Director of Public Prosecutions v Stevens

[2023] VCC 1251

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01397

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB STEVENS

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2023
DATE OF SENTENCE:	18 July 2023
CASE MAY BE CITED AS:	DPP v Stevens
MEDIUM NEUTRAL CITATION:	[2023] VCC 1251

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sexual penetration of a child under 12

Legislation Cited:           Crimes Act 1958 (Vic) s 49A(1); Sentencing Act 1991 (Vic) s 2G

Cases Cited:                   R v Verdins (2007) 16 VR 240

Sentence:  Imprisonment of two years and three months with a non-parole

period of one year and four months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Accused	Mr M. Reardon	James Dowsley & Associates

HER HONOUR:

1Jacob Stevens you have pleaded guilty to one charge of sexual penetration of a child under 12,[1] a rolled up charge encompassing two penetrative events.  The maximum penalty for this offence is 25 years’ imprisonment.  Your case also attracts the operation of the standard sentence scheme.  The standard sentence applicable in this case is 10 years’ imprisonment.

[1]Crimes Act 1958 (Vic) s 49A(1).

2Turning first to a procedural history of your case.  On 29 March 2023 a sentence indication hearing was conducted and I indicated the maximum total effective sentence that I would impose were you to plead guilty to the indictment, and you did plead guilty very soon after this indication was given.

3The ground rules hearing then listed for 4 April 2023 and the special hearing listed for the following day, at which two children aged seven and ten years’ old were to be cross-examined, were vacated as a result of your plea.

4Now to a summary of the facts giving rise to your offending.  On your plea, the prosecution tendered a summary of opening dated 10 July 2023, and that document is attached to and forms part of these reasons.

5I will set out just some of the facts in summary form here.  You became friends with the Riley[2] family through a shared interest in a 4-wheel driving club.  Driving and camping trips were part of the club's life as well as other social events.

[2]A pseudonym.

6The Rileys have two children, a son, Lucas,[3] who was six at the relevant time and a younger daughter.  At the time of your offending, you had recently turned 21.  It was common for you and for other members of the driving club to socialise and this sometimes took the form of gatherings at the Rileys’ home.

[3]A pseudonym.

7You would sometimes stay overnight; after drinking, you slept on the couch in the living room.  You were observed to get along well with and be liked by both the Riley children.  Lucas was observed by his mother to sometimes get hot at night and to take off his clothes, and she would find them in his bed or on his bedroom floor.

8When you stayed over, Lucas would sometimes go to find you, sleeping on the couch.  On a number of occasions you asked him to take off his top so you could lie down together.

9On 26 March 2022, a Saturday, there was a party at the house with others from the driving club.  Afterwards you slept in the loungeroom alone.  You were lying awake in the loungeroom, and sometime between 7:30 and 9:30 am the following morning, Lucas came to visit you. You asked him to take his
t-shirt off and shorts and he did so, leaving his underwear on.  He lay down on the couch with you. 

10It is not known whether Lucas’ underwear was removed, and if so, by whom in what follows.  You took hold of Lucas’ penis and rubbed it in an up and down motion.  You then put his penis in your mouth and used your tongue on his penis.  This gives rise to the first event making up the charge on the indictment – sexual penetration of a child under 12.

11You then took Lucas’ penis out of your mouth and again used your hand to touch his penis before putting his penis into your mouth a second time.  This is the second event giving rise to Charge 1 on the indictment. Lucas pulled away from you, and you told him not to tell anyone and that he should keep it a secret.

12Lucas’ sister came in at some point during the morning and saw you and Lucas on the couch together, he in his underwear.  The three of you watched YouTube together for a time. At around 9:00 am the children's parents awoke and saw you all watching TV together.  During that morning, in your presence and that of his father and other party guests that had stayed over, Lucas disclosed that you had kissed or touched his penis that morning.

13Lucas’ parents then had private conversations with him in which he disclosed the offending that you have now pleaded guilty to.  When Lucas’ father confronted you, you collapsed in the back garden at the house, an event that was captured on the household CCTV. You told Lucas’ father that you didn't know where Lucas had got the idea from. You were asked to leave and did so. 

14An investigation commenced.  Lucas made a video statement and underwent a forensic medical examination.  Later, the possible presence of human saliva was detected on each sample taken from the foreskin, shaft and base of his penis. DNA testing found you to be a 'significant contributor to DNA collected from the shaft and base of Lucas’ penis.'

15On 31 March 2022 you were arrested and answered questions in a police interview.  You answered with a mixture of admissions and some denials.  You admitted to some forms of touching Lucas’ penis though you denied any sexual intent.

16I note now that you have no prior nor any subsequent criminal history or outstanding charges. 

17I must consider the nature and gravity of your offending.  Properly, your counsel conceded your offending to be serious.  There are no trivial examples of a sexual offence against a child, but such offending can still encompass a broad range of behaviour.  Your offence was committed against a very little child of only six years of age.

18You exploited a friendship with Lucas and with his family.  You breached the trust placed in you after the family welcomed you into their home and into their  lives.  You offended against this child in the living room of his own home where he ought to have been entirely safe from any harm.

19I take into account also that you asked Lucas to keep his silence about what it was that you had done to him, which indicates both your knowledge that what you had done was wrong and that you were prepared to ask a six year old child to protect your interests by keeping a secret from his family.

20The charge is a rolled up charge encompassing two events, so I sentence you on the basis that the two events of oral penetration occurred very close in time and are properly considered as part of the same transaction.

21I accept that the transaction itself was not extended and was relatively fleeting in duration.  It was not suggested that you had engaged in any preparatory or grooming behaviour in relation to this child before you gave into your impulse on this occasion.

22Your offending was no doubt alarming and very confusing for Lucas, but it took place relatively briefly, and while transgressive, it was not of a kind that caused physical pain or enduring physical consequences, nor was it protracted. I reiterate that all events of child sexual abuse are deeply serious, but having regard to this particular instance, I find it falls slightly below the mid-range in this category of offending.

23Turning now to the victim impact statements in this case.  Three victim impact statements authored by Lucas and each of his parents were read at your plea hearing, and I listened carefully to them and also read them.

24What you did has profoundly disturbed this family's sense of safety and trust.  Both parents have suffered from a range of anxiety and misplaced self-blame.  Lucas expresses his experience consistently with his age; it is one of great confusion. The specific harm to him long term is difficult to know or to predict, but I will sentence you on the presumption that all sexual activity with children is harmful.

25Lucas and his family have now embarked upon recovering their ability to trust friends and family, which is a long and troubling process for them.  I take the effect of what your offending did to your victims into account on this sentence.

26I turn now to consider your personal circumstances.  As I have already said, you turned 21 two weeks before your offending and you are now 22.  You live with your parents and until recently worked full time as a carpenter.  Your father has a senior public service role and your mother is a hairdresser who runs her own business and teaches at the local TAFE.  You have an older sister who is 25 and works as a sales assistant.

27Your family has a good relationship with the paternal side of your extended family but is estranged from the maternal side for your relatives.  You were educated in the catholic school system in Geelong and completed year 11 before leaving school to commence your carpentry apprenticeship.  At school you struggled in subjects that did not have a practical aspect,  and at one stage you were assessed for whether you were suffering from a learning disorder, however no diagnosis was made.

28It was not until you were able to choose elective subjects that had a practical component, carpentry and mechanics in particular, that you started to thrive in your education.  Since completing your apprenticeship, you worked full time for a company doing residential carpentry work.  That employment only ended at your instigation when you were unable to manage your Court and your work commitments simultaneously. Since you were arraigned, you have been unemployed.

29You experienced bullying throughout your primary school years and again later in the workplace.  You have struggled to fit in socially and were isolated during your education.  You have a very limited history of intimate relationships.  Prior to your offending, your social life revolved around your membership of the
4-wheel drive club and being part of a baseball team.  Both activities then ceased and you have been reclusive since you were charged with this offence.

30You have drunk alcohol to excess on occasion although it is not suggested that you have a serious problem with alcohol, and you do not abuse other substances.

31Turning now to matters in mitigation of your sentence.  You pleaded guilty after a sentencing indication hearing.  Your plea of guilty in this case I consider to be extremely valuable.  It was entered in the days before two child witnesses, Lucas and his sister, were scheduled to be cross-examined.  Your plea was also entered in the full knowledge that it would end in your immediate incarceration, and it is your submission to this process that has spared two small children being questioned by lawyers in Court, which I consider to be very significant.

32Your plea is not the earliest of pleas, but in the circumstances, I regard it to be extraordinarily valuable and it will be rewarded and demonstrably so, in the hope that anybody else facing similar circumstances might consider such a course.

33Moreover, the very slow process of reducing the backlog of trials in Victoria caused by the pandemic continues today and your case is one more out of that long list of cases.  You will be additionally and palpably rewarded for your plea in units of time.  I make it clear that, but for this feature, your sentence would have been significantly longer.

34I find that there is an element of remorse that inheres in your plea and this is consistent with statements you have made to Dr Matthew Barth, the author of a psychological report tendered on your plea.  You have acknowledged the ongoing effect of what you did on Lucas.  You have acknowledged your destruction of the trusted relationship that you once enjoyed with Lucas’ family, and you have expressed your guilt in the informal sense, by describing the emotional rather than the simply legal content of the term.

35Turning now to your health.  You suffer from asthma and from a condition called ‘supraventricular tachycardia’, which causes you to experience episodes of extreme heart rate which occur without warning and which have caused your hospitalisation on occasion.  Episodes have interrupted your work; they are sporadic but occur at a rate of approximately once per week.

36I have had regard to the medical report of your cardiologist Dr Calvin Fang who describes your condition being managed by the  'pill in the pocket strategy', which I understand to mean that you carry two kinds of prescription medication with you at all times, one to take immediately on the onset of symptoms and one to take within 30 minutes of the first. 

37Your condition is not life threatening if this medication is readily available.  It is worrying for you that you do not know how your 'pill in the pocket' treatment strategy will be managed in custody where medication is strictly controlled.  I take your condition, and the anxiety about its treatment in custody, into account as it increases the burden of your imprisonment. 

38Turning now to submissions in relation to your mental health.  On your plea, a psychological report authored by Dr Matthew Barth was tendered and I take its contents into account in a general way when arriving at your sentence.  The report, and the report of the treating psychologist you have seen since your apprehension for this offending, were useful in learning what is so far understood by you and those who support you about how you arrived at the moment of your commission of this offence. 

39It is a complex picture and an incomplete one as the work that you have undertaken so far by way of treatment has been extremely persistent but also slow and is in a state of incompleteness.  Any summary of this complex picture will be inadequate but I have taken into account the matters in both reports.  You have suffered from a range of social deficits, it seems, for a very long time, and have experienced this at school and in the workplace. Spending time with children was easier for you; it made you feel less inadequate and less anxious.

40Your private difficulties also manifested in regular pornography use and an inability to create appropriate intimate relationships.  In Dr Barth's opinion, you are currently manifesting significant emotional distress and he has diagnosed you as having an adjustment disorder with mixed anxiety and depressed mood.

41You have been under treatment for what is called 'offence supporting cognitions' which are said to be a manifestation of your current state of immaturity and confusion about sexual relationships.  In Dr Barth's opinion you currently pose a moderate risk of recidivism which in his opinion should ultimately be reduced with further participation in treatment and by the protective effects provided by the deterrence of sentencing.

42It is to your very great credit that for over a year now, in 26 self-funded sessions with Mr Burrows you have, in a clear and enduring way, undertaken the task of discovering what brought you to offend in this way.  Your persistence in this task is a particularly important aspect of your plea. 

43Predating your legal difficulties, but exacerbated by them, is your experience of intense anxiety which has caused you very significant distress, including bringing you on occasion to the point of suicidal ideation.  Prior to your offending you were experiencing a difficult workplace, including bullying there.

44Limbs 5 and 6 in the case of Verdins[4] were pleaded in mitigation of your sentence and I accept that your mental impairment identified by Dr Barth will cause your sentence to weigh more heavily upon you than it would on a person in normal health.  Specifically, Dr Barth writes,

'Mr Stevens' emotional distress, his dysfunctional interpersonal adjustments, his immaturity and his social deficits are likely to make him a relatively vulnerable prisoner.  He is likely to present a risk of further deterioration in his moods in the immediate aftermath of sentencing.  And will require close monitoring by prison and mental health staff.'

[4]R v Verdins (2007) 16 VR 240.

45To that extent, ‘Mr Stevens’, he writes,

'[I]s likely to find the process of living in the custodial environment to be particularly arduous when compared with other prisoners.'

46I also accept that there is some significant risk that your mental health will deteriorate during your imprisonment and I take that into account to a degree.  You are a young, somewhat vulnerable and socially underconfident person, and you are about to commence your first term of imprisonment.

47You are 22 years old and were only just 21 when you committed this offence.  Moreover, it is clear that you are relatively immature for your age and I accept that at the time of your offending, your youth contributed to the lack of insight, judgment and self-control that might ordinarily be expected of a mature adult.

48Courts have long recognised the need for redemption and rehabilitation for youthful offenders and the long term community interest in that rehabilitation.  The fact that you have had professional intervention at a very early point in your adulthood assists me to conclude that such rehabilitation can take place.

49Further, I am acutely aware of the potential for incarceration for someone in your category being particularly youthful.  I am aware of the potential for incarceration to impair rather than improve your prospects of successful rehabilitation, and that prison is likely to expose you to corrupting influences and defeat the purposes for which punishment is imposed, compounding the problems of social isolation that led to the offending in the first place.  Put more simply, I am very aware that prison both must flow from this offending and also carries with it a very great risk of being counterproductive.

50I consider your prospects for rehabilitation.  Your social isolation, your unevenly developed insight and your assessment as a medium risk of reoffending are noted.  More optimistically however, your enduring commitment to your treatment over more than a year is a very significant matter that I take into account in making conclusions about your rehabilitation.

51What brought you to offend in the way that you did did not happen overnight and undoing those problems will not be quick or easy either, but I accept that your attempt has been sincere and enduring.

52Importantly, you will be supported in your rehabilitation by your committed family.  Every parenthood must have its tests and your parents have passed this one with flying colours, demonstrated by their consistent appearance at Court for you at each and every hearing.  You clearly maintain the support of a loving family.  You have a skilled trade and have already gathered a history of full time work.  These exterior structures are important in helping me to reach a conclusion that with further treatment, your prospects for rehabilitation are good.

53Turning now to statutory considerations.  Your offence attracts the operation of the standard sentencing regime and that standard sentence is 10 years.  I take the standard sentence into account.  It is a relevant sentencing factor and a legislative guidepost to the sentence that I must impose.

54I have identified and considered what the relevant factors are in arriving at this sentence, including my assessment of the objective gravity of the offending, and taking into account all the considerations, I conclude that the sentence I impose on you properly falls below the standard sentence of 10 years’ imprisonment.

55I have taken into account sentencing practices for this offence but only for cases decided after the introduction of the standard sentencing regime.  The standard sentence is one more factor that I must consider but it is not determinative of your sentence, and my instinctive synthesis of all the matters going to sentence is not disrupted by the operation of the scheme.

56Further, I must note that the charge to which you pleaded guilty is a category one offence and engages the operation of s 2G of the Sentencing Act 1991.[5]  This means that a sentence of imprisonment must flow and no exceptions were argued in your case.

[5](Vic).

57Turning now to the other relevant sentencing principles, it is clear that this sentence must operate to deter others from committing similar offences.  Given your commitment to treatment over a long period and your developing insight, and the fact that a sentence of immediate imprisonment is to be served by you on the commission of your first ever offence,  I regard the role of specific deterrence in this sentence to be reduced. 

58I regard the protection of the community to be best served by your rehabilitation.  You must be punished for what you did through this sentence, and on behalf of the community the court denounces sexual abuse of children by adults, particularly those in relationships of trust to the child and to those who care for them.

59Turning now to the submissions on sentence.  Both parties submitted that the only available sentence to me in this case was one involving a head sentence with a non-parole period.  In this case I find the particular tension is that which is on the one hand, a sentence that is long enough to be just and to recognise the harm caused and to deter others, but on the other hand, one that does not compound the difficulties that you already manifest.

60If you would stand up for me now Mr Stevens.

61Jacob Stevens, on Charge 1 sexual penetration of a child under 12, you are sentenced to a period of imprisonment of two years and three months, and I fix a minimum non-parole period of one year and four months.

62I indicate that, had you not pleaded guilty but been found guilty after conducting a trial, I would have imposed a period of imprisonment of six years with a
non-parole period of four and a half years. 

63Thank you Mr Stevens, you can sit.

64I also note that as a result of the sentence in this case, you are liable for the mandatory registration on the sex offenders register for a minimum of 15 years. 

65In a moment I am going to have the sex offender registration document given to your barrister Mr Stevens, and I am going to ask that your barrister give you some brief advice about it now and more extended advice about it later.

66Mr Reardon I'll provide the Sex Offenders Registration Act documentation to you, and if I could ask you to take that up to your client and briefly go through it with him.  Mr Stevens I am obliged to tell you that you need to understand and abide by the conditions of your registration because not doing that can cause you to be prosecuted for a further offence.  So you need to work with your lawyers to understand comprehensively what it is that you have to do and not do on that order.  All right?  Thank you.

67HER HONOUR:  Yes, Mr Petric are there any orders I've neglected?

68MR PETRIC:  No Your Honour.

69HER HONOUR:  All right.

70MR PETRIC:  Thank you.

71HER HONOUR:  Thank you counsel for your assistance with this case, we will adjourn until 10:30.

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