Director of Public Prosecutions v Smith (a pseudonym)
[2021] VCC 982
•23 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANE SMITH (A Pseudonym) |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2021 | |
DATE OF SENTENCE: | 23 July 2021 | |
CASE MAY BE CITED AS: | DPP v Smith (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 982 | |
REASONS FOR SENTENCE
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Subject:Sexual penetration of a child under 16 (1 count) – Knowingly possess child abuse material (1 count)
Catchwords: High school relationship – young offender – consent not a mitigating factor – exceptional cases – reflection of genuine affection – Dolan Discount -
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sentencing Amendment (Sentencing Standards) Act 2017 (Vic); Sex Offenders Registration Act 2004 (Vic);
Cases Cited:Boulton v The Queen [2014] VSCA 342; Clarkson v R (2011) 32 VR 361; DPP v Calladine [2020] VCC 201; DPP v Yuen [2020] VCC 1527; R v Doran [2005] VSCA 271; Worboyes v The Queen [2021] VSCA 169
Sentence: Community Correction Order imposed without conviction – Registration Exemption Order made
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms J Malobabic | Office of Public Prosecutions |
| For the Accused | Ms E Anselma | McFarlane Criminal Lawyers |
HER HONOUR:
1Dane Smith[1], you have pleaded guilty to one charge of intentionally taking part in an act of sexual penetration with a child under the age of 16 between 1 December 2018 and 30 August 2019. This charge is a rolled-up charge for at least 20 separate occasions of offending over 9 months. You have also pleaded guilty to one charge of knowingly possess child abuse material on 28 October 2019, which represents a single occasion of offending at the time of the arrest. The material comprises 57 naked images of the victim taken on your mobile phone during the course of your relationship. None of the images depicts sexual activity.
[1]A pseudonym.
2At the time, you were a school student aged between 17 and 18 years. You completed Year 12 in 2019. You are now 20 years old. You had a sexual relationship with the victim, who was a fellow school-mate aged between 14 and 15. You knew each other’s ages. You were close friends with the victim, and regularly spent time with her after school and on weekends, although you were not permitted to stay overnight at each other’s homes. The sexual relationship developed in December 2018 out of this close friendship. Using condoms on each occasion, you engaged in penile/vaginal sex with the victim every fortnight at your home, but also on one to two occasions at the victim's home, until 30 August 2019, when the victim told you to stop. She ended the relationship about two weeks later and told a school counsellor about it. The school reported the matter to police and the victim provided Video and Recorded Evidence (VARE) to police on 22 October 2019. She is now 17 and still a student at your old school.
3You were arrested on 28 October 2019 and made full admissions, as well as volunteering the frequency of sexual intercourse with the victim. You said that your father knew of the relationship and that when your mother learned about it later she was not happy. She sent you a link relating to the age of consent. You did not look at it, but agreed that the victim did. You said you wanted to stop the sexual relationship, but that the victim encouraged you to continue with it. You said that you had not engaged sexually with her for some time prior to your interview because she did not want to have sex. You were charged and bailed.
4The matter resolved at the committal mention on 18 February 2021, and the matter proceeded by way of Straight Hand up Brief from the Magistrates’ Court. At the plea hearing, both the defence and the prosecution agreed that a disposition via a community corrections order is within range and/or appropriate in your case.
5However, the imposition of sentence had to be deferred because, at the time of the plea hearing, the Chief Commissioner of Police had not yet responded to your application for exemption from the registration requirements under the Sex Offenders Registration Act 2004 (Vic) (“the SORA”). The matter was adjourned pending receipt of that response, and in order to obtain an assessment by Corrections Victoria of your suitability for a Community Correction Order (“CCO”).
6By email dated 20 July 2021, the OPP notified the Court that the Chief Commissioner of Police did not oppose your application for exemption from the registration requirements.
7In determining the appropriate sentence, I have had regard to the Prosecution Opening on the Plea, to the written submissions filed by the parties, to the oral submissions made at the plea hearing, to the forensic psychological report of Ms Pamela Mathews dated 8 June 2021, to the material tendered in support of a registration exemption order, and to the report of Corrections dated 30 June 2021 concerning your suitability to undertake a CCO.
8The parties agree that although for the most part of the offending alleged in Charge 1, you were 17 years of age, and that you were 18 years of age for the last two months of the offending period, Charge 1 is captured by Part 3 of the Sentencing Amendment (Sentencing Standards) Act 2017 (Vic) (“Standard Sentencing Scheme”). The standard sentence in respect of Charge 1 is one of 6 years imprisonment.[2]
[2] Sentencing Amendment (Sentencing Standards) Act 2017 (Vic) s 28; Crimes Act 1958 (Vic) s 49B(3).
9Your counsel applied for a registration exemption order under the SORA for a number of reasons: the bulk of your offending occurred while you were 17 years of age; that the age gap between yourself and the victim was one of 2 years, 7 months and 14 days; that you expressed remorse when interviewed by police and later by Ms Matthews; and that Ms Matthews has opined that your risk of sexual reoffending is “minimal to none”.[3]
[3] Pamela Matthews, Psychological Report re Mr Dane Smith (a pseudonym) (8 June 2021) 7.
10The general principles which apply to this type of offending may be briefly stated. Under s 5(1) of the Sentencing Act 1991 (Vic), the purposes for which sentences may be imposed are: denunciation, just punishment, specific deterrence, general deterrence, protection of the community, and rehabilitation. In imposing a sentence, the Court must give effect to the principles of parsimony, proportionality and totality.
11The sexual offences regime contained in ss 37A and 37B of the Crimes Act 1958 (Vic) treats children as vulnerable persons who will suffer physical and psychological harm from sexual activity, regardless of whether they participate in it willingly. For this reason, the consent of a child, of itself, is not a mitigating factor in sentencing.[4] However, offending in the context of consent freely given in a relationship of genuine affection between a 15 year old girl and 18 year old boy is to be considered, on the authorities, less grave compared with situations where the consent was given in the context of a power imbalance.[5]
[4] Clarkson v R [2011] VSCA 157 (‘Clarkson’) [4].
[5] Ibid [6]-[7].
12Current sentencing practices are but one factor to be taken into account in the exercise of the sentencing discretion. In this case, counsel for the prosecution referred me to two recent sentences in this Court where the Standard Sentencing Scheme applied and the Court imposed a Community Correction Order in the context of offending committed by offenders aged 18 and 19 against victims aged 14 and 15 respectively.[6] The length of the CCO was 2 years in the case of Calladine and 3 years in the case of Yuen.
[6] DPP v Calladine [2020] VCC 201 (‘Calladine’); DPP v Yuen [2020] VCC 1527 (‘Yuen’).
13On the authorities, even in relatively serious cases which might have previously attracted a medium term of imprisonment, such as some forms of sexual offences involving minors, a CCO has punitive and rehabilitative elements and may be capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[7]
Background and personal circumstances
[7] Boulton v The Queen [2014] VSCA 342 [131].
14Your personal history was set out in the psychological report of Ms Matthews. You and your brother were placed in foster care when you were 3 years old, and you were eventually placed with your adoptive parents when you were 7 years old. You have had no contact with your biological mother nor with many of your biological siblings. Your adoptive parents have separated and you live with your adoptive father. Your adoptive mother suffered from emotional dysregulation due to a brain tumour, and so you have had little contact with her. You struggled a little with anger regulation and concentration in high school, and had trouble putting your thoughts into words. You excelled in maths but struggled with written expression. You attempted VCE in Year 11 but transferred to VCAL for year 12 and completed a school-based apprenticeship for Certificate III in Warehousing. You have been unable to find work since leaving school in 2019 and are planning to return to TAFE to obtain a forklift licence and white card to work in the construction industry.
15Your first sexual relationship was with the victim of your offending. You then had a relationship with a 19-year-old woman which lasted 6 months and ended on mutual terms. You have been single since then. You have two close friend and several acquaintances. You smoke a few cigarettes per day but seldom drink alcohol and have never gambled or engaged with illicit drugs or misused prescription medication. You were depressed when having issues with your adoptive mother several years ago and told the school counsellor, who recommended that you see a psychologist, but you did not do so. At that time, about 4 years ago, you had suicidal thoughts and were self-harming by cutting yourself on the shoulders and arms. That behaviour ended about two and a half years ago.
16I turn to the matters to which I must have regard under s 5(2) of the Sentencing Act 1991 (Vic).
Maximum penalty
17The maximum penalties reflect the seriousness of the offences charged. The maximum penalty for sexual penetration of a child under 16 is 15 years’ imprisonment. The maximum penalty for knowingly possess child abuse material is 10 years’ imprisonment.
Nature and gravity of the offending
18I note that the offending captured by Charge 1 concerns 20 occasions of offending over a 9-month period, and that it continued even after your mother cautioned you about the age of consent in Victoria. However, I consider for the following reasons that your offending falls at the lower end of objective seriousness.
19First, for all but 2 months of the offending period, you were a child aged 17 engaged in a relationship of affection with a fellow student aged only some 2 and a half years younger than you. Secondly, I note that, had the gap in age between you and the victim been one of not more than 2 years, she could have validly consented to having sex with you. Thirdly, you were fellow students and close friends at the same school, and you did not have a position of care, supervision or authority in respect of the victim. Fourthly, the offending was not accompanied by any grooming or predatory types of behaviour nor by threats or violence of any kind.
20I consider that the offending captured by charge 2 also falls into the lower range of seriousness for a number of reasons. First, the charge represents a single occasion. Secondly, the quantity of images, which numbers at 57, is relatively small. Thirdly, the images did not contain any sexual activity and were not shared with anyone.
21Fourthly, I accept your explanation to Ms Matthews that you did not realise that the images constituted “Child Exploitation Materials”.[8]
Moral culpability
[8] Matthews (n 2) 2.
22There was no suggestion made on your behalf that you suffer from any conditions which might reduce your moral culpability. However, the circumstances of this case closely resemble those contemplated by the Court of Appeal in DPP v Clarkson as:
… exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced.[9]
Impact on the victim
[9] Clarkson [2011] VSCA 157 [7].
23Whilst there is no Victim Impact Statement, I take into account the general presumption of harm to the victim from your offending.
24I turn to the matters relied upon in mitigation.
Previous good character
25I note that you have no prior criminal history in Victoria or elsewhere, and that the current matters represent your first involvement with the criminal justice system.
Guilty plea
26I accept that you were cooperative and honest with police from the outset: you attended at a police interview by prior appointment and made full admissions to police when interviewed. In particular, you disclosed to police the date when the sexual relationship began, how often sex occurred, and where it occurred. For this reason, I consider that you are entitled to a Doran[10] discount, as the making of the disclosures demonstrates your remorse, and increases the prospects of your rehabilitation.
[10] [2005] VSCA 271 (‘Doran’).
27I also note that you pleaded guilty at the earliest available opportunity and your plea has significant utilitarian benefit in sparing the community and witnesses the cost and inconvenience of a trial. In addition to the discount for an early plea, you are entitled to a perceptible further discount in sentence for making your plea during the currency of the COVID-19 pandemic.[11]
Remorse
[11] Worboyes v The Queen [2021] VSCA 169 [39].
28I consider on the material before me that you have accepted responsibility for your offending from the outset. This is evidenced by the full admissions made in your police interview, in your pleas of guilty, in the insight into your offending which Ms Matthews noted, and in the desire you expressed to Ms Matthews to apologise to the victim for your conduct.
Youth
29I note that although you were a child aged 17 years during all but 2 months of the period of the offending the subject of Charge 1, you have been charged and prosecuted as an adult. Nonetheless, you are to be sentenced as a young offender.
30The law places great importance on the rehabilitation of young offenders, although the importance of this factor declines as the seriousness of the offending increases. In the light of my finding that your offending falls at the lower end of the scale of seriousness, the principle of rehabilitation can be given full weight.
Delay
31I accept that there has been some delay between your offending behaviour and finalisation of the matter, none of which is attributable to you. The delay has caused you and your family stress and uncertainty. You have been on Centrelink for some time after completing Year 12 in 2019, but have been uncertain about applying for jobs before this matter is finalised.
Prospects for rehabilitation
32I consider that your prospects for rehabilitation are very good. You are a young man without prior convictions. Dr Matthews has assessed your risk of re-offending to be “minimal to none”.[12] She notes that you present with a number of protective factors in that you have strong family supports and friendship groups, and no issues with alcohol or illicit substance abuse. You have completed Year 12 and are motivated to seek employment but have put your efforts on hold pending the finalisation of this matter. Your counsel indicated that you intend to obtain a forklift driving licence to assist you in obtaining work in the future. I consider in sentencing you that there is no need to emphasise specific deterrence.
Departing from the standard sentence
[12] Matthews (n 2) 7.
33I indicate, pursuant to s 5B(5) of the Sentencing Act1991 (Vic), that the sentence I am about to impose on Charge 1 is lower than the standard sentence for that charge. I have considered the standard sentence for Charge 1 as one of the factors in my instinctive synthesis of all the relevant facts and principles. Having regard to all of the relevant factors of this case, including the seriousness of the offending being at the lower end of seriousness for this kind of offending, the significant mitigatory factors in this case including your lack of prior offending, youth and prospects of rehabilitation, I consider that a sentence lower than the standard sentence is appropriate.
34I have concluded that all the relevant sentencing purposes can be met by the imposition of a CCO. That order will include community work. If that program is currently still suspended due to COVID restrictions, I will require you to complete the hours once the community work program is restarted.
Should a conviction be imposed?
35The prosecution submitted that it was appropriate for the Court to impose a conviction in relation to your offending, given its seriousness. Your counsel resisted the imposition of a conviction on the basis of Ms Matthews’ opinion that a criminal conviction for a sex offence will place a lifelong burden upon you in respect of a choice made while you were a teenager and may impact your prospects of employment, travel and forming a family of your own.[13]
[13] Matthews (n 2) 8.
36Pursuant to s 8 of the Sentencing Act 1991 (Vic), I am required to consider all the circumstances of the case, including but not limited to, your prior character, the seriousness of the offending and any social and economic wellbeing that might be adversely affected by a conviction.
37I consider that your offending falls in the category of exceptional cases considered by the Court of Appeal in Clarkson. As you are a young man about to attempt to enter the workforce, with Year 12 behind you but no work history, I have no doubt that your employment prospects, and therefore your future economic and social wellbeing, will be adversely affected by a conviction. Given your excellent prospects of rehabilitation, and the lifelong impact that a conviction can have, I am not satisfied that the recording of a conviction is necessary having regard to all the circumstances of the case.
Registration under the SORA
38You have committed one class one offence and one class two offence. That means you will be a registered sex offender for life unless I order otherwise, which I can only do in limited circumstances. You have applied for a registration exemption order which is not opposed by the police.
39I propose to grant your application as I am satisfied that the criteria in s 11B(1) of the SORA are met and that it is appropriate to do so, given the age of your victim, the nature of your relationship, the fact that you have been assessed as no risk to the community, and the fact that, but for this offending, you would not be a registrable offender.
Aggregate sentence
40Given that the conduct covered in Charge 2 arises from the relationship between you and the victim that is the subject of Charge 1, and in those circumstances, I consider it appropriate to impose an aggregate sentence.
41Would you please stand.
42On charges 1 and 2, you are, without conviction, sentenced to a two-year Community Correction Order. You are to report to Morwell Community Correctional Services within two working days. Because of COVID-19, that will be by telephone.
43The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 2 years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?
44In addition, I have imposed one special condition, that you perform 200 hours of unpaid community work over the period of the order.
45Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment. Do you consent to the making of a CCO?
s.6AAA
46I declare pursuant to s 6AAA of the Sentencing Act that if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, I would have sentenced you to an aggregate sentence of a 4-year CCO with conviction with a condition that you perform 400 hours of unpaid community work.
Forfeiture Order
47The prosecution sought the making of a forfeiture order in relation to your Oppo mobile phone and your Counsel that you do not oppose such an order. I will therefore make the order as sought.
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