Director of Public Prosecutions v Sutherland

[2016] VCC 847

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00582

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL SUTHERLAND

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2016
DATE OF SENTENCE:	20 June 2016
CASE MAY BE CITED AS:	DPP v Sutherland
MEDIUM NEUTRAL CITATION:	[2016] VCC 847

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. El-Asmar	Office of Public Prosecutions
For the Accused	Ms N. Karapanagiotidis	Victoria Legal Aid

HIS HONOUR:

1Mr Sutherland, you have pleaded guilty to two counts of sexual penetration with a child under the age of 16. You have further consented, pursuant to s.145 of the Criminal Procedure Act to this court hearing, the summary offence of contravening a family violence order.

2You have heard the learned prosecutor, it was then Ms Guesdon, tell this court that the maximum penalty that may be imposed of sexual penetration, that is, these two offences, is that of ten years' imprisonment on each count.

3The maximum sentence that can be imposed for contravention of a family intervention order is 240 penalty units or two years' imprisonment.

4Having pleaded guilty, I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

5Mr Sutherland, the facts and circumstances of this case are set out in the prosecutor's opening.  That has been filed in this court and is called Exhibit A.  I intend to place Exhibit A on the court file.  That will enable any interested party to know and understand the nature and circumstance of your offending and your misbehaviour with the victim of these two counts on the indictment.  It is a lengthy opening and to summarise it would take quite some time, but the whole summary is now part and parcel of these reasons as an exhibit.

6The first count on the indictment I must tell you is a representative count.  In respect of this count, I must tell you that the sentence I impose on that count must relate only to the specific offence charged.  That is, sexual penetration of the young person under the age of 16.  A representative count enables the offence to be seen in its full circumstantial context.

7I quote from the case of R v SVL [1999] 1 VR at p.706, where Mr Justice Batt who was then a Justice in the Court of Appeal, said this: 

"A representative count enables the offence to be seen in its full circumstantial context.  An offender is not by laying of the sentence, to be punished for the representative offences, but the sentence for the representative offence may reflect the fact that it occurred in a wider context.  Regard may be had to the adverse effects upon a victim of the whole conduct."

8I will come to that later.  In the same case as SVL, Justice Ormiston as he then was, in the Court of Appeal, said this:

"In other words, the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard for the recognised principles of proportionality and totality.  Not only must I not loathe the sentence in respect of a representative count by sentencing the representative count, I must not sentence twice for the same offence."

9Now that might be a little bit confusing for you, but if you are confused by it, please understand and take it up with your counsel.

10OFFENDER:  I understand it all, Your Honour.

11HIS HONOUR:  Good.  Mr Sutherland, the well-known forensic psychologist, Ms Pamela Matthews, has provided a report dated 9 June 2016.  Ms Matthews, in that report, sets out a brief history of your family, setting out that you grew up in Shepparton, living with your mother and family.

12You are now aged 19, having been born on 20 August 1996.  Your parents separated before you were born.  Your mother re-partnered when you were approximately five years of age.  I understand that you have a 16 year old step-sister and you have two half-sisters, one aged 12 and the other aged eight.  You report to Ms Matthews that you have a good relationship with your mother and at the time that you were seeing Ms Matthews, you said you got on very well with her, but not so well with your step-father.

13The material I have been given since then indicates there is some form of reconciliation between you and him and he remains supportive of you as your mother does.

14You have on occasions lived with your grandmother.  Indeed, you lived for a short period of time between November and January of this year on your own.  The Department of Human Services have been involved in your family life.  You, on occasions, lived in premises within your family at their direction.

15You have significant health problems and I will return to this issue in a moment.  I am not speaking of physical health, I am talking about mental health.

16I quote directly from Ms Matthews' report as to your background in terms of education.  This is what she says of you.  Obviously she was speaking with you when she was preparing this report.  So I am reading from her report directly about you.  Ms Matthews says this:

"Mr Sutherland attended Dookie and St George's Road Primary schools.  He was an above average student, despite having some behavioural difficulties due to boredom and was the class clown.  Mr Sutherland reported being socially awkward during primary school which resulted in him being bullied, teased and excluded.  He reported that the teachers were also a part of that exclusion.  He was not allowed to go to class camps or excursions, even if his behaviour was good.  Mr Sutherland was forced to switch primary schools due to these sort of issues."

17Ms Matthews goes on to say:

"Mr Sutherland then attended Wanganui High School.  He reported being academically above average, however still experienced social difficulties and preferred being by himself.  He reported that once the 2012 court case started, he had to stay in the classroom under supervision during lunch and recess and was asked to leave the school halfway through Year 11."

18I just pause there for a moment and refer back.  That was part and parcel of how the Department of Human Services became involved in your life, but there is no point in me re-raising that now.  That is in the past.  I return to Ms Matthews report.  She further says this:

"Mr Sutherland then did Year 11 and Year 12 combined at TAFE however did not pass due to lack of focus because at that time, his grandmother began undergoing chemotherapy.  Mr Sutherland mentioned that at that time he was living with his gran and was unable to live with his mother."

19Ms Pamela Matthews identifies that you are burdened with significant mental health issues.  You enjoy, as I said a few moments ago, good physical health.  You counsel has produced a most informative report from the Shepparton Child Health Group ASD Assessment Service.  This report was prepared by Cherie Greville, a psychologist and was dated 13 May 2014 and so it predates the offending.  You were then aged 17 and nine months.

20I quote from Ms Greville's report.  It is extensive but very important because it sets out the deficits that you are burdened with.  I read that portion of report.  This is what Ms Greville said:         

"The key issues for Daniel in relation to the results of the assessment [because she assessed you] are:  Daniel is unusual as he presented with dual symptoms of both attachment difficulties and Asperger's Disorder.  Much of the symptoms for both disorders are very similar, often making it very difficult to discern between the two unless there is the presence of the more apparent Asperger's symptoms which are not found in attachment difficulties.  This is the case with Daniel.  His history would suggest he is highly likely to have attachment problems which affect much of the skilled development concerning relationships; emotional regulation, anxiety and depressive states, communication, learning difficulties, delinquent behaviours and usually attracts various DSM diagnosis such as ADD, conduct disorder, oppositional conduct disorder and or post-traumatic stress disorder.  Daniel fulfils both the criteria, history and symptom profile for attachment difficulties.

However he also has another set of additional symptoms which are not attachment related, such as his formal speech patterns, extensive vocabulary, bland facial expressions, intensive straight obsessions interests, poor eating habits as he does not have the attachment history to establish poor eating habits which can be related to developing eating issues, paralysing anxiety and even but higher cognitive ability than his same age peers.

These symptoms are not usually found in the attachment disorder population group.  These are symptoms that are very typical of Asperger's Disorder.  Daniel is one of the very few young people who fulfil criteria of Autism Spectrum Disorder, formally known as Asperger's Disorder and complex trauma.

In relation to his complex presentation, Daniel struggles with most of the difficulties found in both population groups of complex trauma and ASD.  These primarily relate to social difficulties, emotional meltdowns and chronic or acute anxiety.  In addition, Daniel has difficult communication styles as his face is often expressionless and his language is formal and can be mechanical.  He struggles to apply one set of skills or rules to new situations which are similar, so each situation can often be a new experience to challenge him. 

He is adamant about both his relational and intellectual abilities which can create aloofness and be further isolating as well as helping him to believe he does not need to learn or participate in learning."

21Now all of those things indicate that you are now most unusual unfortunately because you have got a double dose, if I can put it simply, not one, but two significant issues.  So those professional people, in the future, you are going to have to address them so as to help you to be a good member of society.

22All of these comments or observations as I have said pre-date the offending relating to these counts on the indictment.  Your significant health problems do not excuse your behaviour but certainly have strong mitigatory material so that your position is clearly understood.

23In this case, when the facts are closely examined, it might and I emphasise it might be said that the victim was consenting, a consenting party to this sexual activity.  However especially after examining the victim impact statements provided by this young lady, at first sight, what appears to be consensual behaviour is not correct.

24On proper analysis, one might say this was not an informed consent because of her age and difficulties with your influence over her, it was not a real consent, whilst it appears to be consensual.

25In the case of Clarkson v R and EJA v R [2011] VSCA 157, it was said and I quote from that case:

"In every case however, the sentencing court will examine the circumstances of the offending in order to assess the gravity of the offence and the offender's culpability.  The court should never consider the child's consent in isolation.  Instead, the court will need to investigate the circumstances in which the consent came to be given."

26I must take into account the relative age of yourself, Mr Sutherland and that of the victim.  Secondly, the situation of the victim and the degree to which she was taken advantage of by you and then further, the evidence, did it show harm to the victim already suffered or likely to be suffering in the future.

27As I view her victim impact statement and the circumstance of the event, it was not apparent and readily to be seen but certainly after the event it is.  So it was not informed consent.

28In this instance, Mr Sutherland, and I say, you were 18/19 and the victim was 14/15.  Fourteen in her instance when you first began communication, 15 when the offences commenced in terms of penetration.  The same with the 18/19 varies relative to yourself, but it does not change the gap.  The maximum gap is four years, whichever way you try and work it out.

29As I inferred earlier on the face of the evidence available in this court, it would seem that the victim was a willing participant in the various escapades that each of you got up to in your clandestine activities.

30It is now apparent that the victim was influenced by you and that she responded to planning so as to engage in this sexual activity.

31The victim responded positively to your request and planning.  To that extent you took advantage of her vulnerability.

32This young lady now understands the damage that has occurred to herself and is now receiving counselling in relation to what she is now struggling with.

33Mr Sutherland, I remind you of the purposes of this legislation.  It was said in Clarkson's case that, and I again quote from Clarkson's case, at paragraph 26, the court said this:

"In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes.  The first is to protect children from the harms caused by premature sexual activity and to that end, to protect them from their own immaturity.  On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity even if subjectively attracted to the idea of participating in such activity.

Secondly and in order to advance the protective purpose, the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.  The whole legislation is to dissuade persons such as yourself from engaging with male or females under the age of 16 for sexual purposes."

34Mr Sutherland, you have heard the two victim impact statements read to this court.  As both victim impact statements are now part of the transcript of this plea hearing, I do not propose to again read them out.  They are part of the transcript and they are on the record forever.

35It is obvious that the victims are still recovering from this escapade.  As I said earlier, the young person is receiving counselling.  So too is the mother.  Both of them are very distressed by what has occurred, particularly when in the very beginning, the mother set out some rules for both of you to comply with and both of you did not comply with them.

36Mr Sutherland, you have one prior court appearance and that is one relevant matter that confirms a need for you to undergo proper treatment and counselling.  That need is recognised and reported upon by both
Ms Pamela Matthews, the forensic psychologist in her informative report.  Both Ms Matthews' report and Ms Greville's report will be forwarded to the Office of Corrections to assist them in addressing your needs.

37Both Matthews and Greville directly specifically identify the double dose of disability that you are wrestling with.  So it is going to be a difficult process for those in authority to assist you, so that you can be a good and useful citizen in the community.

38In Clarkson's case, the case of Riggall was quoted.  In Rigall's case it was said:

" The court has often encountered cases of sexual abuse of children in which children have acquiesced [another word for consent if you like] or children have been confused as to how they should respond to what is being done and put to them."

39There is some other words that do not relate to you.  There was not a grooming situation that older and younger people are involved with.  It then goes on to say:

"A child may come to enjoy in whole or in part the sexual attention to which they are subjected.  Such reactions are far from a free and voluntary consent.  Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child by making the child feel guilty or shame for what he or she may perceive to be some complicity in the abuse."

40It is all very complicated, but because the tender age of these people, the consent may not in fact be real.  That is what it all gets to and I hope I get through to you in saying that, because it is a bit confusing if you do not understand it.

41Before moving on, you acknowledge a second court appearance that is not reflective of a prior matter.  Indeed it is a count where the same victim was involved with you in sending inappropriate messages over the internet and you know I dealt with that in Shepparton.  It is again recognising the difficulties you have got, but it is not a prior conviction but it is a prior matter that is relevant because it all relates to the issues that you are wrestling with here.

42Mr Sutherland, you are now aged 19 and you have found yourself confined over the past six months in an adult prison.  I must say, in all my years on the Bench and they are extensive, I have never heard of a young person being held in the Hopkins Centre on remand such as I have heard here.  Perhaps and perhaps only, that was to accommodate your family so they could visit instead of having to go to the other side of Melbourne to visit you.

43The one prior court appearance also related to inappropriate behaviour.  I spoke of that earlier and that related to DHS involvement in your life, your grandmother's life and your mother and step-father's life.

44Mr Sutherland, you are now aged 19.  As I said earlier, you have found yourself confined over the past six months in an adult prison and the latter part of which was in Hopkins.

45In the case of R v Mills [1998] 4 VR at 235, the Court of Appeal identified what is recognised in the court or forensic justice system, persons being nominated as young offenders. You Mr Sutherland are classically a young offender. I quote from the head note of Mills' case, unashamedly quote from it because it is adequately summarised.  So why should I try and re-summarise it?  The following general propositions are relevant to the sentencing of youthful offenders.  They are:

"The youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises."

46Well, you are not a first offender, you are but one a first offender.  That is, you have had one previous experience in the Children's Court.

"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.  The youthful offender is not to be sent to an adult prison."

47Well that has already happened to you and as I have said, you have been to two or three adult prisons.  From memory, I think, you have been into the custody centre, which is a dreadful place down underneath the Melbourne Magistrates' Court, you got into MAP, I think you got into the Melbourne Remand Centre for a short period of time and now first experience for me of a young offender, you have found yourself in Hopkins.  Now I think, you might even be in Port Phillip - where is he now?

48MS KARAPANAGIOTIDIS:  I think at the MRC.

49OFFENDER:  MRC, Your Honour.

50HIS HONOUR:  MRC.  You have been brought back for sentencing purposes.

51MS KARAPANAGIOTIDIS:  That is right.

52HIS HONOUR:  It should have been Port Phillip because of the Youth Centre there but I suppose it is full.

"The 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."

53I will pause there for a moment.  Your grandmother actually says, it seems that you have had time to think and you are weighing up yourself and you are responding responsibly and she says that is a result of visiting you and I think she is visiting you in Hopkins, because she sent letters in telling me that you have changed.

54Mills' case goes on to say:

"The benchmark for what is serious as justifying 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."

55It then goes on to quote some sections of the Sentencing Act. I will not read that.

56Mr Sutherland, your prospects of rehabilitation has to be said to be positive.  Not only have you engaged in courses whilst in prison, you have been also been employed within the prison system, particularly working in the kitchen.  As I understand it, when you did have employment, you worked in that sort of employment for fast food outlets in the Shepparton area.

57Numerous members of your family have written references indicating that they are willing to support you on your release.  As I mentioned a few seconds ago, your grandmother and aunt and your mother, indeed your mother and members of your family attend court, indicating their support for you.  Your step-father was here on the very first day before you came before me and he is here again today.

58All those people are present which is indicative of their willingness to assist you to rehabilitate, that all goes well for your ongoing support.

59As I mentioned before and I am repeating myself, your grandmother observed and records those observations of the positive changes she has seen about you in terms of your attitude since being in custody.

60Mr Sutherland, you must understand that these offences are serious matters.  They attract substantial terms of imprisonment.  When viewed as a maximum sentence, that is ten years for each count.  That is 20 years if you got the maximum and then two years for the summary offence.

61Your behaviour is to be denounced in the strongest of terms.  Both specific deterrence and general deterrence are both important considerations that this court must take into account in arriving at an appropriate sentence.

62Mr Sutherland, I assure you that I have taken into account all that has been said on your behalf by your counsel.

63I further taken into account your plea of guilty which plea is indicative of your remorse.  I further take into account your positive prospects of rehabilitation.  I have just spoken of that.  You have been busy doing courses in prison, you have been working in prison, you have got all these family members here supporting you today and have written letters to this court saying they are willing to assist.  You have got somewhere to live at home and apparently you can become involved in your step-father and mother's business.  So therefore your prospects of rehabilitation has to be positive.

64Your state of health is to say the least of significant concern, not your physical health, you are a big strong man.

65But in relation to what you are burdened with, it comes from birth.  It is no fault of your own.  You have significant and long paths to traverse to get well.

66Your state of health is to say the least a significant concern and I expect that the appropriate psychologists will attend to your needs.  As I said before, those reports will be given to Corrections so that the psychologists have got that information from the very beginning.

67I also must say to you as your counsel very eloquently pleaded, all of those mental health problems attract the principles of another case.  A very well-known case probably quoted nearly every day in this court, that of Verdins and that one must adjust or modify any sentence imposed, because of your mental health issues.

68In relation to Count 1, you will be convicted and sentenced to 184 days of imprisonment.  Had it not been for that, you may not have got that amount of term of imprisonment you have already served, but that is Count 1.

69On Count 2 and on the summary offence - I will read this out and then come back and speak to your client - Count 2, you are convicted and released on a community corrections order for a period of 18 months.

70Section 48D(3a), assessment in relation to drug abuse.  Section 48D(3c), mental health.  It obviously relates to all the various issues that I have regurgitated many times.  Section 48D(3f), programs that are designed to assist this man so as to not reoffend and s.48E, supervision of a Corrections Officer.  The period of time for the corrections order as I have already said, is 18 months.

71Now what that all means, just let me say this to you, you almost started and then you found yourself in custody straight away, but the Office of Corrections will send you and please speak to counsel about it if you need any help, but the Corrections Officer will send you to people to be assessed for your drug issues.

72An assessment will be made and then treatment will be prescribed.  You must undergo that.  If you do not, you are in breach and you will be brought back.  Do you understand that?

73OFFENDER:  Yes Your Honour.

74HIS HONOUR:  In relation to your mental health problems, well they have been addressed I think, all your life and in particular in recent times by Greville and later, I do not know treatment but certainly observations by Matthews, that must be addressed as well.  If you do not comply with what their recommendations are again, if you do not comply and you play up, they will bring you back and you will be again before the court for sentencing and highly probably looking at a prison term.

75Last but not least in terms of programs, Corrections have got a system whereby you can attend courses so as to avoid committing further offences.  You must attend those programs.  If you do not, you are in breach.

76The supervision element is that you are to be supervised by a Corrections Officer.  If you need any help or guidance in the community apart from those that are helping you, use that person as a counsellor if you wish.

77I think the only other two orders I have got to make, it is mandatory for sex offence registration for life.  Is that correct?

78MR EL-ASMAR:  Yes, Your Honour.

79HIS HONOUR:  And secondly, s.6AAA, a matter that I find quite difficult particularly in a case such as this, but I believe had it not been for the plea of guilty, I would have imposed a two year youth detention order.  I do not fix parole in that instance because the Youth Parole Board fix that, not the court.

80MR EL-ASMAR:  That is right.

81HIS HONOUR:  There are no other orders sought, Mr El-Asmar?

82MR EL-ASMAR:  Just confirming the pre-sentence detention.

83HIS HONOUR:  One hundred and eighty four, was it not?

84MR EL-ASMAR: One hundred and eighty four.

85HIS HONOUR:  Well I sentenced him to 184 days and I have immediately said he is to be given credit for having served 184 days.  So you might have to sign some documents down in the custody centre but then he is free to leave.  But he has got forms to sign and he must not leave until they are signed.

86MS KARAPANAGIOTIDIS:  Yes, Your Honour.  He knows that,
Your Honour.

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