4 months.
135On Charge 14, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
136On Charge 15, sexual penetration of a child aged 16 or 17 under care, supervision or authority, which occurs on the same occasion as Charge 14, you will be convicted and sentenced to a term of imprisonment of 12 months.
137On Charge 16, sexual penetration of a child aged 16 or 17 under care, supervision or authority, you will be convicted and sentenced to a term of imprisonment of 12 months.
138I will declare that the sentence imposed on Charge 6, 18 months’ imprisonment, will be the base sentence. The sentence imposed on Charge 5 will be wholly concurrent with the sentence imposed on Charge 6.
139Section 6E of the Sentencing Act 1991 requires that every term of imprisonment imposed on a serious sexual offender must, unless otherwise directed by the court, be served cumulatively upon any other terms of imprisonment imposed. In order to give effect to that provision and apply the principle of totality I will make the following orders.
140Four months of the sentence imposed on Charge 1, 4 months of the sentence imposed on Charge 2, 6 months of the sentence imposed on Charge 3 and 4 months of the sentence imposed on Charge 4 will be served concurrently with the sentence imposed on Charge 6.
141I will further order that 12 months of the sentence imposed on Charge 7, 9 months of the sentence imposed on Charge 8, 9 months of the sentence imposed on Charge 9, 9 months of the sentence imposed on Charge 10, 9 months of the sentence imposed on Charge 11, 12 months of the sentence imposed on Charge 14, 9 months of the sentence imposed on Charge 15, 9 months of the sentence imposed on Charge 16, 4 months of the sentence imposed on Charge 12 and 3 months of the sentence imposed on Charge 13 be served concurrently with the sentence imposed on Charge 6.
142It is my sentencing intention that the sentences of imprisonment to be served cumulatively upon the sentence imposed on Charge 6, taken together with the orders I have made as to full or partial concurrent sentences to be served with the sentence imposed on Charge 6, should render a total effective sentence of 3 years and 7 months.
143Section 11A(4)(c) of the Sentencing Act 1991 requires that I fix a non-parole period of at least 60% of the total effective sentence imposed unless it is in the interests of justice not to do so.
144I consider that it is in the interests of justice to fix a non-parole period that is less than 60% of the total effective sentence. I do so because I consider that there is a strong public interest in your rehabilitation facilitated through your earlier release under supervision. In your case, there is, as I have observed, a strong nexus between your rehabilitation and the emphasis required on the primary sentencing purpose of protection of the community. Accordingly, I will fix a non-parole period of 18 months.
145I will further declare pursuant to s 18 of the Sentencing Act 1991 that you have served 67 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.
146I must also declare that pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 5 years 6 months with non-parole period of 3 years and 6 months. I will cause that declaration to be noted in the records of the Court.
147Finally, I must declare that you must now comply with the requirements of the Sex Offenders Registration Act 2004, for the rest of your life. I will likewise cause that declaration to be noted in the records of the Court.
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