Director of Public Prosecutions v Stockton

[2017] VCC 1726

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.CR-17-01133

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANA STOCKTON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2017
DATE OF SENTENCE:	3 November 2017
CASE MAY BE CITED AS:	DPP v Stockton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1726

REASONS FOR SENTENCE

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Catchwords:  Sexual penetration of a child under 16.
  Sex Offender's Register for life.
  Community corrections order two years.   

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Roper
For the Accused	Mr B. Newton

HIS HONOUR:

1       Dana Stockton, last Friday you pleaded guilty before me to two charges contained in Indictment G13214721.  Charge 1 is a State offence of sexual penetration of a child under the age of 16 years and the maximum penalty for this offence is 10 years' imprisonment.  The second charge is a Commonwealth offence and it is a charge of using a carriage service to transmit an indecent communication to a person under the age of 16 years for which the maximum penalty is 7 years' imprisonment.

2       The circumstances of your offending are contained in a prosecution opening dated 16 October 2017.  That document was read in open court last Friday by the prosecutor Mr Roper, and your counsel Mr Newton accepted that the written opening was accurate and formed a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary therefore that I here set out in detail that which is contained in the prosecution opening already read in open court, but I refer to your offending only in a summary way.

3       Your offending in Charge 1 occurred in the last quarter of the year 2009.  At that time you were aged 19 and your victim was then aged 15.  There was therefore a significant difference in age between the two of you and you were one in a position of power.  The offending in Charge 2 occurred about 12 months later.  Again the victim was of a  young age, about 14 years.

4       During the course of the plea I indicated my concern about this matter especially as regards Charge 1, the charge of sexual penetration of a child under the age of 16 years.  The facts set out in the plea show in my mind just how serious this charge was.  What makes it serious I think is that it could not be said that this was offending that occurred in a consensual situation.  In my view the facts as disclosed in the Crown opening show that all of your approaches to your victim in Charge 1 were not wanted and she clearly showed to you or demonstrated to you, that your sexual approaches to her were not welcome. 

5       The offending in Charge 2 was immature and silly in my view.  It falls towards the lower end of the scale for offending of that kind. 

6       I admitted into evidence victim impact statements from the victim in Charge 1 and from her mother, and the victim read her statement in open court.  In passing sentence in this matter I have taken the victim impact statements fully into account.  If nothing else they demonstrate the impact which offending of this kind can have on a victim of an unwarranted and unwanted sexual approach.  The experience of the courts as in this case is that when such offending occurs, the victim can often suffer in a profound way for a long period of time.  The courts' experience is that often victims suffer from this kind of offending for the rest of their lives.  This case is no exception.

7       Ordinarily in a case such as this, I would give very serious thought to the imposition of a term of imprisonment.  However in your case there are a number of factors present which your counsel Mr Newton has persuaded me that I should take a course which results in the disposition that is one where you will not have to face gaol.  The prosecution represented by Mr Roper agreed that that was an appropriate course and that is an important factor in this case. 

8       There are a number of mitigating factors here.  Firstly, you have pleaded guilty to both charges and that is to your credit and the law provides that I must take that into account and I must reduce the sentence because of your pleas of guilty.  By your pleas of guilty you have saved the time and cost of possibly two trials but importantly you have saved the victims of the indignity of having to come to court and give evidence and be cross-examined by your counsel.  In my view your pleas of guilty to each of the charges are of immense value in this case and serve to persuade me to impose a non-custodial sentence.  I think it can fairly be said also that by your pleas of guilty, they indicate clear evidence of genuine remorse.  Another factor of a mitigating nature which is important in this case is that this offending occurred when you were for legal purposes a young offender and the experience of the court over many, many years, is that young offenders to silly things, especially immature young offenders like you.

9       In passing sentence I must have regard to the kind of sentence you could have expected had you faced the court closer to the time when these offences occurred.  Now approximately eight years have passed since the first offence and about seven years since the second.  When you were interviewed you did not accede to your involvement in these offences but it is to your credit I think, that you have pleaded guilty and done so at an early time.  This is a situation where in reality the prosecution would have had difficulty succeeding at trial were it the fact that you denied these offences.  All that is to your credit.

10      Another important factor here is your background.  You were born in Frankston on 11 December 1989 and you are now 27 years of age.  That is still relatively young.  From early childhood there is an abundance of documentation in two very large files presented to me by Mr Newton, your counsel, to demonstrate that you suffered from delayed development in your childhood.  You exhibited problematic and abnormal behaviours including marked and prolonged tantrum throwing and this gave rise to a number of investigations of you.  You had poor communication with peers, you had few friends, delayed speech and word formation and otherwise chronic anxiety and shyness.  You repeated Grade 1 on account of your special needs and delayed learning arising from autism, and you have been diagnosed as on the autism spectrum.  A psychological assessment of you in 1996 says, "His behaviour was at times more characteristic of a younger child." 

11      I received into evidence two reports from Ms Pamela Matthews, a well known forensic psychologist.  When I say well known, she often gives evidence in this court.  She said in her report amongst other things,

"In the writer's view, Mr Stockton's diagnosis of autism spectrum disorder played a significant role in his offence behaviour.  Further developmentally,

Mr Stockton at the time of his offending remained in the late stages of adolescence with all inherent in that stage of development regarding risk taking, exploratory behaviour, incomplete frontal development and emotional social discordance between impulse control and response.  In addition that this stage of development implies in the writer's view Mr Stockton's stage of development also played a contributory and exacerbating role in his committing the offences before the court."

12      Despite your delayed development and your difficulties with learning and social skills, you have done reasonably well for yourself and that is to your credit.  Your parents are to be commended for the efforts that they have taken to bring you up.  You completed VCE and you went on to complete studies and you have an Advanced Diploma of Screen and Media and you are currently living in a relationship and your partner was in court to support you.  You have a very good work record and all that is to your credit. 

13      In my view having regard to the evidence that has been put before me, as I said and earlier indicated, sending you to prison would not be a fair or just outcome from this proceeding.  I received into evidence a number of character references, all of which speak highly of you.  For all of these reasons I am of the view that the submissions advanced on your behalf should be acceded to.  The most appropriate disposition here is for me to convict you on each charge and to make a Community Corrections Order which I will do.  I had you assessed last Friday for suitability for a Community Corrections Order.  The assessment has come back positive and the court has been advised that you are suitable for a Community Corrections Order and you have been assessed as being at low risk of re-offending.

14      The Community Corrections Order will be for a period of two years and there are a number of conditions.  You are to undergo supervision by a Community Corrections officer.  You are to undergo programs and treatment for rehabilitation and to address offending behaviour.  In particular you will have to undergo the sex offenders program.  Further I propose to and I will impose a condition for judicial monitoring which basically means Mr Stockton, that I will be keeping my eye on you for the next two years.  You will have to come back to the court every six months at which stage I will receive a report in relation to you to ensure that you are complying with the conditions of the Community Corrections Order. 

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HIS HONOUR:  As I understand it the Community Corrections Order was explained to you was it?   You are nodding, you need to say something so that it is recorded.

OFFENDER:  Sorry, yes.

HIS HONOUR:  Now you understand do you that if you commit any offence punishable by a term of imprisonment during the period of two years, you will be brought back before me and re-sentenced.  Do you understand that?  Are you sure?  You are not saying yes, you are nodding but do you understand that?

OFFENDER:  Yes I understand.

HIS HONOUR: Yes. One of the things that you need to be mindful of is and no doubt Ms Parnell who appears for you today will explain to you, that because you have been convicted of the first charge, which is regarding for the purposes of the law and the law, by that I mean the Sex Offenders Registration Act, Charge 1 is what is called a Class 1 offence. Charge 2 is a Class 2 offence for the purposes of that Act. Because you have been convicted of both of those offences by operation of law you will be a registered sex offender under that Act for life. Do you understand that?

OFFENDER:  Yes.

HIS HONOUR:  Now what you need to understand very clearly is that there are very onerous legal responsibilities imposed upon you by that Act.  You have to report to the police and the police will want to know for example if you have contact with any children, they will want to know where you live, they will want to know if you have a mobile phone or a computer.  Do you understand?  And you will have to tell the police all about that.

OFFENDER:  Okay.

HIS HONOUR:  Why I'm going to so much trouble about this is that if you don't comply with that Act in any way, you can be charged with an offence and that is an offence punishable by a term of imprisonment.  And if you commit any offence by not complying with that Act in the next two years, that can trigger a breach of the Community Corrections Order and you will be brought back before me.  Do you understand?

OFFENDER:  I understand.

HIS HONOUR:  Very well.  Are there any questions arising out of that?

MS NEWTON:  No Your Honour.

MR ROPER:  No Your Honour.

HIS HONOUR: Just come out of the dock if you would please Mr Stockton. I will deal with the forensic sample order in a moment. Bear with me for a moment. Now Mr Stockton, as I say because you have committed these offences you are a registrable sex offender and you are a registrable sex offender for life. So I cannot emphasise enough how important it is that you comply with all of the provisions of the Sex Offenders Registration Act and
Ms Parnell will explain that to you.

The other matter is this that the prosecution seeks the making of what is called a forensic sample order and Mr Newton opposed the making of the order in this case saying that it was unnecessary.  I do not accept that submission.  In my view it is necessary to protect the public.  By saying that I am not suggesting that you are at risk of re-offending, you I think have good prospects for rehabilitation and you have been a low risk.  But I do not want to take any risk.  These are serious matters and in my view the granting of an order for a forensic sample is in the public interest.  What that means is that you may be approached by a police officer to take a forensic sample from your body which is really a swab from the inside of your mouth.  If you resist a police officer may use reasonable force to take that sample.  Do you understand that?  So you may be contacted in order to provide that sample.  And I have signed that order.  Are there any other matters?

MR ROPER:  No Your Honour.

MS NEWTON:  No Your Honour.

HIS HONOUR:  Ms Parnell.  Very well thank you.  Very well, on the rising of the court you are free to leave.

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