Director of Public Prosecutions v Stevens
[2023] VCC 1541
•30 August 2023
*
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 22-01879
Indictment No. N10717397.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS STEVENS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2023 | |
DATE OF SENTENCE: | 30 August 2023 | |
CASE MAY BE CITED AS: | DPP v STEVENS | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1541 | |
REASONS FOR SENTENCE
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Catchwords: Supply drug of dependence to a child x 2 (one charge is rolled up). Girls both 13 years old. One his daughter. The other girl a friend of daughter; sexual assault of a child under 16 x 2. 12-year-old girl in her own bed by accused who was visitor to the house. 43 years of age at time of sentence. Short prior criminal history. On adjourned undertaking at time of offending; Early plea - Worboyes v The Queen [2021] VSCA 169. Bipolar: Verdins limbs 1, 3 and 4
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms E. Fargher | Office of Public Prosecutions |
| For the Accused | Ms D. Caruso (at Plea) Mr D. Care (at Sentence) | James Dowsley & Associates |
HIS HONOUR:
1 Marcus Stevens, you have pleaded guilty to two charges of supplying drugs of dependence to a child, as well as two charges of sexual assault of a child under the age of 16.
2 The maximum penalties are correctly set out in the opening. The sexual assault of a child charges are standard sentence offences and the standard sentence is four years.
3 You are now 43 years of age. You have a very short prior criminal history. You were on an adjourned undertaking at the time of this offending.
Facts
4 Last Thursday (24 August) the prosecutor opened this case to me in accordance with a lengthy amended written summary dated 22 May 2023. There were a handful of other amendments made by the prosecutor before it was read aloud and that was to make it clear that Charge 2, relating to supply of drugs to your daughter, pertained to a single occasion.
5 Your counsel Ms Caruso told me it was an agreed factual statement and that document was marked as Exhibit A. There is no great point in my restating it all now, in these my reasons for sentence. I will sentence pursuant to that agreed document.
6 I will provide then just the briefest of summaries so that anyone who happens to access these reasons, will have a better understanding of the nature of the crimes that you have committed, and the reasons for my ultimate sentences in this case.
7 The summary sets out the circumstances in which you supplied drugs to children. One of those children was your 13-year-old daughter, Ruby. The other was one of her friends, a 13-year-old girl named Olive Atkins.
8 The summary sets out some of the detail of the circumstances in which Ruby came to live with, you as well as the chaotic lifestyle you were leading at the relevant time frame. Ruby came to live with you in Albanvale in February 2022, as she was not getting along well with her mother at that time. Due to her friendship with your daughter, Olive Atkins stayed with you on occasions and on one such occasion, you went out and obtained some brownies containing cannabis, which you gave to that 13-year-old friend of your daughter. You were in a position of trust in the sense that you had picked up the child from her home, gone out to a waterpark with her and your daughter and then all returned to your home. You were the adult present on the scene. Not just on the scene of course, but the adult choosing to supply the drug of dependence for the use by that child who was in your care. On another occasion in that time frame, Olive, agreed to meet up with your daughter Ruby at a nearby football field. Between periods three and four on that day, she went to that location. Well you had driven there. She got into your car and you, your daughter and Olive then drove to a golf course that was close to the school. Over the next couple of hours, you supplied cannabis to Olive and she smoked a number of bongs provided by you. You were also using the bong in the car. Her mother Felicity Hayes had been informed by the school that her daughter, had been present, but she had then been marked as absent from school and she was understandably trying to locate her daughter, with no success. That rolled up activity relating to those two instances of supplying cannabis to Olive is the subject of Charge 1 on the indictment.
9 You also provided cannabis to your own daughter. The summary discloses that this was at your home in Albanvale where she was living with you at that time. On the day in question, a friend named Azza came by. You and Azza were consuming drugs and you, the father, called Ruby, your daughter, over and told her to join in with you and your friend. She complied and she smoked a bong that you provided.
10 These were two young girls, one was your daughter, the other a young friend of your daughter. You were in a direct position of trust in relation to Ruby. You were her father. The other girl Olive, well there was plainly an obligation to act in her best interests, given that she was in your care at that time. This was serious enough offending.
11 The other offending to which you have pleaded guilty was of course far more serious.
12 The summary discloses the strange circumstances in which you were living in March and April of last year. You had caught up with an old school friend,
Mr Justin Brown. He was renting a house down in Clifton Springs and you and your daughter joined him at that rental. You were then co-renting essentially. You had one room, your daughter Ruby another and Mr Brown another.
13 A young girl named Jill Dawson[1] was another friend of your daughter Ruby. Her date of birth is [redacted] 2009. She was 12 years of age at the time of the events I will soon discuss. Jill came to stay at the house at Clifton Springs in the period between 29 March and 10 April. It was meant to be only for a few days, but that period blew out somewhat.
[1] A pseudonym
14 She was asleep in the loungeroom on one occasion. You were the responsible adult and in the presence of your daughter, who was sitting on the couch, inexplicably you walked over, pulled your pants down and put your penis on the face of the sleeping 12-year-old girl. As I say, this was done in the presence of your own daughter and this conduct is the subject of Charge 3 on the indictment.
15 There came a time where Mr Brown had no choice but to call time on your remaining in the house. You were evicted on 10 April and that was owing to the erratic and shambolic nature of your occupancy. You were defecating on the floors and the kitten that was brought to the property was doing likewise.
Mr Brown was left to clean up this mess. He also found you smoking ice in the house. There was also the very strange writing on your car.
16 He grew tired of this nonsense and he put your belongings out of the house. This was on 10 April. You, your daughter and the 12-year-old Jill then drove in your car up to the Chadstone shopping Centre, where you came to the attention of the security staff. Jill was quite distressed by your behaviour and she called her mother Ms Reese[2] to collect her. Her mother arrived and she observed your erratic behaviour. She went home with her daughter and then cooked dinner for her husband. You later called her and asked for assistance and she provided it. She drove from her home back out to Chadstone, and she did so as she was concerned, especially for your young daughter who was in your company. When she arrived, you prevailed upon her to pay for your dinner, as you said you had lost your bank card. You then asked her to drive you to a friend’s place over in Seaford. Well again, she was good enough to drive you and your daughter out to that property in Seaford. The lights were not on at that house and you asked her if you could stay that night at her house. So each step of the way, you were pressing her to provide a favour and each step of the way, she complied. She agreed to let you stay.
[2] A pseudonym
17 On the drive home, she saw you were acting in a manic state. Her statement goes into more detail as to your erratic state. She gave you some Valium as you did not wish to go to hospital. When you got to her home, her daughter Jill was by that point already asleep in her own bedroom. You were not permitted to sleep in the house. You had, however, been inside this house before and you knew where her daughter slept. Your daughter Ruby was permitted to sleep inside and so she went to her friends’ room and went to sleep there in the bed. You, however, were to sleep in the VW Van parked outside. Ms Reese gave you a blanket. You were permitted to use the toilet inside, but that is as far as it went.
18 Well, you ignored the restrictions that had been placed on you. You entered the house, you went to the young girl’s room, you entered that room and then you entered her bed. You were positioned between your daughter and Jill. Jill had been asleep, but she became aware of your presence in the bed. You put your right hand inside her tracksuit pants and put your fingers onto her vagina. This was skin on skin contact. She moved to try to stop this and you removed your fingers from her pants. You then pushed your erect penis up against her bottom. That is just part of the context to describe how the incident came to an end. It is not part of Charge 4. She elbowed you in the face in response and got up swiftly. She was distressed and she went to the bathroom where she set up a pillow and bedding in the bath itself. She was crying.
19 Her mother found her crying in that setting in the early hours. She learnt what had happened from her daughter and she then swiftly called the police who attended at the scene at 2.50 am and arrested you. You were found asleep in Jill’s bed with your own daughter next to you.
20 Jill was medically examined and items of clothing were seized. Medical specimens were obtained. Photographs were taken. DNA matching your DNA was located on the inside upper front of her tracksuit pants.
21 Your own daughter was spoken to, and it was she who disclosed some of the background, including the earlier offending down at Clifton Springs.
22 Your car was subsequently located out at Chadstone and it gives a sense of the strange state you were in. See photographs at pp 363-5 of the depositions.
23 You were not fit for interview.
24 You have been in custody since your arrest.
25 The agreed summary sets out the chronology of the matter before the court.
26 So much then for what really is only a brief summary of your offending. I will sentence pursuant to the more detailed agreed statement which was marked as Exhibit A on the plea. Also, of course, the photographs within the depositional material.
Victim impact material
27 There is a single victim impact statement in this case from Alison Reese[3], the mother of the 12-year-old victim, Jill, the subject of the sexual assaults. Now Ms Reese did not want the impact statement read aloud, so I am not going to place much of it in my reasons. I take it into account, I make that very clear. Indeed I have read it again since the day of the plea. It is completely unsurprisingly that she discloses that your sexual crimes against her daughter have had serious ongoing ramifications. How could it be otherwise? You sexually assaulted her daughter, a 12-year-old, as she lay in her own bed. She, the mother, had invited you to stay and she had done so by way of a favour to you. You and your daughter were in the most invidious position and she stepped in to help you. This is her reward. Damage wrought upon her child and upon her, for that matter, as the child's mother. The most stressful year of their lives, with all sorts of emotional responses to your offending felt by mother and daughter alike Ms Reese has got a sense of guilt, of course she should not, but she just does. The only person to blame is you. Her daughter has nightmares and she has obviously been deeply affected.
[3] A pseudonym
28 She has from time to time felt suicidal. She has been to a therapist. There have been a raft of counsellors and treaters and a sense of hypervigilance and worry. The bedroom really has just been tarnished. She has moved to a different room and the mattress has been discarded. This woman, the author of this document, trusted you to a degree. She put herself out for you. Her daughter trusted you. There is a sense of deep betrayal. The mother is, to some extent, afraid for her daughter’s future. The impacts here have been large and they are ongoing. That is accepted by your counsel. I take the impact into account in this case.
In mitigation
29 I turn to consider the thorough plea in mitigation conducted on your behalf by
Ms Caruso. She relied upon a written outline of submissions dated 10 August of 2023. She filed a bundle of materials that detailed your passage through the mental health care system over the years. These were just a few examples taken from a much larger collection plainly enough. She had filed a report from a consultant psychiatrist, Dr Leon Turnbull. I note that Dr Turnbull had access to the larger medical files from various hospitals, as well as the Justice Health files, so he was in a superior position to offer an opinion.
30 Ms Caruso placed before me detail as to your drug use history, as well as your family, educational, work, and mental health history. She made some submissions as to your efforts in custody and your future prospects of rehabilitation. She also made some submissions about the objective gravity of the offending and the relevant sentencing purposes.
31 In the sensibly conducted plea in mitigation on your behalf, she relied chiefly upon the following matters in mitigation:
· Your early guilty plea in the course of the global pandemic;
· The application of the 1st, 3rd and 4th limbs from the case of Verdins[4].
[4]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
32 She was not suggesting that your guilty plea was accompanied by any sizeable remorse.
33 She conceded the seriousness of the offending and that a prison term was warranted here. She was not submitting that your existing pre-sentence detention would be sufficient, but she did argue that it might be possible to structure a sentence, such that you could ultimately be released from prison onto a community corrections order. Failing that, a head sentence with a non-parole period with a decent gap between the two.
Prosecution
34 The prosecutor had prepared some detailed written sentencing submissions dated 22 August 2023, which were marked as Exhibit C. Ms Caruso made it clear to me that those submissions were mostly not in any way controversial and so I will not set them all out in these my reasons. Ms Caruso did take issue with the submission as to the level of seriousness of the offending and the Director’s submission as to the unavailability of a combination type order in this case. The written submissions contained submissions as to the nature and the gravity of the offending, including such things as the age of the girls’, your position of trust, the rolled-up nature of Charge 1 and as to the impact in relation to the conduct that targeted Jill, (Charges 3 and 4). The prosecution conceded the presence of various matters in mitigation here, including the early guilty plea in the currency of the global pandemic and the application, to some degree, of the three principles from case of Verdins. The question was the weight to be given to those principles in the circumstances, given that a component related to disinhibition brought about by illegal drug use, as well as your failure to adhere to treatment for your mental health conditions. The prosecution queried your level of insight and they took a more guarded view of your prospects of rehabilitation than your counsel did, though there really was not much between them on that score actually, when I reflect on the submissions made. The prosecutor reminded me of the application of the standard sentence scheme for Charges 3 and 4. The Director of Public Prosecutions of this State was calling for a head sentence with a non-parole period.
Background
35 I will turn only briefly to your background. It is set out in the submissions, in the report and also in some of the discharge summaries and I have no reason not to act on that what I have been told about you. I see no need to set it all out slavishly in my reasons.
36 You were born on 7 November 1979 and are 43 years of age now. You grew up in the Wallan area and attended primary school in that town. You have three brothers. You were educated to the end of Year 12 at Assumption College Kilmore. Your early life was pretty unremarkable. There was an instance of sexual abuse I was told about, when you were four. Once you left school, you went on to study at TAFE, but did not complete the course. You worked at a legal firm as an assistant and then I was told that you joined the army for about nine months. You were dishonourably discharged. You have since worked in a variety of jobs, including in real estate, as a fencer, doing construction work and also manual labour. Your longest job has been for about nine months and you were last employed in late 2021. You played football at school and you took up boxing when you were about 17 years of age.
37 You met Ruby’s mother in 2001. Ruby was four years of age when you and her mother split. I do accept that you were diagnosed with bipolar affective disorder in 2016. The written outline from paragraph 17, sets out some detail of admissions and treatment that you have received. There have been a variety of hospital stays, some of them compulsory. You have had involuntary treatment orders. That summary includes details from the Justice Health file, which spells out your manic state when received in prison after your arrest and then the course of resolution of those symptoms once you were appropriately medicated.
38 Drug use has obviously been highly problematic for many years. It seems plain that you were acting in some form of disinhibited and manic state at the time of the offending that I am dealing with. I do not doubt that there was disturbance at the time, but it is conceded by your counsel that a component of that relates to your deliberate misuse of illegal drugs and your decision to stop using your prescribed medication. Your ceasing your prescribed medication is in no way an aggravating feature, I make that very plain. It really is not that uncommon and that is often enough owing to a lack of insight possessed by people with the condition that you have been diagnosed with.
39 However, disinhibition brought about by use of illegal drugs is not in any way mitigatory and of course, that contribution cannot be disentangled from the impacts of any of your true mental health issues arising from your bipolar affective disorder.
40 You have been in custody since April 2022 and your manic symptoms have subsided. They did that reasonably swiftly. You have no present symptoms, which no doubt can be put down to taking your prescribed medication and not taking illegal drugs. That is a positive, though it must be said that is in the artificial and controlled setting of being held in custody and also knowing that you have this hearing waiting in the wings. You failed to do either of these things in your last and most recent outing in the community, where you used illegal drugs and you abstained from any treatment and prescribed medication, despite the terms of the adjourned undertaking imposed by a court only in January 2022.
41 You have a very brief criminal history, comprising only a handful of appearances. You were on a 12-month adjourned undertaking for criminal damage, with the requirement that you continue to receive psychiatric treatment in the period of the adjournment, which ran from January 2022. There are appearances for burglary for which you were admitted to community corrections orders. Also an old Queensland appearance from 2003, relating to drugs or at least drug use. There was a subsequent appearance in January of this year that I was told about for an assault, occurring on 9 April 2022 down at Geelong. So that assault occurred in the same time frame. You were fined $600 when you appeared in court in January of this year.
42 This is your first time in custody.
43 You do not fall to be sentenced a second time for any of these past matters that I have mentioned. You received those past sentences, and have served them. Those matters do not aggravate the matters that I am dealing with. Nor are they matters of any great importance in my task, though it is a little bit concerning that you would desist from taking your prescribed medication, in the face of the promise you had made to a court and then offend in the way that you have.
Guilty plea
44 I turn to the matters that have been raised on your behalf in the course of the plea. Firstly, to your guilty plea. You have taken responsibility for your crimes by pleading guilty. I accept Ms Caruso’s oral submission to me that it is a plea at what should be treated as a very early stage, given that there were more serious charges which ultimately did not proceed. The fact that you were committed to this court and pleaded not guilty does not impact upon that characterisation of it being a very early plea. There were resolution discussions and it settled swiftly and as I say, some more serious charges did not proceed. So I accept the submission made that I should treat this as a very early plea.
45 As a result of your plea, the time, the cost and the effort of a hearing in the Magistrates' Court, or a trial up in this court has been avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience. No doubt it would have been a very stressful experience for a variety of witnesses, including a number of child witnesses in this case. One of those your own daughter. One was Olive. One was Jill. Well, they have all been spared that experience by your stance in pleading guilty and that must be adequately rewarded.
46 You have facilitated the course of justice in these various ways and you must be rewarded for doing so. That is the law.
47 Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes v The Queen.[5] A large backlog of cases has arisen in the course of the global pandemic and that is so despite the fact that we have now sailed out of the pandemic itself. The backlog remains to a degree and your case was never part of that backlog. It settled very swiftly. I take these various matters into account in mitigation.
Remorse
[5]Worboyes v The Queen [2021] VSCA 169
48 Ms Caruso did not argue that there was any remorse here and she was no doubt impeded by your account provided to Dr Turnbull, where you either claimed no recollection or referred to an accidental slipping off of your towel, which had no connection to the act the subject of Charge 3. Or where you seemingly justified supplying drugs to the children, saying that they had been experimenting anyway. In any event, I can find no real remorse dwelling in the materials. I am prepared though to treat your plea as indicating some remorse and so I accept the submission in that respect.
Verdins
49 I turn then to discuss the matters raised, which were said to enliven the principles from the case of Verdins. I have people watching on, including relatives of the victims and hopefully someone has explained the nature of that jurisprudence. That decision relates to the impact upon the sentencing process of mental health condition, existing either at the time of the offending or at the time of sentence for that matter.
50 I am not going to set out slabs of the report of Dr Turnbull or the full chronology of your treatment over the years. It is beyond dispute that you were not in optimum mental health at the time of this offending. You were behaving in a manic fashion. Ms Reese describes your disturbed state on the 10 April. She gave you some Valium. You really were not making a lot of sense. Plainly upon receipt into police custody, you were not tracking too well either. Nor in the reception phase at prison. Your symptoms resolved and that was no doubt owing to the taking of your prescribed medication and abstinence from illegal drug use. No one is suggesting you were in optimum mental health or exercising good judgement, but why was that so? What role did illegal drugs have in this state? What role did they have in disinhibiting you? It would seem that had some role based on Dr Turnbull’s opinion. Nor of course was it a wise thing for you to abstain from treatment as you had chosen to. No doubt all these things had a role to play in your erratic and manic presentation and it is nigh on impossible to apportion levels of contribution, as your counsel conceded. However, it is plain I am not just dealing with a drug induced psychosis or purely with the disinhibition which can be brought about by the use of illegal drugs. If that was all this was, there would be no, or very little mitigation to be had. Though there are some references in the discharge summary materials to doubts being expressed from time to time, as to the past diagnosis of bipolar affective disorder, Dr Turnbull has had, as I said earlier, the advantage of accessing the large collection of medical materials from multiple sources. His opinion is that you suffer and were suffering from that condition in the relevant time frame. I accept his opinion. Plainly, there is a realistic connection between that condition and the offending such as to enliven the principles from the case of Verdins. You were hardly exercising appropriate judgment, making calm and rational choices or thinking clearly. You were after all, the man driving that bizarrely marked up car and behaving erratically on the day of arrest such that Ms Reese gave you Valium and wanted you to sleep out in the VW. Some of this can no doubt be laid at the feet of your mental illness. It is likely that disinhibition brought about by self-induced drug intoxication also had an appreciable role to play as well, and that cannot be mitigatory. I am though prepared to accept that the three Verdins propositions referred to by your counsel are enlivened in this case. I accept your counsel’s submissions as to the need for some moderation of the weight to be given to general and specific deterrence, and some reduction in your moral culpability. There is no reliance placed on limbs 5 or 6 owing to your sizable improvement. Ms Caruso was explicit in that respect. So I do give some weight to limbs 1, 3 and 4 from that case of Verdins. It is always a matter of degree. General and specific deterrence are certainly not eliminated in this case. They are just sensibly moderated. There is some reduction in your moral culpability.
Rehabilitation
51 Let me turn then to your prospects of rehabilitation. You are a mature man committing undoubtedly serious offences. There is a very limited criminal history. There is, however, long-term problematic use of illegal drugs. That sort of thing casts a real shadow over your future prospects. You have a serious mental health condition. Medication compliance and abstinence from illegal drugs will be critical and there has been an issue in respect of each of these things over many years. You seemingly have little if any family support. That has not always been so, but as your counsel put it in the course of the plea, you have ‘burnt some bridges’ along the way. One can see from this case how trying your behaviour would be.
52 You have pretty minimal insight into the seriousness of these offences, saying what you said to Dr Turnbull, about your explanation for providing cannabis to your daughter and her young friend, Olive. That you would not hold them back from experimenting. Well that account provided to Dr Turnbull was in May of this year (2023). So after you had well and truly stabilised in custody. In fact, any symptoms of mania had subsided a year before that, yet you were still saying that sort of thing. You gave no real account for the sexual offending at all, other than referring to your past experience of manic episodes where you had an increased libido. You put that down to drug use and mania. You have only very limited remorse.
53 No doubt your time in custody already and the time that lies ahead will serve to deter you to a degree. You have been doing well and have very much stabilized and then improved in your mental health, to the point that you have no symptoms. There may have been some developing insight. I am not that encouraged though by the explanation you gave for giving children cannabis.
54 I am prepared though to accept your counsel’s submissions and to find that you have very realistic prospects of rehabilitation. As I said on the plea, if in the future you can abstain from using illegal drugs and accept treatment advice and prescribed medication for your condition, your prospects of rehabilitation would rise very significantly. If you cannot, they will slump very significantly.
COVID-19
55 Ms Caruso placed no reliance on any impact of COVID-19 upon your burden as a prisoner. She really made no submission to me on this score at all. No doubt that is because of the relaxation of the harsher restrictions that has taken place in the time you have been in custody. You have only been held since April of last year and by that point, the harsher restrictions which had been in play had been relaxed.
56 You probably have been exposed to some lockdowns on occasions, but it is not a matter of any great weight. Visits resumed in March of last year and that was before you arrived in prison. As to what lies ahead in the future on the pandemic front for prisoners, well that is of course impossible for me to know. There might be the odd quarantine, but it is impossible to know if there will be any ongoing significant impact and if there is, the authorities would be empowered to take it into account. I am not free to speculate about that.
57 I take into account the impact of the virus to this point in only a very limited way. It is not a matter of any weight in my task, which is no doubt why Ms Caruso did not bother to raise it.
The Offences
58 I have already summarised the offending. I am not going to repeat all that I have said. It is conceded that this was serious offending. Ms Caruso conceded that any sexual offending against a child was serious. She is right, it is. She concedes the significant impact in relation to Charges 3 and 4 relating to Jill. She placed reliance on the offending occurring in the setting of your worsening mental health and I have already mentioned the reduction in culpability that I have factored in. She conceded the aspect of breach of trust and the importance of general deterrence in this case. She made submissions as to the level of seriousness of the sexual assaults, raising the lack of planning and the brief nature of the interaction.
59 Pointing to the absence of features of aggravation is not the best way to judge the seriousness of this offending, where there are different aggravating features in existence, as there plainly are in this case.
60 Well these sorts of sexual offences are very often brief, if not very brief. They are very often not accompanied by any level of planning. The short answer to this style of submission when it is made is that I am not dealing with a more serious example of the offences. I am dealing with these ones. However, your victim, Jill, was totally vulnerable in relation to Charge 3. She was asleep. You were the adult and you were in an informal position of trust. Your victim was 12 and she was a fair distance away from her mother and under your roof. That was the setting of you placing your penis onto her face and doing so in the presence of your own daughter. Charge 4 is plainly more serious. You knew you were prohibited from entering the house, other than to use the toilet. Ms Reese had come to your aid at very short notice. She was good enough to provide a roof over your head. It was the roof of the house for your daughter and it was the roof of the van for you, as you well knew. Ms Reese did not want you in the house. In the early hours whilst those within slept, you went into the house, into the bedroom and into the girls’ bed and you then touched her vagina, skin on skin. She is 12 years of age. She was in her own bed, in her own house and the impact has been, as is conceded, very large.
61 The supply of drugs to the children was wrong on every level. What position were you in, in relation to Olive, to be supplying her drugs and conveying assent to that conduct. The assent conveyed by an adult engaging in that sort of approach. Saying to Dr Turnbull that you would not, as you put it, ‘hold them back’. It is just an abdication of the very role, a parent or person in a position of trust is actually meant to fulfil. You were an adult. They were not. They were children. Part of your role was to hold them back in that setting. To have regard to the age of your own daughter, the age of Olive. To their level of immaturity.
62 This was serious offending.
Standard Sentence Scheme
63 The standard sentence scheme applies only to Charge 3 and 4, the sexual assault charges that I am dealing with. The standard sentence for sexual assault of a child under the age of 16 is four years.
64 I must have regard to that standard sentence.
65 The effect of that scheme has been discussed in a number of cases, amongst them the cases of Brown[6] and Victorsen[7] and also Quah.[8]
[6]Brown v The Queen [2019] VSCA 286
[7]Victorsen v The Queen [2020] VSCA 248 (“Victorsen”)
[8]Quah v The Queen [2021] VSCA 164; 290 A Crim R 136 (“Quah”)
66 That standard sentence of four years is the sentence to an offence that taking into account, only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. That is to say, making that assessment without reference to purely personal matters, see s5A(3)(a).
67 Your counsel had made some submissions as to where these offences fell on the spectrum of offence seriousness viewed purely objectively. She was not, by the way in doing so, suggesting that either of those offences was minor, I want to make that very clear. Indeed, even as to the objective seriousness, she was not suggesting directly that they were actually low-level offences. Her written submission was that viewed objectively, Charge 3 was well below mid range and Charge 4 was below mid range.
68 Sexual assault of a child covers a multitude of different conduct. As I said in the plea, it can be constituted by touching someone lightly on the outside of the clothing. It could be a pat or a touch above the clothes to the bottom or the breasts or anywhere else on the body, but above the clothes. It can of course be constituted by more intimate touching. It can involve skin on skin contact, even to the most private areas, but it can never involve sexual penetration, for if it does, there is a different and more serious offence. Well these acts were skin on skin. One involving your actual penis touching the face of a 12 year old. The other involved your fingers and skin on skin touching on the vagina. That is just the touching. There is of course the setting that I have described. Charge 3 occurring when you were the adult within that home and committed upon a child who was in your care and a long way removed from her mother’s care. A child who was actually asleep. Charge 4, had the pretty the extraordinary setting of entering the house, in the way that I have described and then the bedroom and then the bed of a sleeping 12 year old.
69 Viewed objectively, for the reasons that I have provided, these were not by any stretch of the imagination low level examples of sexual assault. Viewed objectively, Charge 3 falls below mid-range in my view. Charge 4 falls above mid-range on a purely objective basis. I plain that these assessments are always difficult to make.
70 What is plain from the SentencingAct itself, and from those various decisions that I have mentioned that interpret these provisions, is that the standard sentence is only one of a number of matters that I am required to take into account. Where it does apply, as it does here, I must take it into account as one of the factors, but this scheme was never intended to interfere with the intuitive synthesis that lies at the heart of sentencing, nor to lead to any consideration of two-stage sentencing.
71 It does not have primacy over other factors which must be taken into account. It introduces an additional factor, in the form of this legislative guidepost.
72 It does not represent and it must not represent a starting point from which the sentence is to be fashioned or structured. I must not start at that point in relation to Charge 3 and 4 and then work my way either up or down from that standard sentence figure, making a series of adjustments in either direction along the way.
73 Nor does this scheme otherwise affect the matters that a court must take into account. It does not change the requirement for me to assess the seriousness of the offence or the means of assessing the seriousness of the offence before me. I have set out my approach in that regard in some level of detail.
74 The provisions do, however, quite deliberately impact upon the consideration of past sentencing practices for the crime covered by the scheme. When I come to consider current sentencing practices, as I must, or if I look at comparable cases, I must only have regard to sentences that have been imposed for the offence of sexual assault of a child when it was dealt with by a court as a standard sentence offence. Sentences imposed for crimes which predate that scheme, are not to be taken into account, though I can take into account statements of principle from cases which happen to predate the scheme.
75 The standard sentencing regime also has consequences for the setting of a non‑parole period and the ratio of the non-parole period to the head sentence. See s11A(4) of the Sentencing Act.
76 With that important qualification in regard to current sentencing practice for sexual assault of a child, I must pay regard to current sentencing practices. I will come back to discuss them shortly.
Purposes
77 I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. Well I must pay regard to your prospects of rehabilitation. Those prospects are very realistic, as I have pronounced.
78 I am required to punish you, but I must do that justly and proportionately. That is obviously an important purpose of sentencing.
79 I must also denounce your conduct. Again that is important. This was serious offending and it must be roundly denounced by the court. I do denounce it.
80 I must give some weight to specific deterrence. Specific deterrence relates to the need to deter you, the offender, from offending in the future. There is some moderation owing to my Verdins findings, but it is still has some importance in my task. I must deter you from ever offending in this way again. Plainly, it would be given more weight if you had a lengthy criminal history, with a lack of response to court orders in the past. Or even a less lengthy history, but with matters of a similar nature. But that is not the position that I find myself in.
81 There is the need also to adequately reflect general deterrence. General deterrence relates to the need to deter other offenders. It is an important consideration, notwithstanding the Verdins limb 3 reduction that I have allowed for. General deterrence is still important in this case and that much was conceded by your counsel. I am dealing with offending connected with children, sexual offences and the supply of drugs for use by a child. This court must send a clear message to others in the community who might be thinking of committing the sorts of crimes that you committed. There is a very clear need for a loud and unambiguous message to be sent to future likeminded offenders and that is in an endeavour to cause them to reflect on their conduct and not to proceed with it. Not to offend. There is some reduction, but it is still a quite powerful consideration here. It is far from eliminated by my Verdins findings.
82 Community protection is another purpose and it must be given some weight. As with specific deterrence though, it would obviously be given far more weight if you had lengthier or relevant criminal history, or if I had reached a pessimistic view as to your prospects of rehabilitation into the future. That just stands to reason. If there was a higher risk of reoffending, plainly, it would be given more weight. However, there can be some moderation arising from your lack of any relevant or lengthy criminal history and my view presently held, that you have very realistic prospects of rehabilitation into the future.
83 I am required to have regard to the maximum penalties. I also have to pay regard to current sentencing practices and the impact of your crimes.
84 Current sentencing practices are not a single controlling factor. It is just one matter that I have to have regard to.
85 There are no Sentencing Advisory Council snapshots for these offences.
86 I have looked at the online statistics for each offence and the new Sentencing Advisory Council website has a useful feature which permits me to look only at data relating to sentences imposed for a sexual assault of a child where the standard sentence scheme was operative. I have looked at that data.
87 I have looked at some instances of sentences for these offences on the Judicial College of Victoria sentencing site. Again, for sexual assault of a child, I must only look at sentences imposed for sexual assault of a child where the standard sentence scheme applied.
88 Statistics have inherent limitations. All the detail which would explain the reasons for a particular sentence are omitted from the data.
89 No amount of looking at other cases or the statistics, can ever provide the answer to my task. Sentencing is not a mathematical task. I am exercising a sentencing discretion in your case, having regard to the matters in mitigation and aggravation in your case.
90 One will never find an identical offence or offender and even if one did, there is no such thing as one correct sentence that must be imposed.
Totality
91 I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentence is commensurate with your overall criminality in this case. I have here various offences committed on different occasions. True it is, it was in a relatively confined period of your life, but I have four charges and five different occasions and that is because Charge 1, is a rolled-up charge relating as it does to two events, where you supplied drugs to Olive. So I have separate crimes on separate occasions with differing 'victims'. There must obviously be a level of cumulation and so much was readily conceded.
92 Prison is a disposition of last resort. It always is. Ms Caruso conceded that prison was warranted and as I said earlier, she was not suggesting that you had any expectation of being immediately released from prison. She was arguing in favour of your ultimate release from prison onto a community corrections order, so a combination type disposition and spelled out that I had a further 12 months of prison at my disposal to structure a sentence such as that. That a combination sentence structured in that fashion could achieve all the purposes of sentencing. Well if I thought it did, I would proceed in that fashion, but I do not believe it is open to me in this case. I do not believe such an outcome would achieve the purposes of sentencing in this case, especially adequately reflecting the principle of general deterrence.
93 I am going to impose individual sentences, I will make orders for a degree of cumulation and I will arrive at a head sentence in this fashion. Then it will be my obligation to fix a non-parole period. Whether you are released on parole is not something that I can consider. That will be exclusively in the hands of the Adult Parole Board.
Sentence
94 All right, I will have you stand up then now if you would please and I will pass sentence. I am sorry to have taken so long to get to this point.
Indictment
95 Charge 1 is the rolled-up charge of supplying drugs to a child for use, so this was to Olive Atkins on those two occasions. On that charge, you are convicted and sentenced to 10 months imprisonment.
96 On Charge 2, this is the specific charge of supplying drugs to your daughter for use, you are convicted and sentenced to six months' imprisonment.
97 On Charge 3, the sexual assault of a child, this is Jill, you are convicted and sentenced to two years three months imprisonment.
98 On Charge 4, this is the sexual assault of Jill, this is when she was in her own bed, I convict and sentence you to three years four months imprisonment. That will be the base sentence.
Cumulation
99 So the base sentence is the three years four months imposed on Charge 4.
100 I direct that:
· Four months of the sentence imposed on Charge 1; and
· Two months of the sentence imposed on Charge 2; and
· Eight months of the sentence imposed on Charge 3
is to be served cumulatively upon the base sentence and upon each other. These orders for cumulation produce 14 months cumulation.
Total effective sentence
101 Those orders for cumulation result then in a total effective sentence of 54 months or four and a half years imprisonment.
Non-parole period
102 Unless I am satisfied it is in the interests of justice not to do so, I must fix a non‑parole period of at least 60 per cent of the relevant term being the head sentence in this case. I do not believe it is in the interest of justice to do otherwise here. I fix a period of 33 months or two years and nine months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
103 You have already served 506 days of this sentence by way of the pre-sentence detention and that s18 declaration is entered into the records of the court.
Section 6AAA
104 I have taken into account your guilty plea, I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to six and a half years imprisonment. I would have fixed a non‑parole period of four years and nine months. Just have a seat then please.
Statement as to Standard sentence
105 I must also make a statement under the provisions of s5B(4) and (5) of the Sentencing Act. Section 5B(4) requires a court sentencing an offender for a standard sentence offence, as I am here, to state the reasons for imposing that sentence. Section 5B(5) of the Sentencing Act requires me to refer to the standard sentence for the offence of sexual assault of a child and explain how the sentence I have imposed on you relates to the standard sentence.
106 I am required to identify the facts, the matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence for these crimes.
107 I believe that my lengthy reasons to this point will explain why the sentences imposed in relation to the offences covered by the Standard Sentence Scheme, so Charge 3 and 4, are lower than the standard sentence specified. I mentioned already where I placed these offences on the scale of offence seriousness viewed purely objectively. My sentencing task is, however, plainly not limited just to an examination of the objective seriousness of the offence. There are many other matters that come into play, including the subjective matters in mitigation which have been raised before me. Of course they must be factored into my task.
108 By a process of what is described as instinctive or intuitive synthesis, I have arrived at what I regard as the appropriate individual sentence, taking into account all the matters I am required to take into account, including the existence of the Standard Sentence Scheme. It is, as I have said, just one of the factors that I must have regard to.
Sex Offender Registration
109 You have been sentenced by me in relation to what are described as two Class 2 offences under the Sex Offender Registration Act2004. It is agreed that this triggers an obligation for you to report under the Sex Offenders Registration Act 2004.
110 Upon your release from custody, you must comply with your reporting and other obligations under that Act for the 15 years following that date.
111
I have to advise you about the nature of your obligations under the
Sex Offenders Registration Actin the sense of providing a document to you. It involves me getting you to sign an acknowledgement of the fact that you have received those details of your obligations.
112 Mr Care, you have seen these forms before. It is a very lengthy document. All I am doing here really is providing to him a document to sign, acknowledging he has received those explanations of his responsibilities under that Act.
113 He will learn, when he reads it, that the Act imposes a number of conditions upon him. They are serious matters and include impediments to future employment in a number of areas and impediments to his future contact with children and the need to report any contact in a timely fashion. He is going to need to familiarise himself with those matters as any breach of the Act or his obligations under that Act is a very serious criminal offence, punishable often enough by a significant term of imprisonment.
114 Now you have seen these documents. No one could ever sit where he is sitting and read that document from start to finish and understand it. That is not what I am dealing with now. I am simply asking him to acknowledge by his signature, that he has received that notification under that Act and asking him to sign that document to that effect. Do you need to speak to him about that at all or not?
115 MR CARE: No, Your Honour.
116 HIS HONOUR: So he has heard me say all those things. So I will get him in a moment to sign that acknowledgement and have it witnessed by my associate and you are content for me to approach it in that way, not - you do not need to speak to him at all?
117 MR CARE: No, Your Honour.
118 HIS HONOUR: No, all right. well I will have that presented for his signature then please. Well that has now been signed by him as having been received. Let me just see if there is anything else I need to deal with? Anything else from your perspective Ms Fargher?
119 MS FARGHER: No, Your Honour.
120 HIS HONOUR: From your perspective Mr Currie?
121 MR CARE: No, Your Honour.
122 HIS HONOUR: Well that completes the matter. Will you go down and see him downstairs today or not?
123 MR CARE: Yes, Your Honour.
124 HIS HONOUR: Very well. Well your solicitor will be down there to see you in the cells shortly Mr Stevens. That completes the matter. He will come down and have a chat to you about what has occurred here today and your rights in relation to that sentence. So once I have got my reasons back from VGRS, I will revise them pretty swiftly as is my practice and then make it available to the parties. I will consider the extent to which I anonymise it. Obviously I will remove the names of the children from the document. I might need to go more broadly than that though, to avoid Ruby being identified, but once that has been done, it will be made available to the parties. That completes the matter then, so Mr Stevens can be removed please. Thank you. 10.30 tomorrow then please. Thank you.
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