Director of Public Prosecutions v Surkitt

[2020] VCC 1279

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00102

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS SURKITT

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2020
DATE OF SENTENCE:	01 July 2020
CASE MAY BE CITED AS:	DPP v SURKITT
MEDIUM NEUTRAL CITATION:	[2020] VCC 1279

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr M. Adams	Victoria Legal Aid

HIS HONOUR:

1Travis Surkitt, as at 17 May 2019 you were 18 years old.  You were a close friend of a young woman, aged then 15 who lived as you did in a small town in Western Victoria.  The young woman had a school friend, the victim in this matter who was at the time 14 years and nine months.  The victim confided to her friend that she wanted to lose her virginity.  Unfortunately, being 14 years and nine months old, she was below the legal age of consent.

2Her friend thoughtlessly decided to help.  She said that you would have sex with the victim.  The text message you received was simple and blunt.  The victim, 'Wants to have sex with you'.  An arrangement was made by the other young woman to have the victim stay over at her house on an upcoming weekend.  You were contacted to meet up with the victim.  You had never met her before.

3You went for a short walk with the victim and asked her how old she was.  She told you she was 14.  As the oldest of the three of you, you should have stopped the plan at this point, but you did not.  You then had sex with the complainant in the nearby public toilet.  Initially there was touching, which was charged as a rolled-up sexual assault of a child under the age of 16.  You then attempted vaginal penetration with a condom but stopped.  This was charged as an attempted sexual penetration of a child under the age of 16.

4You then penetrated the victim digitally, orally, and then penile without a condom which was charged as a rolled-up charge of sexual penetration of a child under the age of 16.

5The other young woman had remained outside the toilet block.  She became upset at the fact that you and her friend had sex, which was odd, given that she had arranged it all.  I note that she pleaded guilty in the Children's Court to aiding and abetting sexual penetration of a child under the age of 16 and was placed on a diversion program.

6A short time later on the weekend, the victim told her sister what had happened who then told her mother.  Nothing was done initially, though the victim and you did have a brief relationship.  Some five weeks later, the police were told of the sexual intercourse and a statement by the victim was made a week on from that.  You were interviewed on 11 July 2019 and made full admissions.

7The victim did not wish to make a victim impact statement, and indicated she wanted to move on with her life.  However, the presumption of harm is far from displaced here, as she saw her GP at the time of speaking to the police, and the GP assessed her as having depression, anxiety, and stress.

8In assessing the gravity of this offending, I am aided by the Court of Appeal analysis in Clarkson[1] where it was said as follows.

'Proof that a child consented is the beginning rather than the end of the sentencing court's enquiry.  In assessing the gravity of the offence and the offender’s culpability, the court's attention will be directed not at consent as such but at the circumstances in which the consent came to be given.  Typically, the giving of the consent will be a reflection of the relationship between the child and the offender.  In very many cases, the consent will be seen to reflect a significant age and/or power imbalance between offender and victim.  In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother's partner — the circumstances will usually reveal the offender's abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.  At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15-year-old girl and an 18-year-old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced.  In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.  In short, to ask whether consent is a mitigating factor is to ask the wrong question.  It is only when the circumstances in which the consent was given are appropriately understood, the court can appropriately assess the offender's conduct and hence, determine the appropriate sentence'.

[1]Clarkson [2011] VSCA 157

9In my view, this is not at the lowest end, like two young people in a relationship, but it is close to the lowest end.  It was commenced and organised by the victim and her friend.  The law is designed to protect the young and, sometimes, what is required is that they be protected from themselves.  That is the case here.  The victim was too young to make the choices she did, and you as the adult who knew it was wrong, should have simply said no.

10In assessing the seriousness of the crimes, I note that there was no frank abuse of trust, procuring or added concerning behaviours such as threats or coercion; it was a one-off.  Although the age gap is over three years, it is almost as low an age gap as can be seen for this defence in this court.

11In my view, the overall gravity and moral culpability are at a very low level.  This is important because two of the crimes are standard sentencing offences.  Sexual assault of a child under the age of 16 has a standard sentence of four years imprisonment with a maximum term of 10 years.  Sexual penetration of a child under the age of 16 is a standard sentence of six years' imprisonment, with a maximum term of 15 years' imprisonment.

12Those two matters, that is, the standard sentence and the maximum term, are statutory guideposts.  The standard sentencing regime preserves the
well-known sentencing approach of instinctive synthesis, as I consider.  All aspects of this case including the fact that Charges 1 and 3 are standard sentencing offences.  Standard sentence is what is considered in the middle of the range of seriousness considering the objective factors only.

13The fact that the offences are categorised as standard sentences does not alter that on any analysis of the objective factors, they are in this case examples of the two offences at the very lowest end of the scale, but not quite the bottom.

14The sexual assault Charge 1 is particularly minor in the scheme of sexual offending.  Thus, the relationship between my sentence and the standard sentence is to be explained by the very low gravity and moral culpability involved.

15As to your personal circumstances, you are still a very young man at 19 years of age.  Your youth is the most prominent sentencing consideration.  Given you have no relevant prior matters, and the interconnected matters of your youth, your good character, and your good prospect, means that establishing conditions that facilitate your rehabilitation is the most important sentencing purpose.

16The principles relating to sentencing youthful first offenders are well-known.  Given this matter is a standard sentencing offence or two of the charges are, is helpful to repeat those principles.  What was said in Azzopardi[2] I can summarise as follows;

[2]Azzopardi [2011] VSCA 372

17That there are a number of considerations that underline the general primacy of an offender's youth as a sentencing consideration.  First, is that young offenders being immature are more prone to ill-considered and rash decisions.  They lack a degree of insight and do not fully appreciate the nature and seriousness and consequences of what is criminal conduct.

18Secondly, the courts recognise that young offenders have the potential to be redeemed and rehabilitate; that is because of their age and their level of mental and emotional development.

19Thirdly, the court is cognisant of the effect of incarceration in an adult prison on a young offender or in a youth detention centre, is likely to impair rather than improve prospects of rehabilitation. 

20The court in Azzopardi quoted from the other well-known decision of Mills v R[3].  There, the Court of Appeal stated the following general propositions,

'i.  Youth of an offender particularly a first offender should be a primary consideration for sentencing in a court where that matter properly arises.

ii.   In the case of a youthful offender, rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying the adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principles set out in s.5(4) of the Sentencing Act)'.

[3]Mills (1998) 4 VR 235

21This third point is highly relevant given that this is a standard sentence, or two of the charges are standard sentencing offences.  I also add that references to adult prison also incorporate or include references to detention in a
Youth Justice Centre.

22In addition to the very significant weight to be given to your youth, it is clear to me that your upbringing has been one of disadvantage.  Your parents separated when you were three.  You were diagnosed very early on with ADHD.  You were seen and treated by paediatricians and treated with stimulant drugs.  Your mother could not cope as you grew up.  You were put into foster care at the age of seven.  Your care moved around from various local foster families, then to your grandmother, then back to your father, where you remain.

23School was difficult and not much was gained in terms of education.  You had trouble socially, experiencing bullying, fighting, and little by way of close friendships.  Those that know you in the local community comment on the lack of any warmth or affection from either of your parents.  You have had difficulties developing and were at this time, especially immature with low self-esteem.

24The medicolegal psychologist Ms Lechner considered that you grew up with complex trauma and depression.  She has seen you again since the plea and noted that your mental health was much improved.  The counselling you have undergone has been of practical importance.  Ms Lechner undertook the sexual offence risk assessment using standard actuarial assessment tools.  In my view, on the basis of the results of those assessments and the broad analysis of all your circumstances, you are a low risk of sexual re-offending.  Indeed, in my view, you have gained significant insight because of the assistance of the programs you have engaged in with Brophy Family Care and the CISP program.

25Your risks of re-offending are vanishingly low.  Despite your disadvantages, you did not fall into drug or alcohol use or anti-social behaviours.  On the contrary, you have developed and maintained positive relationships. 

26Your employment history is more of the bits and pieces but importantly of late, you have done what you could to improve that situation.  I have learnt to my dismay that you lost your job at the MeatWorks because you had to take time off to come to court.  You have responded well to your CISP bail conditions.  You have benefitted from the work of the Brophy Family Services.  All those recent developments together with your past good character means that I am very confident that if I do give the appropriate and very significant weight to rehabilitation, you will go on to permanently reform and not be in any trouble again.

27I return in due course to one matter that may operate as an impediment to your future employment.  But all those factors weigh into the mix as to what is the appropriate punishment for you as the offender in this low-level sexual offending.  You now acknowledge your stupidity in agreeing to have sex with the victim.  You are appropriately remorseful and have developed insight.  All this is to your credit.

28Your plea of guilty is very valuable, especially in these difficult times of the COVID-19 pandemic.  You relived the victim of the real trauma of having to give evidence.  Your sentence will be much lower and of a different kind, because of your plea of guilty.

29Your counsel submitted that a penalty other than incarceration ought be imposed.  The prosecution did not argue otherwise.  Your counsel went on to develop the submission that I should impose an adjourned undertaking in all the circumstances.  The prosecution's instructions were that a community corrections order was the just and appropriate penalty.

30It would in my view be entirely disproportionate to sentence you to incarceration for the single event of underage sex that was sought out by the victim.  All sentencing purposes including denunciation, deterrence, and the facilitation of rehabilitation are more satisfactorily met by a non-custodial penalty being a community corrections order or an adjourned undertaking.

31You were assessed and found to be suitable for a community corrections order, albeit that you were assessed as being on the medium risk using the tools that community corrections service use, and you were also assessed as requiring treatment and rehabilitation for reoffending.  That was sought out from them as to their views on that.  The requirement is that such a sex offender's course, needs to be undertaken only in Melbourne and it needs to be done over a period of 18 months.  I have weighed those matters into the mix in considering what sort of punishment be it a CCO or an adjourned undertaking and in relation to both, what length.

32In my view, a community corrections order is punishment, but it can simultaneously rehabilitate.  In my view, no further punishment can be delivered by requiring you to do unpaid work and be under supervision while rehabilitation programs in respect of your reform can be considered.  But in my view, it is not necessary that you undergo a sex offender's program, nor that a community corrections order needs to be of the length suggested by the assessment done by the Office of Corrections.  However, I form the view that a community corrections order is the just and appropriate sentence, in light in particular of the fact that two of the offences are standard sentences, and this was not at the very low level that would see an appropriate penalty of an adjourned undertaking.

33In this case, a community corrections order is the just and appropriate penalty.  But in my view, no further and permanent punishment is required by recording a conviction.

34Compliance to s.8 of the Sentencing Act I have considered the nature and gravity of the offending which as I have said is very much reduced.  I have considered the importance of deterrence when considering this matter of a conviction.  As I have outlined, general deterrence plays a very limited or much reduced role in cases like this involving a young first offender.

35I have considered your social and economic circumstances, especially relating to your prospects of employment, which have to be seen in light of your limited education, the reduction of unskilled employment at this time of the pandemic and the fact that you live in a regional area.  Accordingly, I will impose community corrections orders without recording a conviction.

36Finally, you have applied to be exempt from the registering on the
Sex Offenders Register.  In this regard, importantly, the Chief Commissioner has considered all of the materials procured for your plea, and since your plea, and has decided not to oppose this application that you be exempt from registering on the Sex Offenders Register.  As I have said, the attitude of the police is an important factor, but not determinative.

37In my view, you do not present as a danger to the sexual safety of anyone.  Registration on the Sex Offender's Register is entirely unnecessary and inappropriate in your case.  I, along with many County Court judges have for years railed against the mandatory aspect of the sex offender's registration in cases like this; that is, the young person engaging in otherwise consensual underage sex.

38It is a significant advance in our system of justice, that I am no longer required to impose the heavy burden on an individual and on the supervising Victorian Police, when registration does not in any way, advance the purposes of the
Sex Offenders Registration Act, which is the protection of the community by ongoing monitoring of sexual predators.  I am firmly of the view on all the material that I have, that you should be exempt from registration pursuant to the Sex Offenders Registration Act.  All the requirements of exemption provided in the Sex Offenders Registration Act have been properly and comprehensively met.  I will return to this matter shortly. 

39Now moving to the sentence.  I cannot impose an aggregate sentence for this single continuous sexual incident.  But I will impose community corrections orders that will operate concurrently.

40In respect of Charge 1, without conviction, I place you on a two month community corrections order with one condition that you be under supervision.

41Charge 2, without conviction, you are placed on a community corrections order and it is a four month community corrections order, one condition you be under supervision.

42With respect to Charge 3, without conviction, you are placed on a community corrections order for nine months.  Two conditions, one that you be under supervision, and the second that you do 40 hours of unpaid community work.

43All those community corrections orders run concurrently, thus you really have one period of nine months of supervision and you must undergo 40 hours of unpaid community work during that time. 

44I did consider all aspects regarding programs and sex offender courses, and in my view, they are not necessary or proportionate to this offending.

45Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of nine months' detention in a Youth Justice Centre.

46Further, I order you are exempt from registration under the Sex Offenders Registration Act. I make that order as pursuant to s.11A of the Sex Offenders Registration Act.  You satisfy all criteria to make an application for exemption.

47Pursuant to s.11B, I am satisfied on the balance of probabilities, indeed to a much higher level of satisfaction than that, that you pose no risk to the sexual safety of any person, and in coming to this view, I have had regard to s.11B(1), paragraph b) and sub-paragraphs (i) to (v) and I have considered all other matters that I consider relevant as per (vi).

48Are there any other orders required?

49MR ADAMS:  Nothing required, Your Honour.

50HIS HONOUR:  Thank you, Mr Moore.

51MR MOORE:  No, Your Honour.

52HIS HONOUR:  All right.  Mr Surkitt, I am required to run through with you what a community corrections order means.  The most important thing about them are that you are not to commit any further offences that could be punishable by imprisonment while you are on the community corrections order.  All right.  So do not commit any further offences.  Just do as you have been doing and just obey the law.

53The other aspects about it is that you have to cooperate with the Office of Corrections.  So, you have got to get in touch with them by phone within two clear working days of his order starting, which is today.  They will need to know whether you change your job, change your address, and you cannot go interstate without them knowing about it and giving you permission.  You understand all that?

54ACCUSED:  Yes, Your Honour.

55HIS HONOUR:  All right.  You must obey all lawful directions from them and receive visits from them.  Do you understand that?

56ACCUSED:  Yes, Your Honour.

57HIS HONOUR:  All right.  Now, they are the matters that relate to all people who are on any sort of community corrections order.  Beyond that, you have the conditions; you have got to be under supervision.  That will mean that they will just keep engaged with you and supervise you probably by phone, given the COVID-19, for a period of time, the nine months.  Just to make sure everything is on track, do you understand?

58ACCUSED:  Yes, Your Honour.

59HIS HONOUR:  That is not voluntary, if they set times for you to undergo supervision, you must comply with them.  In respect of the third charge, the serious charge, you have got to do 40 hours of unpaid community work.  So, get that done as soon as you possibly can.  How that is to be done under the COVID restrictions, they will explain to you.

60But in respect of that, it is not voluntary.  Just get that 40 hours done, all right.

61ACCUSED:  Yes, Your Honour.

62HIS HONOUR:  Now, do you understand that order, the totality of it?

63ACCUSED:  Yes, Your Honour.

64HIS HONOUR:  All right.  Do you consent to the order being made?

65ACCUSED:  Yes, Your Honour.

66HIS HONOUR:  All right.  Now, ordinarily you would have a document and you would sign it, but we take your oral consent as that in the circumstances.  Ultimately, your lawyer will get documents that set out these conditions and the orders that I have made, and I will - there will be my signature attached to that.  If there is nothing further, the other matter that you have ‑ ‑ ‑

67MR MOORE:  There is one matter, Your Honour.  I do not know whether
Your Honour was going to turn to this, Your Honour.  There is an application under s.464ZF(2).

68HIS HONOUR:  I did not realise that.  I have not turned to it.  Why do you need this man's - 464ZF is to take a sample or retain.

69MR MOORE:  Take, Your Honour.

70HIS HONOUR:  All right.  What do you say about that, Mr Adams?

71MR ADAMS:  I was not aware of that application, Your Honour.

72HIS HONOUR:  All right, you are now.  What do you want to say anything about it or ‑ ‑ ‑

73MR ADAMS:  I do not have instructions with regard to it from Mr Surkitt.  He is - it is a matter for the court, perhaps given the lack of prior history and it was not required as part of the investigation itself, and his young age, and I believe there is - if it was ever required that the changes to the legislation would allow any investigator to require DNA as part of that investigation.

74HIS HONOUR:  Yes.

75MR ADAMS:  Perhaps not necessary.

76HIS HONOUR:  Mr Moore.

77MR MOORE:  Look, it is entirely discretionary, Your Honour.

78HIS HONOUR:  Thank you.  An application has been made Mr Surkitt, that you provide a forensic sample, that is a scraping from your mouth, so that your DNA can be extracted and kept on a database.  I consider that application, in particular, as to whether it is in the interests of justice.  The other matters that I must consider favour not giving - not granting the application.  That is, you have no prior history, the gravity of the offence does not require it, although the offence itself is of a kind where forensic samples and DNA play a very significant role.  But in my view, it is not in the interests of justice to require you in the circumstances to require that forensic sample, and I decline to grant the application.

79MR MOORE:  As Your Honour pleases.

80HIS HONOUR:  If there is nothing further, the documents will be forwarded to your office in due course.  I thank you for your assistance, Mr Adams, and
Mr Moore.  I will end this meeting, as it were, or this hearing.  If you need to speak to each other, feel free to do so.  I will just stand away from all that is required.  There is nothing further, Mr McIntosh?

81ASSOCIATE:  No, Your Honour.

82HIS HONOUR:  Thank you.

83MR ADAMS:  Thank you, Your Honour.

---