Director of Public Prosecutions v Symes (a Pseudonym)
[2017] VCC 1829
•6 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOEL SYMES (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 30 November 2017 | |
DATE OF SENTENCE: | 6 December 2017 | |
CASE MAY BE CITED AS: | DPP v Symes (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1829 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Indecent assault and attempted sexual penetration of a child under 10 years – historical offending – accused aged between 14 and 15 at the time of offending – offending took place 26 years ago – no subsequent offending involving sexual offences – plea of guilty entered at late stage – non-custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr O’Doherty | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr G Davis | Hilton-Wood Solicitors |
HER HONOUR:
1 Joel Symes,[1] you have pleaded guilty before me to one charge of indecent assault that is representative of two occasions when you touched the vagina of Anna Roberts[2] and one charge of attempted sexual penetration with a child under 10 years involving Elizabeth Roberts.[3]
[1]Joel Symes is a pseudonym.
[2]Anna Roberts is a pseudonym.
[3]Elizabeth Roberts is a pseudonym.
2 The offending is historical and occurred more than 26 years ago, when you were a child, aged 14 to 15.
3 The offending involves two sisters who are your cousins. Anna was aged between six and seven years and Elizabeth was aged between five and six years at the time of the offending.
4 I will turn to the circumstances of Charge 1.
5 In relation to Anna Roberts, the Crown relied on three uncharged acts to demonstrate that the offending did not happen in an isolated manner. You are not to be sentenced on the basis of those other acts of sexual misconduct. Rather, you will be sentenced on the basis of the one representative charge of indecent assault that involved two occasions when you touched Anna’s vagina.
6 The first occasion occurred when Anna was in Year 2 at school. Her family was then living in Mildura. She was living with her mother and other siblings in a caravan located at the back of her grandmother’s home. On this occasion, you were at the caravan and when Anna was asleep you touched her on the vagina.
7 On a separate occasion you were walking with Anna from your grandmother’s home to her home. Whilst walking through the showgrounds to take a shortcut home, you grabbed Anna and dragged her behind the toilet block and put your hand down her knickers and started playing with her vagina. You were interrupted when another man approached.
8 I will turn to the circumstances of Charge 2, the charge relating to Elizabeth Roberts. This concerns an occasion when you attempted to have penile/vaginal sex with Elizabeth. She recalled that she was naked and in her bedroom and that you got on top of her and tried to push your penis against her vagina.
9 In the early 1990s a complaint was made in respect to your behaviour and counselling was arranged for the two victims. The police were advised but for reasons that have not been disclosed to the court, you were not interviewed or charged.
10 It was not until September of 2014 that the matter was formally reported to the Mildura Sexual Offences and Child Abuse Investigation Team (SOCIT).
11 In August 2016 you were arrested and extradited from New South Wales where you were then living. A record of interview was conducted on 11 August 2016 during which you denied all allegations.
12 On 30 November 2017 prior to the trial commencing you were arraigned and entered pleas of guilty in respect to the charges.
13 Mr Symes, the charges are serious and that is evidenced in the maximum penalty prescribed by Parliament; namely, 5 years’ imprisonment for indecent assault and 10 years’ imprisonment in respect to attempted sexual penetration of a child under ten years.
14 There was no criminal record alleged although there have been subsequent matters for which you have been dealt with by the courts.
15 In December 1998 and December 2000, you were convicted in respect to driving whilst exceeding the prescribed concentration of alcohol.
16 In March 2005 you were dealt with in respect to charges of intentionally cause injury, reckless conduct endangering life, recklessly cause injury and criminal damage relating to a former partner, for which you received a sentence of imprisonment of 9 months that was partially suspended. You were required to serve 4 months and the remaining 5 months' imprisonment was suspended for a year.
17 In 2016 you were dealt with in respect to possess cannabis and commit indictable offence whilst on bail, and in November 2016 you were dealt with for obtain property by deception for which you received a suspended term of imprisonment.
18 It is of significance that you do not have any relevant subsequent offending in respect to sexual offences.
19 The tragedy of the delay in this matter has been that for many years the two complainants laboured under very real difficulties, thinking that they had not been believed when they said that this sexual abuse had occurred. They felt that they did not get proper support from their families when they reported the sexual abuse. This has had a very big impact upon them both.
20 Both of them read their victim impact statements to the court. In those statements, they comprehensively detailed the harm that has been caused by your actions. They suffer severe symptoms of post-traumatic stress disorder including depression and anxiety. Your actions have caused them to lose their innocence and each of them feels that you stole their childhood. They can no longer have healthy personal relationships and the impact of your offending has been dramatic and is long-lasting.
21 Mr O’Doherty, the prosecutor, read the victim impact statement from the complainants’ mother. She too suffers from symptoms of post-traumatic stress disorder including nightmares and depression. She is a very isolated person and finds it difficult to trust people. This has impacted negatively upon her relationships with her family and also with the complainants. She is very upset that you took away her daughters’ childhood and innocence.
22 It is always difficult for a sentencing court in these circumstances to impose appropriate punishment. You have in the intervening years formed age appropriate intimate relationships. There are five children born of those relationships, two of whom live with their mother in Renmark, South Australia and three of whom live with their mother in Broken Hill. Up until the time of your arrest you had regular contact with your children but that has ceased due to the nature of these charges.
23 The real tragedy is that had you been dealt with at the time of the offending, the emphasis would have been on a more therapeutic approach to address your underlying offending behaviour. The sentencing options would have been more benevolent and the imposition of an adult jail term would not have simply been an option.
24 The therapeutic approach is now reflected in the provisions of the Children, Youth and Families Act 2005. Where a child exhibits sexually abusive behaviour, it is considered that they are in need of therapeutic treatment. There is considerable evidence that by intervening early with children and young people exhibiting such behaviours, that they can be helped to prevent ongoing and more serious sexual offences. Such offending is now considered a child protection issue and the Children’s Court has powers to make therapeutic treatment orders directed at addressing the offending behaviours and it is not dealt with as a criminal offence.
25 That regime is not available in the circumstances that currently face the court given that you are now an adult, a much more mature man, being sentenced in respect to offending that occurred when you were a young child.
26 I have taken into consideration your background. You are now 41. You were born in Mildura and you are currently residing in Merbein. You are the only child born of your parents’ relationship.
27 You were educated to Year 9 at St Joseph’s College following which you left school and commenced an apprenticeship as a plumber. You obtained employment with family members. You are a person who has an excellent work history.
28 As a 15-year-old, a cancerous growth was diagnosed located between the C3 and C4 in the cervical spine. That growth was excised and then you had extensive treatment including radiotherapy. The condition has been in remission since you were 21.
29 As an adult you left Victoria and took up residence in far north Queensland. You were successfully employed for about a year as a fisherman working with your stepfather. That employment ceased when a friend fell overboard and drowned and you had to retrieve his body.
30 You worked at the time of your extradition on the far north coast of New South Wales.
31 You were working full time as a trades assistant/labourer and had a responsible job managing an organic foods street market where you were responsible for 70 stalls together with the associated publicity. You were settled and doing well.
32 Following your arrest and extradition you relocated back to Mildura where you have been living with your mother and stepfather. You are now committed to staying in Mildura. You formed a new relationship with a woman and that has been going for some six to seven months.
33 You had some seasonal work as an irrigation supervisor but that ceased in anticipation of the trial.
34 You have no recollection of this offending and you are unable to explain your motivation for such offending. You now consider that your conduct was a humiliating experience for both complainants and you are very sorry for what occurred. You are remorseful and unhappy about the effects of your conduct and you now accept full responsibility for your actions.
35 In 1994 there were complaints made and police investigations concerning these allegations. You were not made aware of the investigations. I am told they were dealt with by your parents.
36 Your counsel, Mr Davis, sought a disposition that did not involve an immediate term of imprisonment and submitted either a Community Correction Order or a wholly suspended sentence was the appropriate disposition. Those submissions were not disputed by Mr O’Doherty.
37 In sentencing you, I have had regard to the mitigating factors highlighted. It is of considerable significance that you entered pleas of guilty to the offending. Your pleas of guilty, even though they were entered at a late stage prior to the trial commencing, have very real utility. Importantly, you spared each of the complainants the further trauma of having to give evidence upon your trial and that is very significant.
38 They are a public acknowledgement by you of the criminal acts that you committed against each of the complainants.
39 As was stated during the course of the plea hearing, where historical sexual offending is alleged, and such matters proceed to trial, the experience itself can be harmful. Matters are usually fully contested with the victims being rigorously cross-examined so as to highlight inconsistencies or problems with memory, with ultimately there being no guarantee that a finding of guilt will be the final outcome.
40 This highlights the real utility of the pleas and the sentencing discount must be a real one and not an illusory one.
41 By your pleas you have facilitated the course of justice and you will receive a significant sentencing discount accordingly.
42 In the circumstances I accept your pleas are a genuine indication of remorse and an acceptance by you of the wrongfulness of your conduct.
43 Following your extradition back to Victoria you have made the most of your situation. You were in gainful employment up until a short time prior to the commencement of the trial. You have the necessary work commitment and ethic and skills in order to be able to find work in the future and be a productive member of this community.
44 I have had regard to the considerable delay in the matter being brought before the Court. That is also a significant and relevant sentencing consideration.
45 You are clearly now a very different person to the young, immature, inexperienced teenager who was responsible for this offending. As I have already stated, had you been dealt with earlier in time, the emphasis would have been upon therapeutic intervention rather than a punitive approach and the sentencing options available in the Children's’ Court would have been very different.
46 I consider that your moral culpability would have been judged to be less, particularly given that you were offending as a child.
47 It has long been recognised in this state that where offences have been committed whilst an offender is a child or immature, and they are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.
48 Although such an offender falls to be sentenced as an adult, common sense and fairness dictates that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, takes into account what was done as a child or as a person of immature years and not as an adult or a person of greater maturity.
49 General deterrence and denunciation ordinarily has a lesser role to play in the sentencing of children than in the case of mature adults[4]. That is because the age of a child may make it inappropriate for that child to be used as an example to the rest of the community.
[4]R v Nutter unreported Court of Appeal, Charles & Callaway, JJA and Vincent, AJA; R v Better [2003] VSCA 71 cited with approval in R v Boland (2007) 17 VR 300; CNK v The Queen (2011) 32 VR 641,645 [12]-[14].
50 Those principles apply in this case.
51 Overall, given you have not offended in respect to any offences of a sexual nature, together with your pleas of guilty, your expressed remorse and willingness to accept responsibility for your conduct, I consider you have good prospects for rehabilitation.
52 I am not able to postulate what risk there would be of reoffending but I am satisfied that you are now a much more mature man and that you have a better understanding of what is right and wrong. Therefore, I consider that the risk of reoffending in this nature is considerably reduced.
53 Specific deterrence and protection of the community are also reduced in the particular circumstances of your offending.
54 In sentencing you, I must impose just punishment.
55 Given the matters that I have already highlighted and the powerful mitigating factors and balancing the principles of sentencing that I must consider, I have come to the conclusion it is just and appropriate that a term of imprisonment be imposed but that it will be wholly suspended.
56 Could you please stand now, Mr Symes. I will now announce the formal court orders.
57 On Charge 1 – indecent assault – you will be convicted and sentenced to 6 months’ imprisonment.
58 Charge 2 – attempted sexual penetration with a child under 10 years – convicted and sentenced to 12 months’ imprisonment. That is the base sentence and I order that 3 months of the sentence imposed on Charge 1 is cumulative upon the sentence imposed on Charge 2, making a total effective sentence of 15 months’ imprisonment.
59 I direct pursuant to s.27 of the Sentencing Act 1991, that the sentence be wholly suspended for two years.
60 I am required to explain to you that the term of 15 months will be wholly suspended for two years. The consequence of that will be that you will be released today, but if within the next two years you commit an offence punishable by imprisonment, either here in Victoria or outside Victoria, you may be brought back before the court and the suspended sentence may be restored in the absence of exceptional circumstances. Therefore, you would be required to serve the 15 months’ imprisonment. So do you understand the order that I have imposed and the nature of the suspended sentence and are you prepared to consent to such an order being made?
61 ACCUSED: Yes, thank you.
62 HER HONOUR: Pursuant to s.6AAA, I make the following declaration: but for your plea of guilty I would have imposed a term of imprisonment of two years to serve 14 months.
63 Thank you, take a seat. I have just got to deal with this s.464ZF.
64 MR O'DOHERTY: Your Honour, I may hand you a copy of the legislation and - - -
65 HER HONOUR: Yes, thank you.
66 MR O'DOHERTY: - - - and we'll just have a quick look at it, I – it’s discretionary, Your Honour, of course.
67 HER HONOUR: Yes.
68 MR O'DOHERTY: The section that Your Honour should turn to is sub-s.(5) on page 2, it reads: "If on or after the commencement of the Crimes (Amendment) Act 2004, an application under s.2 or 3 is made in respect of a person aged 18 or more", and the following - - -
69 HER HONOUR: Right.
70 MR O'DOHERTY: Now we make the application as we have, Your Honour, in regards to a person who is 18 years or more. Subsection (5)(a) deals with the child's situation.
71 HER HONOUR: Right.
72 MR O'DOHERTY: So he's not – he’s covered by sub-s.(5) in my submission, Your Honour.
73 HER HONOUR: Right, all right.
74 MR O'DOHERTY: Then we move to sub-s.(8) on the last page, and it's discretionary as Your Honour knows.
75 HER HONOUR: Right, all right.
76 MR O'DOHERTY: So we've made the application, Your Honour, we don't make any other submissions about the application and it's a matter for Your Honour.
77 HER HONOUR: All right.
78 MR HILTON-WOOD: Your Honour, I agree with Mr O'Doherty and the applications are not opposed.
79 HER HONOUR: All right. In the circumstances, I will exercise my discretion and make the order pursuant to s.464ZF(2) of the taking of a forensic sample and I have done so having regard to the seriousness of the circumstances of the offending. I consider they warrant the making of the order and I note it is by consent. I consider the granting of the order is in the public interest.
80 So what that means, Mr Symes, is that there is an order that you have to provide a forensic sample to police. They will give you a cotton bud to put in your mouth to get a scraping then once you have done that, you have complied with the terms of the order. You know where the police station is, it is next door.
81 I have just got to inform you that if at the time of the request you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police then the sample can be taken by blood sample and police may use reasonable force to enable that procedure to be conducted. Hopefully that will not be an issue.
82 I will just sign those orders and then that will complete this matter. Thank you.
83 All right, yes, those orders are now signed so that completes the matter. We will now discontinue the video link, thank you for your attendance. Thank you, gentlemen. I will stand down and when the next matter is ready, let me know.
84 MR O'DOHERTY: Thank you, Your Honour.
85 HER HONOUR: Thank you.
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