Director of Public Prosecutions v Solomon-Davidson

[2017] VCC 107

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01786

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN SOLOMON-DAVIDSON

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 February 2017
CASE MAY BE CITED AS:	DPP v Solomon-Davidson
MEDIUM NEUTRAL CITATION:	[2017] VCC 107

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Warda
For the Accused	Ms B. Franjic

Pages 1 - 10

 

 

HER HONOUR: 

1Dylan James Solomon-Davidson, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  The prosecution made application for the disposal of certain items and the making of that application was not opposed. 

2The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  The circumstances are set out in some detail there.  In brief, the circumstances are as follows. 

3You met the victim in about December 2013, you were 22 years old and she was 15 years old.  She was living at a friend's house.  She had been living at her friend's house with the consent of her mother and then subsequently, on a placement by the Department of Human Services.  You and she met; you became Facebook friends.  Her Facebook profile said she was 15.  Shortly after meeting you, the victim ran away from her friend's house and lived with you for a period. 

4On 17 January 2014, a Protective Services officer at a railway station saw you and the victim.  He checked and found that there were outstanding safe custody warrants.  The officer spoke to you and the victim.  The warrants were executed. 

5On 19 January 2014, the Department of Human Services returned the victim to the care of her mother.  The victim's mother met you on 25 January 2014.  She told you that you were too old for her daughter as she was only 15. 

6In early February 2014, the victim's mother allowed you to stay in her house.  In her victim impact statement, she explains that she did this in order to keep her daughter from running away. 

7On 8 February 2014, the victim's mother went into her daughter's bedroom and saw you having sexual intercourse with her daughter.  She was shocked and walked out.  You continued until you ejaculated.  You were not using a condom.  This is the first occasion covered by Charge 1 which is a representative charge.

8On 16 February 2014, the victim's mother told you to leave the house.  The next day, the victim went to your house and had sexual intercourse with you.  This was the second occasion covered by the representative charge.  Again, you wore no condom.  On the following day, you and the victim broke up in terms of your relationship.

9On 19 February 2014, the victim's mother contacted police.  You were arrested and interviewed on 12 May 2014.  You told the police you were friends with the victim.  You denied any sexual activity in the bedroom at her house but said it was possible you had sexual relations with her. 

10The victim did not make a VARE statement until December 2014.  You were charged in August 2015.  After you were charged, there were three occasions on which you have failed to appear.  A warrant was ultimately executed and you spent 31 days in custody.  You were released on bail in late August 2016. 

11Two victim impact statements were tendered with the victim impact statement from the victim being Exhibit B and the victim impact statement from her mother being Exhibit C. 

12It is clear from those victim impact statements that the victim's relationship with you was one that was harmful to her emotionally.  The harm arises, from what she says, both from the emotional content of the interactions and the sexual nature of the relationship.  It is clear from her victim impact statement that the victim was emotionally troubled at the time and she was vulnerable and not in a position to make sensible decisions on her own behalf.

13It is clear also from the mother's victim impact statement that the situation has had a considerable negative impact on her.

14In sentencing you, I have taken into account your personal circumstances.  You had a very disruptive and disadvantaged childhood.  You did not know your biological father as his relationship with your mother ended before you were born.  You were told various things by your mother when you were a young child that must have been extremely hurtful about your biological father's attitude towards her pregnancy.  The only father you knew was your stepfather who was in a relationship with your mother at the time you were born. 

15Your mother and stepfather raised you until you were eight years old.  They had a very difficult relationship characterised by violence and volatility.  You mother was a chronic substance abuser.  She had problems with substances and alcohol and prescription medications.  From what your counsel said, the living arrangements were fairly chaotic and crowded.  You suffered physical abuse from your stepfather and emotional abuse from your mother.

16When you were eight years old, your mother was sentenced to a gaol term for the offence of culpable driving.  You lived with your stepfather who again was physically violent towards you at times.  He also engaged in substance abuse involving illegal drugs.  You were subject to some emotional abuse from your stepfather who would threaten to go away with his biological son, leaving you without a carer. 

17You were 16 when your mother was released.  You tried to live with her and her new partner.  That was unsuccessful and you were asked by your mother to leave.  Between the ages of 16 and 21, you effectively were homeless, staying with friends, couch surfing or living in a car.  You attended school until Year 12 but did not complete Year 12.  You have had a recent work history which I will go into shortly.  Your most serious problems in terms of drugs or alcohol has been alcohol.  At the time of this offending, you were drinking virtually every day and would drink so much that you would have blackouts and failure to recall after episodes of drinking. 

18You have told your counsel that at some point you were diagnosed with psychosis and medicated accordingly.  You say that you stopped taking the medication and have had no psychotic episodes for four and a half years.  On the basis of that material, it does not appear that you have any current psychiatric illness. 

19At around the time of the offending, you were in an off-again, on-again relationship with a young woman who already had one child.  You had two children with her who were born in February 2014 and June 2015.  You broke up in that relationship in June 2016.  You told your counsel that at the time of this offending, you were in the off-phase with your relationship with your then-partner.  You have not seen your children since the breakup.  You have sought legal advice in order to explore obtaining contact with those children. 

20You have told your counsel that around the time of this offending, you were living with your friend and couch surfing.  It appears that around that time, in February 2014 and April 2014, you made two attempts to end your life.

21After your release from custody in August 2016, you found employment.  First you found employment in a caravan park.  You then found employment as a stable hand.  You have been doing that work for about four and a half months, four to five days a week as I understand it.

22You have commenced a relationship with another young woman.  You have known that young woman for about four or five years but have been together for five months.  Her parents have agreed for you to live at their house.  You have been living there since December 2016. 

23You now have very little contact with your stepfather and have mostly cut your ties with your mother. 

24You have no prior criminal history in respect of sexual offending.  You have a prior criminal history principally involving dishonesty and driving offences. 

25In sentencing submissions, your counsel submitted that a community correction order would be the appropriate sentence in this case.  Your counsel addressed the circumstances of your offending and submitted that there was a lack of certain aggravating features. 

26Your counsel relied on your plea of guilty, your remorse, your youth, your reasonable prospects of rehabilitation and the delay in this matter.  Your counsel submitted that during that period of delay, you have managed to commence your rehabilitation.  She said also that the matter had been hanging over your head for a considerable period of time.

27The prosecutor in sentencing submissions addressed the seriousness of this type of offending.  She stressed the importance of general deterrence and denunciation as sentencing principles.  The prosecutor addressed aggravating features of your offending.  The prosecutor submitted that the victim was very vulnerable at the time of this offending.  The prosecutor submitted that some of the delay in this matter was due to you, including your failing to appear.  The prosecutor submitted that your rehabilitation was limited.

28In respect to the utilitarian benefit of your plea of guilty, the prosecutor noted that there had been a contested committal proceeding where the victim's mother was required to give evidence.  The prosecutor submitted that a community correction order was not out of the range.  She also submitted that a combined sentence of imprisonment and community correction order would not be out of the range. 

29Mr Solomon-Davidson, the offence of sexual penetration of a child under 16 is a serious offence.  The law exists to protect children from sexual abuse by adults.  The law is designed to protect children against exploitation by others and also against their own bad decisions.  The presumption of the law is that people under a certain age are not old enough to properly understand all of the implications of having sexual relationships.  Accordingly, they are protected because otherwise they suffer harm by inappropriately entering into sexual relationships before they are ready for them. 

30In this case, the victim in this matter was clearly a vulnerable person.  That is clear from the circumstances that have been outlined and also from her victim impact statement.  She was especially emotionally vulnerable.  You took advantage of that by engaging her in a relationship which involved sexual intercourse. 

31I am of the view that your offending could not be described as predatory but was rather opportunistic.  You selfishly sought to have that type of relationship with her because of your own need for affection and a sexual relationship.  You knew she was too young to give legal consent to sex.  You knew that she had difficulties with the Department of Human Services and with her mother.  The victim's mother told you that she was too young for you and you persisted in the relationship even in the victim's own home.  You exploited that situation of being allowed to stay there. 

32You did not use protection during the times when you had sexual intercourse.  That exposed the victim to the risk or fear of sexually transmitted diseases or pregnancy.  This relationship continued.  There was not just one occasion.  There was a significant age difference between you.  There is a considerable difference between 15 and 22.  I accept that that age difference is not a great age difference, but nevertheless, it is a significant age difference.  You were old enough to know that the situation was both legally and morally wrong.  You were old enough to have walked away from that situation.  That is what you should have done.

33General deterrence, punishment, denunciation and specific deterrence are important sentencing considerations in this case.  The application of those sentencing principles, in my view, warrants a sentence of imprisonment.  There are a number of matters which operated in mitigation of sentence. 

34You have pleaded guilty.  That is a demonstration of some remorse.  Your plea of guilty has saved the trauma of a trial.  The utilitarian benefit of your plea of guilty is somewhat reduced because there was a contested committal.  There has been some delay in this case.  The delay between the VARE statement being made by the victim and charging you appears to be reasonably lengthy.  In any event, the matter has been hanging over your head for some period of time.  Your rehabilitation has, it appears, commenced although it could hardly be said to be consolidated at this stage. 

35An important factor in sentencing you is your age.  You are still only 25.  You are still within the age of being a youthful offender.  You have had a very deprived and disrupted childhood which must be taken into account in sentencing you.  It is clear that you wish to have a more stable life. 

36You have a relationship now which appears to give you greater support.  You wish to be able to have contact with your children.  You have been working.  All of those things suggest that you have the wish to engage in rehabilitation. 

37You have clearly had significant problems with alcohol.  I do not have any psychological report but given what I have been told about your background and your alcohol problems, I am of the view that you clearly need assistance and/or treatment for psychological and alcohol abuse issues. 

38Your rehabilitation is clearly in the community's interests.  I consider that at this stage, you have reasonable rehabilitation prospects.  You have no prior criminal history for any form of sexual offending.  In view of your age, I consider that a community correction order could appropriately meet the sentencing requirements of general deterrence, specific deterrence, punishment and denunciation, particularly in combination with the one month that you have already spent in custody. 

39I have been told and I accept that you found that period very difficult, particularly because you were protection at that time and that you are "terrified of returning to gaol".  It appears to me that that period of one month has had some effect in terms of specific deterrence.  It could be said to have constituted some punishment for this offending.  I have taken that one month into account. 

40Mr Solomon-Davidson, could you stand up please?

41You have heard the sentence that I have propose to impose which is with conviction, 31 days' imprisonment which would be reckoned as served.  That would be followed by a community correction order for a period of two and a half years.

42In addition to the core conditions of that order, the other special conditions would be 150 hours of community work, treatment and rehabilitation for alcohol and mental health and programs to reduce reoffending.  There would also be a supervision condition.  Any hours that you complete on the rehabilitation conditions will be taken off the work hours requirement.  I would have made the work hours longer if it had not been for the fact that you had spent already 31 days in custody. 

43Now, I understand that the core conditions have been explained to you and that Ms Franjic has taken you through the core conditions that I propose to impose.  One very important conditions is that you must not breach this order by reoffending.  If you reoffend and are brought back before me on a breach, then I can resentence you for these offences.  You would then be at peril of a further gaol sentence.  Do you consent to this order being made?

44ACCUSED:  Yes.

45HER HONOUR:  Now, I declare that you have served 31 days of this sentence by way of pre-sentence detention.  I make the disposal order that is sought.  You have pleaded guilty to one Class 1 offence for the purposes of the Sex Offenders Registration Act.  That means that you will be required to comply with the recording conditions of that legislation for a period of 15 years.  Shortly, my associate will approach you with Ms Franjic.  She will give you some documentation which tells you about the Sex Offenders Registration Act requirements.  You will be asked to sign something.  What you are signing is saying, "I have got that paperwork."  So it is just a form saying "Yes you have received the paperwork".  Ms Franjic can tell you more about that after I have finished. 

46But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.  Now, can you take your seat please?

47Now, I understand Ms Franjic Mr Solomon-Davidson has signed the CCO so ‑ ‑ ‑ 

48MS FRANJIC:  Yes, Your Honour.

49HER HONOUR:  ‑ ‑ ‑ I will do that.  Would you be able to accompany Ms Ollquist with the Sex Offenders Registration Act paperwork please to give to
Mr Solomon-Davidson?

50MS FRANJIC:  Certainly, Your Honour. 

51HER HONOUR:  Just take a seat for a minute.  All right.  Now, Ms Warda and Ms Franjic, is there anything of a technical nature that I have omitted to deal with?

52MS FRANJIC:  No, Your Honour.  

53HER HONOUR:  All right.  Mr Solomon-Davidson, you will now be free to go on that community correction order.  Community correction orders are not easy to do, but they are better than being in gaol.  So any time when it gets difficult, just remember that because it is better than that alternative.  It is quite a long order but hopefully, if you cooperate with the Corrections people then it will work reasonably smoothly. 

54I have tried not to make it too onerous but I consider that it is important to keep some sort of supervision and support for you because I think that you are at risk of problems occurring unless you are able to deal with the difficulties that you had.  So I would strongly encourage you to get as much as you can out of this order.  It is to be hoped that that will help you with the other issues and your other sorts of offending and so forth.

55All right, so I think that is all.  Anything else that anyone needs to ‑ ‑ ‑ 

56COUNSEL:  No, Your Honour.  

57HER HONOUR:  All right.  Thank you, Ms Franjic.  Thank you, Ms Warda. 

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