Director of Public Prosecutions v Steele (pseudonym)
[2017] VCC 1666
•13 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CODY STEELE (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 2 November 2017 |
| DATE OF SENTENCE: | 13 November 2017 |
| CASE MAY BE CITED AS: | DPP v Steele (pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1666 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Sexual penetration of child under 16 - assist child to be absent or return to place without lawful authority or excuse
Legislation Cited: Children Youth and Families Act 2005, Sentencing Act 1991,
Sex Offenders Registration Act 2004
Cases Cited:
Sentence:24-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr D. McGlone | Kylie Moloney Legal |
HIS HONOUR:
1Mr Steele, if you could just remain seated until I ask you to stand.
2Cody Steele[1], you have pleaded guilty to one charge of sexual penetration of a child under 16 and one related summary charge of assisting a child to be absent or return to a place without lawful authority or excuse.
- Sexual penetration of a child under 16 carries a maximum penalty of ten years' imprisonment.
- The summary charge of assisting a child to be absent or returned to a place without lawful authority or excuse carries a maximum penalty of six months' imprisonment or 25 penalty units.
[1] Cody Steele is a pseudonym
3You are aged 22, having been born on 24 January 1995. At the time of the offending you were aged 21.
4By way of background, you currently reside with your grandparents in Beaufort. At the time of the offence the victim was 15 years of age, having been born on 21 February 2001.
5In July 2016 the victim was residing with her mother and stepfather in the family home and attending school. She had met you through mutual friends at the school and a friendship was started. You became boyfriend and girlfriend and were seeing each other on a regular basis during lunch time at school.
6The victim's mother believed that her daughter was in a sexual relationship with you. Police conducted a disclosure interview with the victim who stated that she was not in a sexual relationship with you and told police you were good friends and that you were supporting her through difficult times.
7On 18 July 2016 the victim was reported missing to police by her mother, at which time she believed that she was with you and having a sexual relationship with you.
8On 19 July 2016 the victim was located by police at your auntie's house at which time she stated to police that she could not go home due to the environment and fighting with her mother and that she was not involved in a sexual relationship with you.
9Police contacted child protection authorities informing them of the situation. On 20 July 2016 you were contacted and requested to attend the Ballarat Police Station to speak with the informant. You attended and denied having a sexual relationship with the victim. Instead you stated that you were there for emotional support as she was having troubles at home.
10You were then spoken to, in the company of your auntie, at which time the consequences of having a sexual relationship with a 15-year-old were explained to you, and you acknowledged that you were aware of those consequences.
11On 20 July 2016 child protection authorities made a protection application at the Ballarat Children's Court in relation to the victim. An order was granted placing her with her grandmother at premises in Wendouree.
12On 20 July 2016 police served you with a Harbouring Notice pursuant to s.495 of the Children Youth and Families Act 2005. The conditions of the Notice and the consequences of breaching the Notice were explained to you.
13The Harbouring Notice made it clear that it was an offence for any person to:
"(a) harbour or conceal or assist in harbouring or concealing the child or
(b) prevent or assist in preventing the child from returning to a place".14I will now turn to the circumstances of your offending.
15As to the related summary offence, that is, to assist a child to be absent or return to a place without lawful authority or excuse, between 16 August and 12 November 2016 the facts are as follows.
16On 16 August 2016 the victim attended school and at approximately 12.30 pm you picked her up. You then left the area together. She later that afternoon posted on Facebook, "This time I'm going down the street to change my appearance, we're out of here". Friends of the victim then notified staff, who notified police.
17On 17 August the victim's grandmother reported her as a missing person as she had not returned home, at which time Child Protection obtained a Safe Custody Warrant.
18On 24 August the victim attended the Ballarat Sexual Offences and Child Abuse Investigation Team office and said that she had been “couch surfing” at friends' places in and around Ballarat but refused to tell police the names of these friends. She admitted being with you during this time and again denied any sexual relationship, stating that you would just lay together and cuddle and on occasions, kiss.
19The Safe Custody Warrant was executed and she was subsequently placed with her auntie in Mildura by Child Protection.
20On 5 September 2016 the victim was again reported missing to police after being picked up by you in Mildura. Child Protection again obtained a Safe Custody Warrant. On this occasion the victim had received information the previous day that her father had committed suicide. She became very upset with the news even though she had not had contact with her father for many years but had recently attempted to contact him via Facebook.
21You drove the victim to South Australia, where you stayed together in a caravan park.
22On 11 September 2016 she contacted her mother stating that she was safe and well. On 15 September she was conveyed to the Ballarat Police Station where the Safe Custody Warrant was executed. Child Protection then placed her in her mother's custody and she remained living with her mother in an attempt to rekindle their relationship.
23On 12 October 2016 at approximately 10.30 am the victim was in the passenger seat with her mother driving. They argued, and as the vehicle stopped at a red traffic light, the victim opened the door and walked away. Her mother reported her missing on 13 October after she did not return home.
24Child Protection again obtained a Safe Custody Warrant. On 16 October 2016 you attended at her home to get clothing and property for her, however you were observed by her mother and then chased off by her stepfather. Police were notified and attended but were unable to locate you.
25They located the victim in a nearby street. She was conveyed to the Ballarat Police and again denied any sexual relationship with you. The Safe Custody Warrant was executed and Child Protection placed her in a residential care unit, this time in Horsham, due to her vulnerability.
26On 3 November 2016 you travelled to Horsham and picked the victim up from her residential care unit. She was last seen by staff at 10.30 am that morning. On 4 November Child Protection obtained a Safe Custody Warrant for her, however, did not report her missing to police until 8 November.
27As to Charge 1, sexual penetration of a child under 16, on 12 November 2016 you drove with the victim to a remote area of the Canadian State Forest in Ballarat and then parked and got into the rear seat of your vehicle. You then had consensual penile/vaginal sex with her. That is represented by Charge 1, sexual penetration of a child under 16.
28At approximately 5.30 pm uniform police responded to a report of a suspect vehicle in the Canadian State Forest and located both you and the victim lying under a blanket in the back seat of your vehicle on a dirt road in the Canadian State Forest. As police approached the vehicle they observed that both you and she were wearing clothes on your upper body, but when requested to exit the vehicle, you both had to put your lower body clothing on.
29The victim was arrested in relation to the Safe Custody Warrant and you were arrested in relation to sexual penetration of a child under 16 years of age.
30You were both conveyed to the Ballarat Police Station. The informant conducted another disclosure interview with the victim who again stated that she was not having a sexual relationship with you.
31I now turn to your personal circumstances.
32You have a record of having committed previous offences involving motor vehicle and traffic breaches. You did not receive convictions from either of those appearances.
33You attended primary and secondary school without difficulty and left school midway through Year 11. At this time you had already established a solid work history, having worked part-time at McDonald's for over 12 months previously, and having secured work with a local butcher over the summer break. You were hopeful of obtaining an apprenticeship as a butcher; however, this did not eventuate and you became unemployed.
34About this time your father lost his job due to a back injury. This created financial difficulties, in particular with mortgage repayments, and your parents’ relationship, already strained, began to break down. There was considerable verbal violence in the context of alcohol abuse on the part of both parents.
35During this time you became the subject of abuse from both parents due to your unemployment and having left school. You became emotionally distanced from your parents and retreated into the company of friends, eventually going to live with your grandparents in Beaufort.
36Your parents permanently separated in 2017. You enjoy a good relationship with your grandparents and continue to live with them now. Your grandfather has confirmed that you had difficulty coping with your parent's relationship breakdown and isolated yourself following that breakdown. He described you as not emotionally mature for your age.
37A psychological report from Dr Aaron Cunningham, forensic psychologist, was tendered on your plea. In Dr Cunningham's opinion you also presented as emotionally and psychologically immature and this has contributed to your offending behaviour.
38Your conduct in facilitating the removal and harbouring of a protected child from her lawful home and engaging in penetrative sex with her is serious offending. Notwithstanding that you were in a consensual, and indeed loving, relationship you were well aware, having been clearly warned, of the seriousness of such conduct in view of your age disparity. You were also aware of the consequences of such conduct. You made a conscious decision to ignore the warning and the Harbouring Notice.
39There are good reasons why the law is as it is in these circumstances. The law presumes that children under the age of 16 do not have the full maturity to completely understand the potential impact, both physical and emotional, of sexual relations. The law is designed to protect children, and in particular, where there is a significant age disparity between the child and the partner. You were an adult. She was a child.
40Despite what inclinations she might have had to engage in sex, it was your responsibility not to let it happen.
41In the circumstances of this case the victim was in a very vulnerable situation. Her relationship with her mother and stepfather had broken down, she had been homeless for a period, “couch surfing”, had become subject to State care through Child Protection Services and, at the time of the offence represented by Charge 1, was emotionally distressed following the suicide of her biological father.
42In mitigation I accept the submissions of your counsel and in particular that you also were experiencing a very difficult time emotionally following the breakdown of your parents’ relationship, you had become isolated and had bonded deeply with the victim to the point where you have described having been in love with her.
43It is clear that the affection in the relationship was reciprocated and you mutually supported each other in that difficult emotional period.
44I accept the evidence, both from your grandfather and Dr Cunningham, that you are emotionally and psychologically immature for your age. I accept that your personal circumstances reduce the culpability that would otherwise be present.
45Furthermore, I note that there is no impact statement provided by the victim, and infer from the whole of the evidence that she is not likely to have suffered the harm which the law presumes to flow from premature sexual activity. I also note that she was only a little over three months below age 16 when the offence of penetration occurred.
46Other matters in mitigation include:
· your early acknowledgement of your offending and the early plea of guilty at the committal mention;
· your relative youthfulness;
· the directness and frankness of your interview with police;
· your plea of guilty, both for its value in sparing the community the expense and inconvenience of a contested trial and sparing the victim from any associated anxiety of confrontation; and
· that on the occasions when you collected the victim, the first contact was from her to you.
47As I have said, the offences are serious, particularly Charge 1, sexual penetration of a child under 16. The prosecution has submitted that a sentence without some period of imprisonment is inappropriate for the gravity of the offending. I have considered this carefully. I have concluded, however, that, on balance, taking into account the circumstances of the offending and the mitigating circumstances, the purpose or purposes for which the sentence is imposed can be achieved without a sentence that includes a period spent in confinement.
48A community correction order, properly tailored to the particular circumstances with its commitments and challenges, can impact significantly on an offender's autonomy and independence, particularly in the case of a youthful offender. In my view, such a disposition, without a requirement of time in custody, will better enhance your prospects of rehabilitation.
49I am aware that you are currently subject to two community correction orders for subsequent offending. This fact is disturbing, reflecting as it does your general attitude to responsible authority.
50Your assessment report, however, states that you have been making steady progress towards satisfying all your current order obligations. I am prepared to consider this progress as evidence of a developing maturity that enhances your prospects of rehabilitation.
51Mr Steele, could you please now stand.
52On Charge 1 on the indictment and on Charge 3, the related summary charge, you are convicted and ordered to serve a community correction order for a period of 24 months.
53I direct that this community correction order is to be served concurrently with the two orders presently being served.
54This community correction order commences today and ends on 12 November 2019. The Corrections Centre you will attend is the Ararat Community Correctional Service in the Court House building in Barkley Street, Ararat and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Wednesday, 15 November 2017.
55All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 100 hours of unpaid community work as directed by the regional manager; and
· you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager, with particular recommendations of the Sex Offender Program and the LINCS program.
56I will now explain the mandatory terms of the community correction order. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Correctional Centre, that is, such things as not attending whilst either drug- or alcohol-affected;
· you must report to and receive visits from community corrections officers;
· you must report to the Community Corrections Centre, that is the Ararat Centre, within two clear working days of the order starting, and as I have already mentioned, that is this Wednesday 15 November;
· you must notify a community corrections officer of any change of address or employment within two clear working days of that change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given orally or in writing.
57Do you understand and agree to those conditions, Mr Steele?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: Now, if you get sick, or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case you must notify the Ararat Community Correction Centre, and I recommend that you obtain legal advice if any of these things happen.
60I just might indicate to you that the most important thing is your communication with them. If your situation changes with your address, if there is the opportunity to get particular employment which is going to interfere with your hours, you must communicate with the Corrections authorities. They will listen to you and they will work with you in managing those things. Do not just take off. You must communicate with them otherwise you will end up breaching this order.
61I must warn you that if you do breach any condition of this order you will be brought back to court and that will be before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months.
62It can open up the whole sentencing discretion, so it means that if you breach, and depending on the circumstances, you very much risk the fact that you will be sentenced to imprisonment because the faith that I have given in your prospects of rehabilitation in complying with the order will also have been breached. Do you understand that?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: So do you understand the consequences of breaching your community correction order?
65OFFENDER: Yes.
66HIS HONOUR: I will ask you to sign that community correction order shortly. You may be seated for the moment. There is a further matter to which I need attend.
67The indictment charge to which you have pleaded guilty is a registrable offence pursuant to the provisions of the Sex Offenders Registration Act 2004 and by reason of you being sentenced for this offence you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. They are serious obligations and I have no discretion as to the amount of time or whether or not the order is made.
68So pursuant to s.50 of that Act I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case, is for 15 years. As I say, I have no discretion about that. That is what I have to impose in light of your being sentenced on this particular offence.
69My associate will shortly hand to you the Notification of Reporting Obligations, which I have already signed, and your representative in court today, Mr McGlone, will ensure that you understand the requirements set out in this form. I will ask you once it is given to you, to sign the Acknowledgement that you have received the Notification form and return the Acknowledgement to my associate.
70At the plea hearing the Crown sought an order, which was consented to, for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
71I need to inform you that, if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be undertaken. Do you understand that?
72Is there anything else from either counsel?
73MR O'DOHERTY: No, Your Honour.
74MR McGLONE: No, Your Honour.
75HIS HONOUR: The community correction order and the sex offenders registration material can now be passed to Mr Steele through you, Mr McGlone.
76MR McGLONE: As Your Honour pleases.
77(Orders signed and acknowledged.)
78HIS HONOUR: Mr Steele, you can leave the dock now. You can just come and sit in court for a moment.
79OFFENDER: Thanks, Your Honour.
80MR McGLONE: If Your Honour pleases.
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