Director of Public Prosecutions v Sutherland

[2015] VCC 1592

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-15-01428

THE QUEEN

v

DANIEL SUTHERLAND

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Shepparton
DATE OF HEARING:	10 November 2015
DATE OF SENTENCE:	10 November 2015
CASE MAY BE CITED AS:	DPP v Sutherland
MEDIUM NEUTRAL CITATION:	[2015] VCC 1592

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms. A. Payten	CDPP
For the Accused	Mr. R. de Vietri	Victoria Legal Aid

HIS HONOUR:

1Daniel Sutherland, you have pleaded guilty to one count of using a carriage service to transmit indecent communications to a person under 16. 

2You have heard the learned prosecutor, Ms Payten, tell this court that the maximum sentence that may be imposed for this offence is that of seven years imprisonment.  For having 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. 

3Mr Sutherland, the victim of your offending, is a 14 year old girl.  She may even be now 15, but she was 14 at the time, and that is in November of 2014 and you had been in a brief relationship with that young lady.  At this time, you were then aged 18.  You are a user of instant messaging applications on the computer, called Snapchat.  Snapchat is a messaging application which allows users to send photos or videos to others.  Recipients can view the message for up to 10 seconds, before it disappears.  Your user name is Snoopy Derral. 

4Between approximately 29 November 2014 and 2 December 2014, you were messaging the victim via Snapchat, using your Snapchat account.  You sent the victim a number of indecent messages during this time, and they were set out as follows.  For the transcript, I have got to put them on the transcript.

5One message was:  (a) "I want to fuck you so hard, you yelping. (b) "More than homo" and then question a whole lot of kisses and hugs in X's and O's.  (c)  Next:  "Hahaha, probably knowing you want me deep inside you, ahaha." (d) "But I'm serious, you want this dick, tell me properly" (e) "You know I can't in the next two days, any time after that I will be your fucking machine."  Again, "xoxoxo."

6On 2 December 2014, the victim attended at the Shepparton Police Station with her mother to report the text messages that you had sent, to the police officers.  On 1 February 2015, you were arrested and taken to the Shepparton Police Station, where you participated in a record of interview.  You fully cooperated with the police officers at the interview, and you answered all of their questions. 

7Some of the matters that you revealed were that you were 18 years of age, that you knew the victim was 14 or 15, but you knew the victim was under-age, that you were mainly in contact with the victim through Facebook, text messages, Snapchat and phone calls, that you probably sent the victim some remarks that were sexual, but never intended to have sex with her until she was over 18.  (F) There were a lot of dirty talk between the offender - you - and the victim. 

8You recall sending the aforementioned texts via Snapchat.  You did have intentions to have sex with the victim at one stage, but you knew it would only lead to one place, and lastly, you agreed that a third person would likely find the content of the messages offensive.  They are all the sort of admissions you made, and you were up-front and told the police what you knew and helped them by being cooperative.

9Mr Sutherland, you were released from police custody and ultimately you received a summons to attend court for this offence. 

10Mr Sutherland, you were born on 21 August 1996.  You are now aged 19, you were 18 at the time of the commission of this offence.  You attended at the local primary school in Dookie up until Grade 4, when you then went to St Georges Road Primary School here in Shepparton.  You had very few friends at school, indeed you find it difficult to make and maintain friendships.  I suspect that is all down to your significant health problems which are sad. 

11You have had short periods of employment, however, again you encountered difficulties to firstly find a position and then maintain that job having found it.  Again, I suspect your significant health problems contribute to difficulties in maintaining a work place. 

12You are current on Centrelink benefits of $400 per fortnight, and you pay your mother $100 per week for board.  You currently reside with your mother, stepfather and two sisters here in Shepparton or Dookie.  You have a caravan on your mother's property in which you reside.  You use the household for normal functions such as meals and no doubt toilet facilities and bathroom facilities.

13You have no contact with your biological father and as I understand it, you have a difficult relationship with your stepfather.  You have a positive relationship with your mum.  You have, on occasions, resided with your grandparents.  You have a good relationship with these folk.  They are positive influences in your life.  Apparently, there has been some difficulty through Gran not being well, but she is in good health at present. 

14Ms Pamela Matthews has provided a report to this court, dated 1 November 2015.  I must say that I find some of what Ms Matthews has said as disturbing.  I wish the mother of this child was here to hear what I have got to say about Ms Matthews, but she is not.  I think she was earlier. 

15I quote two paragraphs from this report.  Ms Matthews says this: 

In the writer's view, the chat and 'sexting' of Mr Sutherland to the complainant are consistent with Mr Sutherland's and the complainant's normal stage of development, which was adolescence.  It is the writer's view Mr Sutherland's behaviour was ill-advised and failed to understand the nuances of the complainant's behaviour, but was not deviant or predatory in nature, and would not meet clinical descriptions of grooming."

16Then, a little later in the same report, Ms Matthews says this: 

17"It is also the writer's firm view that the behaviour before the court is not a product of sexual deviance, but rather normal adolescent sexual and identity exploration."

18I take great exception to that word "normal."  I will come back to it. 

19"Mr Sutherland and the complainant, even though Mr Sutherland's behaviour was against the law, unfortunately this is a matter where the law does not reflect the normality of such behaviour"

20There is that "normal" word again.

21"In combination with Mr Sutherland's past non-conviction in 2012, his current behaviour continues to reflect difficulties in understanding social mores and the nuances of intimate relationships." 

22I do not know what Ms Matthews is inferring by speaking about a non-conviction.  It is not for her to make a comment about that, in the sense that I read it.  For Ms Matthews to pass off your previous serious sexual offence, where you were dealt with in the Children's Court as a non-conviction result, is totally unacceptable.  Totally unacceptable. 

23It is a very serious charge, and in the Children's Court, there is a completely different regime in terms of dealing with young offenders.  I also take exception to the statement of normality that relates the behaviour of the complainant and yourself as normality of such behaviour.  With respect, that is nonsense. 

24True it is, that adolescents will explore sexuality, and perhaps many other things of interest to young people.  To suggest the law does not reflect the normality of such behaviour is again, as I just said, absolute nonsense.  Of course it is acceptable to explore sexuality.  All of us as young people will and do.  But, in the colourful and disgusting language used here as exhibited on this file as normal, or normality, is appalling. 

25For the young to have to contend with such filth is not - and I emphasise - is not on.  If this is normal social media - or should I say anti-social media - then our society is tending to go back to the Gomorrah spoken of in biblical times.  Sure you can explore, sure you can send messages, but you have got to use acceptable language and behave according to normal procedure. 

26This morning there was four adult women in this court room.  There is now two.  I would suggest that any one of those four normal ordinary ladies would be offended by being propositioned on some computer in those terms.  Your mother does not have to put up with it.  Your friends do not have to put up with it.  No woman should have to put up with that sort of language.  To say it is normal - or normality - I think misses the absolute point of the whole reason why we are here. 

27I accept that the observation by Ms Matthews about your health deficits are accurate.  She has said many things about the difficulties in life that you have encountered because of a health problem. 

28I further accept that your health difficulties are to be acknowledged in terms of moderating any outcome that I am obliged to reach in the interests of the community and this young girl and her family in particular.  The prosecutor does not contest that; your barrister raises it. 

29It was raised in the case that was dealt with in the Court of Appeal in this State, R v Verdins and Buckley, 16 VR 209 and I accept that you do have significant difficulties.  I am not going to express them in these sentencing reasons because they are at length described by Matthews, and more length and more detail, by Ms Greville, so I will attend to that shortly. 

30Because of your significant health problems I propose to add each of Ms Matthew's report and the report of Sherri Greville to these reasons for sentence.  They will be appendaged to them so that if these reasons have to be read again in the future, they have got access to what I have access to, in a commentary made about your significant health problems that your mother and yourself and your whole family are desperately wrestling with.

31Ms Matthews and Ms Greville are at one in their report as to your circumstance.  I repeat the recommendations that Ms Greville made and implore the Office of Corrections to follow closely those recommendations.  For the record, I will read those recommendations into the transcript.  This is what Ms Greville recommended: 

32"Daniel fulfils the criteria for autism spectrum disorder (more specifically the formerly known Asperger's Disorder.)  Daniel's history and presentation also supports a diagnosis of complex trauma.  It is recommended Amanda, that is of course your mum - have or seek out resources to help her with parenting Daniel.  There are links provided at the end of this report, or a specialist psychologist can provide her - that is your mother - with psycho-education sessions.  Daniel's profile of difficulties are amplified by both of these conditions.  His symptoms are strong and intense and well established." 

33Ms Greville goes on to say:

34"Daniel would highly benefit from a medication review.  He would really benefit form a strong form of medication which will impact on his arousal system.  Similar profiled young people have had good responses to Rispiridone as an example.  In addition, the sleep problem, that is, too much sleep, then poor sleep, may benefit from a medication review.  If Daniel were motivated sufficiently, preparation for work, social skills training would be beneficial for his future in the workplace.  If Daniel were also interested he would highly benefit from anxiety management training.  This is usually only effective if medication to decrease the arousal system is active.  A sensitive arousal system usually sabotages many efforts for such therapies and can waste money on behalf of the patient."

35As best I can understand your health problems, that all makes sense to me, and I implore Corrections to closely look at that and also the report of Matthews as to your future treatment. 

36You have just got to learn how to be socially acceptable for many, many reasons, including making friendships, getting on in society, getting on with your work mates and behaving adequately and properly with any female. 

37You have also heard and I do not want to get too technical, both the barristers here know what I am talking about, so I am trying to keep it simple and use simple language, but there was a case decided quite some time ago now in the Court of Appeal.  It is called Mills - R v Mills[1998] 4 VR 235.

38You are now aged 19, and you fall classically within the principles of that case.  You are a young offender.  Rehabilitation of the young offender, put simply, is more important than retribution.  That means more important than punishment.  Batt JA in that case, had quite a lot to say about that.  I am very conscious of what is there and I do not want to confuse you by using technical legal language, but you must do something about your behaviour, because your behaviour is totally unacceptable and anti-social. 

39In this case, being a Commonwealth prosecution, taken under the Commonwealth Criminal Codes, if you like, then this court must then sentence you in accord with Part 1(B) of the Crimes Act [1914].  Now I am saying that to you because the Commonwealth Government, in that Act, has directed judges as to what they must turn their minds to, so I directly turn my mind to what the Act says, and again, and I am trying to keep it simple so you can understand what I am saying. 

40I must take into account what is set out in s.16(A)(2) of the Commonwealth Crimes Act, if I can call it that.  Whilst general deterrence is not specifically raised within this section of the Act, general deterrence remains highly relevant due to the significance of the protection of children from inappropriate conduct.  The legislation providing about non-consent, any person under 16, male or female, cannot consent to sexual activity.  I am just leaving it at that level.  That is for the protection of the young.  Sometimes it might even be for the protection of themselves.

41Mr Sutherland, the seriousness of this offending, turns on the actual content of your - what Ms Matthew's called - "sexting."  I do not call it "sexting."  It is texting. 

42I suspect that Ms Matthews lost sight of what you said in that "sexting."  Of course you can send "sexting" I suppose, as long as you keep it tidy; so long as you can send it to your mum.  You would not have said that to your mother.  I suspect I know what she would have had to say to you, and perhaps given you a clip over the ears or more.  You have got to learn what is acceptable. 

43I say your texts were explicit and sexual in nature, and you referred to proposed sexual activity that might occur in the future, between yourself and the victim. 

44This girl was known to you and in that sense, was a real victim because you knew her.  Why I am saying that is, just so you can understand, sometimes this sort of message, on what is called "social media" - I call it anti-social media - is just put out there, hoping that somebody will then respond, but you specifically directed it at a particular person. 

45This girl was known to you and in that sense, was a real victim, as her then-age was 14, now 15.  She was at a vulnerable age to this type of offending.  You knew her age because you told the police officers what age you thought her to be, and as you well know, there was an age gap between yourself and herself, which, when young, like yourselves, is significant.  As you get older, perhaps four years is not so significant, but as a young person it is. 

46These texts took place over a very short period.  We all concede that, and I suspect the victim's mother probably nipped this offending in the bud, because she became aware of it in whatever means, and stopped it there and then.  I deliberately avoid canvassing remorse in this case, and I have no doubt that both Ms Matthews and Ms Greville are correct in their assessment of your significant health issues.  I suspect strongly that you are remorseful, but somehow or another, your remorse is contaminated by your deficits.

47As I said earlier, I take into account your early plea of guilty.  I am bound to do that, and I further accept that - like with general deterrence - specific deterrence is relevant and must be adopted to accommodate your health issues.  Mr Sutherland, I am not privy to what the Children's Court Magistrate said to you back in December of 2012.  That is nearly three years ago.  However, let me say to you, or tell you this, in blunt terms; this type of behaviour is totally unacceptable.  It is wrong, and must not be pursued.  Even if Matthews says "that's what the youngies are doing."  They should not and will not, because if they do, they can be prosecuted like you. 

48No woman - and I emphasise no woman - has to put up with degrading language as used by you in these smutty messages that you sent.  You must stop and think before acting in any matter of a sexual nature.  You are going to receive counselling.  You must attend to what you learn from such counselling processes.

49This is not an idle threat.  I want you to understand it.  If you return to court, you will suffer serious consequences, maybe even imprisonment.  I hope you do not commit any other offence, but if you do, with the sort of background that you are establishing in terms of sexual offending, prison is getting closer and closer.  It is not an idle threat.  It is just an observation of what will occur if you do not tidy up your game.

50You will be convicted and released on a Community Corrections Order for a period of 18 months.  The special conditions of that order are pursuant to:

51Section 48(D)(3)(d): To undergo assessment and treatment for medical issues, all of which are discussed in Matthews' and Greville's report;

52Section 48(D)3(e):  Assessment and treatment if necessary, in accord with those reports for mental health issues;

53Section 48(D)(3)(g): Treatment and rehabilitation for other programs to assist you not to offend in any sexual way;

54Section 48 (E):  Supervision.

55I deliberately do not attach a punitive order of community work because of the health issues that this man has encountered.  I find raising s.6AAA difficult in circumstances such as these, because one is crystal-ball gazing really, trying to work out what would I have done, but I rather suspect - I rather suspect - I would have imposed a prison term of at least perhaps six to 9 months with the appropriate recognisance:  at least six to 9 months perhaps more.  I cannot take it any further because I find it quite a difficult exercise to be realistic.  I hope I not have to impose such a sentence.  I do not think I should say anymore.

56Have I covered everything?

57MS PAYTEN:  Yes, Your Honour.

58HIS HONOUR:  Thank you.  I hope I have not delayed you too much, but it was better than coming back, wasn't it?

59MS PAYTEN:  No, that's much appreciated, Your Honour.

60MR de VIETRI:  Your Honour, I understand there's no further ancillary orders being sought by the Crown.

61HIS HONOUR:  That's what Ms Payten - I better just tell - just so the typist on the end of this equipment though, when I say Payten - P-a-y-t-en, is that right?

62MS PAYTEN;  That is correct, Your Honour.

63HIS HONOUR:  Thank you.  Thanks Ms Payten.  Thank you.  Adjourn.

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