Director of Public Prosecutions v STV (a Pseudonym)
[2024] VCC 986
•3 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STV (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 May 2024 | |
DATE OF SENTENCE: | 3 July 2024 | |
CASE MAY BE CITED AS: | DPP v STV (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 986 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – plea of guilty – one charge of sexual penetration of a child under sixteen years
Legislation Cited: Crimes Act 1958, (as amended by the Crimes (Amendment) Act 2000), s45(1); Sex Offenders Registration Act 2004, Schedule 1, s6(1) and s34(1)(b)(i); Sentencing Act 1991
Cases Cited:R v Jones [2004] VSCA 68; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Boulton v R; Clements v R; Fitzgerald v R (2014) 46 VR 309
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Kambouropoulos | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr M Stanton | Galbally & O’Bryan |
HIS HONOUR:
1STV,[1] on 28 May 2024, you pleaded guilty to the following offence:
Charge 1 – that you, at Emerald in Victoria on 24 September 2016, took part in an act of sexual penetration with MMO,[2] a child under the age of sixteen, in that you introduced your penis into the vagina of MMO.
The offence of sexual penetration with a child under sixteen is contrary to s45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000 and carries a maximum penalty of ten years’ imprisonment and/or 1,200 penalty units.
Such charge is referred to as a “rolled-up” charge. A rolled-up charge in an indictment alleges that you have committed more than one offence of the same type within a specified period of time. In your case, it is alleged that you committed the same offence – that is, the sexual penetration of a child under sixteen years ꟷ on two occasions on 24 September 2016. Such a rolled-up charge has an advantage for you by restricting the maximum penalty available to a single offence, rather than the total theoretically-available maximum sentence for two charges.[3]
[1]STV is the pseudonym of the offender.
[2]MMO is the pseudonym of the complainant to protect her privacy
[3]See R v Jones [2004] VSCA 68 at paragraph [13]
2The offence of sexual penetration of a child under the age of sixteen is a Class 1 offence under the Sex Offenders Registration Act 2004 (“SORA”).[4] Mandatory registration under the SORA applies[5] and the relevant length of the reporting period is fifteen years.[6]
[4]See SORA, Schedule 1
[5]See SORA, s6(1)(iv)
[6]See SORA, s34(1)(b)(i)
Circumstances of the offending
3Counsel for the prosecution tendered a document headed “Prosecution Opening for Plea”, dated 6 May 2024.[7] The Court was informed by your counsel that there was no disagreement in relation to the matters set out in such document.
[7]See exhibit 1
4I will not refer to all of the matters set out in such document, but do refer to the important aspects pertaining to your offending.
5You were born in April 1996 and were twenty years old at the time of the offending. You are presently twenty-eight years old.
6The complainant was fourteen years old at the time of the offending.
7You first met the complainant at the St Marks Anglican Church in Emerald around 2009 and 2010, when she was approximately eight or nine years old and engaged in a program facilitated by the church. At that time, you were a youth leader of the program and were aged fourteen years.
8Following that program, you and the complainant did not remain in contact, but in 2016, having not spoken for a few years, the complainant attended the local RSL with her mother, where you were also present.
9You and the complainant spent most of the evening together, seemingly getting on well and consequently remaining in contact and texting daily. In July 2016, you and the complainant commenced an intimate relationship. At the beginning of the relationship you would both kiss and cuddle, with you frequently enquiring about sex.
10On the evening of 24 September 2016, you and the complainant were alone at the complainant’s house, lying on the bed and cuddling, when you enquired of the complainant whether she was ready. You and the complainant then engaged in consensual penile/vaginal intercourse, which occurred twice throughout that evening (Charge 1).
11Both you and the complainant were concerned that the complainant might be pregnant, as the condom worn by you had broken during the second occasion of sex that evening. The complainant called her mother, who was not home at the time, and told her what had happened.
12The next day, the mother of the complainant took her to get the morning after pill.
13Subsequent to that evening, you and the complainant maintained a consensual sexual relationship for a period of three years, during which time the mother of the complainant was supportive of such relationship. Given the age of the complainant, some period of the three-year relationship occurred prior to her being sixteen and some of it occurred when she was sixteen and over.
14In about November 2019, the relationship came to an end and on 9 November 2020, the complainant disclosed the incident to police.
15On 25 October 2022, you were arrested and gave a no-comment record of interview. A filing hearing occurred on 1 September 2023 and on 17 November 2023, the matter resolved. In particular, the prosecution accepts that the plea of guilty was at the earliest available opportunity – being a committal mention on 23 November 2023.
Criminal history
16Counsel for the prosecution confirmed that you do not have any criminal record and there has been no pre-sentence detention.
Victim Impact Statement
17Counsel for the prosecution tendered a Victim Impact Statement of the complainant, declared on 7 May 2024, stating in part:
“The actions of [STV] have severely affected my day to day life. The one person who was meant to love and care for me didn't. Words can not describe the feeling of pain, hurt and loss since the crime was committed. I have not been able to find my motivation for myself, to do basic daily house work and even get myself up out of bed and dressed. I am no longer able to trust people easily like I used to. Every morning when I wake up I have to remind myself that I am safe, if I don't I simply don't want to get out of bed and do anything. I'm unable to find a job suitable for me and even when I do I struggle to keep it because of my high anxiety since the crime. When I try have those hard conversations with my partner I'm scared that I will be shut down or yelled at, it's horrible because of the amount of conflict it can cause. It hurts emotionally and socially to try make new friendships and relationships because I'm worried I will be judged and no one will understand me because this crime has changed me. To this day I can still feel the pain and hurt that was caused in my own home, one room in the house I can't be in alone, it makes me feel physically sick when I try to go in there alone. I struggle to sleep with the fear I will have nightmares of this crime. I want my happy self back and to be able to do me again.”
(sic)
Your personal circumstances and background
18Your counsel tendered the following documents:
(a) a document headed “Defence Plea Submission”, dated 23 May 2024;[8]
(b) character reference from your parents, dated 23 May 2024;[9]
(c) character reference from “Jacinta”, dated 27 May 2024;[10]
(d) report from the consulting psychologist, Mr Geoffrey Burrows, (“the psychologist”) dated 21 May 2024;[11]
(e) letter from Dr Kumar, dated 18 August 2023;[12]
(f) letter from Dr Bill Aikin, dated 16 December 2010.[13]
[8]Exhibit “A”
[9]Exhibit “B”
[10]Exhibit “C”
[11]Exhibit “D”
[12]Exhibit “E”
[13]Exhibit “F”
19Partly based on some of the documents tendered and partly based on submissions made by your counsel, I note the following:
· You grew up in country Victoria with your parents and an older brother. Your father has worked as a truckdriver and your mother as an accountant.
· You reported to the psychologist,[14] that you had trouble “fitting in” as a child and always felt like an outsider. You noted that your mother tried to help you, but did not know what to do. You father “just got angry”. Furthermore, you informed the psychologist that your older brother “bullied” you.
[14]Exhibit “D” – report of Mr Geoffrey Burrows, dated 21 May 2024
· You attended a local primary school and reported to the psychologist that you found it difficult to learn basic literacy skills, but progressed through the grades. You also reported that you experienced significant social difficulties and behavioural problems throughout primary school and found it difficult to make friends, and you attempted to impress other students by engaging in disruptive behaviour, which resulted in regular detentions and suspensions from school.
· After primary school, you attended the local secondary college, where you continued to struggle academically and socially, and you made further attempts to gain attention, becoming more desperate, and were in regular altercations with other students. Although continuing to attend the local secondary college, you were diverted from mainstream classes through Years 8 and 9 and attended a remedial class which involved one-on-one teaching. In Year 9, you completed a photography TAFE course through Swinburne University, and although not wanting to do the course, you completed such course because of your mother’s insistence.
· You completed the final year of secondary schooling in an external program at a local church, and although completing the year, did not receive a Year 10 pass. You did not return to school the following year and you informed the psychologist that you currently lack basic math skills, that you are a slow reader and you have trouble with understanding more difficult texts.
· When sixteen years old, you commenced working with your brother’s friend, who was a carpenter. Although excited about the opportunity, you found the heavy lifting difficult and you were slow, causing you to be asked not to return after a couple of days. When you were approximately twenty, you worked for a few weekends as a kitchenhand in a restaurant, managed by a family friend. Although you liked the job you were not suited to it, and found it difficult to work quickly enough and you had trouble recalling instructions. At the time of the assessment by the psychologist, you had been unemployed and reported no clear vocational goals.
· You moved out of home when you were twenty-one after an argument with your father and moved in with a family friend, “Jacinta”,[15] and you continue to live with her. She assists you with a variety of daily-living tasks, including completing Centrelink documents, paying bills and grocery shopping. You informed the psychologist that you did not believe you were ready to live independently and did not like the idea of being alone.
· Since moving out, you have maintained regular contact with your parents and talk to your mother about “anything and everything” and your relationship with your father has improved. Furthermore, you have a better relationship with your brother.
· You reported to the psychologist no history of sexual abuse and in particular informed the psychologist that you had not experienced any coercive or sexually-abusive experiences. Again, you informed the psychologist that, when you reached puberty in early secondary school, you began to have feelings for young women about that time and became far more interested when you were about seventeen or eighteen, but was shy and did not know how to meet women.
· You informed the psychologist the only intimate relationship that you have had has been with the complainant. You described to the psychologist how you developed a friendship with the complainant which gradually progressed to become romantic in nature, and a sexual relationship commenced after you were convinced it was what the complainant wanted, and this was your first sexual interaction. You described the relationship to the psychologist in mostly positive terms and that you loved the complainant deeply, but also recalled feeling very anxious that she would leave you and that you would never find another partner.
· You acknowledged to the psychologist that you were aware of the relevant age of consent laws at the time, but said you had trouble applying them to your situation. In particular, you explained it seemed to be socially acceptable and commonplace for people of your age to have sex with teenage girls, despite it being against the law. You also described feeling reassured that your conduct was acceptable because most people who knew about the relationship were supportive of it – in particular, you were re-assured by the approval you received from other adults, including the mother of the complainant.[16]
· Since then, you have had no other relationship and reported to the psychologist that you are frustrated by the lack of interest from women, and became curious to find if you were attracted to men. You had a limited relationship with a man and described it as “awkward” and that “it didn’t feel right”.
[15]One of the referees
[16]You confirmed that the relationship was brought to an end by the complainant after approximately three years.
The evidence of the psychologist, Mr Geoffrey Burrows
20Your solicitors arranged for you to be assessed by the psychologist, who interviewed you for approximately two hours on 8 February 2024 and had a follow-up interview with you on 13 March 2024, again for approximately two hours. He reports that, during the course of the interviews, he carried out a comprehensive evaluation of your mental status, including your mood, thought processes and degree of insight. Particular attention was paid to your interpersonal and sexual adjustment and the risk of recidivism. Furthermore, the psychologist performed various psychological testing.
21The psychologist obtained a history that you consumed alcohol only occasionally and denied experiencing any problems in relation to the use of alcohol. Furthermore, you have never used illicit substances.
22The psychologist also obtained a history that both of your parents had experienced some mental health problems. Furthermore, you described to Mr Burrows, bearing in mind your desperation for social connections, but lacking the skills to obtain them, you experienced feelings of sadness, anger and hopelessness, which varied in intensity. You described to the psychologist experiencing suicidal ideation from your early teenage years and developing plans for ending your life, but never enacting these plans. You also described engaging in acts of self-harm during your high school years.
23The psychologist had available, at the time of his interviews with you, a letter from the psychiatrist, Mr Bill Atkins, dated 16 December 2010,[17] and noted that you had been diagnosed with Asperger’s Syndrome (but it is now known as Autism Spectrum Disorder), Attention Deficit Disorder (now known as Attention Deficit Hyperactivity Disorder), Oppositional Defiance Disorder, school refusal, performance anxiety and avoidance, and Major Depressive Disorder.
[17]See exhibit “F”
24During the course of the interviews, you described to the psychiatrist, a lengthy history of experiencing social anxiety and engaging in avoidant behaviour, a history of experiencing fear and anxiety relating to medical procedures and germs, and also described experiencing fear and anxiety relating to paranoid thinking.
25The psychologist also had available to him a report from the consulting doctor, Dr Kumar, dated 18 August 2023.[18] In that report, Dr Kumar had interviewed you on 18 August 2023 and noted that there had been a “last appointment” before then, in May 2023. Dr Kumar noted a diagnosis of Mixed Anxiety and Depressive Disorder, Attention Deficit Hyperactivity Disorder and Autism Spectrum Disorder Level 1 (Asperger’s Syndrome). At that time, Dr Kumar prescribed you antidepressant medication, as well as medication for your diagnosis of Attention Deficit Hyperactivity Disorder. You informed the psychologist that such medication had been beneficial.
[18]See Exhibit “E”
26The psychologist noted, when recording the “background” to the offending, that your insight into the offending was extremely limited, in that you had little insight into how such activity could be harmful to the complainant or any underage person. However, he also recorded that you told him that you regretted your actions because they may have caused the complainant to have sex sooner than she would have, and that she may regret “not waiting for the right person”.
27In this respect, the psychologist noted that, while your views reflect ongoing issues of immaturity and personality adjustment, the limited insight also underpins the need for remedial education and counselling.
28The psychologist diagnosed you to be suffering from depressive symptoms that were sufficiently severe to meet the DSM-5-TR diagnostic criteria for Major Depressive Disorder Recurrent. Furthermore, he considered your symptoms at the time of assessment were of a moderate degree of severity and that your anxiety-related symptoms meet the DSM-5-TR diagnostic criteria for Social Anxiety Disorder and Specific Phobia.
29There were no indications of any form of thought disorder or psychosis and although you have had a history of learning difficulties, you are not intellectually disabled.
30Under the heading “Personality Adjustment”, the psychologist stated:
“[You] presented as an immature man for [your] age with a complex personality pathology. [Your] diagnoses of ASD and ADHD explain some elements of [your] personality including [your] limited self-awareness and the social and learning difficulties [you] experienced. These difficulties resulted in [you] failing to develop the requisite skills to form meaningful social connections or to pursue general life goals.
Based on [your] recognition of these shortcomings, [you have] come to believe that [you are] unable to make sensible life decisions and [you question your] own judgement. [You have] developed an exaggerated fear that [you] will not be able to live independently and as a result, [you experience] an intense attachment to those who support [you]. [You require] excessive advice and reassurance from others when making decisions and [prefer] others to manage important parts of [your] life including [your] finances.
These features of [your] personality are sufficiently dysfunctional to meet the DSM-5-TR diagnostic criteria for dependent personality disorder.”[19]
[19]See exhibit “D”, page 8 of the report at paragraphs [46]-[48]
31In particular, the psychologist was of the view that you do not meet the criteria for a Paedophilic Disorder and there was no indication to suggest you would meet the criteria for Paraphilic Disorder.
32In particular, the psychologist evaluated your risk of sexual offending using a guided structured professional judgement approach which incorporated the results of an actuarial tool. On completion of such testing, the psychologist was of the opinion you are likely to impose a “moderate risk” of sexual recidivism.
33Finally, at the conclusion of his report, the psychologist stated as follows:
“There is a clear need for [you] to engage in specialist sex-offender treatment. This should focus on assisting [you] to develop insight into [your] offending behaviour, enhancing [your] victim empathy, and psychoeducation regarding the sexual development of young people and the requirements for sexual consent.
Additionally, [you require] intervention to address [your] depression and anxiety disorders as well as [your] maladaptive personality traits including [your] interpersonal deficiencies. To [your] credit, [you recognise] this need and [have] expressed [your] interest in participating in appropriate interventions.
Finally, if [you receive] a custodial sentence, [you] would likely find it difficult to adjust to the prison environment given [your] poor social skills and limited coping strategies. [You are] therefore likely to be a relatively vulnerable prisoner. Given [your] previous suicidal ideation, [your] risk of self-harm or suicide should be monitored closely.”[20]
(Emphasis added.)
[20]See exhibit “D”, page 12 of the report at paragraphs [61]-[63]
The references
34Initially, I refer to the reference from your parents, dated 23 May 2024. In that reference, your parents set out in some detail your history of schooling and the difficulties confronted by you, together with some details pertaining to the relationship with the complainant. In particular, they note that you understand what occurred was “wrong” and that you are prepared “to engage in a specialist sex offenders program”.
35Furthermore, it is clear from the reference that your parents are supportive of you, and as they say, they “we are always there for [you]”.
36I also refer to the reference from “Jacinta”, dated 27 May 2024. She describes herself as a single mum with four children and has been a support worker for you for approximately six years. She describes how she helps you with a variety of things, such as driving you to medical and professional appointments, helping you to attend jobseeker appointments and dealing with any utilities, including phone, insurance and other providers. In particular, she states:
“When [she first met you your] knowledge of the world and likes is very limited. [You] thought that you needed a passport to go interstate and didn’t know that [you] could have a post paid plan for [your] mobile because [you] didn’t have a job. (Was currently on a prepaid plan). [You have] not be able to be financially independent and [have] struggled to be able to budget and manage [your] money on [your] own. [You have] tried and [have] sort out external assistance with this as well.
[She has] witnessed the frustration and embarrassment when seeing other peers [your] age move on and achieve life goals or milestones that [you see] as impossible. [You struggle] to understand sometimes when it is appropriate to say certain things and to cope with social norms. [You struggle] with being able to regulate sleeping patterns, being able to be on time for appointments without needing prompting, and reminders to go out the door. This leads to [you] feeling very overwhelmed and sometimes [choose] not to leave the house because of this.
Finally, [she] read the psychology report to [you]. In [her] observations of [you] over these past years, even though [you have] found it challenging to meet social expectations, and self-reliance, [you have] been putting in a lot of effort to learn, grow, and expand [your] knowledge.
[You are] constantly trying to improve [yourself] as a person and as a valuable member of society.”[21]
(sic)
[21]See exhibit “C”
Matters in mitigation put by your counsel
37In his written submissions, your counsel made general reference to the following matters:
(a) you are now twenty-eight years old, have no prior convictions and no other matters pending. You have the support of your family;
(b) you have had difficulties with literacy and numeracy and did not complete Year 10, and you have been diagnosed with various conditions, including Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Social Anxiety Disorder, Social Phobia, Major Depressive Disorder and Dependent Personality Disorder;
(c) the circumstances of the offending are that you gravitated to forming a relationship with someone who was at the level of your maturity and with the approval of her family (it was accepted that you should not have done this);
(d) that, consistent with the report from the psychologist,[22] you are not a paedophile, but need treatment and are assessed as a moderate risk of re-offending;
(e) it was submitted that, at the time of the offending, you did not properly understand the law of consent and you now know that, as a child under the age of sixteen, the complainant could not give consent. According to both what was recorded by the psychologist and noted by your parents, you understand you need treatment and support.
[22]Exhibit “D”
38In particular, your counsel submitted:
(a) Your early plea of guilty
It was submitted that your plea of guilty was at the earliest opportunity and, indeed, as already noted, the prosecution accepts such situation.
Furthermore, it was submitted that your plea of guilty has significant utilitarian value, in that you saved the complainant and other witnesses from the ordeal of giving evidence. Furthermore, you saved the community the significant expense of a trial.[23]
[23]Reference was made to Phillips v R (2012) 37 VR 594 at 36 (per Redlich JA and Curtain AJA); R v Tasker (2003) 7 VR 128 at 24; R v Ly; R v T [2004] VSCA 45 at paragraph [22]
I accept that, on the material before me, you entered into an early plea of guilty, which did have significant utilitarian value, not least being that the complainant would not be required to give evidence at a trial.
Furthermore, though not directly alluded to, I also consider that the principles enunciated in Worboyes v R[24] are applicable, in that the plea of guilty was entered into when the COVID-19 pandemic was still causing disruption to the listing of criminal cases;
(b) Youthful offender
Your counsel submitted that, bearing in mind you were only twenty years old at the time of the subject offending, you can still be considered a relatively-youthful offender.[25]
In particular, your counsel referred to the well-known decisions of R v Mills[26] and Azzopardi v R; Baltatzis v R; Gabriel v R.[27]
In essence, these decisions fundamentally stand for the principle that the youthfulness of an offender, particularly a first offender, should be a primary consideration for a sentencing court, where the matter properly arises. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence, because the punishment may in fact lead to further offending.
I refer to the document headed “Prosecution Sentencing Submissions”, dated 27 May 2024, which was tendered and marked as exhibit 3. In that document, counsel for the prosecution accepts that the principles articulated in Mills[28] have application that rehabilitation should be afforded importance. However, the prosecution further submits that your youth should be balanced against the seriousness of the offending involving sexual offending against a young child in accordance with Azzopardi,[29] wherein it is stated:
“… where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
(footnotes omitted.)
[24][2021] VSCA 169
[25]Reference was made to the decision of R v Lovett [2008] VSC 60 at paragraphs [17]-[24] where Lasry J held that a twenty-seven-year-old offender is a “youthful offender” for the purposes of sentencing. An appeal by the DPP was dismissed in DPP v Lovett [2008] VSCA 262 with the Crown not pressing the submission that the respondent was not a “youthful offender” and acknowledged that the respondent could rely on his “relative youth” (DPP v Lovett (op cit). See paragraph [22] (per Maxwell P).
[26][1998] 4 VR 235
[27](2011) 35 VR 43
[28]Op cit
[29](Op cit) at paragraph [44]
Although clearly correct as a matter of law, I accept the ultimate submission of your counsel that this is “not the kind of matter where youth and rehabilitation has to take a ‘back seat’ to specific and general deterrence”’;[30]
[30]Reference was made to Director of Public Prosecutions v Lawrence (2004) 10 VR 125 at 132, paragraph [22] (per Batt JA).
(c) The application of principles enunciated in Verdins[31]
[31]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Your counsel submits that the evidence enlivens the so-called Principle 5 of the principles set out in R v Verdins; R v Buckley; R v Vo.[32] In this respect, it was submitted that your various diagnoses made by the psychologist (including your Social Anxiety Disorder and Major Depressive Disorder) would result in a sentence of imprisonment weighing more heavily on you than it would on a person in normal health.
Your counsel also noted that you would be an impressionable and vulnerable prisoner.
Counsel for the prosecution, in her written submissions, accepted, as I do, that Principle 5 has been enlivened by the evidence and has application in mitigation of your sentence.
(d) Your previous good record
Your counsel submits you have no prior convictions and you were of previous good character prior to the subject offending. Furthermore, you have not come under the notice of the authorities since the subject offending (relative to your rehabilitation).
In her written submissions, counsel for the prosecution obviously accepts that you do not have a criminal history and further accepts that you are otherwise a man of good character;
(e) Your rehabilitation
It was submitted by your counsel that you have “good prospects of rehabilitation” given your absence of prior convictions, your strong family support and the likely continuing engagement in rehabilitative treatment.
Counsel for the prosecution accepts that you “may be taken to have reasonable rehabilitation prospects”.
After a consideration of all the matters involved in this matter, I am of the opinion that your prospects of rehabilitation are at least reasonable, subject to you undergoing the various courses suggested by the psychologist.
[32]Op cit
39It was ultimately submitted by your counsel that all sentencing purposes can be achieved in this matter by the imposition of a Community Correction Order and the principle of parsimony applies pursuant to s5(4)(c) of the Sentencing Act 1991.
40In particular, reference was made to the well-known Court of Appeal decision of Boulton v R; Clements v R; Fitzgerald v R,[33] wherein in the Court of appeal stated:
“The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. … .”[34]
(Footnote omitted.)
[33](2014) 46 VR 309
[34](Op cit) at 337-338, paragraphs [123]-[130]
41Furthermore, it was submitted a Community Correction Order has a clear punitive function and operation[35] and can achieve the sentencing purposes of general and specific deterrence and community protection.[36]
[35]See Boulton v R; Clements v R; Fitzgerald v R (op cit) at paragraphs [91]-[93]; Yusuf v R [2022] VSCA 182 at paragraph [60]
[36]See Boulton v R; Clements v R; Fitzgerald v R (op cit) at paragraphs [123]-[338]
42Reference was made to various earlier sentences where Community Correction Orders without imprisonment have been imposed in broadly comparable cases. Such submission was made with the caveat of the limitation of “comparable cases”, made clear by R v Kilic[37] and Director of Public Prosecutions (Vic) v Dalgliesh (Pseudonym).[38]
[37](2016) 259 CLR 256 at 267-268, paragraphs [22]-[24]
[38](2017) 262 CLR 428 at 434 and 444, paragraphs [9] and [48]
43Counsel for the prosecution initially made the following general submissions:
(a) there is a legal presumption that child victims will suffer harm. Reference was made to Clarkson v R, EJA v R,[39] wherein it was held that the absolute prohibition on sexual activity with a child is founded on a presumption of harm.[40] Counsel noted that, in that case, the court explained that the prohibition on sexual offences against children is intended to protect children from the harm:
“… presumed to be caused by premature sexual activity, that is, activity before an age when a child can give meaningful consent”;[41]
[39](2011) 32 VR 361
[40]Op cit)
[41](Op cit) at 364, paragraph [3]
(b) it was submitted that your offending has had a “profound impact” on the complainant, as is made clear by her Victim Impact Statement;
(c) counsel for the prosecution also noted that, at the time of the offending there was a six-year gap between you, then aged twenty, and the complainant, then fourteen. In particular, it was submitted that there is some evidence of pressure put on the complainant, because you were often asking to have sex.
Counsel for the prosecution submit that, because of the gravity of the offending, it is governed by the matters to which reference was made. Furthermore, it was submitted that your moral culpability was “high”, despite being twenty years of age at the time of the offending.
Ultimately, it was submitted by counsel for the prosecution that it was “open to the Court” to sentence you to a Community Correction Order.
44At the end of both parties’ submissions, the Court indicated that you would be sentenced to a Community Correction Order with no imprisonment. To this end, an order was made for you to be assessed as to your suitability for a Community Correction Order.
45Such assessment was undertaken by a Corrections Officer – Ms Rachel Kuang, on 30 May 2024. In a report of the same date, Ms Kuang assessed you as suitable for a Community Correction Order, with the following conditions recommended – the performance of unpaid community work, treatment and rehabilitation in relation to mental health treatment and rehabilitation involving programs to reduce re-offending and supervision. She records that you were willing to comply with a Community Correction Order and gave your full consent.
46I do note the following:
(a) Community Corrections assessed you as being a “medium risk of re-offending” according to the Level of Services Risk Assessment Tool;
(b) That you are currently not working and in receipt of Jobseeker payments and Centrelink benefits.
(c) You are subject to an intervention order, whereby the affected family member is named to be the complainant – such intervention order expires in November 2024.
47At that time, you were also assessed by a senior mental health clinician/registered nurse associated with the Mental Health Advice Referral Service. Such assessment took place on 30 May 2024 and the ultimate recommendation was that there should be a mental health condition as part of any Corrections Order ordered by the Court.
Conclusion
48You have pleaded guilty to one rolled-up charge of sexual penetration with a child under the age of sixteen years – the offending occurring on 24 September 2016, at which time the complainant was fourteen years of age and you twenty years of age.
49Such an offence is clearly a serious offence, as it attracts a maximum penalty of ten years’ imprisonment and also because of the inherent nature of the offending – that is to say, such offending involved a child.[42] As pointed out by counsel for the prosecution, the absolute prohibition on sexual activity with a child is founded on a presumption of harm. By this, such an offence is intended to protect children from the harm “presumed to be caused by premature sexual activity, that is, activity before an age when a child can give meaningful consent”.
[42]For present purposes that is someone under the age of sixteen.
50One of the striking features of this matter is the age disparity between the complainant and you – a period of six years, which is reasonably dramatic given the usual maturity of a twenty year old compared to the usual maturity of a fourteen year old. However, as submitted by your counsel, given your social problems and the various diagnoses for which you have received treatment, your maturity and psychological state was far closer to that of the complainant than the age discrepancy would suggest.
51Again, it must be borne in mind that another particular circumstance of this matter is the relationship existed for three years, some of which was before the sixteenth birthday of the complainant, and some after, and such relationship was clearly acquiesced by others, and, in particular, the mother of the complainant, from early days.
52Although you had some understanding of the law of consent, you were perhaps understandably confused by the observations made around you of others being involved in intimate relationships and the acquiescence, not least, being from the mother of the complainant.
53Furthermore, although I do not accept that you have total insight into why such intimate relationships at that age are prohibited, you have expressed concern about the complainant entering into the relationship if she did not want to and also expressed some remorse for your actions.
54Of course, all sexual offending involving children is serious offending, but given the circumstances surrounding your offending, I consider the objective seriousness not to be at the highest level. Furthermore, I consider your moral culpability not to be very high, bearing in mind your limited maturity at the time of the offending and your unclear view as to the wrongfulness of such offending. As I have already recorded, I consider your prospects of rehabilitation to be reasonable, on the basis that you undergo the various courses suggested by the psychologist.
55I intend to convict you of such offence and order a Community Correction Order.
56Please be upstanding:
(a) in relation to Charge 1 on the Indictment, I sentence to you a Community Correction Order to commence from this date and to continue for a period of eighteen months. Within two days of this order, you are to report to the Pakenham Community Correction Services situated at 12/825 Princes Highway, Pakenham;
(b) beyond the mandatory conditions, I order the following conditions:
(i)pursuant to s48C of the Sentencing Act 1991, you are to perform 150 hours of unpaid community work during the course of the Order;
(ii)pursuant to s48D(3)(d) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment, which may include psychological, psychiatric, or treatment in a hospital or residential facility;
(iii)pursuant to s48D(3)(f) of the Sentencing Act 1991, you must undergo any program that addresses factors related to your offending behaviour and, in particular, specialist sex-offender treatment, as recommended by the psychologist, Mr Burrows;
(iv)pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary;
(v)pursuant to s48CA of the Sentencing Act 1991, I direct that thirty hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of an unpaid community work condition;
(c) I further order that you be registered as a “registrable sex offender” pursuant to the Sex Offenders Registration Act 2004 and you will be required to comply with the reporting obligations of that Act for a period of fifteen years;
(d) I further declare, pursuant to s6AAA of the Sentencing Act 1991, that save for your plea of guilty, I would have convicted and sentenced you to a period of fifteen months’ imprisonment.
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