Director of Public Prosecutions v Stone
[2019] VCC 450
•5 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01809
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE ANTHONY STONE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2019 | |
DATE OF SENTENCE: | 5 April 2019 | |
CASE MAY BE CITED AS: | DPP v Stone | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 450 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Sentencing Act1991; Sex Offenders Registration Act 2004.
Cases Cited:R v Khem [2008] VSCA 136; R v Renzella [1997] 2 VR 88; R v Verdins & Ors (2007) 169 A Crim R 581 OR (2007) 16 VR 269; DPP v Toomey [2006] VSCA 90; DPP v DJK [2003] VSCA 109; RH McL v R (2000) 174 ALR 1; DPP v Hopson (a pseudonym) [2016] VSCA 303; Matheas v the Queen [2017] VSCA 330; Gordon v The Queen [2013] VSCA 343; DPP v Bales [2015] VSCA 261; Zhao v the Queen [2018] VSCA 267; Smith v The Queen [2018] 258; DPP v Dalgleish (a pseudonym) [2016] VSCA 148 and [2017] HCA 41; Roosmalen v R (1989) 43 A Crim R 358; Clarkson v The Queen [2011] VSCA 157.
Sentence: Total effective sentence of six years', three months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Fisher | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr E Barbara | Criminal Lawyers Victoria |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Luke Stone, you have pleaded guilty to two charges of committing an indecent act with a child under the age of 16, four charges of sexual penetration of a child under 16, and one charge of supplying a drug of dependence to a child.
2 These crimes arise out of events which occurred between 23 June 2016 and 20 July 2016 involving complainant, Martha Giles[1] (Charges 1, 2, 3, 5, 6, and 7) and Martha Giles and Gina Buchanan[2] (Charge 4).
[1]‘Martha Giles’ is a pseudonym.
[2]‘Gina Buchanan’ is a pseudonym.
3 The maximum penalties applicable to these offences are: indecent act with a child under 16, ten years' imprisonment; sexual penetration of a child under 16, ten years' imprisonment; supply a drug of dependence to a child, 1000 penalty units or 15 years' imprisonment, or both.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.
5 It is sufficient for present purposes to simply say that the facts in this case are most serious and disturbing.
6 I turn to a summary of your offending.
7 At the relevant time, you were living with your eight year old son, Bryan Shields[3], your de facto partner, Tamara Dickson[4]; and 14-year-old foster child, Brianna Sims[5].
[3]‘Bryan Shields’ is a pseudonym.
[4]‘Tamara Dickson’ is a pseudonym.
[5]‘Brianna Sims’ is a pseudonym.
8 The victim of your offending, Martha Giles, was 15 at the relevant time and living at a different address with her mother, Elaine Vaughn[6]. Martha Giles was friendly with your child, Brianna Sims.
[6]‘Elaine Vaughn’ is a pseudonym.
9 So I turn to the background to your offending.
10 A friend of Martha Giles and Brianna Sims is Rose Morrison[7]. She was 13 years of age at the relevant time.
[7]‘Rose Morrison’ is a pseudonym.
11 On 20 July 2016, Rose Morrison arrived at her home and told her foster mother, Tanya Daniels[8], that Martha Giles had been having sex with a man, you, and that you lived down the road.
[8]‘Tanya Daniels’ is a pseudonym.
12 Tanya Daniels took Rose Morrison directly to the Police Station and told police what had occurred.
13 Police commenced an investigation and spoke to Rose Morrison, Martha Giles and Gina Buchanan. Gina Buchanan was 16 years of age at the time.
14 On 21 July, Rose Morrison disclosed the following to police:
(a) that on 20 July 2016, you drove to a secondary college and picked up your son, Bryan Shields, along with Rose Morrison, Martha Giles, Gina Buchanan and another girl, Mackenzie Cole[9];
[9]‘Mackenzie Cole’ is a pseudonym.
(b) you dropped Mackenzie Cole off at her home before driving the others to Martha Giles' house. You offered to get some "Speed" for Rose Morrison and the other girls;
(c) at approximately 4.30 pm, Rose Morrison left and walked to her aunt's home nearby.
15 On 21 July 2016, Martha Giles took part in a VARE interview with police and disclosed that, by 21 July 2016, she had known you for about two and a half months and had been to your house a few times to see her friend, Brianna Sims.
16 During the school holidays, between 23 June 2016 and 11 July 2016, Martha Giles went to your home about five times to "smoke bongs". The first time she was there to "smoke a bong", she was with Brianna Sims, Rose Morrison and another friend.
17 Whilst she was there, you showed Martha Giles video clips of you having sex with various women and Martha Giles recognised you in the video clips from a distinctive mark on your stomach.
18 You then sent Facebook messages to Martha Giles saying, "I'm horny", or, "my dick is hard".
19 You also asked Martha Giles to send you nude photographs of herself, and you sent her pictures of your penis.
20 Another time during those same school holidays, Martha Giles was at your house. You were in the kitchen. You walked up behind Martha Giles, grabbed her hand and put it down the front of your pants onto your penis (Charge 1).
21 You then reached down and rubbed Martha Giles' vagina over the top of her clothing. While rubbing her vagina, her hand was on your penis.
22 Bryan Shields walked into the kitchen and you stopped what you were doing. Martha Giles walked away to check her mobile phone, which was being charged on the kitchen bench. Martha Giles was leaning over the counter, resting on the bench, using her phone. You came up behind her, kissed her neck, pulled her shorts to the side and inserted your fingers into her vagina (Charge 2).
23 You then inserted your penis into Martha Giles' anus, which hurt her. You stopped when Bryan Shields came back into the kitchen (Charge 3).
24 Mr Fisher clarified the prosecution opening referable to Charge 3. The prosecution case was that your intention was to sexually penetrate Martha Giles, not specifically her anus.
25 Mr Fisher submitted in relation to the offending of 20 July 2016, a condom was used by you; however, in relation to Charge 3, referable to offending between 23 June and 11 July 2016, you did not use a condom, such being an aggravating feature of your offending (see R v Khem[10]). I note Charge 3 relates to anal penetration and pregnancy, of course, is not in issue; however, failure to wear a condom also has relevance to potential disease.
[10][2008] VSCA 136
26 During the course of that day you provided some "Ice" (methylamphetamine), which you shared with Martha Giles. (This is referrable in part or to part of Charge 4, supplying a drug of dependence, methylamphetamine to minors).
27 So I then turn to your offending on 20 July 2016. On that date you picked up Martha Giles, Gina Buchanan, Rose Morrison and Mackenzie Cole from secondary college. Bryan Shields was in the front passenger seat. You dropped Mackenzie Cole off at her house then drove the other girls to Martha Giles' home.
28 During the drive, Martha Giles asked you to get her some Ice. You dropped Martha Giles, Gina Buchanan and Rose Morrison off at Martha Giles' home and drove away.
29 After leaving, you and Martha Giles exchanged messages through Facebook and arranged to get "some stuff". At about that time, Rose Morrison left and made her own way home.
30 When you returned to Martha Giles' home, you had Ice with you and shared that with Martha Giles and Gina Buchanan (again, part of Charge 4, referrable to Martha Giles and Gina Buchanan). That is, Charge 4 represented two occasions Ice was provided by you.
31 You left and were later called back to Martha Giles' home by Martha Giles and Gina Buchanan. When you returned, Martha Giles and Gina Buchanan were naked in the front yard waiting for you. The three of you went inside Martha Giles' home into her mother's (Elaine Vaughn) bedroom. Gina Buchanan took your pants off and you began feeling Gina Buchanan's breasts (Charge 5). This charge was "in the presence" of Martha Giles.
32 You grabbed Martha Giles' head and signalled for her to give you a "head job" by moving her head towards your groin. Martha Giles put your penis in her mouth (Charge 6).
33 Martha Giles put a condom onto your penis and sat on top of you while you were lying on your back. You inserted your penis into Martha Giles' vagina (I note a condom was used).
34 You heard a car outside and thought it was Martha Giles' mother (Elaine Vaughn) returning home. You got up, left the house, leaving the used condom on the floor in the bedroom.
35 On 21 July 2016, Gina Buchanan took part in a VARE interview and told police she met you on 20 July 2016 when you picked up Gina Buchanan and other girls from secondary college. In the car were Rose Morrison, Martha Giles, Mackenzie Cole, Bryan Shields and yourself.
36 Gina Buchanan told police you dropped Mackenzie Cole off at her home before driving them all to Martha Giles' home. She said you and your son left the address and that you returned some time later. During that time, Martha Giles and Gina Buchanan were in the kitchen. You left again and Martha Giles and you exchanged text messages and, at some point, Gina Buchanan had some drugs and was heavily affected by usage.
37 You returned and Martha Giles, Gina Buchanan and you went into Elaine Vaughn's bedroom and lay on the bed. Gina Buchanan saw Martha Giles put a condom on you.
38 On 21 July 2016 you were arrested, taken to Seymour Police Station and interviewed.
39 You stated you got a phone call and found Gina Buchanan and Martha Giles "butt naked" out the front of Martha Giles’ house. You told the girls, "This better stop – I could go to jail for this". You said, in essence, the girls "came on to you". You denied any sexual assault of any of the girls. You denied providing Ice to the girls.
40 As part of the prosecution opening there was a chronology prepared. There was a VARE conducted with Rose Morrison on 21 July 2016, and a record of interview conducted with you on that same date. You provided your DNA sample on 27 July 2016. On 2 August 2016, a few days later, Mackenzie Cole made her VARE. On 18 January 2017, Tanya Daniels made her statement. Following that, there were then a number of hearings, including a final directions hearing in this court on 14 December 2017.
41 At the door of the court on 6 March 2018, the matter resolved before your trial was to commence and you were arraigned on that date and your criminal history filed.
42 Your plea hearing was listed for 11 July 2018. However, time was sought by those representing you to obtain a further psychiatric report and to consider a change of your plea.
43 On 7 September 2018, a further date was set for your plea hearing, again adjourned, waiting on an additional statement provided by the complainant to police.
44 MR BARBARA: Your Honour, if I could raise an issue, I think these are university students and - - -
45 HER HONOUR: Well, I know, obviously some people have come into court, it is an open court, I am not identifying by any name of any complainant and so I think the matter can proceed as it currently is, providing those in court remain very quiet and not walk in in dribs and drabs while I am in the middle of sentencing. All right, so where was I? Will repeat it.
46 On 7 September 2018, a further date was set for your plea hearing, again adjourned, waiting on an additional statement provided by the complainant to police.
47 On 23 September 2018, your bail was revoked by his Honour Judge Taft and you began your time in custody.
48 On 10 October 2018, at a directions hearing in the sex offences list, the matter was listed for a change of plea application on 8 February 2019 with a mention on 11 December 2018 to confirm that position.
49 On 11 December 2018, further material was sought by your new solicitor and an adjournment to 17 December 2018. You then vacated your change of plea application and indicated you would plead guilty to the charges before me.
50 Turning to that chronology, I confirmed with Mr Fisher the timing of the resolution of this matter. It resolved on 6 March 2018, then adjourned for various reasons which in essence related to those representing you seeking an adjournment where there was a contemplated change of plea which ultimately did not eventuate. The prosecution were ready to proceed in July 2018, which was the initial plea hearing date following the formal entering of the pleas of guilty to the seven charges on the indictment.
51 As at 20 March 2019, you had spent 177 days in custody by way of pre-sentence detention from 25 September 2018.
52 Clarifying your pre-sentence detention, I was told you were remanded in custody for these offences on 25 September 2018. However, during that time you served two sentences from two Magistrates' Court hearings for a total of 65 days' imprisonment. That meant as at 20 March 2019 you had spent 112 days in custody by way of pre-sentence detention for your offending before me.
53 You have admitted a number of prior court appearances commencing in 2006, including driving offences, a charge of recklessly causing injury, dishonesty, theft, and contravening a Family Violence Intervention Order.
54 The matters dealt with between 2009 and 2015 resulted in fines being imposed with or without conviction. An earlier hearing in 2006 resulted in one month imprisonment wholly suspended.
55 There were a number of subsequent matters admitted and relevant to you rehabilitation prospects and, again I note, not for sexual offending.
56
Subsequently you appeared at Broadmeadows Magistrates' Court on
19 December 2016 on two charges of possessing cannabis, dishonestly undertaking and retention of stolen goods, plus a driving offence for which you were fined. You then appeared at Seymour Magistrates' Court on 9 March 2017 on a charge of possess cannabis, for which you were, with conviction, fined.
57 On 18 July 2017, you appeared at the Shepparton Magistrates' Court on charges of refusing to remain until an oral fluid testing had been completed, refusing to accompany police for an oral fluid test, burglary and two charges of theft. There were also variations to fines in default of community work, and variation on a Family Violence Intervention Order. For the other charges, you were convicted and placed on a community corrections order for a period of 18 months with a number of conditions attached.
58 You were then dealt with at Seymour Magistrates' Court on 1 June 2018 on contravening the Family Violence Intervention Order and, without conviction, the matter was adjourned for 12 months.
59 I again note none of your criminal history reflects offences of a similar nature to that before me, i.e. sexual allegations or "supply of drugs".
60 You have pleaded guilty to these offences and such is taken into account in your favour and I do so. By your pleas of guilty, you have saved the time and cost of a trial and witnesses have been spared the need to give evidence at a trial.
61 Although you did not plead guilty at an early stage, you have so pleaded and your pleas have utilitarian value.
62 Your counsel, Mr Barbara, provided a written outline of submissions for your plea hearing and addressed them during the course of it. You are 36 years of age at sentence.
63 You spent most of your adult life around the northern suburbs of Melbourne, before eventually moving to Kilmore a few years ago. You then lived with your son, Bryan Shields, and your de facto partner, Tamara Dickson, and Brianna Sims.
64 Your counsel conceded your offending before me was serious, and he is correct.
65 Your counsel, Mr Barbara, when addressing the gravity of your offending, conceded the age disparity of approximately 20 years between you and Martha Giles. He submitted you were very sorry for this offending and urged that your plea of guilty indicated remorse by you. He, however, conceded that beyond your plea of guilty there was limited evidence of remorse.
66 Your counsel referred to a number of programs you had completed whilst in custody, in particular, to address your drug issues. Tendered, were certificates confirming a two-hour release-related harm reduction program, a six hour AOD and stress management program, a baptism certificate, a six-hour AOD and loss program, and a six-hour AOD and depression program.
67 It was urged that you had started to commence your efforts towards rehabilitation whilst in custody and that seems to be so. I encourage you to continue to participate in programs that are offered or made available to you and, in particular, relevant to drug use and also sex offender programs.
68 I was advised you would continue with your rehabilitation efforts after sentence.
69 Currently I have guarded optimism regarding your rehabilitation prospects. However, when sentencing you, I must seek to maximise your chances of rehabilitation as they may be. You are yet to participate in sex offence programs.
70
Mr Barbara tendered your curriculum vitae. From 2000 you had been in relatively solid employment, as set out within your employment history.
Mr Barbara clarified that between 2013, to remand, you were involved in parenting duties, and from 2015 to your remand, you were also working with Distinctive Floorings, self-employed as a vinyl floorer. I was told that involved you having a government contract laying flooring in housing commission flats.
71 Also in your CV was a summary of your skills. The fact you have previously had employment and the skills outlined that document provides some comfort to me in relation to your being likely to obtain employment upon your eventual release from prison.
72 I was also told you had attended three primary schools and five high schools before you completed Year 10.
73 When sentencing you, your counsel conceded the need for general deterrence, and that given there were two occasions on which your offending occurred, also the need for specific deterrence. He is correct.
74 Mr Barbara urged that, you had spent 112 days in custody by way of pre-sentence detention pursuant to s.18(4), Sentencing Act 1991, and that I could also take into account the principles in R v Renzella[11] relating to the 65 days of sentence.
[11][1997] 2 VR 88 (‘Renzella’)
75 Mr Fisher, on behalf of the prosecution, submitted the Renzella principles did not apply; that the sentence imposed in January 2019 was unrelated to your offending before me and therefore, Renzella principles, he submitted did not apply. He did, however, concede that this was relevant to the principle of totality and I agree with that later submission.
76 Mr Barbara, in his written submissions and orally, urged applicability of principles in R v Verdins & Ors[12]. In particular, relying on the second limb referrable to your "illness" bearing on the kind of sentence the court may impose. Your counsel urged Verdins applied, given your mental health diagnosis and that you did not have a great appreciation of the consequences of your actions.
[12](2007) 169 A Crim R 581 OR (2007) 16 VR 269 (‘Verdins’)
77 Your counsel also relied upon the fifth limb of Verdins, that your mental illness would make prison more burdensome for you than a person without such issues.
78 In making these submissions, Mr Barbara relied upon two reports from Dr Bell.
79 I turn to the recent report of Dr Bell, clinical psychologist, dated 16 March 2019 - I have already read the first report. He first saw you on 5 August 2016 and he had seen you regularly until you were incarcerated in September 2018. He also knew you from when you were in your teens.
80 At the first appointment, you presented as severely stressed with strong symptoms of anxiety and depression, although I note not further defined/described by Dr Bell.
81 Diagnostically, he opined you met the criteria for adjustment disorder with mixed anxiety and depression, being a psychological reaction to multiple chronic stresses which had spanned your adult life and exacerbated most recently by these allegations, again I note not defined/described by him. Your presentation also previously met diagnostic criteria for methylamphetamine abuse and dependency.
82 In the past, you had been compliant with prescription medication to assist and manage your anxiety and depressive symptoms. He was unable to say what your current status was in that respect as you had been in custody since September.
83 In the opinion of Dr Bell, your understanding of your current legal circumstances was very limited, although I note again not further defined/described. He had been advised you had completed a number of programs whilst in custody and were undertaking a TAFE course in building and construction.
84 I discussed these submissions referable to Verdins with your counsel and the transcript will reveal that discussion.
85 The prosecutor, Mr Fisher, briefly addressed Verdins, and submitted that on the two reports of Dr Bell, none of the Verdins principles were enlivened; however, if Mr Barbara wanted to seek further material in relation to that, the prosecution would not object.
86 Your counsel was given the opportunity to confer with you on two occasions during the plea hearing, including over the luncheon adjournment, to decide whether or not you wished to pursue applicability of Verdins. You insisted you did not wish to rely upon Verdins. Your counsel ultimately conceded that principles 2 and 5 of Verdins were not enlivened. Verdins was discussed in detail during the plea hearing and the transcript will reveal that discussion.
87 In my opinion, the two reports fall far short of enlivening Verdins principles. The application of Verdins principles requires rigorous examination by the court.
88 Regarding your time in custody being more onerous for you than any other prisoner, I do however accept you do suffer with anxiety and depression, albeit it seems managed in your current situation. Whilst I do not find principle 5 of Verdins applicable, I do, albeit not to a great degree, take into account your depression and anxiety, consistent with general sentencing principles.
89 There were two victim impact statements before me. I am, of course, mindful of inadmissible parts of the statements as I discussed during the plea hearing.
90 There was a statement from Martha Giles. Since your offending, she "stopped enjoying anything". She did not play sport anymore, stopped attending school, and had become very angry. She stopped talking to her mother about "just about everything" and stopped talking to her "nan and pa". She was angry all the time and treated her mother horribly although she did not mean to. She suffered night terrors for about a year after your offending and found herself not wanting to go to sleep.
91 She went to the doctor and had a medical examination and found she had bipolar brought on by PTSD and anger issues. She had been prescribed medication for her anxiety. She hated life and could not handle male authority. She became angry when any male raised his voice. She reacted badly.
92 She said that she has not been able to study since your offending and had very few friendships left. She found it difficult to socialise. She felt she could no longer do sport, which had been her greatest passion before your offending. She had not felt safe since it occurred.
93 There was a victim impact statement from Elaine Vaughn (Martha Giles’ mother). Since your offending she had "basically lost everything". She lost her little girl and everything that she and her daughter had previously. She lost her spirit, her soul and her will to be strong and survive. Some days she could not get out of bed. She did not talk to anyone in her family at all. She was far from the person that she was previously. She self-loathed herself. She could not bring herself to socialise. She attended grief counselling.
94 She has been told by her psychologist that she had borderline personality disorder. She hated life. Hated that her innocent baby girl was gone and would never be what she was before. Her life was now nothing like it had been previously.
95 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[13], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[14] (I allow, of course, for the different factual differences in those cases to yours).
[13][2006] VSCA 90
[14][2003] VSCA 109 [17]-[18] (‘DJK’)
96 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
97 Mr Fisher addressed the serious sex offender provisions, specifically s.6D and 6E, Sentencing Act 1991, and submitted that, following imprisonment being imposed on two of the offences, other than Charge 4, you then fell to be sentenced as a serious sexual offender on the third and following sexual charges. The prosecution were not urging a disproportionate sentence be imposed, and I am of the opinion that I can also appropriately sentence you without the need to impose a disproportionate sentence.
98 I briefly discussed with Mr Fisher the serious sexual offender provisions (that is s.6D and E) and the principle of totality which still has application.
99 Section 6D and 6E of the Sentencing Act 1991 has been considered in a number of cases. See RH McL v R[15] and most recently in DPP v Hopson[16] and Matheas v the Queen.[17]
[15](2000) 174 ALR 1 [76]
[16](a pseudonym) [2016] VSCA 303[48]-[52]
[17][2017] VSCA 330 [46]-[50] (‘Matheas’)
100 In Matheas, Tate JA referring to Gordon v The Queen[18] and DPP v Bales:[19]
"[where s.6E is enlivened] there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s 6E, that is, full effect is not to be given to the totality principle as though s 6E 'was not on the statute book'. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purposes. [50]"
[18][2013] VSCA 343
[19][2015] VSCA 261
101 Totality still has relevance – and as I have said is even more recently been considered in Zhao v the Queen[20] and s.6E and the "one episode" rule. See also Smith v The Queen.[21]
[20][2018] VSCA 267
[21][2018] VSCA 258 [93] (‘Smith’)
102 Mr Barbara conceded the applicability of the serious sex offender provisions (not Charge 4).
103 Regarding delay in the final determination of this matter, Mr Barbara urged the delay could be due to your limited understanding of the legal process referred to by Dr Bell in his report dated 16 March 2019. Dr Bell, however, did not specifically address that submission and there no other material to positively support that submission.
104 Mr Barbara conceded there was the need for general deterrence and just punishment for your offending when sentencing, as well as denunciation. And he, of course, is correct.
105 Addressing sentence, Mr Barbara submitted, consistent with paragraph 19 of his written outline of submissions, he urged Smith provided guidance as to the appropriate sentence to be imposed. He urged that in line with current sentencing practices, the sentence imposed in Smith would be within the range of appropriate dispositions.
106 Addressing current sentencing practices in DPP v Dalgleish[22] the court referred to current sentencing practices not justifying a sentence that was manifestly inadequate. I am, of course, very much aware Dalgleish involved different charges to yours. Current sentencing practices are but one factor to which a sentencing judge must have regard in fixing a just sentence in accordance with s.5(2), Sentencing Act 1991.
[22](a pseudonym) [2016] VSCA 148 and [2017] HCA 41
107 Ultimately, the extent to which each factor in s.5(2) will bear upon the instinctive synthesis is a matter of discretion and judgement for the sentencing judge.
108 The Court of Appeal has also referred to the difficulty comparing cases factually, as facts vary enormously case to case as do all matters in mitigation of sentence.
109 Mr Barbara conceded regarding your sentence that a term of imprisonment with a head and non-parole period was appropriate.
110
Mr Fisher on behalf of the prosecution, in addressing paragraph 12 of
Mr Barbara's written submissions, submitted the relevant sentencing principles were general deterrence, specific deterrence (given two separate occasions of offending), the need to protect the community from you, in particular, regarding the latter as you were yet to undertake sex offender programs.
111 He submitted the age disparity between yourself and Martha Giles was significant. Martha Giles 15, you 33 at the time.
112 Mr Fisher submitted there should - that might be wrong, that - I will check the date there - Mr Fisher submitted that there should be a degree of cumulation between the individual sexual offences, also to represent two separate periods of offending, and I agree.
113 Turning to your remorse, he submitted that it was limited to your plea of guilty. Your plea, albeit not early was still a plea, and it is. The complainant and other young witnesses have not been required to give evidence. Your plea had utilitarian value and, as I have said, I already agree with that.
114 Mr Fisher referred to your answers in your record of interview on 21 July 2016, in which you showed you were clearly aware that what you were doing was wrong. Mr Fisher, following the plea hearing, forwarded correspondence to me and to your counsel, dated 22 March 2019, referrable to your awareness in your answers to police at interview (see Exhibit E). So that is marked as Exhibit E.
115 Mr Fisher submitted your awareness of the wrongfulness of your offending meant your moral culpability for it was high. I agree.
116 Regarding the courses completed by you in custody, Mr Fisher noted there were no certificates of attending sexual offending programs, however, he conceded such was not surprising as you were not currently serving a sentence. And I am also very much aware of that.
117 Addressing the delay in finalising this matter, Mr Fisher submitted there was some delay which included exploring matters, such as your representation and resolution of the matter. That following the pleas being entered in March, a report was received by those representing you, you then considered there needed to be some further issues addressed. In other words, some of the delay was "legitimately" following up and pursuing information relevant to matters to be placed before me on your plea hearing.
118 Offences against children are very serious, and such has consistently been stated by the courts over many, many years.
119 Should any authorities be required see Roosmalen v R,[23] DJK and Clarkson v The Queen.[24] That list is by no means exhaustive or occurrent.
[23](1989) 43 A Crim R 358
[24][2011] VSCA 157
120 The need for general deterrence is particularly relevant when sentencing for such offences. Courts have a special duty to protect children. They are immature in their understanding of right and wrong.
121 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as general deterrence.
122 There is also the need for specific deterrence, given your offending against Martha Giles on two separate occasions.
123 I must also consider the question of the protection of the members of the community from you and bear in mind the likelihood of your re-offending.
124 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
125 When sentencing you I declare you are a sentenced as a serious sexual offender on Charges 3, 5, 6, and 7 and direct that be entered into the records of the court.
126 You are convicted and sentenced as follows:
127 On Charge 1, convicted and sentenced to seven months' imprisonment.
128 On Charge 2, convicted and sentenced to three years' imprisonment.
129 On Charge 3, convicted and sentenced to three years' imprisonment.
130 On Charge 4, convicted and sentenced to ten months' imprisonment.
131 On Charge 5, convicted and sentenced to six months' imprisonment.
132 On Charge 6, convicted and sentenced to three years' imprisonment.
133 On Charge 7, convicted and sentenced to three years' imprisonment.
134 I direct that Charge 3 is the base sentence. Are counsel with me?
135 I direct that three months of Charge 1 be served cumulatively upon Charge 3.
136 I direct that ten months of Charge 2 be served cumulatively upon Charge 3.
137 I direct that four months of Charge 4 be served cumulatively upon Charge 3.
138 As I am now entering into the serious sexual offender provisions, I will now be sentencing in accordance with that. It will be clear.
139 I direct that four months of Charge 5 be served concurrently and two months' cumulatively upon Charge 3.
140 I direct that two years and two months of Charge 6 be served concurrently and ten months cumulatively upon Charge 3.
141 I direct that two years and two months of Charge 7 be served concurrently and ten months cumulatively upon Charge 3.
142 That results in a total effective sentence of six years', three months' imprisonment and I direct that you serve a period of four years before you are eligible for parole.
143 For clarity, the orders for cumulation are upon each other and upon the base sentence.
144 Pursuant to s.6AAA of the Sentencing Act, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a term of imprisonment of ten years and I would have set a non-parole period of seven and a half years. That is if you had pleaded not guilty, all right, and been found guilty of them.
145 Pursuant to s.18(4) of the Sentencing Act1991, I declare that you have spent 127 days in custody, up to and including yesterday, which is 4 April 2019, by way of pre-sentence detention and I direct that that be entered into the records of the court. I want counsel to confirm that or otherwise.
146 Mr Fisher submitted, relevant to the Sex Offenders Registration Act 2004, your offending involved four class 1 offences, specifically Charges 2, 3, 6 and 7, that is sexual penetration of a child under 16, charges, and as a result you are required to report on that register for life, such an order being mandatory.
147 Mr Barbara initially urged I not make such an order and submitted that when you completed your sentence of imprisonment, you plan to work in drug and alcohol counselling. As I understood it however, that was speculation, in that you did not have any such qualifications to date, nor was there anything to suggest you would in fact commence such work. Mr Barbara ultimately conceded that the making of the order, given the charges before me, was mandatory and for life.
148 You are therefore required, pursuant to that act, that is the SORA act, the Sex Offenders Registration Act2004, to be registered under that act for life, such being mandatory, and I make the order in the terms sought. And in a moment my associate will approach you with documents to sign, simply acknowledging receipt of the paperwork which tells you about the SORA, the Sex Offenders Registration Act. You are not being asked if you want to be on it - I have made that order - you are just being asked to sign for the paperwork. But if you do not want to sign, you do not have to. But that is her job, she has to ask you.
149 The prosecution made application for a disposal order. That was not opposed by counsel on your behalf, and I make the order in the terms sought.
150 For completeness, I note the prosecution did not seek a s.464ZF (Crimes Act 1958) saliva or a blood sample, as you have already been DNA profiled.
151 And I do not think there were any other orders. Were there?
152 MS GIANNOPOULOS: No, Your Honour.
153 HER HONOUR: All right, now the PSD, 127; was that correct?
154 MS GIANNOPOULOS: That is correct, that is my calculation
155 HER HONOUR: All right, and when you did the maths, did it all add up? I am not asking whether you agree with my figures other than if it they add - - -
156 MS GIANNOPOULOS: Yes adds up.
157 HER HONOUR: It adds up.
158 MS GIANNOPOULOS: Yes.
159 HER HONOUR: So it adds up to six years and - - -
160 MS GIANNOPOULOS: Three months.
161 HER HONOUR: - - - three months with a four year on the bottom. You followed that and you agree with that?
162 MR BARBARA: Yes.
163 HER HONOUR: All right.
164 MR BARBARA: I cannot write, Your Honour.
165 HER HONOUR: No, that is fine. It is written submissions, you will receive copies of the written submissions, they will be published - - -
166 MR BARBARA: And what is the (indistinct).
167 HER HONOUR: I do not know where it goes but I will be publishing it today so wherever it goes, on the court website, media portal, it is all there today, all right? Now, I just wanted to check one thing, the offending, he was 35 years of age at the time? I just wanted to check that. No, not you, that is all right, have a seat. No, I was not asking you. I think that is right but I just want to make sure.
168 MS GIANNOPOULOS: Yes.
169 HER HONOUR: All right, 36 at sentence?
170 MR BARBARA: Yes.
171 HER HONOUR: Yes, all right, well I will double-check that, triple-check it. But it is certainly around that age. I just want to be sure about it. All right, was there anything further in this matter?
172 MS GIANNOPOULOS: Yes, Your Honour, there is the matter of the Indictment No.H104 - - -
173 HER HONOUR: Is this the child porn?
174 MS GIANNOPOULOS: Yes, which is still remaining.
175 HER HONOUR: Is that heading off to the Magistrates' Court?
176 MR BARBARA: It is.
177 MS GIANNOPOULOS: Yes, I have go the notice to remit - - -
178 HER HONOUR: Right.
179 MS GIANNOPOULOS: - - - to transfer those charges back to the Magistrates' Court.
180 HER HONOUR: Perfect, yes.
181 MS GIANNOPOULOS: There was an error with the CR number that I had e-lodged, so I fixed that and I have got a hard copy with the indictment attached.
182 HER HONOUR: With the new correct number?
183 MS GIANNOPOULOS: With the correct number.
184 HER HONOUR: So what do we need - do I have to sign anything?
185 MS GIANNOPOULOS: I think we just need a date, to then transfer it back to the Magistrates' Court and then it can just be listed there, Your Honour.
186 HER HONOUR: All right, did you understand that, Mr Stone? Just basically, the child pornography possession, one charge - you do not have to stand up, do not worry - the possession of child pornography is heading off to the Magistrates' Court, not this court, all right? And so adjourn it to 6 May 2019 at 10 am at Melbourne Magistrates' Court. If you - - -
187 MR BARBARA: If Your Honour pleases.
188 HER HONOUR: Hold on, no, if you seek a Shepparton Magistrates' Court - do you want the Shep or West Melbourne okay? Melbourne for this part, what do you reckon?
189 MR BARBARA: (Indistinct).
190 HER HONOUR: Do you think?
191 MR BARBARA: Yes, I think it is - - -
192 HER HONOUR: Melbourne or Shep? Melbourne? No, it is not your choice.
193 MR BARBARA: Melbourne.
194 HER HONOUR: Why not Melbourne and then it can be transferred, maybe. So at this stage, Melbourne, 6 May 2019 at 10 am, Melbourne Magistrates' Court, that is for mention of the matter that is being remitted. All right, my associate is now going to come down the back to see you, asking you just to sign for the paperwork for the Sex Offenders Registration Act, that is her job, she has to ask you, if you do not want to sign it, we understand. But that is all you are being asked, receipt of the paperwork, all right? So do not get angry with her, she is just doing her job, all right?
195 So you will be remanded to the Melbourne Magistrates' Court on 16 May but you are already currently on that charge but you are under - is it remand for that one or is it just under sentence for this one?
196 MS GIANNOPOULOS: He is just under sentence for this one.
197 HER HONOUR: So he is not remanded.
198 MR BARBARA: On 6 May, correct.
199 HER HONOUR: Sixteenth?
200 MS GIANNOPOULOS: Sixteen.
201 HER HONOUR: No, whatever I said, was it sixth - - -
202 MS GIANNOPOULOS: Sixth, I think, Your Honour.
203 HER HONOUR: - - - yes, sixth. All right, well just in case. All right, now you are being asked to sign that, just the paperwork. Well, just in case - is he remanded on this charge or not?
204 MS GIANNOPOULOS: It was charged as part of all the other ones which he was on remand for - - -
205 HER HONOUR: I think it was.
206 MS GIANNOPOULOS: - - - so I think - - -
207 HER HONOUR: We will say remanded - - -
208 MS GIANNOPOULOS: Yes, I think he is.
209 HER HONOUR: - - - to appear on 6 May, Melbourne Magistrates' Court, but he will be undergoing sentence at that stage, all right? Is there anything further in the matter?
210 MS GIANNOPOULOS: No - - -
211 HER HONOUR: Have I signed the disposal order. Have I? I have? Yes, that is happening. Is there anything else that needs doing? No?
212 MS GIANNOPOULOS: No, Your Honour.
213 HER HONOUR: All right. Thank you both for your attendance. Thanks, you will have to go out now, Mr Stone. Your counsel will come down and see you after this.
214 MR BARBARA: Yes, I will go to him.
215 HER HONOUR: Yes, all right, thank you.
216 MS GIANNOPOULOS: As Your Honour pleases.
217 HER HONOUR: Yes, thank you both.
218 MR BARBARA: As Your Honour pleases.
219 HER HONOUR: Yes, that is fine, thank you very much.
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