Director of Public Prosecutions v Stewart, Shayne
[2015] VCC 169
•18 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02090
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAYNE STEWART |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 February 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 169 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms D. Hogan | OPP |
| of Public Prosecutions | ||
| For the Accused | Ms H. Bate | James Dowsley and Associates |
HER HONOUR:
1 Shayne Stewart, you have pleaded guilty to five charges of sexual penetration of a child under 16, one of recklessly causing injury, and one of production of child pornography. All charges arise out of your relationship with a young woman who, for the purposes of reading this sentence, I will refer to as the victim. I want you to understand that that is not to depersonalise you but to make sure that your anonymity is preserved as it should be under the Judicial Proceedings Reports Act 1958.
2 The charges arose out of your relationship with the victim between October 2006 and February 2009. At the time the two of you met and at the start of the relationship, she was 14, and you were 17. By the time the relationship came to an end, she was 17 and you were 19 or 20. In October 2006 the victim was a year 9 student living with her mother and her grandparents, and she met you at the party of mutual friends. You by then had left school, had left school for some time, were living either with your mother or with friends. You had had some employment since you'd left school at about 14, but had developed by the time you had met the victim a habit of abuse of substances both prescription and illegal drugs and alcohol.
3 Within a very short time of your meeting, a sexual relationship developed between the two of you, and at least by October of 2006, you were aware that the victim was only 14 years of age. It may well be that you were told or believed at the start that she was older than that and that the first of the sexual encounters between the two of you occurred before you can be fixed with knowledge that she was 14. But certainly by October 2006 it is accepted that you were aware that she was only 14, and that you nonetheless continued to engage in sexual activity with her.
4 Charge one to which you've pleaded guilty is a charge of sexual penetration of a child under 16, and it is a representative charge. The actual encounter to which the charge refers is a charge of sexual penetration by penile vaginal penetration occurring at a party at a friend's house, and after the victim had been given a tablet which she later came to believe was Morphine based. It resulted in her feeling paralysed or unable to move or properly control her movements and her thinking. It is that incident that is actually the charge. But on five other occasions between 1 November 2006 and 7 September 2007 there were other acts of penile vaginal sexual penetration which are to be taken into account. On a number of those occasions there was also drug taking accompanied with it, sometimes drugs provided by you, sometimes drugs the two of you took together, but on a number of occasions it is clear that the victim was drug impaired.
5 Charge two is also a charge of sexual penetration of a child under 16, that is a single incident and it relates to a different type of act. Charge three is also a charge of sexual penetration of a child under 16, again a single incident, and again a different type of act. Each of charges two and three are connected with one of the occasions relied on as one of the extra events relied on in the representative charge, charge one, so there were in fact three different types of sexual penetration occurring in one encounter. Charge two represents a charge of sexual penetration by inserting an object into the vagina of the victim, and charge three represents a charge of sexual penetration by you performing oral sex on her.
6 Charge four is again a single act of sexual penetration of a child under 16 on an occasion other than any of the occasions referred to in charge one, two or three. On this occasion you gave the complainant an Ecstasy tablet which she took. She was also impaired by vodka and marijuana. She was exposed to pornography. Again this charge is a charge of sexual penetration by the insertion of an object into her vagina.
7 Charge five is again a separate act of sexual penetration and a different type of activity. On this occasion the penetration is of a particularly brutal sort. You penetrated the victim's vagina with your fingers, starting with one finger, continuing to insert other fingers until you had penetrated her vagina with your whole fist. It was not only painful but it caused the victim to bleed.
8 Charge six is a charge of recklessly causing injury. The charge occurred in this context. As a result of the acts of sexual penetration in which you had engaged with the victim over this period she became pregnant, and in early September 2007 gave birth to a very premature baby. Because of the prematurity of the baby she was required to remain in care and receive treatment at the Royal Women's Hospital, and as is customary the parents are encouraged to stay at the hospital with the baby. This act of recklessly causing injury occurred in that context when the baby was still in hospital receiving treatment, and you had wanted to leave, from what I was told by your counsel, in order to obtain more drugs. The victim didn't want you to leave, followed you and remonstrated with you, and you turned and punched her in the face, causing a black eye. According to the prosecution summary, you told the victim to put make up on to hide the injury. It was clear that the injury became visible to nurses and others at the hospital.
9 Charge seven is a charge of make child pornography. And again like charge one, it is a representative charge. On a number of occasions, on nine occasions between 1 August 2008 and 31 December 2008 you filmed the victim with whilst she was on her own or with you engaging in or subjected to various acts of sexual penetration. Some of those were acts of sexual penetration with objects, others were acts of sexual penetration by your penis or tongue.
10 The particular act that is the subject of the charge is an act where the victim was filmed penetrating herself with an object and masturbating. The other occasions – the other eight separate occasions which were filmed – all relate as I said to other acts of sexual penetration performed by the victim on herself, and some of them where you were the person performing the act of penetration with a part of your body.
11 The relationship between you and the victim came to an end in early 2009. It was not until some time in 2012 that the victim made complaint to the police about the underage sexual activity in which you had engaged with her. And on 27 December 2012, you were arrested and interviewed by the police.
12 You made some admissions in the course of your interview, but denied some of the activity, and the matter proceeded initially by way of indication of contested committal, but then resolved at the commencement of a contested committal. The maximum penalty for the charges of sexual penetration of a child under 16 is 10 years imprisonment, and also 10 years imprisonment is the maximum penalty for the charge of production of child pornography. The maximum penalty for recklessly causing injury is five years imprisonment. These offences all occurred in the context of what was a continuing relationship which as I said began when the victim was 14 and you were 17 and came to an end when she was 17 and you 19 or 20.
13 The victim's account in her statement and in her victim impact statement which she read on the occasion of the plea hearing revealed that the relationship was one which was from her perspective unequal, controlling, and abusive. Your account by contrast in your interview with the police, and what you said to Dr Cidoni, the psychiatrist who assessed you for the purposes of the plea, and what was put to me by your counsel in the course of the plea, was that of a consensual relationship between equals, that is people who were equal in maturity if not in age, but a relationship that was marred by the victim's manipulative and uncontrolled behaviour, lies and drug taking.
14 In those accounts you have given in your interview, the account given to Dr Cidoni, and the account put on your behalf by your counsel, you sought to minimise the seriousness of the offending, and to deflect much of the blame and responsibility onto the complainant. You said that the complainant had lied to you initially about her age, but it was clear that from what you later said that you soon became aware that she was 14 and continued to have sexual relations with her. You said that your mother told you that it was all right so long as it was consensual. However you also told the police when you were interviewed in December 2012 that at some time before the victim turned 16, police sought to question you and her about whether you were engaging in sexual activity, but you refused to answer questions because the victim refused to speak to the police about it and you said she told you not to speak to them either. It is clear from that account that you gave the police that you were acknowledging at a time that the victim was under 16 that despite your assertion your mother told you it was alright, you knew it was wrong, even if consensual.
15 Apart from admitting in the interview with the police in December 2012 the acts of penile vaginal sexual penetration, you denied, and at times vehemently, allegations of other sexual acts to which you have now pleaded guilty. You were particularly vehement in your denial of the acts constituting charges two, three and five. When asked by the police about the circumstances in which the child was conceived, you said that having a child when she was 15 was the victim's idea and that you went along with it. That was indeed essentially what you told Dr Cidoni and what was put to me by your counsel as well. You denied supplying the victim with drugs save for one occasion when you admitted giving her a single ecstasy tablet.
16 So far as the making of child pornography was concerned you said that filming the sexual activity was by mutual consent, and predominantly initiated by the victim. You flatly denied the occurrence of the sexual acts that are captured on film and to which you have now by your pleas acknowledged occurred. You attributed your participation in the filming to judgement clouded by your abuse of drugs and alcohol.
17 In the interview in 2012 you described the victim at one stage or on a number of occasions as a nymphomaniac, in effect saying it was she who was putting the pressure on you to have sex. You admitted punching her in the face and causing the black eye whilst your premature baby was still hospitalised. You told the police that the victim was pursuing you, and trying to stop you leaving the hospital. You told your counsel you wanted to get away to get drugs.
18 You denied telling the victim to put make up on to cover the black eye that you had caused, saying it was her idea to do that. In the course of the interview it was put to you that the victim had in her statement said that you and your mother had forced her to hand over her Centrelink payments at the time that the two of you were living with her mother. In response to that you said, "This is ridiculous some of the stuff she said, she's lucky to have a mouth (indistinct), Mum won't be happy about all this crap."
19 As the Court Of Appeal made clear in the case of Clarkson,[1] consent by a child under 16 to sexual penetration is no mitigator, nor is consent by a person under 18 to the production of child pornography a mitigator. At [36] to [37] of the judgement in Clarkson the court said this:
[1]Clarkson; EJA [2011] VSCA 157 (‘Clarkson’).
[36] In our view, the provisions of the Act to which we have referred preclude the sentencing court from approaching consent in this way.
That is, that consent was a mitigating feature. The court continued:
The necessary implication of the provisions is that the presence of consent does not of itself make the offence of sexual penetration of a child under 16 (or of committing an indecent act in the presence of a child under 16) any the less serious. Of itself, the child’s “consent” is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone. (On the other hand, proven absence of consent will significantly increase both the gravity of the offence and the culpability of the offender. Proof that the offender knew or suspected that the child was not consenting would found a charge of rape.)
[37] To conclude otherwise, and to treat consent as mitigating, would defeat the objectives clearly set out in the Act. In order to advance the protection of children against the harms caused by premature sexual activity, the courts must enforce in the clearest terms the absolute nature of the prohibition. For the courts to endorse the notion that the child’s “consent” makes the sexual activity less blameworthy, or less grave, would undermine the very protection of children which the legislation seeks to secure. As the Western Australian Court of Appeal said in Riggall, even where a young person does appear to wish to engage in sexual activity, “there is a duty cast upon others to refrain from encouraging or acting upon those wishes. The more mature the other person, the greater the degree of self-control which should be demanded of them.
20 In my view, although the age difference was only two years and nine months, the prosecution's summary, the victim's account in her statement, and the content of her victim impact statement and your account in interview and as recounted by Dr Cidoni and as put on your instructions on the plea, all point to there being a significant power imbalance in the relationship.
21 In my view, the materials before me also indicate that the victim was a vulnerable child at the start of and for the duration of the relationship. Therefore, following again the guidance set out in Clarkson, at [40] to [42], I consider these to be relevant circumstances to the assessment of the gravity of the offending and of your moral culpability. Your attempts to minimise and shift blame only reinforce the need to reflect in the sentence the need to denounce and to deter.
22 I accept so far as the sexual offences are concerned Dr Cidoni's opinion that there is no evidence of paedophilia, and that specific deterrence from like offending is therefore not a significant factor in the sentencing balance. The charge of recklessly causing injury is in my view a serious one of its type. You punched the victim in the face because you lost your temper because you did not want to be berated for leaving the hospital where your premature baby was being cared for, and because you were hanging out for drugs. She was your partner and had just given birth to your child. There is simply no excuse for violence against intimate partners, and the sentence must again reflect the need to denounce and deter. Given the animosity that you expressed towards the victim in interview in late 2012, over three years since the relationship had finally come to an end, that threat that I have already recounted about her mouth, and your attempts to blame the victim and minimise your responsibility, I consider that specific deterrence must also play a role in sentencing you for this offence of recklessly cause injury.
23 Dealing then with the matters personal to you. Your upbringing was marred by the consequences of your mother's substance abuse, mental illness, and physical injuries sustained in a car accident. It would appear that she was treated badly by her partners, and that you were exposed to the violence to which she was subjected by her partners. Your schooling was disrupted as a result. By the age of 14 you had started abusing drugs and alcohol yourself, often in company with your mother. You had limited and short lived employment. You are now 25 and you have been in custody since September of last year.
24 After being charged with these offences you were bailed. In September of last year you were charged with assaulting your mother, with whom it appears you have had a volatile relationship over the years. You were remanded in custody and have remained in custody ever since then. You were committed to this court for a plea in late November of 2014, following the resolution of these charges at the commencement of what had been booked in as a contested committal. You did not apply for bail after committal, and your time since committal therefore stands to be counted as pre-sentence detention in respect of these charges. I am told that the charges concerning the assault on your mother which led to your original remand in September last year have also now been resolved, and a plea hearing is scheduled in the Magistrate's Court in respect of them later this month.
25 The time between your original remand in September last year when charged with the offences involving the assault on your mother and your committal in November of last year in respect of these charges therefore stands by statute to be taken into account in respect of the sentence relating to your mother. I am told that it is acknowledged that a custodial sentence is inevitable in respect of the pending charges concerning your mother, as amongst other things, they breach a suspended sentence you were already serving in respect of a previous assault on her.
26 You have also previously been dealt with for another assault on the victim. That occurred in the aftermath of the eventual breakup of your relationship with the victim, so that is when she was 17 and you were 20, and in respect of that, you were placed on a Community Based Order. Although the convictions for the past assault on the victim and your mother are not previous convictions for the purposes of sentencing you today, they, together with the animosity you displayed towards the victim in interview and the pending charges concerning your mother, reveal a troubling pattern of violence against the women in your life. It cannot be said that maturity has led you to develop a more respectful and non-violent attitude towards the women in your life. That is not in any way an aggravating factor in sentencing you here, but it indicates, so far as the recklessly cause injury charge is concerned, guarded prospects for your rehabilitation.
27 A number of reports were provided to me: one from Dr Cidoni who assessed you for this plea, and the pending one in respect of the charges concerning your mother, and two 2012 reports apparently prepared for earlier proceedings involving your mother or the victim or both. They were from a psychiatrist, Dr Manawadu, from North Park Private Hospital and from Dr Leung, a general practitioner. I was also provided with a report from Arbias prepared in March 2013 which again appears to relate to previous court proceedings or to have been prepared initially in respect of earlier court proceedings.
28 Although the earlier reports, that is, the psychiatrist's report and Dr Leung's report, refer to diagnoses of bipolar disorder and anxiety with panic disorder, Dr Cidoni doubts the correctness of those diagnoses. Having set out the history he obtained from you and the other information that he had and his assessment, Dr Cidoni expressed the following opinion and recommendations:
(1) Mr Stewart has strong genetic and environmental vulnerability to mental illness and substance use that has contributed to significant mental health disturbance.
(2) In my opinion, his periods of mood instability, anger and impulsivity are more related to his personality traits, being of the borderline type.
(3) The generally poor response to medication suggests that a significant amount of the pathology lies in his personality rather than major mental illness.
(4) I do not believe that there is sufficient evidence to justify a diagnosis of bipolar disorder.
(5) In relation to his anxiety, he has had some anxiety in the context of the assault, but there is insufficient evidence to diagnose post-traumatic stress disorder. [I interpolate here to note that the assault to which he refers is an assault that post-dates the ending of your relationship with the victim.]
(6) He has experienced major depressive disorder and has had symptoms of panic disorder.
(7) He has had some periods of paranoia, but these appear related to his assault and are not indicative of a psychotic disorder.
(8) Mr Stewart also has problems with poly substance abuse, in particular in the past alcohol, cannabis and amphetamines. It is highly likely that amphetamine intoxication contributed to his aggression at the time of the offending against his mother.
(9) In relation to his treatment, the mood stabiliser Valproate can sometimes be useful to control mood swings and impulsivity in patients with borderline traits, but the mainstay treatment is long-term psychological treatment, for example, dialectical behaviour therapy, and clearly he is not going to be able to get a significant amount of individual psychological treatment in custody.
29 Dr Cidoni expresses the view that you were suffering from what he describes as the conditions at the time of the offences. That is in [12] of his opinion. Apart from the diagnosis of poly substance abuse, which on the history and material before me commenced before the sexual offending for which I must sentence you commenced, all other symptoms and life events which Dr Cidoni recounted post-dated the sexual offending. I note that in relation to the poly substance abuse, Dr Cidoni does not relate that to the sexual offending or to the offence of recklessly cause injury which I have to deal with.
30 Dr Cidoni then says at [13] of his conclusions:
I believe the offending in relation to the aggression relates more to his personality and difficulty controlling his emotions exacerbated in the case of the offending against his mother by methamphetamine use which is likely to have contributed to disinhibition, impaired judgment and aggression. I do not find that he was impaired in his ability to think clearly or appreciate the wrongfulness of the conduct. I do not find reduced moral culpability for the offending.
31 At [14]:
The offending in relation to his sexual relationship displays naivety of the law, and if his account is believed, incorrect advice about the legality of the situation from his mother. I do not find evidence of paedophilia.
That, of course, is based on the account that you gave him and I have already expressed my views about that and the other material available to me.
32 You have been the victim of assault yourself in the time following these offences, and you have suffered what appears to be a seizure. The comprehensive Arbias assessment that I have been provided with has ruled out an acquired brain injury and the evidence is unclear as to whether the seizure was drug-related or not. There is nothing arising from those matters that were canvassed in the Arbias report and the potential attribution of cause which in my view is relevant to the sentencing matters that I must consider.
33 Although I have found that the power imbalance between you and the victim was a significant factor, it is clear that you are entitled to have your youth at the time of the offending and the absence of prior convictions taken into account. You have no convictions for any other sexual offences and as I have noted Dr Cidoni sees no evidence of paedophilia.
34 I consider, given the attitude to the victim that I have detailed, particularly the victim-blaming and the minimising descriptions, and the history of violence towards the victim and your mother, it is essential in my view that in order to encourage your rehabilitation, that you be assessed for suitability for participation in and be offered the opportunity to participate in programs addressing sexual and other violent offending against women.
35 I was told that before the relapse into drug use which preceded the assault on your mother and the laying of these most recent charges concerning her that you had managed for 12 months before that, and for the first time in your life, that is since you were in your mid-teens, to reduce or eliminate your drug and alcohol abuse and to hold down steady employment. You have been employed, I was told, for 12 months with a landscape gardener, work that you had found satisfying and rewarding and work that you hoped to return to.
36 Since your remand I have been told, and I accept, that you have used your time well. You have applied yourself to study. You have completed your VCAL year 9 English and maths and commenced year 10. You have undertaken as many of the courses available to remand prisoners as have been made available to you and I note all the certificates in respect of that. I also note that you have registered for participation in other courses, including courses relating to anger management but have not yet been admitted into any such courses.
37 You have returned clean screens on urine testing for drugs and you have maintained yourself on a methadone program to address your long-term morphine abuse. This shows consistently with that 12 month period before the relapse and the assault on your mother that there is an increasing maturity and an increasing capacity to take control of your behaviours and to demonstrate to yourself as well as to others that you are capable of living a better, happier, less violent and less drug and alcohol blighted life than you did for much of your teens and early 20s. These are promising signs of maturity and strength and they make your prospects for rehabilitation significantly better now than it would appear they would have been 18 months ago.
38 I take into account also your guilty pleas to these charges. Although not at the earliest opportunity, they were early and they were negotiated at the start of what would otherwise have been a contested committal at which the victim would have been cross-examined. As Ms Bate correctly said, the pleas and the sparing the victim the ordeal of giving evidence carry considerable weight in a case of this sort. Not only has the victim been spared the ordeal of reliving the events and of being cross-examined, and spared the affront of the denial of now admitted offences, her truthfulness in her account has now been vindicated. That, in addition to the saving of the time and cost of committal and trial, entitles you to a significant reduction in the sentence that otherwise would have been appropriate.
39 This has been your first time in custody, and it has, I accept, been a difficult time for you. You were assaulted apparently over a minor dispute with other prisoners, and as a result have been moved to protection. You are isolated. You have now apparently reconciled with your mother, but she is your only visitor, and her visits have been infrequent. You have, despite those difficulties, stabilised in your physical and mental health, and as I have noted applied yourself to studies.
40 You have also been given a position as a billet. That, I accept, is a recognition of clean urine screens and good behaviour in prison, a giving of responsibility to a prisoner and an acceptance of their determination to change their ways and to show some leadership to other prisoners in that regard. That is consistent with those signs of maturity and signs of capacity to build on the advances that you have started to make.
41 I am of the view, given the widespread nature of the offending, the circumstances of the power imbalance that I have described, the violence of the sexual offending in respect of Charge 5, the degrading nature of the activities, the subject of the pornography charge, and the circumstances of the assault involved in the charge of recklessly cause injury, that no sentence other than one of imprisonment is appropriate.
42 Totality clearly requires a total effective sentence which must reflect the overall offending, your youth and the circumstances that I am counting in your favour which I have identified. Your guilty plea, your disadvantaged background, your relative youth and those promising changes in your life in the 12 months before September last year and since your remand, operate to affect both the length of the head sentence and the gap between the head sentence and the non-parole period.
43 Your youth at the time of the offending also means that the serious sexual offender provisions of the Sentencing Act1991 do not apply to the sexual offences, and nor, save for the child pornography offence, do the reporting conditions under the Sex Offender Registration Act2004 apply. However, Charge 7, the child pornography charge, is one to which the Sex Offender Registration Act2004 applies because you were over 18 at the time, and you are required to be registered under that Act for a period of eight years.
44 I am required, Mr Stewart, to have you provided with a copy of those reporting conditions and I will ask Ms Bate to take them down to you now. There is provision for you to sign an acknowledgement that you have received them. You are not obliged to sign that. The court record will show in any event that you have received them, but you can, if you wish to, sign that acknowledgement and the form makes provision for that. Thank you, I note that you have signed the receipt acknowledging you have been provided with those conditions.
45 Mr Stewart, can you now please stand.
46 Shayne Stewart, on the seven charges to which you have pleaded guilty you are convicted.
47 On Charge 1, that is the charge of sexual penetration representative of five other occasions, you are sentenced to be imprisoned for a period of two years and I make that the base sentence.
48 On Charge 2, sexual penetration, occurring at the same time as one of the acts relied on as a representative act for Charge 1, and at the same time as the act, the subject of Charge 3, you are sentenced to be imprisoned for a period of nine months.
49 On Charge 3, the single act of sexual penetration occurring at the same or as part of the same sequence as one of the representative acts involved in Charge 1 and the act the subject of Charge 2, you are sentenced to be imprisoned for a period of nine months.
50 On Charge 4, the charge of sexual penetration by an object and accompanied by the provision of the ecstasy tablet, you are sentenced to be imprisoned for a period of nine months, and three months of that is to be served cumulatively upon the sentence on Charge 1 and the other cumulation orders I am about to pronounce.
51 On Charge 5, the charge of sexual penetration with your fist, you are sentenced to be imprisoned for a period of two years, and I direct that 12 months of that be served cumulatively upon the sentence in Charge 1 and the other cumulation orders.
52 On Charge 6 of recklessly cause injury, you are sentenced to be imprisoned for a period of nine months and I direct that the whole of that be served cumulatively upon the sentence on Charge 1 and the other cumulation orders.
53 On Charge 7 of make child pornography or produce child pornography, you are sentenced to be imprisoned for a period of two years, and I direct that six months of that be served cumulatively upon the sentence on Charge 1 and the other cumulation orders.
54 That makes a total effective sentence of four years and six months.
55 I fix a period of two years and three months as the time that you must serve before being eligible for parole.
56 I declare that you have spent 83 days in pre-sentence detention attributable to these offences and direct that that be counted and reckoned as part of the sentence already served.
57 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years and nine months and fixed a non-parole period of four years. As indicated I will make the disposal order in respect of the items identified in respect of Charge 7.
58 Do the sentences that I have pronounced reflect what I said I intended to do? Is the arithmetic correct?
59 MS HOGAN: Yes, I have checked that, Your Honour. I agree.
60 HER HONOUR: And are there any further orders that are required to be made?
61 MS HOGAN: No.
62 HER HONOUR: Thank you, could you remove Mr Stewart, please.
63 OFFENDER REMOVED
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