Director of Public Prosecutions v Smith
[2020] VCC 1032
•29 May 2020
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00254
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER SMITH |
---
JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 5 March 2020 | |
DATE OF SENTENCE: | 29 May 2020 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1032 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law – Sexual Offences
Catchwords: Sexual Penetration of a child under 16 years.
Legislation Cited:
Cases Cited: R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194
Sentence: TES: 7 years imprisonment with 5 year to be served before becoming eligible for parole.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore for the plea Mr A. Lew for the sentence | OPP |
| For the Accused | Ms E. Millar | Turnbull Lawyers |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, a pseudonym will be used for the name of the complainant.
[1] Section 4 Judicial Proceedings Reports Act
2
Next, I apologise to all involved in this case for the length of time it has taken to be listed for sentence, which is due to my other court commitments during the COVID-19 pandemic. I recognise that this delay will have had an effect on
Mr Smith, which I have taken into account in the ultimate sentence. I also recognise the potential for further impact on the complainant and her family and apologise to them for any impact caused by this further delay.
3 Christopher Smith, you have pleaded guilty to a charge of sexual penetration of a child under 16 years. Because the victim of your offending was aged under 12, the maximum sentence is 25 years’ imprisonment.
4 I sentence you on the basis of the prosecution opening[2], an agreed summary which was read out in court. I will briefly summarise your offence.
[2] Exhibit A
5 In December 2015 you had separated from your partner, the mother of two of your children, and you were living between her address and the address of a long-time friend of yours. When staying at your friend’s house you brought your own bedding and slept in the lounge room.
6 On the evening of 30 December 2015 you were at your friend’s address with a number of other adults, smoking cannabis. Your friend’s daughters were also at the house; your 10 year old victim, Caitlyn[3], and her 12 year old sister.
[3] A pseudonym
7 At about 2am on 31 December you got permission from Caitlyn’s father to take her to McDonald's, which you did, on the basis she would go to bed after you came home. On your return to the house, you and Caitlyn lay on your bedding in the lounge. You then began touching her – her back, her breasts under her clothing and her bottom under her clothing, and you made her touch her own breasts - and these acts continued over the course of the early hours of the morning. In between the periods of touching you went back and forth to her father’s room. The sexual touching I have referred to is not the subject of any charge for which you are to be sentenced today, but it is part of the background to the sexual offence in the charge, and shows that it was not a one-off, isolated incident.
8 After returning to the lounge, on one occasion, you touched Caitlyn’s neck and hairline and then slowly put your hands under her clothing and penetrated her vagina with your fingers. That is the subject of the charge of sexual penetration of a child under 16 years for which you are to be sentenced.
9 You continued to touch her over a period of about 30 minutes until she began to cry. You then told her not to tell her father.
10 The next day, or later on 31 December, you took Caitlyn shopping and bought her clothing. You later took her older sister to the shop but bought her nothing. You contacted Caitlyn via Snapchat and asked her if she was ok. You took her shopping again and bought her another item. During the shopping trips you told Caitlyn not to tell her father what had happened. On returning from the shop, Caitlyn was observed by an adult to be hiding in your car, and looking scared, and on questioning Caitlyn said that she had been to the shop with you, as you were getting her a prize for winning the game you had been playing under the blankets.
11 At about 12 noon on 31 December you left Caitlyn’s house, taking your bedding with you. You were meant to go with Caitlyn’s family by train to Melbourne that evening to see the New Year fireworks but you left the house without saying anything. Caitlyn overheard her father talking about this and told him via text message that she knew why you had left, and that you had done something to her the previous night. Caitlyn then went to her father and gave him a piece of paper, whilst she was crying, saying, “Chris touched me last night.” Her father contacted the police and Caitlyn and her father spent New Year’s Eve in the police station, with Caitlyn making her recording describing what you did to her instead of being in Melbourne celebrating New Year’s Eve.
12 Caitlyn’s clothing was obtained by police and on later testing a mixed sample of DNA on the inside of her underwear was detected; a combination that was 62 times more likely if you were a contributor to that DNA than if you were not.
13 You were arrested and interviewed on 6 January 2016 and you denied the offending.
14 There has been a considerable impact on Caitlyn and her father[4]. In her impact statement written in October 2018, in her own words Caitlyn sets out very clearly the impact on her. Your criminal actions made her angry and scared. When she was being interviewed by police she felt empty and numb. She describes finding school hard, that she cannot really concentrate, gets distracted and has been suspended a lot. She said she struggles to communicate with people and finds it hard to sit in one place for a long amount of time. She says she has been affected mentally by your crime and that she finds it hard to be alone with men and male teachers. She says that your crime has caused her to harm herself and she needed to be assessed for depression. She says most of her childhood and all of her happiness was taken away. There is, however, a sense of Caitlyn’s resilience as she speaks of her future. She is clearly a brave girl who found the courage to tell her father the day this happened, despite your manipulation of her by buying things for her and telling her not to tell her dad.
[4] Exhibit B
15 Caitlyn’s father has been hurt and betrayed by you, his long-term friend. He says Caitlyn’s abuse has brought back his own experience and he never thought he would be in the position you have put him in. This is something that you should well understand from your own experiences, which I will come to later. He describes Caitlyn as no longer being innocent, young and happy, and her attitude has changed. She has started skipping school and she does not respect him. Caitlyn’s father feels he has failed as a parent, but I want to say to him that what happened to Caitlyn is only the fault of the person who committed the crime – which is you.
16 When it comes to children it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[5], and include future harm[6]. Because Caitlyn is still only aged 15 it is impossible to know the possible future harm you may have caused to her. I do hope that the signs of resilience that are seen in her statement develop further.
[5]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[6]Adamson v R [2015] VSCA 194, [56]
17 In deciding the appropriate sentence, I take into account the harm caused to her as far as it is known at this time. I do wish Caitlyn and her family well for the future.
18 Returning to the offending, the commission of sexual offences against a child is always serious, but there are a number of factors that make your offence particularly serious. These are:
19 First, the gross breach of trust in abusing a child, who trusted you, and whose father trusted you, you having known her since she was born;
20 Next, Caitlyn was very young at age 10, which is two years under the age for which the maximum sentence is 25 years’ imprisonment;
21 Next, Caitlyn was vulnerable because of her age and relationship with you and the fact that the offending occurred at her home, a place where she should have felt safe;
22 Next, the offending was brazen in that her father, sister, and others were present in the home, oblivious to your offending in another room, which has had a dreadful impact not only on Caitlyn, but also her father, once he learned of your betrayal of trust;
23 Next, there is a 17 year age difference, with you aged 27 and Caitlyn aged 10 at the time of the offending;
24 Next, the offending act was accompanied by persistence in other sexual touching over a considerable period of time;
25 Next, by your manipulation of Caitlyn in buying her presents you intended to prevent her from telling anyone what you had done to her, and;
26 Lastly, there is, and remains, a considerable impact on Caitlyn and her father.
27 On an assessment of all the relevant factors I find your offence is a serious example. While not objectively the most serious, your offence is not at a low level either. I find your moral culpability was high.
28 As was pointed out by your counsel, there are some matters that I must take into account in deciding the appropriate sentence which mitigate the serious nature of your offending.
29 The first of these is that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea of guilty the community was saved the time and cost of a trial.
30 Although Caitlyn was ultimately saved the trauma of giving evidence, in the circumstances in which your plea of guilty came about she was not saved from anxiety and trauma leading up to giving evidence. Twice, the date was set for the recording of her evidence at a Special Hearing to be held before trial; twice she prepared herself for that difficult task, and twice it was adjourned at your request.
31 You were charged in June 2017 with the sexual penetration to which you have pleaded guilty, and with, also, four charges of committing an indecent act with a child under 16. The committal mention hearings in the Magistrates’ Court were adjourned twice that year at your request. In November 2017 the prosecution stated that the case would resolve if you pleaded guilty to the charge of sexual penetration. You did not do so at that time. In February 2018 a contested committal was held where Caitlyn’s father was cross examined, and after the case came into this court, the Special Hearing for the pre-recording of Caitlyn’s evidence was first listed to be heard in April 2018. It was not, as I have said. Instead, that hearing was adjourned twice at your request until, in July 2018, you accepted the position that was offered by the prosecution the previous year, and finally, almost a year after that offer was made, you pleaded guilty to the charge for which you are now to be sentenced. It is therefore not an early plea of guilty and put Caitlyn through unnecessary stress. However, you are still entitled to the benefit that accrues from the ultimate plea of guilty.
32 There was a delay of 18 months between your interview and you being charged. The prosecutor told me that the delay was due to the time it took to obtain the DNA test results and a change in the investigating police officer. While that is a delay that must be taken into account as a mitigating factor, the impact that preparing for giving evidence on two occasions must have had on Caitlyn almost cancels out any benefit of the earlier delay, which was not your fault. However, your counsel told me that you regret not resolving the case sooner. Combined with your ultimate plea of guilty I accept that regret as an expression of your remorse for the offence, and its impact on the victim, and acknowledge that by your plea you have now accepted responsibility for your crime and facilitated the course of justice.
33 Next, I take into account your personal circumstances and background. You are now aged 32 and have had a tumultuous life, particularly as a child and teenager, but extending into your adult life. These circumstances are outlined in your counsel’s written submissions[7] and in the two psychological reports[8] filed on your behalf, as well as the sentencing remarks of Her Honour Judge Gaynor from 2004[9] filed by the prosecution. I will attempt to summarise those circumstances here, but in summarising them I assure you that I have taken them all into account.
[7] Exhibit 1
[8] Exhibits 2 and 3
[9] The Queen v Christopher Griffey, unreported sentence of Her Honour Judge Gaynor, County Court of Victoria, 30 September 2004
34 Your parents separated when you were a baby due to family violence, and apart from a brief time living with your father in your early teens you have no contact with him. Your mother re-partnered and that stepfather is described as being a violent drunk. While your last name was Griffey at the time of the 2004 sentence, you have since then taken the name Smith from this first stepfather. The family, including an older sister, lived interstate, and twin boys were born, although they were removed from the home for a period because of abuse of them by a family member. It seems you and your sister remained in the home.
35 While living interstate, you were less than five years old and being looked after by a neighbour, when the neighbour’s brother-in-law arrived and shot her, before turning the gun on himself. Understandably, you have been traumatised for your whole life by witnessing this murder-suicide.
36 Your family moved to Victoria shortly after that dreadful event. The background material[10] is inconsistent as to whether your mother separated from your first stepfather before that, or whether he re-located with the family. What is clear is that on the day the family moved into a new property in regional Victoria you and your younger brothers were playing ‘farm animals’ and eating grass, which turned out to be hemlock, a highly poisonous plant. Tragically, one of your brothers died as a result and you were hospitalised. In the plea before me I was told that your stepfather punished you for causing your brother’s death, and because the death became local knowledge you were also bullied at school.
[10] Exhibit 1 and the 2004 sentence
37 After the move to Victoria, at some stage your mother partnered with your second stepfather, who was also violent and physically abused you. Two further children were born of this relationship. Your maternal grandmother was married to the father of your second stepfather. This step-grandfather sexually abused you and your siblings and was apparently convicted in respect of your younger sister. You have chosen not to proceed with police over his abuse of you. As a result of the abuse coming to light, your mother left that relationship.
38 Perhaps not surprisingly with this tragic, abusive and unsettled background, at the age of 13 you committed sexual offences against female cousins aged five and seven. The matter was heard in the County Court, when you were aged 16, and after a trial you were convicted of one charge of sexual penetration by putting your penis into the vagina of the five year old and three charges of indecent act with or in the presence of a child under 16 in respect of both girls[11]. The offences occurred on the one occasion, at the home of your cousins, where a party was being held and you were intoxicated, and the resulting disinhibition was considered by the sentencing judge to be a significant factor. Her Honour stated that ordinarily such offending should result in a period of detention in a youth training centre. For the reasons carefully set out by Her Honour, you were sentenced instead to a youth attendance order for 52 weeks.
[11] The Queen v Christopher Griffey, unreported sentence of Her Honour Judge Gaynor, County Court of Victoria, 30 September 2004
39 Tellingly, Her Honour also said this:
“These are extremely serious offences and their commission by a 13 year old should lead to grave concerns as to what sort of person he is and what dangers he holds for the community as he grows up.”
40 You briefly went to live with your father for the first and only time, in your early teens. I am not sure exactly where this fits in your chronology, but sadly you were apparently sexually abused by a neighbour while living with your father.
41 After the sentence in 2004, when you were aged about 14, you went into the care of the Department of Health and Human Services and spent time in both foster and residential care. I have no information as to what programs you were offered either by Youth Justice during the youth attendance order, or DHHS while you were in their care. It seems obvious that Her Honour’s remarks should have led to a concentrated effort towards your rehabilitation by those entrusted with your care, which would have been ultimately designed to protect the community.
42 At some point you ran away from care and were homeless for a period, during which you met a man who took you in, but he also sexually abused you. After that you lived with your maternal grandmother for a time. You are apparently still close to her and your mother and siblings. You lived with your older sister for a time.
43 Your schooling was disrupted by the various moves and tragedies that occurred in your young life, and after numerous suspensions you left school not having completed Year 8. However, you have since then completed the VCE equivalent through adult education at the Box Hill TAFE. Further, you have been employed through most of your adult life, which is to your credit.
44 You were in a relationship with a young woman for five years and have two children together, who you saw every weekend after your separation until you were remanded for the offence for which I am sentencing you. Sadly, you had a stillborn child together in 2013, which only added to the trauma you have been dealing with all your life. It was this relationship which had ended when you began sleeping at Caitlyn’s father’s house.
45 You have been an abuser of many drugs, starting from childhood, with periods of abstinence while working, and in particular were abstinent between the ages of 16 to 21. After the stillbirth of your child your drug use increased, and this led to the breakdown of your relationship and to your criminal activity. Despite your drug use, homelessness and abuse, after your 2004 conviction you did not come to the attention of police, other than for this matter on New Year’s Eve 2015, until 2016. These other offences, mainly drug and driving with some dishonesty offences, are therefore not to be taken into account as prior convictions for the sentence today, and it is clear that there was a period of 12 years without offending.
46 You have been in a relationship now with another young woman for almost three years, with the beginning of this relationship coinciding with your last offence in 2017. Together you have a son born in October 2019, during a short period you were on bail. You have the ongoing support of your partner and her mother, from both of whom I received written references[12]. It must be said, however, that as a result of your conviction for this offence it is highly likely that it will be very difficult for you to have the relationship with all of your children that you would wish to.
[12] Part of Exhibit 4
47 You have undertaken some drug and alcohol abuse counselling as part of a community correction order in 2017 and I am told that you have not used drugs since that year. Three drug screening tests between October and December 2019 in custody were negative[13]. I note that you have also completed a number of programs while on remand[14] designed to enhance life and relationship skills, as well as some further drug programs.
[13] Part of Exhibit 5
[14] Ibid
48
Given your traumatic background and the commission of another child sexual offence involving penetration, your lawyers obtained two reports; one from
Dr Carey[15], a neuropsychologist, and one from Dr Cunningham[16], a forensic psychologist.
[15] Exhibit 2
[16] Exhibit 3
49 Dr Carey, in her report dated 14 February 2020, was not able to confirm whether you have any permanent cognitive conditions now, or at the time of the offending, but strongly suspected you have mental health issues given your traumatic background and your self-report of a number of symptoms suggestive of significant mental health difficulties. You reported to her that you were diagnosed with bipolar disorder in Ballarat, but I have no material to support this. Worryingly, you told her that you had no memory of committing the offence against Caitlyn and felt that you were not at risk of reoffending, as you had not reoffended since the age of 13.
50 By contrast Dr Cunningham, in his report dated 20 February 2020, found that your profile was valid and able to be interpreted, and while it did not indicate the presence of severe psychopathology, symptoms of depression and social difficulties were present. You reported to him that you were heavily drug affected when you offended against Caitlyn and he considered that your unresolved sexual abuse trauma and abuse of drugs are your main offending risk factors. After psychometric testing using the Risk of Sexual Violence Protocol (RSVP), Dr Cunningham formed the view that you present as a moderate risk of sexual reoffending and your risk escalates significantly in the context of drug abuse.
51 On the basis of all the material before me, I assess your risk of reoffending as at least moderate to high, and find that it is absolutely essential that you undertake a sex offender program to reduce this risk, as well as trauma related counselling to recognise the undoubted link of your past to your sexual offending and further reduce your risk, thereby protecting the community from you in future.
52 It is difficult to properly assess your prospects of rehabilitation. On the one hand, given your sexual offending on two occasions in such a serious way, with a significant period of time in between, your prospects could be considered guarded. On the other hand, you seem willing to undertake programs that may reduce your risk of reoffending, and it may be that you do not yet understand the potential link between your offending and your traumatic background, because it appears never to have been addressed. Further, you have good employment prospects and ongoing support in the community.
53 The trauma in your life has unfortunately continued, with you being assaulted shortly after your reception into custody, causing you to be moved to Hopkins. I have no material to support this, or the injuries you claim to have, but I accept that you have been moved for your protection. Subsequently, a cell mate there apparently suffered a heart attack and passed away, despite your efforts at CPR. You are now apparently on anti-depressants as a result.
54 On the positive side, I am told that while in custody you have completed four of the 10 units for a Certificate IV in Business Management and completed certificates in Traffic Management and Food Handling; also obtaining your White Card.
55 Before I turn finally to the sentence, there is one further matter I must deal with. As a result of my sentence today you become a registrable sex offender. You will be required, within seven days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to that Act for the rest of your life. There was a dispute between the prosecution and the defence as to the length of the reporting period and I will provide by email to the parties my reasons for deciding that the reporting period is life[17].
[17] Attached to these reasons as Appendix A.
56 Because you are appearing on a video link I do not require you to sign the acknowledgment of receiving the form advising you of your reporting obligations. That form will be provided to you through Corrections Victoria.
57 Turning to the sentence, it was conceded on your behalf that the court must impose a sentence of imprisonment with a non-parole period. Your counsel submitted that a ‘longer than usual parole period’ would be open and appropriate.
58 The court must denounce your offending and impose a sentence that is just in all the circumstances and that reflects the community’s abhorrence of sexual offending; particularly offending against a child. Further, by my sentence I must seek to deter you from sexual offending against children. My sentence must also deter others from committing such a crime.
59 I do not require you to stand, Mr Smith, but I will now pronounce the sentence. You are convicted and sentenced as follows:
60 On Charge 1 of sexual penetration of a child under 16, to seven years’ imprisonment.
61 I direct that you serve five years’ imprisonment before becoming eligible for parole.
62 I declare that you have served 239 days in pre-sentence detention including today. These will be deducted administratively from your sentence.
63 Lastly, if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is 11 years with a minimum of eight and a half years.
64 I have made the disposal order.
65 Mr Lew, are there any other orders required?
66 MR LEW: There are not, Your Honour.
67 HER HONOUR: Thank you. Ms Millar?
68 MS MILLAR: No, Your Honour.
69 HER HONOUR: Thank you. Well, thank you, Mr Smith, for your attendance via video link. Ms Millar will no doubt be in touch with you after this sentencing hearing. I will now adjourn the court sine die.
70 MS MILLAR: As Your Honour pleases.
---
0
2
0