Director of Public Prosecutions v Smith
[2022] VSCA 4
•28 January 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0113
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| HARRY SMITH | Respondent |
---
| JUDGES: | PRIEST, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 January 2022 |
| DATE OF JUDGMENT: | 28 January 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 4 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1101 (Judge Smallwood) |
---
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Sexual penetration of child under 16 – Assault and resist emergency worker on duty – Sentence of 18 months’ imprisonment, non-parole period of 9 months – Whether sentence manifestly inadequate – Young offender – History of similar offending – Significant mitigating personal circumstances – Where offender potentially vulnerable in adult prison – Sentencing judge entitled to give weight to need for rehabilitation – No general error shown – Whether judge erred in finding complainant was ‘willing participant’ in offending – No specific error shown – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D Piekusis QC with Ms A Roodenburg | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr P Tehan QC with Mr T Brown | Warren Graham & Murphy Lawyers |
PRIEST JA:
I agree with Emerton JA, whose reasons for judgment I have had the advantage of reading in draft.
NIALL JA:
I have read a draft of the reasons of Emerton JA. I agree for the reasons her Honour gives that the appeal should be dismissed.
EMERTON JA:
The respondent was convicted by plea of guilty on 31 March 2021. On 10 August 2021, he was sentenced as follows:
| Charge on Indictment L12287586 | Offence | Maximum | Sentence | Cumulation | |
| 1 | Sexual penetration of a child under 16 (rolled-up charge — 2 occasions) | 15 years | 15 months | Base | |
| 2 | Sexual penetration of a child under 16 (rolled-up charge — 2 occasions) | 15 years | 15 months | 3 months | |
| 3 | Assault Emergency Worker on Duty | 5 years | 1 month | Nil | |
| 4 | Resist Emergency Worker on Duty | 5 years | 1 month | Nil | |
| Total Effective Sentence: | 18 months’ imprisonment. | ||||
| Non-Parole Period: | 9 months. | ||||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: Nil. | Nil. | ||||
| Section 6AAA Statement: | 2 years and 6 months’ imprisonment with a non-parole period of 18 months. | ||||
| Other relevant orders: | Registered under the Sex Offenders Registration Act 2004 for life. | ||||
The Director of Public Prosecutions has appealed the respondent’s sentence on two grounds: first, that the sentencing judge erred in finding that the complainant was a ‘willing participant’ in the offending and improperly gave this finding weight in the sentencing synthesis (ground 1); and secondly, that the sentence imposed is
manifestly inadequate (ground 2).
For the reasons that follow, neither ground is made out and the appeal must be dismissed.
Circumstances of offending
The circumstances of the offending are set out in the Summary of Prosecution Opening dated 29 January 2021 and in the judge’s Reasons for Sentence.[1]
[1]Director of Public Prosecutions v Smith [2021] VCC 1101 (‘Reasons’).
The offending was constituted by or related to an incident that occurred on the night of 17 September 2020, when the respondent and the complainant went for a walk together, sat down on an oval and the respondent kissed and then sexually penetrated the complainant a number of times. At the time of the offending, the respondent was 20 and the complainant was 15.
The complainant and the respondent lived in adjacent towns and knew one another, principally through social media. Well prior to the offending, in March 2020, the complainant’s mother and the police advised the respondent that the complainant was under 16 and that to have a sexual relationship with her would be illegal. In June 2020, the Department of Health and Human Services (‘DHHS’) sent a letter to the respondent repeating the warning.
On the evening of 17 September 2020, the complainant travelled by train to Sale to meet the respondent. They met at the front of Woolworths at approximately 10:00 pm, and proceeded to walk around the town. When the respondent asked whether he could kiss the complainant, she said ‘No’. They walked together to the Sale oval, where the respondent kissed the complainant.
The complainant lay on the ground and the respondent kissed her face and neck. He rubbed her breasts both on top of and beneath her clothing, and he kissed
her breasts. The respondent then rubbed the complainant’s vaginal area and removed her pants, continuing to rub her vagina on the outside of her underwear (uncharged acts).
The respondent removed the complainant’s underwear and inserted one finger and then a second finger, into her vagina (charge 2 — rolled-up, occasion 1). The respondent then pulled down his pants and penetrated the complainant’s vagina with his penis (charge 1 — rolled-up, occasion 1). After a short time, he said ‘I’m going to come’, and withdrew his penis and ejaculated on the ground. The respondent did not wear a condom.
A very short time later, the respondent reinserted his finger into the complainant’s vagina (charge 2 — rolled-up, occasion 2) and reinserted his penis into the complainant’s vagina (charge 1 — rolled-up, occasion 2).
The respondent and the complainant got dressed, and the respondent told the complainant not to tell anyone what had happened. The complainant agreed and they parted, walking in different directions.
Just after midnight, the complainant attended Sale Police Station and reported herself as a missing person. Her carer attended to collect her. When she returned home that evening, the complainant telephoned Sale Police Station and reported the sexual offending.
On 19 September 2020, the complainant made a pretext call to the respondent. When she asked the respondent why he did not stop, he said he had not heard her.
On 23 September 2020, three police officers attended the respondent’s home to execute a search warrant and arrest him. The respondent became agitated when police went to seize his marijuana. When one of the police officers tried to handcuff him, the respondent struck the police officer to the right side of his head with a closed fist, causing moderate pain and swelling (charge 3). The respondent then resisted the other two police officers, throwing his arms around and saying he did not want to be touched. The respondent was wrestled to the ground and handcuffed (charge 4).
The respondent participated in a police interview (in the absence of a lawyer) in which he made admissions to the sexual offending and acknowledged that he knew the complainant was 15. He told police he did not hear the complainant say ‘stop’ because she did not speak loudly enough. He also appeared to blame the complainant for his predicament, saying:
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.
Prior matters
In 2017, the respondent was dealt with in the Children’s Court on a charge of rape. The victim was nine years old. She and her younger sister were at a park with a friend. The respondent started to play with the victim and her sister. He took the victim behind a wall and asked if he could have sex with her. She said ’No’. The respondent put his hand into the victim’s leggings and underwear and inserted his finger in her vagina.
In 2018, the respondent was again dealt with in the Children’s Court, this time for accessing child pornography. This offending involved encouraging a girl he was ‘dating’, who was 14 at the time, to send him intimate photographs.
In neither case was a conviction entered. In relation to the rape, the respondent was placed on probation and ordered to undergo assessment and treatment; in relation to accessing child pornography, the respondent was placed on a Youth Supervision Order and again ordered to undergo assessment and treatment.
In 2019, in respect of unrelated offending, the respondent was ordered to continue that treatment.
Personal circumstances and psychological assessments
The respondent’s personal circumstances are set out in the report of Carla Lechner, clinical psychologist, dated 5 March 2021, which was tendered on the plea.
Ms Lechner interviewed the respondent on two occasions and was provided with copies of a number of earlier psychological and psychiatric assessments of the respondent (also tendered on the plea) including:
·Letters of Dr J Burnett, dated 31 February 2017 and 14 June 2017;
·Report of Dr S Basu, child and adolescent psychiatrist, dated 12 September 2017;
·Report of Mr J Redman, clinical and forensic psychologist, dated 26 October 2017; and
·Pre-sentence report of Youth Justice dated 19 December 2017.
The reports from 2017 were made in the context of the earlier charges of sexual offending.
In her report, Ms Lechner set out the respondent’s difficult personal circumstances, describing his early history as characterised by Complex Developmental Trauma as a result of exposure to abuse and neglect. Although he had largely been raised in the secure environment provided by his adoptive mother, the respondent continued to exhibit chronic and unremitting symptoms of Post-Traumatic Stress Disorder and early Attachment Disorder that manifested in emotional and behavioural dysregulation, including inappropriate and unlawful sexual behaviour.
The respondent was abandoned by his biological mother at a childcare centre when he was three and did not experience any domestic stability until he was adopted at around the age of five. His biological mother suffered from drug and alcohol problems and he has never known the identity of his biological father, who may have been of East Timorese heritage. He has an older half-sister, but claims not to know her name. After being abandoned, he was placed with a foster parent, who relinquished his care in 2007. Later in 2007 he was placed with his long-term guardian, Ms Jeanette Albrecht, and a permanent care order was made in September 2010.
The respondent reported that he was the victim of sexual abuse at the age of about four or five years at the hands of an older teenage boy. He informed his guardian, but has no knowledge of any action taken.
The respondent attended Warwick and Alberton Primary Schools and Yarram Secondary College, but he was expelled during Year 10 for swearing at a teacher. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Concerta (Ritalin), which he took up until a couple of years before the offending. The reports to which Ms Lechner was referred recorded that the respondent had had social and behavioural difficulties from the beginning of his schooling. The respondent reported that he was often bullied for his darker skin colour and that he would become angry and retaliate, causing him to get into trouble. After leaving school, he ‘got on the pot (cannabis) and sat around playing PlayStation’. He has had very limited employment.
Ms Lechner records that the respondent has had a history of contact with mental health services, and had earlier diagnoses of ADHD, Generalized Anxiety Disorder and PTSD manifesting in behaviours consistent with Conduct Disorder. With respect to his relationships with other people, while the respondent reported a close bond with his ‘mum’ Jeanette, he said he did not have any close emotional connections with anyone else. He found it hard to trust others and was very sensitive to experiences of real and/or perceived rejection and abandonment.
The respondent told Ms Lechner that the complainant was his first and only sexual contact. In relation to the charges he said, ‘I got led the wrong way’. He stated, ‘I regret that night, regret going out’. He stated that he thought the complainant had been previously sexually active, and he did not wish to disclose that it was his first time.
Ms Lechner assessed the respondent’s risk of sexual reoffending using the STATIC-99 and the Risk of Sexual Violence Protocol (‘RSVP’). On the STATIC-99, the respondent fell into the high risk category. Ms Lechner reported that based on the RSVP combined with the STATIC-99, it was her provisional view that the respondent was at ‘high/moderate’ risk of reoffending compared with other sexual offenders. However, it was difficult for her to make a definitive categorisation in light of a lack of information, given that the respondent initially terminated the assessment prematurely and gave only limited information during their second discussion. Ms Lechner said that it was unclear whether the respondent harboured sexually deviant ideas, fantasies or beliefs, or whether his offending was related to ‘immense’ psychosocial immaturity. In her view, a concerning aspect of his offending was that he knew it was wrong, but was not able to inhibit his behaviour. Again, it was not clear if this was due to poor inhibition of his sexual urges per se, or due to his strong desire for social acceptance. She also found it concerning that he avoided ownership of his actions.
In her concluding remarks, Ms Lechner opined:
(a) The respondent struggles with chronically low self-esteem, interpersonal trust, emotional regulation and a high level of anxiety that often results in flight or fight behaviour when he feels threatened. He admits to his offending but finds it hard to take ownership of his actions. While the respondent presents as being a high/moderate risk of sexual reoffending, further specialist assessment is recommended and treatment of his underlying trauma is likely to reduce his risk level.
(b) The respondent appears deeply affected by his exposure to early trauma, this in turn undermining his social and emotional development in particular. He has struggled with the tasks of adolescence such as identity formation and a sense of belonging; he does not have a stable network of friends and is keen to gain the acceptance and approval of others often engaging in self-defeating behaviours in order to garner favour. He lacks future directions, with his chronically low self-esteem contributing to passivity in relation to his goals and aspirations, this in turn reinforcing his negative self-perception.
(c) The respondent’s reticence to talk about his offending perhaps indicates his immaturity and lack of insight. He tends to see the world from an egocentric perspective as a hostile and threatening place and presents with a history of emotional and behavioural dysregulation, especially at times of stress. He is also quite isolated and therefore lacking in social and communication skills.
Ms Lechner expressed ‘immense concerns’ about the respondent’s ability to survive a custodial sentence ‘on any level’. She considered that he would be easily stood over by more hardened inmates and that he lacked the skills to manage the intricacies of a prison environment. She said that she would anticipate a marked decline in his mood with an associated increased risk of suicide and/or self-harm. The respondent could be further assessed by the Sexual Offenders Assessment and Treatment Service in the community, with recommendations for specialised treatment.
A Pre-Sentence Report, dated 2 July 2021, was prepared by Dr Poppy Edwards, clinical and forensic psychologist, of Forensicare. Dr Edwards noted that the respondent was defensive and reluctantly engaged in assessment and that the interview ended due to the intensity of his verbal aggression during discussion of his sexual offending. Dr Edwards reported:
Mr Smith’s formative developmental years are characterised by considerable relational trauma, involving severe injuries of attachment and exposure to various kinds of abuse. Mr Smith further reported the experience of childhood sexual assault and bullying. Despite permanent care by Jeanette, he has been unable to establish a felt sense of safety in the world and has experienced considerable difficulties with psychosocial adjustment characterised by a range of problematic behaviour including aggression, firesetting and unwanted/illegal sexual contact. Mr Smith has attracted numerous diagnostic labels overtime, which likely have come about due to the complexity of his presentation. Diagnosis may be clarified as he progresses further into adulthood. During the assessment interview Mr Smith’s agitation suggested that conditions marked by anxiety and mood disturbance, as well as possible psychotic features are more likely.
As to the reasons for the respondent’s sexual offending, Dr Edwards opined:
One possible hypothesis is that Mr Smith needily seeks close and intimate connection with others, which is underpinned by his relational trauma and experiences of loss, rejection and abandonment. As a consequence of underdeveloped relational functioning, as well as high sexual needs, he appears to equate sexual contact with desire and interest, which likely momentarily quells anxiety and loneliness. It is also likely that he imagines (sexual) interest in him that does not exist or is perhaps magnified by the intensity of his need. His need appears to manifest in entitlement to (sexual) relationships, as well as immature, egocentric and unsophisticated (sexual) interactions. His offending indicates that he is sexually motivated for his own gratification with little regard for victims, including their age and capacity to consent. He is likely to opportunistically establish relationships with victims who he may meet online and feels he can influence due to their relative vulnerability. The young age of victims may be more commensurate with his developmental (rather than chronological) age.
As counsel for the respondent submitted, Dr Edwards’ report portrays a mistrusting, anxious and lonely individual with few friends who desires to be close to others but has difficulty doing so beyond social media, or online, contact.
Dr Edwards assessed the respondent’s risk of re-offending as high, meaning that he is in a category of risk higher than the average sexual offender and will likely require a high level of supervision and resources to address this risk. She made the following recommendation:
It is recommended that a specialist forensic service, such as the Problem Behaviour Program, assess Mr Smith’s suitability for offence specific treatment. Additionally, it is recommended that interventions are delivered with a relational/interpersonal focus that is sensitive to and also addresses his history of complex developmental trauma. It may not be possible to directly address offence specific treatment needs until sufficient progress has been made with addressing trauma and attachment difficulties. Manualised, group-based treatment programs typically offered by Corrections Victoria may not be suitably individualised and responsive to Mr Smith’s specific treatment needs. Additionally, Mr Smith’s defensiveness and limited self-awareness may impact on therapeutic engagement and treatment outcomes.
Dr Edwards identified the sexual nature of the respondent’s offending, his young age, heightened anxiety and propensity to escalate to hostility/aggression (underpinned by his history of relational trauma) as likely to contribute to considerable problems adjusting to a custodial environment. Accordingly, imprisonment or any other penalty imposed, may be relatively more difficult for the respondent than the average person.
By way of background to the respondent’s mental state, his written case helpfully sets out the respondent’s long psychiatric case history based on the various expert reports tendered on the plea as follows:
(a) The respondent has been referred to and treated by several doctors and mental health professionals throughout his childhood and early adulthood and has been medicated for most of his life. He was prescribed Concerta following his ADHD diagnosis in primary school and has previously been prescribed Olanzapine. He is currently prescribed Lexapro to treat depression.
(b) The respondent was treated by child psychologist Dr John Burnett in late primary school due to behavioural concerns. In a report dated 20 November 2013, Dr Burnett recorded that the respondent had been experiencing sensory hallucinations for ‘a long time’, which included hearing voices call his name, smelling dog faeces and urine despite there being no source of such odours, sensations of being touched on his body, seeing shapes moving through the air and seeing people who were not there. Dr Burnett opined that the respondent was presenting with symptoms of the prodromal phase of a serious psychiatric disorder, referring to a likely genetic predisposition to such a disorder.
(c) In December 2014, when he was 14 years old, the respondent was referred to Child and Adolescent Psychologist, Dr Soumya Basu. The respondent attended regular appointments with Dr Basu, and was prescribed the anti-psychotic, Olanzapine. In his report dated 12 September 2017, Dr Basu described the respondent as someone who, due to early childhood exposure to an unsafe environment and situations where he has not felt safe, had developed a coping mechanism based on fight and flight reaction. Dr Basu described the respondent’s exposure to interpersonal trauma as ‘chronic and complex’ and said that the respondent remained affected by it despite being in the relatively safe care of Ms Albrecht. Dr Basu recorded that the respondent continued to suffer from vivid nightmares, flashbacks and pre-occupation of thoughts resulting from emotional abuse he suffered as a child and the trauma of being removed from his mother’s custody. Although he progressed academically at school, he had interpersonal issues.
(d) In December 2020, the respondent commenced regular counselling sessions with Accredited Mental Health Social Worker, Victor Viray. Mr Viray’s letter, dated 22 March 2021, records that the respondent was receiving Cognitive Behavioural Therapy, which he was finding useful and that he had been thinking about and planning for his future. The respondent continued seeing Mr Viray up until his incarceration.
Reasons for sentence
Before setting out the circumstances of the offending, the sentencing judge dealt in short form with a number of relevant considerations. His Honour set out the maximum penalties for the offences and acknowledged the plea of guilty, recognising that it had additional utilitarian benefit by reason of the restrictions caused by COVID-19.[2]
[2]Reasons, [2].
The sentencing judge considered remorse to be ‘very problematic’, but stated that he would give the respondent some benefit in relation to it. He referred to the prior findings of guilt and, in particular, to the rape in 2017, observing that it was of concern that the respondent had been reluctant to discuss the nature of that offending and the factors behind it.[3]
[3]Reasons, [2]–[3].
The judge noted that the standard sentence for the sexual offences was 6 years and that there was ‘a rule of 60 per cent in relation to minimum terms’.[4] However, he considered that it was in the interests of justice that this be ‘varied down’ to give the respondent an opportunity for parole because of his potential vulnerability in a prison environment and because of his age.[5]
[4]Reasons, [5].
[5]Ibid.
As to the present offending, the sentencing judge stated that ‘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’.[6] The judge then went on to describe the ages of and age difference between the respondent and the complainant and the fact that the respondent had been warned that it would be an offence to engage in any sexual relationship with the complainant.[7]
[6]Reasons, [7].
[7]Reasons, [7]–[8].
After describing the circumstances of the offending, the sentencing judge highlighted what the respondent had said towards the end of the police interview concerning ‘little girls’ getting off ‘scot free’. This, the sentencing judge considered, was a concerning statement in terms of personal responsibility and insight into the nature of the offending and the damage that it does.[8]
[8]Reasons, [14].
In the context of discussing the victim impact statements and the effect of the offending conduct on the complainant, the judge said:
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 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.[9]
[9]Ibid.
The judge then noted that on the material before him there was no coercion, no threats were made and that some of the factors often present in offending of this type were not present. The judge accepted that the respondent’s mental age was probably less than 20, so while the chronological age difference was five years, the emotional and intellectual differences between the respondent and the complainant probably would not have been that great.[10] Accordingly, while sexual penetration is a serious offence, the judge assessed the seriousness of the offending as lower than mid-range. Nonetheless, the offending had to be regarded as serious and called for the application of the principles of general and specific deterrence, denunciation and appropriate punishment.[11]
[10]Reasons, [17].
[11]Reasons, [16].
Later in the Reasons, the judge again referred to the seriousness of the offending and the fact that he had already expressed his view that the seriousness was below the medium range in circumstances where there was no breach of trust, which he recognised was often a ‘massive factor’ in these circumstances, and where the offending took place on a single occasion for a relatively brief period of time.[12]
[12]Reasons, [20].
In considering the matters personal to the respondent, the judge referred to two pre-sentence reports and the other reports provided by psychologists and psychiatrists. He accepted that the respondent had ‘a history of significant early childhood trauma and abuse’.[13] The judge acknowledged that the respondent had a previous diagnosis of a depressive anxiety disorder, ADHD, an attachment disorder, post-traumatic stress disorder and a generalised anxiety disorder.[14] He recorded Ms Lechner’s finding that the respondent continued to exhibit chronic symptoms of post-traumatic stress disorder and attachment disorder, and that he had emotional and behavioural dysregulation, including inappropriate and unlawful sexual behaviour.[15]
[13]Reasons, [18].
[14]Reasons, [20].
[15]Reasons, [21].
The sentencing judge expressed concern that when being spoken to in 2017 and again in relation to the current offences, the respondent had refused to talk about the offending. The ‘scot free’ answer that he gave to the police was also of concern, as it reflected a sense of justification. However, the judge accepted that with his childhood difficulties and the diagnoses that had been made, the principles involved in limbs five and six of Verdins[16] played a part in sentencing. Further, while the judge acknowledged that the respondent’s background might well give rise to the principles in Bugmy v The Queen,[17] he expressed concern that most of the resulting disorders involved compulsive, explosive behaviours.[18] The judge also noted Ms Lechner’s opinion that the respondent’s ability to engage and reflect was inhibited by an egocentric perspective, which gave rise to the need for community protection. The sense of self-justification and entitlement justified the higher risk assessments that had been made and it had to be brought home to the respondent that he could not engage in this kind of conduct without there being significant consequences. The respondent had minimised the offending and engaged in victim blaming.[19]
[16]See R v Verdins (2007) 16 VR 269, 276 [32]; [2007] VSCA 107.
[17](2013) 249 CLR 571; [2013] HCA 37.
[18]Reasons, [23].
[19]Reasons, [24]–[25].
The sentencing judge noted that this was the first time the respondent had been in prison. His prospects of rehabilitation were really up to him and the Parole Board, but his risk of reoffending was considered to be high to moderate. The judge then said:
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.[20]
[20]Reasons, [27].
The judge made reference to the fact that he had expressed his desire not to place the respondent in adult custody, but that the respondent had been found unsuitable for a Youth Justice order. Although the judge could still theoretically impose such a sentence, he noted that the respondent would simply be transferred to an adult prison and there was no point in doing so.[21] The sentencing judge concluded:
So 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.[22]
[21]Reasons, [28].
[22]Reasons, [29].
Ground 1
Ground 1 is that the sentencing judge erred in finding that the complainant was a ‘willing participant’ in the offending and improperly gave this finding weight in the sentencing synthesis.
The Director submits that the finding that the victim was a ‘willing participant’ was not open in circumstances where the respondent was five years older than the complainant and the offending occurred in a public place. Further, as noted by the sentencing judge, the complainant ‘had personal difficulties of her own before this occurred’. While there was no significant power imbalance or breach of trust as might be found between an older offender and a victim, this was not one of the exceptional cases where there was an existing relationship between the respondent and the victim, and consent was freely given and a reflection of genuine affection between the two.[23] While they were known to each other prior to the offending, on the complainant’s account, she had said ‘No’ to being kissed and then, during the penetrative acts, had asked the respondent to stop.
[23]Cf Treloar v The Queen [2020] VSCA 6.
According to the Director, the comments made by the sentencing judge endorse the notion that the complainant’s consent made the sexual activity less grave, by suggesting that the offending was ‘reduced by a number of things that are simply not aggravating’ when considering the role of consent. Accordingly, notwithstanding the judge’s comment that consent was not a mitigating factor, the judge’s factual analysis and the sentence imposed on charges 1 and 2 indicated that he did give mitigatory weight to consent. This, it is submitted, resulted in an unacceptably lenient sentence on those charges.
It is clear that the presence of consent does not make the offence of sexual penetration of a child under 16 less serious. As this Court said in Clarkson v The Queen:
Of itself, the child’s ‘consent’ is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender …)[24]
[24](2011) 32 VR 361, 371 [36] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’).
The Court explained:
For the courts to endorse the notion that the child’s ‘consent’ makes the sexual activity less blameworthy, or less grave, would undermine the very protection of children which the legislation seeks to secure.[25]
[25]Ibid 372 [37].
I do not accept that the judge gave mitigatory weight to the complainant’s consent or ‘willingness’ to engage in sexual activity. The plea was not conducted on the basis that the complainant consented to or was a willing participant in the sexual penetration. It was conducted on the basis that the complainant said ‘No’ to being kissed (and the complainant subsequently asked the respondent to explain why he did not ‘stop’ the sexual activity on the oval). Furthermore, the judge stated that he was ‘very aware’ that consent does not assist in mitigation. He noted, however, that there were ‘other aspects’ of the offending (ie aspects other than consent or willingness) which did fall to be taken into account in the circumstances.[26]
[26]Reasons, [7].
Having outlined the circumstances of the offending and the warnings the respondent had been given about the age of the complainant, the judge referred to the respondent’s statement to police that ‘little girls can go out, fuck older guys and they get off scot free’ when considering both the respondent’s remorse and victim impact. In this context, he again referred to the complainant’s ‘willingness’, but not her willingness to engage in sexual activity with the respondent. His Honour stated that it was clear that there was ‘some sort of ongoing negotiation or whatever it was with this young person leading up to it’, and that there was nothing to suggest that the complainant was not willing to meet up with the respondent in Sale. He observed that there was no coercion and no threats were made, and that the respondent’s mental age was probably less than 20, reducing the emotional and intellectual differences between the respondent and the complainant. He recognised that the relationship was not a relationship of trust as is often the case in the rape or sexual abuse of minors. His Honour concluded in relation to the gravity of the offending:
[W]hilst 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.[27]
[27]Reasons, [16].
It was open to the sentencing judge to take into account the context in which the offending took place and the particular circumstances of the offending, including that the complainant was willingly spending time with the respondent and had travelled from Moe to meet with him, and the absence of coercion, threats or any relationship of trust, when assessing the gravity of the respondent’s offending. This is not inconsistent with the presumption of harm to the complainant or with the irrelevance of consent to the assessment of the gravity of the offending.
Ground 1 is not made out.
Ground 2: manifest inadequacy
Ground 2 is that the individual sentences on each of charges 1–4, the orders for cumulation, and the total effective sentence and non-parole period are each manifestly inadequate.
Submissions
The Director submits that it was not reasonably open to the sentencing judge to have imposed the individual sentences and the orders for concurrency in the terms made, had proper weight been given to all the circumstances of the offending and the respondent. The result is a manifestly inadequate total effective sentence and non-parole period.
The Director submits that the offence of sexual penetration of a child under 16, and the absolute prohibition of sexual activity with a child, is founded on a presumption of harm, that harm being recognised as ‘long term and serious harm, both physical and psychological’[28] to the child. According to the Director, the sentence imposed does not pay sufficient regard to the impact upon the complainant. Further, the Director submits, it is apparent that the judge’s assessment of victim impact was improperly informed by his finding that she was a ‘willing participant’.
[28]Clarkson (2011) 32 VR 361, 371 [33]; [2011] VSCA 157, citing R v G [2009] 1 AC 92, [49].
The factors said by the Director to show the seriousness of the sexual offending in this case are as follows:
(a) the respondent was warned on three occasions of the complainant’s age and the unlawfulness of any sexual contact between them;
(b) there was a level of premeditation/planning to commit the offences;
(c) the motivation for the offending was the respondent’s own sexual gratification;
(d) the vulnerability of the complainant, being a child with ‘personal difficulties of her own’ as evidenced by DHHS involvement and her treatment for anxiety;
(e) the complainant’s initial refusal to engage in any sexual activities with the respondent;
(f) the respondent’s failure to wear a condom, exposing the complainant to a risk of sexually transmitted diseases and pregnancy;
(g) the brazenness of the offending, occurring in a public place on an oval;
(h) the respondent’s efforts to conceal the offending by telling the complainant not to tell and demonstrating his knowledge of the wrongfulness of his offending.
The Director submits that, notwithstanding the factors identified by the sentencing judge to conclude that the offending was ‘below the medium range’, the sentences imposed on each of charges 1 and 2 are inadequate and fail to give appropriate regard to the standard sentence.
The Director further submits that even though the two occasions for charges 1 and 2 occurred within a short time period, the sentencing judge failed to take into account all the criminality involved in each rolled-up charge, subject to the maximum penalty for the single count, to arrive at an appropriate individual sentence. She submits that so much is clear from an examination of the sentences imposed.
Similarly, the Director submits, the sentences for charges 3 and 4 fall outside the range. The maximum penalty for charges 3 and 4 is five years’ imprisonment but the individual sentences imposed represent less than 2 per cent of the maximum penalty. The offending, particularly that of charge 3, was objectively grave given the circumstances. The Director points to the following matters as indicating the seriousness of the offending in charges 3 and 4:
(a) the respondent knew (and was not reckless) that the victims were emergency workers, as they had attended with a search warrant, identified themselves and informed the respondent that he was under arrest;
(b) the conduct occurred after the respondent had advised police there was no need to handcuff him because he would be cooperative;
(c) the action the subject of charge 3 was a closed fist punch to the head; and
(d) the punch to the head caused some swelling and moderate pain.
In summary, the Director submits that the sentencing judge failed to have sufficient regard to the maximum penalties prescribed for each offence, failed to have sufficient regard to the standard sentence and failed to impose sentences commensurate with community expectations for offending of this nature and gravity.
As to cumulation, the Director submits that the level of cumulation on charges 1 and 2, and the complete lack of cumulation on charges 3 and 4 was inadequate in all the circumstances. Charges 1 and 2, while temporally proximate, still represented separate and serious acts upon the victim. Further, charges 1 and 2 were both rolled-up charges, inclusive of two occasions of offending. The limited cumulation between charges 1 and 2 fails to reflect the separate criminality of this offending.
The Director points out that the sentencing judge acknowledged that in some circumstances charges 3 and 4 can be very serious charges. However, he stated he would give a small sentence for each and make them wholly concurrent, thus treating them as if they were not serious examples of these offences. It is submitted, however, that an intentional punch to the head of an emergency worker, following an assurance by the respondent he would be cooperative, is a serious example of this offence.
Further, so the Director submits, charges 3 and 4 were separate acts against separate victims. Given the temporal proximity of the two acts, some concurrency was warranted. However, total concurrency with each other, and with the sentences imposed on charges 1 and 2, failed to give appropriate weight to the criminality of the individual acts.
Finally, the Director submits that the matters in mitigation did not, in isolation or together, have such force that they warranted or permitted the degree of leniency seen in the sentences imposed or the orders (or lack thereof) for cumulation. The Director’s primary submission is that the individual sentences imposed on charges 1–4 and the cumulation between those sentences demonstrates that insufficient weight was given to the objective gravity of the offending, the respondent’s high moral culpability, his serious and relevant prior convictions, and the need to balance the rehabilitation of this young offender with protection of the community and specific deterrence.
For his part, the respondent submits that the total effective sentence and non-parole period are within range. Contrary to the submissions of the Director, it cannot be said that the sentencing judge did not give proper weight to all the circumstances of the offending or that the sentences imposed and the orders for concurrency were not reasonably open. The respondent submits that the judge correctly applied the principles applicable to sentencing young offenders. Youth is a powerful factor in mitigation, even in cases where the offending is serious and reliance on it is reduced.[29] A youthful offender is not to be sent to an adult prison if such a disposition can be avoided and when a young offender is required to be sent to adult prison, a shorter sentence may be justified.[30]
[29]See Azzopardi v The Queen (2011) 35 VR 43, 55–6 [37]–[40] (Redlich JA); [2011] VSCA 372.
[30]Ibid 55 [37].
Analysis
The principles relevant to Director appeals on sentence were described by this Court in Director of Public Prosecutions v Karazisis as follows:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[31]
[31](2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350, referring to Lowndes v The Queen (1999) 195 CLR 665, 672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
There is no question in this case that the individual sentences, the total effective sentence and the non-parole period imposed by the sentencing judge are very low, having regard, in particular, to the standard sentence of six years for the sexual offences, the fact that the sexual offending charges were rolled-up charges, and the guideposts provided by the maximum sentences for all of the offences.
The respondent’s offending was serious. It is well established that the commission of sexual offences against children is regarded as amongst the most serious crimes.[32] Attacks on emergency services personnel must also be regarded as grave, given the critical role those services play and the difficult things that emergency services personnel are asked to do to protect the community.
[32]See, eg, DPP v DJK [2003] VSCA 109, [26]; Ryan v The Queen [2019] NSWCCA 200, [3].
The sentencing judge acknowledged that the type of offending engaged in by the respondent (both the sexual offending and the attack on the police officers) was inherently serious. However, he found that the actual offending was less serious than many other instances of offending of the same type. The sentences for the sexual offending were imposed on the basis that there was no breach of trust, the offending took place on a single occasion and over a relatively brief period of time and that this was a case where a non-parole period of less than 60 per cent was warranted, given the respondent’s potential vulnerability in prison and his young age. The sentences for the attack on the police officers took into account that the injuries were relatively minor.
There is no suggestion that the sentencing judge failed to take any relevant matter into account. It is also clear from the Reasons that the sentencing judge appreciated the seriousness of the sexual offending, in particular, and that he well understood and took into account the harm inflicted on the complainant by the respondent’s conduct.
The judge also took into account the prior offending of the respondent and the interventions that took place following that offending.
However, the judge gave particular weight to the personal circumstances of the respondent and to the damage that he would likely suffer in prison. The respondent is no ordinary sexual offender. He has a special history of early childhood neglect and consequential psychological damage. He is a young person with pronounced vulnerabilities, disabilities and inabilities, including an inability to understand and cope with the complexities of sexual interaction and also, according to Ms Lechner, the challenges presented by life in an adult prison.
It is plain that the sentencing judge did not want to send the respondent to an adult prison.[33] Throughout the plea hearings, the judge stated that he would not do so, but he was left with no real alternative when the respondent was found to be unsuitable for youth detention.[34] There were many factors militating against a long sentence in an adult prison in this case, including the respondent’s youth and profound immaturity, his psychological problems (enlivening limbs five and six of Verdins, as conceded by the prosecution) and, most worryingly, the ‘immense concern’ expressed by Ms Lechner about the consequences for the respondent of incarceration in an adult prison.
[33]At the hearing on 31 March 2021, the sentencing judge observed that a maximum term of four years in a youth justice centre was available to him, and, at the hearing on 12 July 2021, the prosecutor submitted that such a disposition would not be opposed by the Crown.
[34]Notwithstanding the respondent’s age, the Director did not oppose an order for detention in a youth justice setting in the event he was assessed as suitable.
The respondent has a history of serious sexual offending. He has pronounced developmental and psychosexual deficiencies. The factors that make him unsuitable for incarceration in an adult prison are also factors that give rise to the need for community protection. The respondent presents as a risk to other people, especially young women and girls. However, it is highly questionable whether that risk is best managed by a long term of imprisonment. As Young CJ said in Attorney-General v Chmil:
I think it should be remembered that in the long run the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal.[35]
[35](Victorian Court of Criminal Appeal, 1 August 1977).
The respondent has relevant prior offences and has been the subject of earlier interventions aimed at addressing his special needs. These interventions did not, it appears, resolve his difficulties. This may be considered unsurprising, given the extent of the problems identified. It is no reason to abandon commitment to the respondent’s rehabilitation. Furthermore, the respondent is not to be punished again for his earlier offending.[36]
[36]See R v O’Brien [1997] 2 VR 714, 718 (Charles JA).
The sentencing judge did not ignore the risk posed by the respondent. He struggled with how best to deal with the respondent consistently with applicable sentencing principles (the recognised need for general and specific deterrence, denunciation and just punishment) so as to give the respondent the best chance to mature and rehabilitate, and to reduce the risk that he may present in the future. It was open to the judge to conclude that incarcerating the respondent for a lengthy period would be damaging to him and entrench the risk that he currently presents to community safety.
In my view, the sentencing judge took into account everything that he was obliged to take into account and it was open to him to impose a sentence that he did, even though it is a remarkably low sentence.
Ground 2 is not made out.
Disposition
Neither of the ground of appeal having been made out, the appeal must be dismissed.
2
12
0