Director of Public Prosecutions v Sulman
[2018] VCC 1914
•19 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRENCE SULMAN |
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| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 19 November 2018 |
| CASE MAY BE CITED AS: | DPP v Sulman |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1914 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hevey | |
| For the Accused | Mr M. Turner |
HIS HONOUR:
1Terrence Sulman, in the early part of 2016, commenced to communicate with the victim via Facebook, on-line chatting and text messages. You knew her to be a neighbour. You had met and spoken in person to the victim once over the back fence. Importantly, you knew she was 15 years old. You were 27 years old.
2On a Friday night in April or early May 2016 you sent the victim a text, telling her that you were outside her window and that it was cold. You asked to come inside. The victim was unsure and told you that her parents and sibling were all home. You replied, "That doesn't matter, does it?" The victim let you in and once in her bedroom you commenced to kiss and touch her. You asked the victim if she was, "sure". The victim replied that she was. Thereafter you had sex with the victim while wearing a condom. You left before anyone awoke. Later the victim told you that she was unsure about repeating what had happened.
3On 4 May 2016 a school counsellor became aware that the victim had had sex with man she had just met. Her mother was informed. Arrangements were made for the victim to move to stay with her father some distance away. Despite this she and you continued to communicate via social media.
4In January 2017 the victim ran away from her father's home and commenced to live with you. She had turned 16 by this point. She fell pregnant shortly thereafter and gave birth to a daughter in November 2017. The child has been in the care of DHHS since shortly after birth.
5You were interviewed about the matter in April 2017. You made admissions of having sex with the victim on the occasion outlined above, knowing that she was 15 and that such conduct was wrong.
6The Court of Appeal in the important decision in respect of these types of offences, it being The Queen v Clarkson, made it clear that the laws establishing the age of consent were important to protect vulnerable children often from themselves. There is a presumption of harm in such offences. The court considered that in assessing the gravity of offences like the one you committed, at one end would be offending committed by a teenager with a
15 year old in circumstances where the two are involved in a loving relationship. At the other end there would be the adult who exploits the circumstances of coming into contact with a child, such as a teacher having sex with a pupil.7The circumstances here are between those two extremes. You did form a relationship after the victim turned 16, though it was one that became difficult, and I will say more of that shortly, but of paramount importance in assessing the gravity of your offending is that you were 27. I will discuss shortly your psychological make-up which evidences some immaturity but that cannot excuse the fact that you were significantly older than the victim.
8By way of comparisons to make the point, you were an adult many years out of school where she was still a schoolgirl. While before having sex, having come to the window in the middle of the night, you may have asked her if she was sure and she replied she was, but the plain fact remains that you should never have been there in the first place. Her consent does not absolve you of what is a serious crime.
9The victim prepared a victim impact statement that touches on the crime that I have before me. She also spoke of the difficulties and violence in the relationship that developed. Indeed, you have been before the Magistrates' Court for family violence offences, received a community corrections order which has not worked out. Your other prior criminal history, that is other than those matters involving this victim and family violence, those other prior matters are of no relevance.
10In her victim impact statement the victim says, as to the crimes that are before me, that, "I lost my friends because people heard about me being with him. My family lost respect for me. My family did not support me for a long time". She said, "I left school because he said he wanted to spend more time with me. I left school at the start of Year 10. DHHS removed my daughter from my care because Terrence's history of having sex with under-age girls. I was upset and I couldn't eat and couldn't socialise with other people. I had no energy. I've had depression and severe anxiety", and she indicates that she has been to the Child and Adolescent Mental Health Services in 2017. These are matters of importance.
11As to your personal circumstances, you are now 29. You were born in Swan Hill and moved to various places before settling in Portland. In recent times you have been in Hamilton. At school it was discovered that you had a learning difficulty, ADHD, and in particular, difficulties with language. Beyond this you reported being bullying. You were medicated for ADHD but it seems you were not eligible for disability services. You attended at the Portland Secondary School for two years before moving to the Portland Special Development School where you went to the equivalent of Year 12.
12You have had very limited employment since school. Since 2013 you have been in receipt of a disability support pension. It seems in recent times you have been diagnosed with autism. This diagnosis was supported by the forensic psychologist, Mr Cummins, who saw you for this, for your court cases on 20 March 2013. He said the following, paragraph 56: "In my opinion his presentation in interview was primarily reflected of him having mild autism spectrum disorder. Although he presented as being an adolescent by in his interpersonal interactions, and in terms of a number of his comments about his current legal situation and his life in general. In my opinion, he may therefore, from a practical perspective, still suffer from a mild intellectual disability which is being confounded with symptoms of autism spectrum disorder. His communication difficulties, his general immaturity and his dependent personality lifestyle".
13Mr Cummins applied the well-known tests for assessing risk for future sexual offending. In summary, he concluded that you were a low to moderate level of risk. He said the following: "Taking into account all of the information currently available concerning Mr Sulman, it is my opinion his risk of committing a further sexual offence against an under-age person is low/moderate. In my opinion it is appropriate and necessary that he participate in offence specific treatment. In my opinion he presents as quite a psychologically vulnerable person".
14I consider that given your response in the record of interview and the matters discussed by Mr Cummins, you do remain a risk for future offending. In my view your prospects of rehabilitation are guarded, although they may have improved recently with some insight into the end of the relationship with the victim.
15As discussed in your counsel's submissions, you do lack, or did lack, a mature insight into the wrongfulness of your conduct. He describe your remorse as being problematic but, as I say, in recent times you have been able to see that there is no future in any relationship with the victim and thereby you have fortified my view that you are not as much a risk of re-offending, especially with her as you were previously.
16Your plea of guilty means that your sentence will be less than it otherwise would have been. Your plea is important and meant the victim is not required to give evidence which is a significant relief.
17Your counsel urged that the evidence of your delayed development and the opinion of Mr Cummins that in essence you are on the autism spectrum disorder, ought be seen as an impaired mental functioning, as that phrase was utilised in the important case of Verdins and many other cases since.
18Importantly, given that yours is in essence an intellectual disability, I have applied the reasoning of the High Court in the case of Muldrock v The Queen. Considering the relevant evidence and circumstances of this offending, I am satisfied of a causal connection between your deficits and the offending. Your capacity to differentiate between her consent and the fact that she was not of an age to consent, means that I will moderate the moral culpability that attaches to this offending, which means in turn that I will not visit upon you the full weight of denunciation. Ordinarily a 27 year old having sex with a 15 year old would bring with it high moral culpability and significant weight to denunciation. That will be moderated in your case.
19Likewise, and in accordance with Muldrock, I will moderate the ordinarily weighty matter of general deterrence. That sentencing purpose still remains an important sentencing purpose but you are not to be used as an example to others because with your autism spectrum disorder and intellectual deficits, you are different. I was not given any evidence of how your current term of imprisonment is weighing more heavily on you and your counsel backed away from that aspect of the principles in Verdins.
20Your counsel raised the issue of delay, and I consider there is substance in what was submitted. It took 18 months from the offence to be charged and, indeed, seven months from a confessional record of interview to charge. You have had this hanging over your head for two years and eight months. So too has the victim. Your relationship in that time has deteriorated and you now find yourself in prison due to family violence offending. You are due to be released in a week or so. However, I was told you still have some matters listed in the Magistrates' Court. I have taken into account in a general way that delay has prevented consideration of further concurrency. I have taken into account the impact of delay upon you.
21Your counsel urged that I impose a community corrections order or, at worse, a combined community corrections order and gaol. It is to be noted, the prosecution submitted, that a combined sentence involving a community corrections order and a term of imprisonment was within range. What the Court of Appeal has set out in Boulton and cases subsequent to that is that there is a different sentencing regime established by governments in this state, both the current one and the one before that. That different sentencing landscape establishes that there can be lengthy terms of imprisonment combined with a community corrections order that are targeted at rehabilitation. In other words, the sentencing regime now allows for both punishment and rehabilitation to occur simultaneously.
22I had you assessed for a community corrections order. I was provided with an oral account of that assessment. It was very helpful and insightful. There was urged by the Community Corrections officer that you undertake unpaid work be under supervision, that you do offence specific programs of some length, involving sex offender programs, that there be a condition of non-association.
23It was also a consideration that you be electronically monitored, given the nature of the offence, and the proximity of you to the victim. It was acknowledged there was an intervention order in place. However, what was urged was there be time given to assess whether a monitoring condition such as a non-association or exclusion zone or curfew be imposed and that to monitor that monitoring condition that you should be the subject of electronic monitoring.
24Albeit that that was put forward orally just in the course of the final parts of the plea just moments ago, I have considered it seriously and in all the circumstances of this now crime of one charge of sexual penetration of a child under the age of 16, and in all the circumstances of it, given that it was two years and eight months ago, I consider that it is not necessary, not just or appropriate, nor would it be necessary to achieve all the sentencing purposes for there to be a monitoring condition, and thereby no need for an electronic monitoring condition.
25But otherwise you are suitable for a community corrections order notwithstanding recent previous difficulties with community corrections orders, but it seems since the imposition of that community corrections order, as I have referred to, you are now fully over the relationship and understand it is not to be. Thus your risk of re-offending, as I have indicated, is less, and the prospects of getting through a community corrections order are better.
26Having said all that, it seems to me that there is a need both for denunciation and, in particular, general deterrence, although that is moderated, for there to be a period of time in which you are further in prison, and once you have been released from prison you ought be on a community corrections order that will last for some time and require you to undergo specific programs that deal with your risk of re-offending in the sense of sexual offending. So if you would not mind standing, please, Mr Sulman.
27Charge 1, that is the crime of sexual penetration of a child under the age of 16, you are sentenced to be imprisoned for nine months. That sentence will be concurrent with the sentence that you are currently undergoing.
28In addition, you are required to do an 18 month community corrections order. The conditions of that Corrections order are: that you are to be under supervision; you are to do unpaid community work, that is 90 hours of unpaid community work; you must undergo and comply with programs that you are directed to do that deal with your offending. That will be a sex offenders program. You will be required to do that. It is not voluntary. It will take some time and effort but you must do it.
29Also you will be subject to judicial monitoring. That will be some time off because you will be released from prison, you will start your community corrections order, then I will consider how you are going. As best I can place it, it might be that it is done on a date that can be remembered, 13 December 2019. That is Friday, 13 December 2019 at 9.30. You will have to come along and see me, see how things are panning out, see whether you are enrolled in courses, doing courses, doing your unpaid community work and otherwise staying out of trouble. I will get a report and if you are doing well then it will proceed on. If you are not I will be told and there may be consequences that flow, not directly from there but I will make it clear to those that are supervising you that if there is any breach I want that matter before me.
30Had you pleaded not guilty to these offences and been found guilty of them by a jury I would have imposed a sentence of two years, six months, with a minimum period of one year, six months. That is if you had pleaded not guilty and been found guilty. In other words, the benefit to you of your plea is very significant. That is to be known by you and by the community that if you plead not guilty penalties will be much higher. If you plead guilty there is a significant benefit, which has flowed to you.
31You are required to be registered under the Sex Offenders Registration Act. I have no say in that. That is a requirement under the legislation. The period of time you have to be registered is also a requirement and that will be for a period of - is it 15 years?
32MR HEVEY: Yes, thank you, Your Honour.
33HIS HONOUR: Fifteen years. Just one other condition that was sought which I have not referred to and it is more an oversight, and that is for the period of time that you are on the community corrections order you are not to associate with the victim in this case save for any requirements under family law orders. Do you understand that? So you have got an intervention order. Well, that is one thing. She can change that. That is a civil order between the parties. The non-association order that I have made is part of your community corrections order, is not something between the two of you or an order that can be altered. It is simply no association with her. Do you understand? Leave her alone. And thereby if you are said to have breached that that there will be a breach of the community corrections order. Do you follow that?
34ACCUSED: Yes, Your Honour.
35HIS HONOUR: All right. Is there anything else required? Are there 464s or days in custody? I do not think there any - - -
36MR HEVEY: 464, Your Honour, thank you, and there is no - - -
37HIS HONOUR: Yes. As a requirement of - thank you. There is an application that you provide a forensic sample, that is a scraping from your mouth. That application being made, in the circumstances I intend to grant it because of the seriousness of the offending, the nature of it, and because it would be in the interests of justice for you to provide a forensic sample. What that means is that the prison authorities or other authorities will come and get a scraping from your mouth. They are authorised to use reasonable force if you do not cooperate with that procedure. It is straightforward. Just cooperate with it. Is there anything further?
38MR TURNER: Yes, Your Honour. The only thing I would seek to add is that in relation to your provision about family law orders it is likely that the Children's Court, through the DHS, would be involved. So if it could be - - -
39HIS HONOUR: Children's Court orders.
40MR TURNER: Yes.
41HIS HONOUR: All right.
42MR TURNER: And/or Children's Court.
43HIS HONOUR: Yes, Family Court or Children's Court, right. Thank you very much, Mr Turner. There will be a document produced. If you are willing to sign it then that will bring the matters here to an end but you will still be required to return back to prison and complete your sentence. The document will take some time so take a seat.
44MR HEVEY: One other matter, Your Honour, if I might.
45HIS HONOUR: Yes.
46MR HEVEY: I am just wondering whether the time spent on the Sex Offenders Program order, whether that time comes off the unpaid work or not.
47HIS HONOUR: Unpaid work, no.
48MR HEVEY: No. Thank you, Your Honour. I just thought I would raise it.
49HIS HONOUR: There has got to be some punishment. The unpaid work is 90 hours. He will get it done. It might introduce him to a job. Did you hear all that? It might introduce you to people who are not very interested in staying out of trouble. You have just got to be able to stand away from them, all right? You have not got a drug problem, which is rare to come into these courts. You could see all the people in prison who have got them so do not go down that path.
50Is there likely to be any orders (indistinct)? It is all brought because you technically would breach that if you came to court and had an argument about visitation rights. So we have to have this order in that form, do we not?
51MR TURNER: Yes, Your Honour.
52(At this stage the court proceeded with another matter.)
53
HIS HONOUR: All right, there is a couple of documents. I will get back to
Mr Sulman. There is a document that is going to be brought down to you and it relates to your requirement to register under the Sex Offenders Registration Act. I have just signed something that says I am going to give it to you, and then you have got to sign something at the back that says you have got it, but it is what is in the middle that counts. There are very significant requirements on you once you register. I cannot outline them all but do not doubt these are very minute details. If you have got an internet address, email, then you have got to tell the police what it is. Any one of these you might be on a gaming site and just make one up. That has got to be put in there. Do you follow all that? You have got to read this or have it read to you once you get out of prison, very carefully. As soon as you get out go with your parents and speak to your lawyer about this. As soon as you get out. If you delay it there will be trouble. Sign that to say that you have got it and then there will be another document on its way. Just bear with us. Just bear with me for a moment.
54So in respect to this Corrections order it is going to go for 18 months. It starts when you are released from prison. These conditions apply to everyone who is on a Corrections order. The first is the most important. You must not commit any other offence, which could be in prison, during the time that the order is in force, any offence. Not complying with your sex offenders registration, that will breach it. Do you follow? Any of it.
55The rest of the things that I am going to through are about cooperation. You must comply with any requirements under sentencing regulations. So once you get out and you go to the Office of Corrections they will need to photograph you and know who you are. Just cooperate with all that. You have got to report to and receive visits from the Office of Corrections. You have got to report to the Community Corrections Centre within two clear working days of getting out of prison, because that is when it starts. The Can't Corrections Centre is here in Warrnambool. They will probably transfer it all over to Hamilton but you have got to start here. You must let them know within two clear working days if you change your address or you get a job or change your job. You cannot leave Victoria without getting permission and you must obey all lawful instructions. So that is all about cooperation.
56There conditions that apply just to you are: 90 hours of unpaid community work; you must be under supervision. That will require you to go and see them and talk to them, have meetings and appointments. Do not miss any; you must participate in programs that address factors relating to your offending, as they direct. That will be sex offenders; you cannot associate with the complainant here other than for Family Court or Children's Court matters for that period of 18 months; and you must appear back before me on 13 December 2018 - 19 it should be. Goodness me. I will just change that by hand - and you can come here to the Warrnambool Court and we will beam you in to wherever I am if I am not here. Do you follow all that? Sign that if you - yes. So there are these two documents that will be brought down to you. Sign them if you consent to them.
57
He has to carry them out with him. Thanks. He has got to take these documents with him. Firstly, there is the community corrections order. You have signed that, so have I. So if you breach it I will just point out that you said you were going to do it. The other document you signed is acknowledgment that you received notification of reporting obligations and notifications of the reporting period, and it says here, "As a registrable offender who will report to Victoria Police seven days after release from Government custody", all right? So within seven days. Got to be reached 15 years, and we will forward this to the Chief Commissioner of Police. Thank you. Is there anything further of
Mr Sulman?
58MR TURNER: No, Your Honour.
59HIS HONOUR: No, all right.
60MR HEVEY: No, thank you, Your Honour.
61HIS HONOUR: I thank counsel for their very considerable assistance in this matter over a couple of starts. You have to go now with people from the - who will take you back and you will head back to Melbourne and finish the sentence.
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