Director of Public Prosecutions v Smith
[2021] VCC 1101
•10 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01747
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRY SMITH |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2021 |
DATE OF SENTENCE: | 10 August 2021 |
CASE MAY BE CITED AS: | DPP v SMITH |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1101 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
For the Accused | Mr T. Brown | Warren Graham & Murphy Pty Ltd |
HIS HONOUR:
1Harry Smith, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16, one charge of assaulting an emergency worker on duty and one charge of resist emergency worker on duty. Those crimes carry maximum penalties of 15 years, five years and five years respectively. You are now 20 years of age and were 20 years of age at the time of the offending. You pleaded guilty and must get the benefit of that.
2In your situation, remorse is very problematic, but I will give you some benefit in regard to it. Obviously you get the utilitarian benefit of that plea of guilty, saving the complainant from the ordeal of a trial and the community the costs and time of doing so. Obviously in these times with Covid, having read the decision of Worboyes, you will get the added significance in the utilitarian sense for that plea of guilty. You are still young and I sentence you as a young person.
3You do have prior findings of guilt, albeit in the Children's Court and significantly one of those is for rape. That was back in 2017, when you were 16 years of age. The complainant in that matter was 10 years of age and late in December of 2016, perhaps in January of 2017, she and her younger sister were at a park with a friend and you took the 10 year old behind a wall in the park and asked if you could have sex with her. She said 'no'. You then put your hand into her leggings and underwear and put your finger into her vagina. She then left the park. There was clearly counselling and the like that took place in regard to that.
4It is of concern that in respect of that offending, as I understand it, you report in regard to this offending, there has been a great deal of reluctance to discuss the nature of the offending and the underlying factors behind it. But in any event, there is another prior finding of guilt for accessing child abuse material and again, that was in the Children's Court. Because of Charges 1 and 2, you will be placed on the Sex Offenders Register. I advise you that the reporting conditions of that will be for life.
5This is a standard sentencing matter. The standard sentence is six years and for reasons which I will outline, which I think are very clear, this is a circumstance where I will be giving a sentence which is significantly less than the standard sentence. It is also a situation where the rule of 60 per cent in regard to minimum terms is concerned, but I think it - well not think it, to me is of in the interests of justice that that be varied down, so that you get an earlier opportunity for parole, because of your potential vulnerability in a prison environment and obviously because of your age. Hopefully you can be persuaded by a term of imprisonment to undergo appropriate therapy, insofar as sexual offending is concerned.
6The principles regarding the standard sentences are outlined in a number of decisions of the Supreme Court and I do not think I have to in these circumstances, go into it in great detail. It is simply pointed out that I am required to identify the facts, matters and circumstances which bear upon the judgment of appropriate sentence, and I will be clearly doing that. The standard sentence is something of a guideline, it is no more than that and it certainly does not take the place of my instinctive synthesis.
7In these circumstances, as I am about to describe, the offending itself would appear to have been, on what is before me at least, a willing participant, but I am very aware that consent does not assist in mitigation. There are other aspects of it which do come into account in such a set of circumstances. The circumstances of the offending are that you, as I said, were 20 years of age. The complainant at the time of the offending was 15 years of age. You had known her since early 2019 and you had been told as early as March of 2020, by the complainant's mother of what her age was and that you were to stay away from her.
8Again in March 2020, police spoke to you and warned you that she was only 15 years of age and that any sexual relationship between the two of you would be illegal. In June 2020, the DHHS sent a letter to you saying that she was 15 years of age and that it was an offence to counsel, induce or assist a child to be absent from their residence. That letter was given to you in June of 2020. Accordingly, prior to this offending taking place, you were fully aware of the age of the complainant. You were fully aware of the legality of what was about to occur and in any event, went ahead with it.
9On 17 September 2020, late in the evening, she arrived in Sale at the train station, coming from Moe. She walked to Woolworths and met you at approximately 10 o'clock, and that had been obviously pre-arranged. You initially asked her if you could kiss her and she said 'no'. Both continued to walk until you arrived at the Sale Oval. Walked into the grounds at least of the Sale Oval, you kissed her. She lay on the ground and you kissed her neck and chest. You initially rubbed her breasts on the outside of her clothing. You then unzipped her jacket, pulled down her top and bra and again, rubbed and kissed her breast. You rubbed her legs, her vagina on the outside and you then unbuttoned her pants and removed them. You continued to rub her vagina on the outside and continued to kiss her. You then removed her underwear, inserted one finger, then a second finger into her vagina. I point out that Charges 1 and 2 are rolled up charges and I am well aware of the principles involved in that. Anyway that is part of Charge 2.
10You then pulled down your own pants, inserted your penis into her vagina and that is part of Charge 1. You commenced moving your penis in and out. After a short time, you said 'I'm going to cum', withdrew your penis and ejaculated onto the ground. You then re-inserted your finger, again part of Charge 2 and you then re-inserted your penis, again part of Charge 1. You were later both seen on CCTV footage at McDonalds or some such place. In any event, just after midnight, assuming that she had nowhere to go and no one to effectively turn to, the complainant attended the Sale police station and told them that someone was following her and that she was a missing person. Her carer was contacted and came to collect her.
11After she arrived back at the residence, she called Sale police and said that she had been sexually assaulted and police attended. She made a pre-text call to you and said that she had been bruised and you said you were sorry and she then underwent a medical examination and there was some bruising to her breast, a tear in her vagina. You are not being sentenced for any form of injury or the like and I make it very clear, you are not being sentenced for rape.
12In any event, you were arrested and upon being arrested, resisted. You struck out at police and causing moderate pain to one police officer and you had to be wrestled to the ground. That gives rise to Charges 3 and 4. In some circumstances, they can be very serious charges, but in this situation, I am simply going to make - give a small sentence in regard to each and make them totally concurrent. In any event, police ultimately interviewed you and you essentially made admissions which is to your credit. You said that you knew it was wrong, that you were 20 and she was 15. It is not right. You agreed that you told her not to tell anybody and you admitted to the penetrations.
13You then concerningly, towards the end of the interview said this:
'You know what I'm pissed off about is how little girls can go out, fuck older guys and they get off scot-free and us fuckers have to fucken deal with it'.
14In terms of remorse, in terms of personal responsibility and insight into the nature of the offending and the damage that it does, that is a concerning statement indeed. There are victim impact statements before me, one from the complainant and one from her mother. They clearly indicate the problems that such offending causes. It is pretty clear, reading between the lines, that the complainant had personal difficulties of her own before this occurred and I am sure what happened on that night, has not helped her at all. Also, the guilt and those aspects come home to roost on parents, when it should not, is what often occurs and I take those victim impact statements into account. There is a presumption of harm in circumstances such as this, as I have already indicated I think consent does not moderate it or anything, it just simply means you are not charged with rape. But it is clear that there was some sort of ongoing negotiation or whatever it was with this young person leading up to it, and in terms of going there to meet you in Sale, there is nothing to suggest that that she was not willing. Accordingly as an offence, whilst it is clearly premeditated, you clearly knew it was wrong. It is, I think, reduced by a number of things that are simply not aggravating really, rather than in mitigation.
15On the material before me, there was no coercion used, there were no threats made and that the aspects of - that sometimes, it is just in these circumstances, I do not think exist here. I accept on the material before me that your mental age is probably less than 20, so whilst the chronological difference is five years and that gives rise to the offence, I am sure that probably the emotional and intellectual differences between you would not have been all that great.
16So accordingly, whilst obviously sexual penetration is a serious offence, I think it is lower than mid-range, but one which in these circumstances, for reasons I have basically outlined, has to carry a custodial sentence. The offending has to be regarded as serious. It calls for the application in the normal course of events of general and specific deterrence, denunciation and there has to be an appropriate punishment.
17I then turn to matters personal to you. Tendered on your behalf are two - well not on your behalf, but two pre-sentence reports. I take those into account. A report from a Mr Viray, a reference from a carer, a report from a Mr Basu and reports from a psychiatrist. Reports from Mr Burnet, a psychologist.
Mr Redman, a psychologist and Ms Lechner, a psychologist. Most of whom are known to me. I take all those reports into account and I have read each of them a number of times. I do not think there is any value here of repeating great tracks of them. They have been tendered. They will be on the court file and subject to me referring to a couple of aspects of them, they are obviously all taken into account.18You do have, or I accept a history of significant early childhood trauma and abuse. Your biological mother abandoned you at a childcare centre when you were three years of age. From what I am told, she had substance abuse issues herself and mental health issues. Between 2003 and 2005, you were in and out of Home Care, before going to foster are with Ms Albrecht, who you have since referred to as your mum. She has been with you on each occasion that you have come to court and you obviously have very great support from her in that sense. She has older children of her own and you have always resided in the Gippsland region. Since you have gone into her care, you have lived in a number of locations throughout Gippsland and I do not need to read out the names of the towns. You do not know who your father is, but you believe he may be of Timorese descent. I can understand that that will be a difficulty for you.
19You, when you were approximately four or five years of age, I am told that you were sexually assaulted by a teenage boy. The greater portion of your primary school was at Alberton Primary School and you then went to a nearby secondary college. You were good at maths and played basketball and also played in the school band. You said that you were racially abused at school and ultimately left during Year 10. You have got a limited work history. You spent apparently three months working in a kitchen and you have volunteered at op shops along with Ms Albrecht.
20You have had previous diagnosis and this is confirmed by the reports before me, of a depressive anxiety disorder, ADHD, an attachment disorder, post-traumatic stress disorder and a generalised anxiety disorder. You have been attending Mr Viray, a mental health social worker and I am told by your counsel that those attendances have continued, certainly up until recent times. As your counsel points out, I have already indicated my view of the seriousness of it, that is below the medium range. It is a situation where there was no breach of trust, which is often a massive factor in these things and it was one single occasion and it was a relatively brief period of time. I simply add those to the matters I have already mentioned.
21The report of Ms Lechner states that your early history was characterised by a complex developmental trauma. You were exposed to abuse and neglect. You continued, she said, to exhibit chronic and symptoms of post-traumatic stress disorder and attachment disorder. She said that manifest, you had emotional and behavioural dysregulation, including inappropriate and unlawful sexual behaviour. You say that you have a strong bond with Ms Albrecht and I accept that that is indeed the case.
22As I have indicated, there is a number of factors - in the course of discussions with your counsel, there is a number of factors which concern me here. One is when being spoken to back in 2017, and also again in relation to these offences, when spoken to by Youth Justice and workers, you refused to talk about the offending. The answer you gave to the police is of concern indeed, and permeated throughout all of this is a sense of justification.
23You, in material before me, have a high to moderate risk of sexual reoffending, that is difficult to take that much further, in circumstances where you will not essentially talk about it. I do accept that with your childhood, that your with difficulties and the diagnosis that have been made, that the principles involved in limbs five and six of Verdins do play a part in this sentencing order. Insofar as your background is concerned, is one which might give rise to - well might often give rise to the principles related to Bugmy, but the concern I have here is that most of those disorders that you have resulting, as a rule, as I understand it, compulsive behaviours, explosive behaviours. This in fact was considered, and drawn out in the facee of a number of warnings, acts that you knew to be unlawful and as I said before, which you just seem to be able to justify to yourself.
24When you spoke to Ms Lechner, and she asked you about it, she said that you were very guarded in the interview. She said that you expressed your annoyance at having to tell your story again and you went on that way. She said that your ability to engage and reflect you on consequential thinking is inhibited by egocentric perspective and I accept that that is patently the case, but the problem with that is it gives rise to a community protection aspect in all this. The sense of a self-justification and entitlement, in my view, totally justifies the higher risk assessments that have been made and it has to be brought home to you that you cannot do this and that there will be consequences, significant consequences for you if you do.
25The report of Ms Lechner again confirms what I have said before, that there is a minimisation of the offending and she said that you engaged in what she referred to as victim blaming. You have attributed the offending to her persistence and nagging. I do not think I need to read in the other reports. I have read the reference from Ms Albrecht. I accept what that has to say. There were no exceptional circumstances here giving rise to mercy, in that respect.
26A community corrections order would have been absolutely futile in your circumstances, where you would not discuss the offending. Any of the programs would have been a waste of time. You were assessed for Youth Justice and they have found that you are unsuitable for that. One, because of your age. Two, whilst I accept that you will be vulnerable in prison and that is what all the material says, they do not accept it testifies a Youth Justice Centre order.
27I accept that this is the first time you have been in gaol. The prospects of your rehabilitation are really going to be up to you and what the Parole Board can come to terms with. The risk of you reoffending, as I have said, has to be high to moderate. I think there just has to be a time and unfortunately Mr Smith, this is it, where the court has to impose a sentence which brings home to you clearly, why you cannot do this sort of offending and what the consequences of it are. In the past, nothing much has happened to you. Again, unfortunately that is not the case here.
28It has been a matter which has now had some history to it. I have expressed on previous occasions, my desire not to put you into adult custody, but you having been found unsuitable by Youth Justice, I know that whilst I still theoretically could impose such a sentence, you will simply be transferred and there seems to be no point in doing that. It would achieve nothing.
29So taking all those matters into account and being very conscious of the emotional difficulties and previous diagnoses that you have, being very conscious of your age and being very conscious of not crushing or otherwise damaging such a young and potentially vulnerable person, it seems to me that anything other than a custodial sentence, with a minimum term would be, as the Crown have submitted, appealable error.
30In all those circumstances, you are sentenced as follows. Charge 1, 15 months. Charge 2, 15 months. Charge 3, one month concurrent. Charge 4, one month concurrent. Three months of Charge 2 will be cumulative upon Charge 1, giving a head sentence of 18 months. You are to serve a minimum term of nine months before becoming eligible for parole. Pursuant to s6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of two and a half years, with a minimum term of 18 months. Any other orders I have to make gentlemen? No other orders?
31MR DEVLIN: Pardon me, Your Honour, you've already mentioned the sex registration?
32HIS HONOUR: Yes, we've got that. We'll just getting ‑ ‑ ‑
33ASSOCIATE: (Indistinct words).
34HIS HONOUR: Yes, it's printing now, yes.
35MR DEVLIN: Thank you, Your Honour. Apart from that, no Your Honour.
36HIS HONOUR: Yes, all right. Nothing else Mr Brown?
37MR BROWN: No, no Your Honour, just custody management issues, Your Honour, that's it.
38HIS HONOUR: No, that's a matter for them, yes. Yes, if you wouldn't mind going with my associate Mr Brown to get this signed please? All right, that's been signed. Very well, yes you can take him now, thank you.
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