Director of Public Prosecutions v Smith

[2018] VCC 48

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01704

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARLEY SMITH (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 January 2018
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2018] VCC 48

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr D. Hannan
For the Accused	Mr C. Thomson

Pages 1 - 10

 

 

HER HONOUR: 

1Harley Smith[1], you have pleaded guilty to one charge of incest contrary to s.44(4) of the Crimes Act.  The maximum penalty for that offence is five years' imprisonment.

[1] Harley Smith is a pseudonym.

2Further, you have pleaded guilty to one charge of making child pornography contrary to s.68(1) of the Crimes Act, the maximum penalty for that offence is 10 years' imprisonment.

3The facts which found the charges are in brief compass as follows:  you are the victim's brother and your offending took place on an occasion between 1 January 2009 and 31 December 2010 at which time you were fourteen or fifteen and she was seven or eight. 

4On the relevant occasion you asked the victim to go upstairs to your bedroom and she complied.  You instructed her to take off her clothes which she did. You then took photographs of her naked on your phone.  At some stage, you instructed her to spread her legs and you pushed her legs out instructing her to hold them.  You then took photographs of her vagina.  It is this conduct which founds Charge 1, making or producing child pornography.

5It seems that later on the same occasion was the time when you penetrated the victim's vagina with your finger.  She describes you as moving your finger around before she told you to take it out.  She, at some stage, asked you what you were doing before dressing and leaving the room.  She did not at that time tell anybody what had occurred.  Sometime later she told your mother what had occurred and your parents had a conversation with you telling you that your conduct was wrong and that you could go to gaol.  They accessed some material on the internet with a view to explaining these matters to you.  You apologised to the victim assuring her that you would never do it again.

6On 19 February 2017 some years later, the victim told a school counsellor what had occurred and the matter was reported to DHHS and the police.  You were interviewed and you made admissions as regards your conduct. 

7This type of offending is by its very nature serious, albeit that I accept for the purposes of sentencing that this conduct is at the lower end of the range of offences of these types. 

8You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  I note that the victim has declined to make a victim impact statement and I have been told that she sought not to proceed with prosecution.  That of course, at the end of the day, is not a matter for her as the community has a wider interest. 

9You are now aged 21 having been born on 13 April 1996.  You are the eldest of a sibship of four.  You had a number of health issues which resulted from you suffering, it seems, a stroke prior to your birth.  You required heart surgery in your early years. There were complications and as a result you needed a colostomy bag until the age of 10 until that issue could be resolved operatively.  You continued to suffer throughout those years from mild cerebral palsy.  Further treatment as a teenager was required which interfered with your school attendance. 

10As regards your education you had both physical and clear social difficulties which required that you had a teacher's aide in the classroom.  I accept that you were bullied and it seems that you fell behind as a result of medical issues.  You were, at times, reluctant to go to school and I think it is fair to say that as a result, in the main, of your medical issues your education was significantly compromised.

11You have always, it seems, had social difficulties and, apart from your current girlfriend, you do not have any close friends.  That was a situation throughout your childhood.  You report, however, maintaining a close relationship with your family including the victim. 

12You have experienced episodes of depression and anxiety but you had not seen a psychologist until six months ago when this was put in place by DHHS. I have no report from your treating psychologist but I accept that you are engaged well with him and that issues relevant to reducing risk of any re-offending have been and continue to be addressed.

13You lived at home with your family until age 20 when these matters were reported to police and DHHS.  It was in this context that you were required to leave the family home.  I note that your current partner appears at court today in support of you as do your parents.  You have been in your current relationship for some 12 months.  I note that this relationship is your first intimate relationship. 

14At the time of this offending your family had just moved to Melbourne from New South Wales.  Your father was working long hours and you were dealing with significant health issues. You were socially isolated, immature and sexually naïve.  None of this excuses your offending but context is always relevant.

15You completed Year 11 on a VCAL basis in hospitality and business administration but you subsequently determined not to pursue that as your career.  You completed a further diploma in business management but you have not found work and your parents continue to financially support you. 

16You are however assisting in your father's insurance broking business and you are hopeful that will become a full time position in March of this year. I accept, based on your father's evidence, that character has a role to play in that industry. 

17I received a report from Mr Matthew Staios a consultant psychologist.  It is Mr Staios's opinion that collective issues resulted in you having a limited capacity to exercise appropriate judgement in social scenarios due to pervasive difficulties with engaging age appropriate peers, a lack of opportunity to form and learn from intimate relations and limited exposure to a wider range of social networks through the course of your life which ultimately had a cascading effect and impacted on your understanding of social and emotional boundaries. 

18It is Mr Staios’s opinion that your current offending is likely a reflection of limited social contact outside your immediate family network limited, understanding of social norms, immaturity and sexual curiosity. He says it is likely that given your psycho-social vulnerabilities and reduced understanding of social norms and social development that your offending was motivated by curiosity in the context of exploring your sexuality and sexual behaviour.

19Mr Staios further expresses the opinion that you have capacity to successfully address your psychological predispositions especially if an appropriate level of support is provided alongside risk management strategies and risk monitoring. 

20I also received a report dated 29 January 2018 from Dr Karen Scally, a forensic neuropsychologist.  She assessed your intellectual function as being in the low average range which is consistent with school reporting which was tendered as part of the bundle of defence materials. 

21Dr Scally noted some mild cognitive impairments which could have resulted from a number of factors but on balance it seems she thought most likely it seemed from complications of your difficulties and deficits at birth.  She recommended further engagement with a psychologist which I note is currently in place.  She identified no fact or matter which contributed to your offending but she did recommend ongoing offence specific treatment to improve insight. 

22Your counsel ultimately submits in relation to this matter that you should be dealt with by way of a community correction order without conviction.  The prosecution concede that a community correction order is within range but urge that a conviction be recorded.

23As well as matters personal to you to which I have referred, including your prospects of rehabilitation which I regard as both manifest and excellent, I must also take into account other relevant sentencing considerations. 

24General deterrence is of considerable importance in matters such as this.  I must seek to deter not only you but others who would engage in like conduct.  The court and the community cannot and will not tolerate offending which seriously damages the lives of members of our community. 

25Your sentence must manifest the community's denunciation of your conduct and impose just punishment having regard, of course, to the fact that you were yourself a child, aged 14 or 15 at the date of this offending. 

26I have considered carefully the question of conviction and had regard to the provisions of the Sentencing Act addressed by counsel this day.  In the usual course there would, in my view, be no disposition open that did not include the recording of the conviction but, in your case, even once weight is given to offence seriousness, the fact that you were a child aged 14 or 15, the fact that I accept you were immature, the matter was raised, you admitted it, apologised and rehabilitation commenced and is manifest are relevant matters. It is also relevant that had the matter been dealt with at the time, you would have been dealt with in the Children's Court, and as a first offender, it seems almost inevitable that a conviction would not have been recorded against you. 

27Having regard to the matters to which I have referred and other relevant factors as set out in the Sentencing Act, I have determined that it is appropriate not to record a conviction and to give you the opportunity to continue what I do regard as sustained and demonstrated rehabilitation. 

28On both charges you are without conviction sentenced to be placed on a community correction order for 18 months.  That order has the usual core conditions. In addition, you are to perform 125 hours unpaid community work.  You are to participate in programs to reduce re-offending as directed by the regional manager and you are to attend for assessment and treatment in relation to mental health as directed by the regional manager.

29I note that the report recommended supervision.  I have specifically determined not to include that as a condition.  I do not regard it as necessary in my view; further time should be devoted to advancing your career and work prospects as that is in your interests as regards rehabilitation.

30I make a further direction and that is pursuant to s.48CA of the Sentencing Act.  I direct that up to 50 hours of treatment may be counted towards completion of your community work hours. 

31Pursuant to s.6AAA of the Sentencing Act 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 10 months imprisonment and a CCO.

32Finally, the prosecution make application pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a mouth and/or blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. 

33You oppose the making of that order.  I have determined to make the order having regard to the seriousness of your offending.  In my view, it is in the public interest to make the order and for a sample to be retained on the database.  I inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force that a blood sample will be taken and police may use reasonable force to enable that procedure to be conducted. 

34Mr Prosecutor, I will need to give a direction in relation to attendance.  Have you got a draft order for me?

35MR HANNAN:  Yes, Your Honour.

36HER HONOUR:  And do we know the police station?

37MR HANNAN:  There is a whole list of them and the order doesn't have whichever one - there's none specified but ‑ ‑ ‑

38HER HONOUR:  I have to put one in the order so I will just find out what it is.  It gets amended where I put one in.

39MR HANNAN:  Mernda.

40HER HONOUR:  Where is ‑ ‑ ‑

41MR THOMSON:  Mernda is the nearest police station, Your Honour. 

42HER HONOUR:  Is Mernda on there?  No.  Has to be bigger. 

43MR HANNAN:  No, it is not.

44HER HONOUR:  Is it ‑ ‑ ‑

45MR THOMSON:  It's a new police station, Your Honour.

46HER HONOUR:  No, I can't.  Sorry, I have no idea where Mernda is, I confess.

47MR HANNAN:  Epping.

48HER HONOUR:  Epping, all right, yes.  Epping is 24 hours. 

49MR HANNAN:  Epping is there.

50HER HONOUR:  Yes, Epping is 24 hours.

51MR HANNAN:  Can I hand up triplicate forms of that?

52HER HONOUR:  Thank you.  There is just one more direction I need to give you in a moment, Mr Smith. 

53MR HANNAN:  And it has on that order the four weeks starting from 28 days from today.

54HER HONOUR: Yes. Further, pursuant to s.464ZF(9) of the Crimes Act, Harley Smith, for the purposes of undergoing the said procedure you are to report to the officer in charge of the Epping Police Station at - I need to give an address.  Epping, Epping, Epping - 785 High Street, Epping. 

55During the period of four weeks that commences 28 days after the date of the sentence today or once any instituted conviction appeal is finally determined and the conviction for forensic sample offences upheld whichever is later.

56In simpler terms it means this:  that four weeks from today a period of four weeks starts and it is in those four weeks that you have to present yourself at the Epping Police Station.  You won't get a reminder and if you don't present yourself you will breach an order of this court and you don't want to do that. 

57So, 28 days from today, four weeks start - and I am sure Mr Thomson will take you through all this.  The period starts and you've got four weeks to present yourself at the Epping Police Station. 

58Provided you are compliant it is what is called a buccal swab so that it is just like a big cotton bud that they put on the inside of your cheek.  If you are co-operative in that process no blood sample will be taken.  There will simply be a swab of your mouth.  Do you understand what I have said?

59OFFENDER:  I understand.

60HER HONOUR:  All right.  In relation to the community corrections order I need to tell you that if you breach that order you will be brought back before me.  If you breach that order it is hard to see a disposition that will be open other than a term of imprisonment.  So, what stands between you and going to gaol is absolute compliance with that order. 

61One of the directions that I have given, you will note that I gave you - and this is by way of explanation - 125 hours of unpaid community work.  I have directed that up to 50 hours of treatment in relation to either mental health or offence specific treatment can count towards those hours.  So, if you do 50 hours of treatment you will have 75 further hours of community work to complete. 

62Community corrections will assess you, you need to attend community corrections within two clear working days of the making of this order which you are about to sign in a minute.  Is there anything that you don't understand?

63OFFENDER:  No, I understand.

64HER HONOUR:  All right.  Just have a seat for moment.  I need to get my associate to prepare some orders and counsel, by way of explanation as to length of order it is intentionally 18 months because I anticipate the sex offender program and you need 18 months to complete it.

65Yes, would counsel check the order and then Mr Thomson would you have it signed please?

66MR THOMSON:  One order for the two offences?

67HER HONOUR:  Yes.  One order, they're both State so it is fine, yes.  Yes, just finally, counsel, given the nature of the matter I propose to apply a pseudonym before publishing because otherwise the victim cannot be protected so it will be published with a pseudonym.

68MR THOMSON:  Yes, Your Honour.

69HER HONOUR:  That is it.  All right.  Anything further, counsel?

70MR THOMSON:  No, Your Honour.

71MR HANNAN:  No, Your Honour.

72HER HONOUR:  I thank you both for your assistance.  Stand down please.

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