Director of Public Prosecutions v Tasker

[2016] VCC 1338

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01131

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW TASKER

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2016
DATE OF SENTENCE:	9 September 2016
CASE MAY BE CITED AS:	DPP v Tasker
MEDIUM NEUTRAL CITATION:	[2016] VCC 1338

REASONS FOR SENTENCE
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Subject:         Criminal Law 
Catchwords: Sexual Penetration of a child under 16, supply drug of dependence to a child, using a drug of dependence, autism, general deterrence
Sentence:      Community Correction Order for 30months under supervision with 100 hours of unpaid community work and a $100 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Hennessy	Office of Public Prosecutions
For the Accused	Mr C. Terry	James Dowsley and Associates

HER HONOUR:

1At the outset I advise that I am using a pseudonym for the name of the complainant in these reasons.  She will be called Natasha Boden.  I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1].

[1] Section 4 Judicial Proceedings Reports Act

2Andrew Tasker, you have pleaded guilty to a charge of sexual penetration of a child under 16, an offence which has a maximum sentence of 10 years’ imprisonment; to a charge of using a drug of dependence, an offence which has a maximum penalty of 5 penalty units, and to a charge of supplying a drug of dependence to a child, an offence with a maximum sentence of 15 years’ imprisonment or 1000 penalty units.

3My sentence is based on the Prosecution Opening read out in court[2], which is an agreed summary of what happened. 

[2] Exhibit A

4I will briefly outline how you offended.  On 29 August 2015, Natasha Boden[3] and two female friends had agreed to stay at a particular house overnight, but left there because of some conflict. Natasha and one friend were aged 15; the other friend was aged 14. Through mutual friends, you and Natasha knew each other and Natasha decided to ring you and see if she and her friends could stay at your place instead. You agreed, although you later told Dr Walton[4] that you did not really want them to come over.

[3] A pseudonym

[4] See Exhibit 3

5After the girls arrived at about midnight, while you were chatting, you asked Natasha her age and she told you she was 15.  Later, you and the three girls went to your bedroom.  There, you offered Natasha some cannabis to smoke and she did (Charge 3, supplying a drug of dependence to a child).  There is no suggestion that you offered her cannabis in order to sexually assault her. You were using a lot of cannabis at the time, to help you sleep (Charge 2 - using a drug of dependence). 

6Eventually, the girls fell asleep, two of them on your bed, and Natasha under a blanket on your fold-out couch.  She was fully clothed.  You were playing computer games. Natasha later woke to find you beside her on the couch, penetrating her vagina with your fingers; you then removed her lower clothing and penetrated her vagina with your penis.  These two acts of penetration form Charge 1[5] - sexual penetration of a child under 16.  Natasha told you to stop and get off;  after a few moments you did, apologising to her, saying that you had ‘fucked up’ and you left the room.

[5] A ‘composite’ charge – see Note in Prosecution opening

7It was put to me by counsel on your behalf that your offending was at the lower end of the scale, and I was referred to some of the factors which are to be taken into account in such an assessment[6]. 

[6]Clarkson v R [2011] VSCA 157 at [42]

8You were aged 19 at the time, and although you were, and still are a young person, you were and are an adult. There was four years’ difference in age between you and Natasha. An adult must not engage in sexual penetration with a child under 16 years, and any sexual offence against a child is serious. So is supplying a drug to a child. The purpose of these laws is to protect children. Here, as you were the adult, it was your responsibility not to engage in any of that behaviour with a child.

9Natasha went to your house with her friends because she thought it would be safe, and until you sexually assaulted her, she did feel safe.  She knew you, and trusted you, so your acts were a betrayal of that trust.  I accept that you did not set out to deliberately exploit her trust, but you did take advantage of the situation.  The fact that she was asleep when you began to sexually assault her is another factor that makes charge 1 more serious.

10I did not receive a statement from Natasha about the impact on her.  However, when you left the room, she woke her friends and was crying, and continued crying as she and they left your house, while you were repeatedly apologising to her. When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological. While I have no further information as to the level of harm suffered by Natasha, neither do I have any material rebutting the presumption that she was harmed.

11Considering all of these factors, I am of the view that your offending in charge 1 is not at the lowest end of the range; it is higher than that, but does not reach the level of mid-range.

12Balanced against all of this, there are some factors I must take into account in your favour on all charges.

13The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial, and Natasha and the other child witnesses have been spared the ordeal of giving evidence in your trial.  I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.

14I also take into account in your favour that you stated your intention to plead guilty to these charges at an early time in the criminal process, before the committal hearing.  Therefore I accept that your plea of guilty indicates remorse for your actions.  Further, although when interviewed by police you denied the allegations and denied that you sent a text with an apology, the facts remain that you did apologise to Natasha immediately after the offences, continued to do so as she was leaving, and did so again in that text to her friend.  I accept these as demonstrations of your genuine remorse for your actions.

15The next matter that I take into account in your favour is that you had not been convicted before these offences occurred in August 2015.  The offences which had previously brought you to the attention of police were of a different kind and resulted in you receiving no conviction.  You have been in no further trouble since which is also in your favour.

16I have been told something of your personal history and circumstances[7]. 

[7] Exhibit 1 – Defence Outline of Submissions

17You were born in Western Australia but never knew your father. You grew up with a step-father who was in the Australian Navy and so the family, including an older brother and a younger step-brother, moved around a lot. You attended a number of schools, and in Year 7, you attended an alternative school, before attending a school for children with behavioural issues until you were aged 16.  You were apparently bullied at each school that you attended.  At the age of 17, you moved out of home, and you were living in a share house at the time of the offences. You have been on a disability pension since then, with no paid employment. You think that your family do not believe that you can live independently, and you want to prove them wrong, and so you did not take any support they might have offered you. At the time of the offences, you had just turned 19, and you are now aged just over 20 years.  The law says that your young age means that the sentence I impose on you must reflect that your rehabilitation is the most important factor for me to take into account, and that rehabilitation is usually a more important sentencing factor than general deterrence.

18There is another factor personal to you which your counsel submitted was most important for me to have regard to - your diagnosis of Autism Spectrum disorder.  You say that you remember first seeing a psychiatrist when you were aged 8, and that you saw another psychiatrist between the ages of 11 to 14.

19I received a letter written by psychiatrist, Dr Kruk, dated 30 December 2011[8]. In it, he reported your history of attentional deficits and hyperactivity, and that you were diagnosed with "ADHD" in 2000, and autism in early 2011.  There is reference in his letter to follow up by health professionals, but you do not recall that now.

[8] Exhibit 2

20Since leaving home three years ago you have not been taking the medication as prescribed to you for both of these disorders. You thought they were not working or causing unwanted side effects, and so you have attempted to self-medicate by using cannabis instead. That means for the last three years, you have been using 1 - 2 grams of cannabis a day, taken no prescribed medication and had no psychological or psychiatrist support. Dr Kruk was the last treating doctor you saw, and that was 5 years ago.

21A current assessment of you was carried out by psychiatrist Dr Walton and his report dated 5 August 2016 was provided to me.[9]  He formed the opinion that you seemed to have had a longstanding mood disturbance (anxiety and depression) but that the principal diagnosis is that of autism. He cast some doubt on the diagnosis of Attention Deficit Hyperactivity disorder due to your reported reaction to the stimulant drugs prescribed for you being conventional rather than the paradoxical response which is sought in treating children with ADHD. He found no evidence of psychosis and considered your underlying intelligence to be normal. You reported to Dr Walton that you have consumed cannabis regularly since the age of 15 to help you sleep, and to deal with your anxiety.  You are socially isolated, spending most of your time at home, although one of your housemates is a particular friend.

[9] Exhibit 3

22You told Dr Walton that you had been having an ‘anxiety breakdown’, weeping uncontrollably in the hours before the girls arrived at your house.  He said that you told him while you found Natasha attractive you were unable to explain why you engaged in the unlawful sexual activity.

23Dr Walton expressed the opinion that your autism made a direct contribution to you exercising poor social judgment.  He further stated that your odd behaviour as part of your condition, and your condition itself, would probably make imprisonment for you considerably harder and accompanied by suffering. He thought you would benefit from specific relationship counselling and skills training, ideally through an organisation specialising in autism spectrum disorder, and noted that the type of specialist psychological intervention you require is not available in prison. On the basis of these last remarks by Dr Walton your counsel submitted that your autism should operate to lower your moral culpability for the offending, relate to the type of sentence that I impose, reduce the need for general deterrence and be taken into account as making any term of imprisonment more burdensome for you than for someone not diagnosed with autism. I was referred to a number of cases, two of which refer to the application of the principles of a case known as Verdins[10] to sentencing of persons with autism.  It was conceded that your situation is not as extreme in those cases, but submitted that your autism meant that you were not able to appreciate the likelihood of harm and the seriousness of your actions so that your moral culpability should be reduced. The prosecutor submitted that while it was conceded that your autism would have impacted on your behaviour, if a sentence of imprisonment was not to be imposed then the principles in Verdins had no work to do.  It was submitted that the required connection between your autism and the offending was not established such as to lead to a reduction in your moral culpability, and reducing the need for general deterrence.

[10]Hladik v R [2015] VSCA 149; DPP v Sokaluk [2013] VSCA 48

24I have decided that the autism suffered by you is relevant as a general mitigatory factor that I take into account in determining the appropriate sentence, but it does not invoke the principles in Verdins[11] other than limb 5, should imprisonment be the only appropriate sentence. I have formed this view because although you might experience difficulty interacting with other persons or misinterpret behavioural cues due to your autism[12], the first offence committed here was one of sexual activity with a girl under 16 where consent is irrelevant; you knew her age, and you engaged in sexual activity with her. For the offence in charge 3, again you knew her age and you offered her cannabis.  In my view, your condition of autism did not impair your mental functioning in the particular circumstances of committing those offences. As a result of all the factors in your favour - your plea of guilty, your youth, your lack of prior convictions or relevant court appearances, and your personal circumstances, including your autism - I am satisfied that the chances of your rehabilitation are reasonable. These prospects will be enhanced if you begin to work with medical people again to assist you to manage your autism as well as your anxiety.  I find that you are unlikely to re-offend in a similar way and I think that you might have learned your lesson by your contact with the criminal justice system.

[11] [2007] VSCA 102

[12] Exhibit 3 – Report of Dr Walton point 3 on p4 of 5

25As well as those matters personal to you to which I have referred, I still must take into account what the law calls “deterrence”.  I do not think that your young age affects this principle in this case and I have already said that your autism does not operate to affect this principle. So while your rehabilitation is the primary purpose in sentencing you, my sentence must still try to have the effect of deterring other young men from committing these sorts of offences against underage females.  This is known as general deterrence.  Because of your age and lack of maturity, although I have found that you are not likely to re-offend in the same way, I think that my sentence also has a part to play in deterring you from re-offending. This is known as specific deterrence. Before I turn to sentence today there are two other matters I must deal with.  The first is that an application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this.  I am satisfied that it is in the interests of justice, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth.  I must inform you that if you change your mind the police may use reasonable force to enable such a procedure to take place. The second matter is that as a result of my sentence today you become a registrable sex offender.  As charge 1 was committed against a child and involves penetration, it is a class one offence.  You will be required within seven days of today to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 15 years.

26Your counsel submitted that despite the seriousness of your offending the appropriate way to deal with your offences was to release you on a Community Correction Order. 

27The prosecution submitted that such a penalty was within the range of available sentences in this case. 

28You were assessed to determine your suitability for a community correction order.  You were found suitable and also found to be of medium risk of re-offending on their assessment.

29I have carefully considered what the appropriate sentence is in your case.  Although the two most serious offences have maximum terms of imprisonment, the law is that I must not send you to prison unless I am satisfied that it is the only appropriate sentence.  In your case I do have other options and so I will not be sending you to prison today.

30I must weigh the factors in your favour against the serious nature of your offending.  I consider that a Community Correction Order is sufficient to reflect the serious nature of your offending on charges 1 and 3, and the court's denunciation of offences involving sexual and drug offences committed against a child, but also recognises your youth, and your autism and enhances your prospects of rehabilitation. The community is more likely to be protected by you receiving support, counselling and treatment.  A Community Correction Order achieves the dual outcome of protection of the community and your rehabilitation. 

31If you agree, I will release you on a Community Correction Order for 30 months on charges 1 and 3. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; you must notify Corrections Victoria of any change of address or employment; you must not leave Victoria without the permission of Corrections Victoria; and you must comply with any direction given by Corrections Victoria to ensure compliance with the order.

32I will also order that you comply with other conditions during that 30 months.  First, you must perform 100 hours of unpaid community work over the period of the order; you must be under supervision; you must undertake assessment and treatment for drug use and dependency; you must undertake assessment and treatment to improve your mental health; you must undertake a Sex Offenders program as directed by Corrections Victoria; and you must come back to see me in court and let me know how you are getting on.

33This last condition is called judicial monitoring and I will make it a condition that you come back to court on 29 November at 9.30am. 

34If you could stand up please, Mr Tasker?  Do you understand those conditions?

35ACCUSED:  Yes, Your Honour.

36HER HONOUR:  Do you agree to being released on a Community Correction order with those conditions attached?

37ACCUSED:  Yes, Your Honour.

38HER HONOUR:  If you are ill or there are other exceptional circumstances, this order may be suspended for a period of time.  If your circumstances change, you may apply to the court to vary or cancel the order.  In either case you must notify the Community Corrections office and I recommend you also get legal advice.

39If you do not complete a condition of this order, you will be brought back before me to be resentenced on the original charges and you will also be dealt with for breaching the condition, whatever it is you have done wrong.  What will happen then will depend on a number of circumstances, but you should be aware that my options are limited and one of those limited options is gaol.  So do you understand what will happen if you do not complete this order?

40ACCUSED:  Yes, Your Honour.

41HER HONOUR:  You will now be asked by my Associate to sign two documents.  The first is acknowledging that you receive a form notifying you of your reporting obligations under the Sex Offenders Registration Act and the second is to show that you agree to abide by the conditions of the community correction order.

42If you just want to take a seat, Mr Tasker, and I will have your lawyer assist you with these forms when we print them out.

43MR HENNESSY:  Did Your Honour make a reference to the sentence in relation to Charge 2?

44HER HONOUR:  Not yet.

45MR HENNESSY:  Your Honour, I note there's just one trifling thing too, I think the forensic sample order might have the wrong name of counsel on it and we'll substitute that and provide it to Your Honour's Associate.

46HER HONOUR:  I am grateful that you said that because I forgot to bring them up from chambers, so if there are new orders provided I will sign those.

47MR HENNESSY:  Yes, Your Honour.

48MR SHEARS:  Your Honour, may I be excused?

49HER HONOUR:  Yes, certainly.  Thank you very much, Mr Shears.

50MR TERRY:  I apologise for coming in late.

51HER HONOUR:  That is all right.  We have all been juggling matters today.  Yes, so just before I announce the rest of the orders, Mr Tasker, I will be asking you to come back and see me.  It is not quite three months, it is about 11 weeks' time, and so you will not necessarily have a lawyer there, it will just be you coming into court to tell me how you are getting on on the order. That is going to be pretty soon after it starts, so we will just see if there are any problems that we need to get sorted out. 

52The formal order of the court is:

53On Charges 1 and 3, you are convicted and released on a Community Correction order for 30 months with the conditions that I have outlined.

54On Charge 2 you are convicted and fined $100. 

55In the event that it is necessary to revisit the sentence I note that you have served no days in pre-sentence detention for these offences.

56Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial the sentence I would have imposed on Charges 1 and 3 is a term of imprisonment for four months, followed by a Community Correction order for 20 months.

57So that is not the sentence that I am giving you, but that is what would have happened.  Thank you.  Mr Tasker can be released from the dock.  Mr Terry, do you want to just find out about the $100, whether there needs to be a stay?

58MR TERRY:  Yes, Your Honour.  My client is after a month but I might be a bit more conservative, Your Honour, and ask for two months.

59HER HONOUR:  Yes, there will be a stay of two months on the payment of that fine.

60MR TERRY:  As Your Honour pleases.  Thank you.  Mr Tasker, you will get a copy of the Community Correction Order before you go and Mr Terry will be able to help you with any questions you might have.  I thank counsel for their assistance and I will adjourn now until 9.30am on Monday.  Thank you.

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