Director of Public Prosecutions v Smith

[2014] VCC 273

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

AT MELBOURNE

CRIMINAL JURISDICTION

CR-13-02100

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL SMITH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2014
DATE OF SENTENCE:	7 March 2014
CASE MAY BE CITED AS:	DPP v SMITH
MEDIUM NEUTRAL CITATION:	[2014] VCC 273

REASONS FOR SENTENCE

Subject: Criminal Law - sentence          

Catchwords: Pleaded guilty  - 1 x sexual penetration  under 16, child under care, supervision and authority of offender – 1 x indecent act with child under16 – Offender aged 24, complainant aged 15, nearly 16 – offender was coach of sport team of which child was a member – breach of trust – mother of child asked offender to desist – relationship continued – intervention order breached – offender suffering from Major Depressive Disorder – Verdins enlivened re experience of prison – mental health condition taken into account broadly – need for psychological treatment – short prison sentence followed by CCO appropriate.       

Cases Cited: Verdins v R [2007] VSCA 102; Clarkson v R [2011] VSCA 157

R v Temby [2003] SASC 230

Sentence: Charge 1 – 3 months  imprisonment; charge 2 – CCO (2 yrs)

Note : Pseodonyms used for the  names of the complainant and her mother.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Roper Ms J. Nilsson (at sentence)	Office of Public Prosecutions
For the Accused	Mr A. Marshall Mr A. Paull (at sentence)	Dowsley & Associates

HER HONOUR:

1Joel Smith, you have pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of indecent act with a child under 16.  As you were the coach of the basketball team of which the complainant was a member, the charge of sexual penetration includes the aggravating feature that she was under your care, supervision and authority at the time.  Therefore, the maximum penalty for that offences is 15 year's imprisonment.  For the other charge the maximum penalty is ten years.

2It is fair to let you know at this stage, Mr Smith, that I will be sentencing you to a short term of imprisonment of three months, to be followed by a Community Corrections Order to be served in the community upon your release.  I will now explain my reasons for these orders.

3In 2012 you formed a relationship with the complainant, Alicia Norris[1], which resulted in you having sexual intercourse with her.  She was aged 15 and you were 24.  A few days later you met her in a park and kissed her, and these two incidents are the subject of the charges.  Soon afterwards, the complainant's mother, Jennifer Norris[2], discovered the sexual nature of the relationship and confronted you about it.  You admitted to it and agreed that it was wrong.  You also agreed to cease being Alicia's coach and to break off the relationship.

[1] Pseudonym

[2] Pseudonym

4However, the following month when Alicia had turned 16, you both resumed contact, and when her mother learned of this she reported the matter to the police.  An intervention order was obtained against you to prevent contact with Alicia but you breached that order and were convicted and fined in the Magistrates' Court.  This is not a prior conviction but a subsequent matter, its relevance being that you were so intent on continuing contact with Alicia that you breached a court order which was intended to protect her.

5Mrs Norris provided a victim impact statement which described the deleterious impact your impact had on her daughter and on the family as a whole.  Alicia spent much of her time with you or communicating with you, instead of concentrating on her school work, and she became unresponsive to her mother's attempts at direction.  She jeopardised her schooling and found herself under great stress.  Mrs Norris stated that when Alicia tried to terminate her involvement with you, she was made to feel responsible for your self-harming and suicide threats.  She said, "The level of distress, turmoil, upheaval, fracturing of relationships, undermining of parental authority and trust of others caused by the entire interaction is still in the process of restoration. Alicia's self-esteem and her ability to trust have been compromised and require development so she can learn that her value to any male is not measured in sexual terms but extends far beyond that."

6When you were arrested on 29 November 2012 you made full admissions and said you knew it was illegal and it should not have happened.  You indicated you would plead guilty at the committal mention hearing, the earliest possible opportunity.  You are entitled to a discount on your sentence for that early plea as you have saved the witnesses from having to give evidence and avoided the expense and inconvenience of a trial.  It is also an indication of your remorse, and I note that you have expressed your remorse elsewhere as well.

7You are now aged 26 and you live with your girlfriend, who is pregnant.  You have been employed until recently and have another job arranged in which you had had some prospects for advancement.  Your mother and girlfriend came to court to support you and I read references from your mother and her partner, Marcus Chisholm, which speak of the guilt and remorse you feel for having made a bad decision and for the likely consequences for the complainant.

8You had an unremarkable upbringing and had left school at the end of Year 11, having struggled academically.  You then completed an apprenticeship as a painter and worked in that trade until recently.  You were good at sport and played basketball at a high level, hence your role as coach.  You no longer have any coaching role and have ceased playing sport as well.  You have not had any issues with drugs and you are virtually a non-drinker and there have been no behavioural problems until this offending.

9At the time of these offences you were living with a woman to whom you were engaged to be married but whom you suspected of being unfaithful to you.  Two years previously your parents had separated in acrimonious circumstances and you had suffered from the emotional disruption this caused.  Both these issues had contributed to your low mood, which appears to have been persisting for some time before the offending.

10After your arrest, you saw your general practitioner who prescribed antidepressant medication and referred you to Dr Amanda Bond for psychological counselling.  You attended four sessions and only ceased because of being unable to meet the cost.  According to Dr Bond's letter dated 3 March 2014, your doctor had noted a history of anxiety, low mood and self-harming behaviour which had increased in severity after having been charged with this offending.  Dr Bond noted a history of poor emotional coping which had worsened as a result of being charged. 

11More recently, you were assessed by Ms Carla Lechner, a clinical and forensic psychologist, who considered you to be a socially and emotionally immature young man with longstanding issues in relation to self-esteem and self-confidence.  She said you exhibited symptoms of major depression, partly attributable to your present circumstances of facing these charges and also a mood disorder of some duration.  Ms Lechner considered that you have a high emotional dependency in relationships and this clouded your judgment in persisting with involvement with the complainant.  But on the other hand, you do not have any symptoms of a psychosexual disorder.  In other words, you do not have a general attraction to young teenage girls.  Rather, to quote from Ms Lechner's report, your attraction was confined to Alicia.

12Ms Lechner is of the opinion that it is important for you to better understand your emotional dependency needs and how they can cloud your judgment, as presently you cope with them by avoidance.  She said you have not grasped the significance of being Alicia's coach and owing a duty of care to her which you breached.  As her coach, you were in a position of power over her and so her position in the relationship was not equal to yours.

13Parliament has legislated to protect young people from premature sexual experience and has determined that this offending be punished in such a way that others, as well as the perpetrator, will be deterred.  It is not relevant that Alicia may have been or was a willing participant.  You were nine years older than her, which is a considerable difference.  You knew it was wrong and persisted anyway, even to the extent of visiting guilt upon her for your suffering when the relationship ended.

14These are aggravating factors, as is the breach of trust in exploiting her from your position of coach and the extensive and significant effects on Alicia and her family.  I was referred to the decision in the case of Clarkson in which the principles governing sentences in cases such as this were discussed at length and the relevant case law was considered.  Although the issue of the victim's consent was the primary issue in that case, other matters such as possible aggravating factors were also considered.  In my view, the only case which might have some application in the circumstances of this case is the decision of the South Australian Supreme Court in R v. Temby.  This was one of the many cases discussed by the court in Clarkson.  In Temby the age difference was comparable, but the complainant's mother had known of the sexual relationship and had acquiesced in it.  That, and other matters, made it a most unusual case so that deterrence played a different role from that in other cases.

15The Court said the offender should be sentenced very lightly and so, because he had already served 17 weeks before being dealt with on appeal, he was sentenced to that period.  Had he not served that time already, it seems likely from other dicta that he would have received a wholly suspended sentence. As a suspended sentence is no longer available in Victoria in the circumstances of this case,  the alternative to a term of immediate custody is a Community Corrections Order.  In any event, the circumstances of this case place it in a different category from Temby in that your breached your position of trust and exploited Alicia's youth and naivety.

16In distinguishing your case from a case like Temby, I conclude that a short prison sentence is appropriate followed by a further sentence to be served in the community.  In reaching this conclusion I have taken into account a number of mitigating factors.  First, you have no prior convictions of any sort.  An important matter is the state of your mental health and the consequence that the experience of prison will likely be more difficult for you than for others who have more resilience.  Although your condition may not be linked to the offending in such a way as to attract the other principles set out in the decision of Verdins, I am able to take into account in a broad sense as a mitigating factor that you have suffered from emotional vulnerability and poor self-esteem for a long period and that this has now worsened.  In that sense, you are a less than ideal vehicle for general deterrence, but that aspect of the sentencing exercise should be only slightly moderated. I agree with the submissions of the learned prosecutor that it calls for a custodial sentence to be served immediately.

17As for specific deterrence, it appears unlikely that you will offend in this way again.  I accept that you have been thoroughly chastened by the experience of being charged and arrested and brought before the court.  Partly for that reason and partly by reason of the other mitigating factors in combination, the sentence I impose will be short and will be followed by a Community Corrections Order, for which you have been assessed as suitable, to provide for monitoring and further psychological treatment.

18I will ask you to stand now please, Mr Smith.  For charge 1, I sentence you to three months' imprisonment.  For charge 2, I impose a Community Corrections Order which will commence immediately upon your release from prison and will last for two years.  The conditions will include supervision, treatment and rehabilitation for your mental health condition and 60 hours of unpaid community work.  You will also be assessed as to your suitability for a sex offender program, but it may be that psychological counselling will be more appropriate.  That will be a matter for the clinician to determine. 

19You will also be subject to judicial monitoring, at least for the first few months after the order commences. That means you will have to come to court and I will have received a report as to your progress.  I will fix a date for the first of these appearances shortly in consultation with your counsel.  I should add that it is not necessary for your legal representative to appear at that hearing.  On your release, you will be required to report to the community corrections office, and I will give you those details shortly.

20If you had not pleaded guilty to these charges, I would have sentenced you to six months' imprisonment and a Community Corrections Order lasting for three years. The prosecution seeks an order under s.464ZF of the Crimes Act for a forensic sample of saliva to be obtained from you and I was told that is not opposed by you.  I am simply required to inform you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

21It is mandatory that under the Sex Offenders Registration Act you provide your details to the police every year for the rest of your life once you are released.  You will be given a form to sign in that respect in a moment. 

22MR PAULL:  Your Honour, the only thing I raise is the 6AAA indication, six months and a CCO.  It cannot be beyond three months and a CCO.

23HER HONOUR:  Thank you very much for pointing that out.  In that case I will leave the Community Corrections Order out of that equation and it will be a six month term of imprisonment.

24MR PAULL:  As Your Honour pleases.

25HER HONOUR:  Thank you, Mr Paull.  There are two forms for your client to sign.  One is the Sex Offenders Registration Act form, and the other is the Community Corrections Order itself, which cannot be printed until I have determined with you, Mr Paull, what might be a suitable date for your client to return.

26MR PAULL:  Yes, Your Honour.

27HER HONOUR:  With judicial monitoring, probably not less than two months after he is released.  Do you want to say anything about it?

28MR PAULL:  No, Your Honour, it is entirely a matter for Your Honour's discretion.

29HER HONOUR:  Thursday 21 August?  Obviously this is not a matter you need to be concerned about, Mr Paull, other than making a note so that you can put that in some form of advice perhaps to your client along the way, but Mr Smith needs to know that he needs to be here on 21 August and I will list it for 9.30.  He may not be much in a state to remember that now, Mr Paull, so perhaps if you would not mind doing that.

30MR PAULL:  Your Honour, while we have this moment I wonder if I might ask Your Honour to identify some custody management issues which can be conveyed to Corrections Victoria.

31HER HONOUR:  It has already been anticipated to some extent, Mr Paull, but there is a protection aspect.

32MR PAULL:  Yes, Your Honour.

33HER HONOUR:  A risk of self-harm, a suicide risk due to what I have heard about in the past.

34MR PAULL:  Yes.

35HER HONOUR:  And general vulnerability due to age and appearance.

36MR PAULL:  And first time in custody as well.  That covers exactly what I was going to raise.  Thank you, Your Honour.  Your Honour, I have looked through the sex offence registration document, it seems to be in order.

37HER HONOUR:  Would you like to take that down now?

38MR PAULL:  I can do that, thank you, Your Honour.

39HER HONOUR:  Yes, thank you, Mr Paull.

40(Order signed and acknowledged.)

41Officer, Mr Smith can go now, thank you.

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