Director of Public Prosecutions v Smith

[2018] VCC 1797

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-01345

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY JAMES SMITH

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Bendigo
DATE OF HEARING:	15 October 2018
DATE OF SENTENCE:	15 October 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 1797

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For the Offender	Mr N.J. Goodfellow	Tyler Tipping and Woods

HER HONOUR: 

1Mr Smith, you can remain seated for now.  Rodney James Smith, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  The facts which found your offending are set out in the prosecution opening dated 23 July. 

2You were at the relevant time aged 32 or 33.  You had been living in premises in Kyabram from February of 2009.  You vacated those premises in July of 2010.  The victim in this matter was at the relevant time aged 13 or 14.  She was under the care and/or supervision or authority of the Department of Health and Human Services and residing in supported accommodation in Shepparton from March of 2010 to April of 2010.

3During 2009 and 2010 local teenagers had commenced gathering at premises in Kyabram where teenagers would congregate to drink alcohol, smoke, and hold parties.  On an occasion between 10 March of 2010 and 23 April 2010, during a party at the premises, the victim and her friend entered an upstairs bedroom as the victim was intoxicated and feeling unwell.  She lay with her friend on the mattress in the room when they heard a knock at the door and she observed you to enter.

4You sat down on the mattress and spoke to the victim's friend for some time, who was also a friend of yours.  When the victim indicated she had a headache, you turned your attention to her and began touching her hair and skin, telling her she was pretty.  The victim's friend was feeling intoxicated himself and moved from the mattress to a window, leaving the victim alone with you.  You continued to touch the victim while telling her that the night could only get better.  You moved your hand down the victim's stomach.  When she asked what you were doing, you said, "I’m just having fun, what are you doing?"

5As the victim attempted to pull the blanket over her chest, you shifted your hand from her stomach to her breast.  You gripped her breast what she described as really hard and said, "I want to fuck you, what do you think?". When the victim replied, "What the fuck is wrong with you?" you leant over and kissed her on the forehead.  While still holding on to her breast you began kissing her on the cheek and then the neck, before moving your hand down between her thighs.  She managed to roll over on to her stomach, dislodging your hand in the process.

6You then grabbed the victim by her hip, rolled her back on to her back, positioned yourself on top of her and commenced rubbing your groin against her vaginal region over her clothing.  The victim said, "Please don't do this" to which you replied, "You've got no idea how long I've liked you for".  You then cupped the victim's face and began to both kiss her on the mouth and bite her lips.  You then parted her legs, moving your hand up into her shorts over her underwear and you began rubbing in that area.

7Whilst continuing to rub her in the vaginal area, you lowered your track suit pants, took hold of your penis and began to masturbate.  You then moved and repositioned yourself on top of the victim.  The victim took this opportunity to close her legs; however, you used your knees to prise her legs apart again.  At this time the victim believed she heard people climbing the stairs and she describes you as having "froze".  When it was evident to her that the people had gone back downstairs, you put your full body weight on her and over her clothing rubbed your penis against her vagina. 

8The victim covered her face and began to cry.  You said, "You're a good girl, aren't you?" and you moved your hand up to the leg of her shorts.  You then pulled the crotch of her underwear to one side, grabbed your penis and began rubbing your penis against the lips of her vagina.  You then let go of your penis and digitally penetrated the victim, thrusting your fingers in and out of her vagina.  This penetration is not a charged act and I have sentenced you on that basis.

9The victim continued to cry.  You removed your finger and inserted your penis and commenced having sexual intercourse.  It is the insertion of your penis which founds the charge of sexual penetration of a child under 16.  After a couple of minutes you stopped and said, "See, it wasn't that hard, was it?". The victim says you did not wear a condom but she believes that you did not ejaculate.  When you had finished you asked her if she wanted to go back outside.  You then pushed yourself off the victim, leaned over and kissed her on the forehead.

10You were interviewed in relation to this matter at the Morwell Police Station on 15 May 2017.  At that time you denied the allegations and denied knowing the complainant or the teenagers that attended the premises. You admitted that you had received a Facebook message and a phone call but really claimed not to remember the details.  You ultimately pleaded guilty in relation to this matter having entered your plea at a further committal mention on 27 June of 2018.  It is conceded that this is an early plea for the purposes of sentencing having regard to the fact that it was the first reasonable opportunity subsequent to negotiation as to the charges to which you would plead.

11I have received a victim impact statement in relation to this matter and I have had the advantage of the victim reading her statement in court this morning.  She describes the very real effects of your offending, especially as regards her feelings of self-worth.  She says she tried to hide what happened for a long time.  She engaged in self-harm as a means of trying to stop the thoughts.  She says she continues to have trust issues with males.  What is clear is that your offending has pervaded many aspects of her life.  It is hoped that the conclusions of these proceedings will bring some closure and the ability to move forward. 

12Any offence of this nature is serious, as is demonstrated by both the maximum penalty and the very real effects of this offending upon the children of our community.  This was disgraceful exploitation of a vulnerable child who was 13 or 14 years old.  You knew she was vulnerable due to her circumstances.  She told you she was not feeling well; she was intoxicated, she was crying, and you did not use a condom.  The way you spoke to her following your offending was in my view flippant at best.  The message must be clear and consistent that conduct of this type will in the usual course result in condign punishment, weighed of course with other relevant sentencing factors. 

13You have admitted the contents of a criminal record which discloses three appearances before the criminal courts.  On 11 August 1998 you were placed on a bond without conviction upon charges of making a false report to police and possessing cannabis being found proven.

14On 26 October 1998 you were convicted and placed on a community corrections order in relation to charges of theft and obtaining property by deception and on 24 May 1999 you were fined in relation to a charge of aggravated cruelty to an animal.  On a more positive note, there has been no offending in the last eight or so years subsequent to this offence and you have no prior convictions for any similar types of offending.

15You are now aged 40, having been born on 17 March 1978.  You were 31 at the date of this offending.  You were born in Victoria, you are an only child.  You were placed into care at the age of three.  Your mother suffered from severe epilepsy and your parents were unable to care for you.  You spent several years at Swan House and following that you have recollections of living with a foster family for a year when you were aged about seven, before moving into a foster home in Traralgon.  You lived in the same house but had three or four different sets of foster parents and various foster siblings.

16You report being the victim of sexual abuse at the hands of another child when you were a pre-teen in care.  Whilst you were in care you had access with your mother but you had no contact with your father.  You moved to live with your father aged 17.  You report at that time being physically abused by your stepmother, including being beaten with a belt.  You had a good relationship with your father but you report being removed due to the presence of bruising resulting from the beatings at the hands of your stepmother.  You told
Dr Cunningham that you grew to hate women as a result and you do not trust them and are not attracted to them.

17You subsequently moved to live with friends for several years before returning to live with your biological mother.  This only lasted a short time before you again found yourself living with friends and at times on the street.  At some stage you moved to Queensland and engaged in a variety of unskilled employment.  You told Dr Cunningham that while you were living in Queensland it was for five or six years and that you were working with the triads as a cook.  By this stage you were using amphetamine and reported entering into a rehabilitation centre, on your description it seems due to suffering some kind of psychosis.

18Following this, you told Dr Cunningham you worked in a restaurant where you were ‘sussed out by the Mafia’ before working as a chef and nightclub supervisor. You then said that you became "a made man" in the Mafia.  This all, it seems, is grandiose rather than factual, a matter conceded by your counsel upon your plea.  It seems the reality is that you were working in a bar and as a cleaner.  You have spent a number of periods both on the Gold Coast and at Hervey Bay working in unskilled capacities.

19You told Dr Cunningham you left Queensland because your mother was on her deathbed.  She passed away in 2005.  You said at that time you had not seen her for many years.  You reported spending a short time in Melbourne before returning to Queensland, where you again lived with a friend on the Gold Coast.  It was subsequent to that that you relocated back to Gippsland in Victoria. When you returned to Morwell you worked in an abattoir.  You had a relationship and there is a son of that relationship who is now himself in foster care.  You have no direct contact with him but you receive updates from DHHS. 

20You have recently been living with your father in Traralgon and you are your father's carer.  I have received a number of letters from persons attesting to your caring of your father, who suffers from diabetes and has been hospitalised as a result of that condition.  I accept that this role has been important in terms of your self-worth and stability.  It is not, however, suggested that hardship is established for the purposes of sentencing.  You report having limited social supports and you say you have always liked being on your own. 

21By way of education, you completed Year 10.  It seems you commenced Year 11 but ended up leaving school in the context of ongoing difficulties.  In terms of your employment, you gave Dr Cunningham a history of operating a gang that supported disabled children and organised camps, then working as a kitchen hand, nightclub supervisor, and in cold storage.  I am unclear as to the chronology or accuracy of such assertions but it seems that over a period of time you have been able to maintain employment largely in an unskilled capacity.

22You are currently participating in the running of an on-line bookshop.  You volunteer, which includes working on various barbeques at Bunnings.  This is confirmed in a reference from the secretary of Theodora's, a welfare association that assists other members of our community.

23As regards your medical history, you suffered a head injury apparently falling from a skateboard during primary school, but this matter has not been pressed and there is no detail in relation to any ongoing issues in that regard.  In relation to drugs and alcohol, you report using cannabis from 18 and also that you used amphetamines in your early 20s.  You said you have abused significant amounts of alcohol since your mid-teens.

24You told Dr Cunningham that when you are not around people you do not abuse drugs and alcohol.  You report abusing alcohol at the time of this offending in the context of living with a friend in a party house.  You continued to assert
to Dr Cunningham that you were helping keep children off the streets. 
Dr Cunningham assessed your IQ as in the range of 85 to 93 and noted that the pattern of results was indicative of a learning disorder.  Dr Cunningham administered the RSVP and opines that you present as a moderate risk of sexual reoffending.

25As regards mental state assessment, Dr Cunningham says you did not present with a mental illness but you do present as psychologically and emotionally immature.  Dr Cunningham opines that you escape into fantasy and you have poor emotional regulation, lack of stability in accommodation, employment and relationships and all of those things are consistent with your immaturity.  Dr Cunningham says you do not present with any condition that contributed to your offending.

26As regards the offending, he says that you were reporting a ‘white knight’ type fantasy but ultimately you were able to communicate the wrongfulness of sexual behaviour with underaged individuals, but he says consistent with your immaturity you have limited understanding of the long-term consequences of this behaviour upon the victim.  Dr Cunningham recommends offence specific treatment.  He says you do not meet the criteria of a pedophilia and you do not present with a specific sexual interest in prepubescent children.

27He says at the time of your offending you were living in a high risk situation, living in a house frequented by vulnerable, underaged individuals.  You were abusing alcohol and convincing yourself that you were providing protection and safety.  He says your relative immaturity, unaddressed history of childhood sexual abuse, alcohol abuse and instability contributed to your offence behaviour.

28Dr Cunningham notes that you present as open to engaging in treatment and he says that that engagement, if you are able to maintain stability through accommodation and employment, will reduce your risk and improve your prospects of rehabilitation. 

29In relation to your prospects of rehabilitation, you do not have a relevant criminal history, the offending was over eight years ago, there has been nothing subsequent.  You pleaded guilty at an early stage and you now accept the wrongfulness of your conduct.  Overall your prospects are thus in my view positive and to a degree manifest.

30Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, the plea of guilty which it is agreed you entered at an early stage of proceedings.  You have saved the victim from giving evidence, you have saved the community the time and expense of a trial, you are entitled to both the utilitarian benefits of that plea.  I also accept for the purposes of sentencing that your plea is demonstrative of remorse.  You are thus entitled to the full benefit of an early plea.

31General and specific deterrence are relevant sentencing principles that are in the usual course given weight in the sentence I will impose this day.  In your case, while general deterrence remains important, specific deterrence can in my view be given less weight in light of your history.  The court and the community cannot and will not tolerate offending which so seriously damages the lives of our children.  The sentence must manifest the community's denunciation of your conduct and impose just punishment.

32Your counsel submits that a CCO is within range, or if I am against him, a combined term of imprisonment with a CCO.  The Crown submit the only disposition open is an immediately servable term of imprisonment and submit that a combined sentence is outside the range.

33Would you stand, please.  This is serious offending.  In my view there is no disposition open other than an immediately servable term of imprisonment.  You are convicted and sentenced to be imprisoned for two years and nine months.  I direct that you serve 18 months before becoming eligible for parole.  I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to four years with a minimum of two years and ten months.

34You have now been found guilty of a single Class 1 offence.  It is common ground that the length of the reporting period is 15 years.  In a moment my associate will provide you with relevant documentation setting out your obligations and ask you to sign an acknowledgment that you have received that documentation.

35Finally, the Crown make application pursuant to s.464ZF of the Crimes Act that an intimate forensic sample be taken from you for placement on the database.  I am satisfied it is in the interests of justice having regard to the seriousness of your offending to make the order.  In my view it is in the public interest and I make the order in the terms of the draft.  I inform you that police may use reasonable force to enable that procedure to be conducted.  Have a seat for a moment please.  Sex Offender Registration will need to be dealt with.

36MR GOODFELLOW:  May I approach, Your Honour?

37HER HONOUR:  Yes, certainly.  Thank you, that documentation has now been signed.  Counsel, is there anything further?

38MR GOODFELLOW:  No, Your Honour.

39HER HONOUR:  I thank counsel for their assistance in relation to this matter.  Mr Goodfellow, you are excused.

40MR GOODFELLOW:  As Your Honour pleases.

41HER HONOUR:  Mr Smith can be taken. 

42MR GOODFELLOW:  Thank you, Your Honour.

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