Director of Public Prosecutions v Taylor

[2014] VCC 1195

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-14-00592

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER JOHN TAYLOR

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	21 and 25 July 2014
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2014] VCC 1195

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones
For the Accused	Mr R. Kelly

HER HONOUR: 

1Christopher John Taylor, you have pleaded guilty to one charge of sexual penetration of a child under 16, Charge 1, four charges of theft, Charges 2, 4, 5 and 7, one charge of burglary, Charge 3, one charge of obtaining property by deception, Charge 6, and four charges of being a registrable offender failing to comply with reporting obligations, Charges 8, 9, 10 and 11.  You have also pleaded guilty to a number of uplifted summary charges.  You have pleaded guilty to Charges 5, 7, 8, 9, 10, 11 and 21 of breaching a family violence intervention order.  You have also pleaded guilty to summary charges 12 and 19 of using methylamphetamine .  You have pleaded guilty to summary charges 4, 17 and 18 of unlicensed driving and summary charge 14 of careless driving.

2The maximum penalty for the offences of sexual penetration of a child under 16, theft, burglary and obtaining property by deception is ten years' imprisonment.  The maximum penalty for failing to comply with reporting obligations pursuant to the Sex Offenders Registration Act is five years' imprisonment.  The maximum penalty for breaching a family violence intervention order is two years' imprisonment.  The maximum penalty for unlicensed driving is 25 penalty units or three months' imprisonment.  The maximum penalty for a first offence of careless driving is six penalty units and the maximum penalty for using methylamphetamine is 30 penalty units or 12 months' imprisonment.

3The circumstances of your offending are set out in the prosecution Plea Opening, which was amended to a degree and which was tendered as Exhibit A.  The offending to which you have pleaded guilty occurred between October 2013 and January 2014.  In that period you had begun a relationship with a 14 year old girl.  You had been friends with her before and you were aware she was 14 when you began the sexual relationship.

4Charge 1 relates to an occasion between 26 October 2013 and 31 October 2013 when you had consensual sexual intercourse with the 14 year old girl at her parents' home.  You penetrated her vagina with your penis.  She was taking birth control pills and you did not use a condom.  That occasion which is the subject matter of Charge 1 is representative of three further occasions of sexual intercourse that you had with that girl.  Those three occasions happened in October 2013 at a unit where you had been staying between 18 November 2013 and 10 December 2013 when you and the girl were staying in Long Gully, and between 1 December 2013 and 31 December 2013 when you spent the night at the home of your mother and brother.  During your record of interview with the police you admitted that you had had sexual intercourse with the girl at an occasion at her parents' home but denied other occasions.

5Charge 2 of theft concerns the following circumstances.  In the afternoon of Saturday 21 December 2013 you and the girl went to an alcohol outlet in Castlemaine.  The girl acted as a lookout.  You put a bottle of bourbon down your pants and left the store without paying.  The value of the bourbon was $35.  About 45 minutes later you both came back to the store.  You put a four pack of Smirnoff Black Ice and two cans of Johnnie Walker into the girl's handbag.  You both then left without paying.  The value of the items stolen was $25.  During your record of interview you said you had stolen the alcohol to drink.

6Summary charges 5, 7, 8, 9, 10 and 11 of breaching family violence intervention orders occurred in the following circumstances.  On 9 May 2013 two family violence intervention orders had been made in the Magistrates' Court in relation to you and your mother and brother.  This order prohibited you from attending at your mother's home or having contact by any means with your mother or brother.

7On 29 December 2013 you went to your mother's house, your brother was at home.  You walked in the front door and had a conversation with your brother who told you to leave, you then left.  On 30 December you returned sometime in the morning with the girl.  Your brother was at home, you let yourself in.  You spoke to your brother who on this occasion did not ask you to leave as he was afraid of making you angry.  The next morning the police attended the address.  You were still there and the police told you to leave.  During your record of interview you admitted that the intervention orders were in place.  You admitted going to and staying at the house.  You said your brother had invited you there because you had nowhere else to stay.

8The next group of offences which are Charge 3 of burglary, summary charge 12 of using methylamphetamine, Charge 5 of theft, Charge 4 of theft and summary charge 4 of unlicensed driving occurred on 4 January 2014.  Sometime in the morning of that day you went to a house in Kilmore.  You used methylamphetamine earlier that morning.  You smashed a window of the rear door to the premises and got into the house.  Inside the house you took an iPad mini valued at $400 and a set of keys from the house.  You used the keys to open the garage door and take a motor vehicle, which was a Holden station wagon, which you drove away.  The value of the vehicle was $45,000.  At the time you were unlicensed.  You had not ever held a drivers licence.

9You then drove the car to a road in Kilmore where you completed a burnout, that is the subject matter of summary charge 14, careless driving.  Again you were unlicensed and that is the subject matter of summary charge 17.  During the record of interview you admitted committing the burglary.  You said you wanted money for drugs and said you took the car for transport.  You also admitted driving the car and doing a burnout.

10Later that evening, on 4 January 2014, you posted the Apple iPad mini from the burglary onto a buy, swap and sell page via Facebook.  At about 8 pm you were contacted by a potential purchaser who arranged for the purchaser to buy the iPad for $150.  You and the girl with whom you were in a relationship went to the purchaser's address in the stolen vehicle.  The purchaser gave you $150 cash for the iPad.  The purchaser was suspicious because of the charger provided and took a photo of the vehicle you were driving.  The purchaser the next day took the iPad to the Bendigo Police Station having located the owner of it via Facebook.  You admitted selling the iPad to the purchaser and using the $150 to buy drugs.

11On 5 and 6 of January 2014 you drove the stolen car around the Bendigo area and parked it in Kennington from where it was later recovered.  Again you had not ever held a drivers licence.  In your record of interview you admitted to driving the vehicle and not having a licence.  Those matters are the subject matter of Charge 6, obtaining a financial advantage by deception, and summary charge 18 of unlicensed driving.

12On 6 January 2014 you used methylamphetamine by smoking it through a pipe at an address in Kennington and that is the subject matter of summary charge 19, using methylamphetamine.  At about 5 pm that day you and the girl went to a Coles supermarket in Bendigo, you selected ten grocery items and put them in the girl's bag.  You both then left the store without paying.  The value of these items was $54.37.  That theft is the subject matter of Charge 7 of theft. 

13At about two minutes past six that day you and the girl were arrested outside the supermarket and taken to Bendigo Police Station for interview.  On 18 December 2013 an intervention order had been granted in the Bendigo Magistrates' Court preventing you from contacting or communicating with the girl.  This order was served on you on 20 December 2013.  When you and the girl were found by the police and taken to the police station you were breaching this intervention order and that is the subject matter of summary charge 21.

14During your record of interview you admitted to smoking the methylamphetamine and stealing the grocery items.  You said you had stolen the items to eat and used the methylamphetamine because you had problems going on.  You also admitted to knowing about the intervention order prohibiting you from having contact with the girl.

15Charges 8, 9, 10 and 11 of failing to comply with reporting conditions under the Sex Offender Registration Act occurred in the following circumstances.  It became apparent at the time of the record of interview that you had not informed police of your current address or that you did not have an address within the timeframes provided by the Sex Offender Registration Act.  It also became apparent from the record of interview that you had failed to report, as required, and that you had had unsupervised contact with the girl and two other girls who were 15 and 14 years old.  During your record of interview you admitted to contact with the children and not informing the police that you had no fixed address.  Your reason was that you had no address to give and that two of the girls had been helping you through things.

16In sentencing you I have taken into account your personal circumstances.  You were born in December 1988 and are now 25 years old.  You have had a difficult relationship with your family, it appears due to your behaviour at various times.  Two of your siblings were in court to support you, including the brother who was the subject matter of the breaching intervention order charges.

17You grew up in the Kilmore area.  You left school halfway through secondary school.  You had had problems with Attention Deficit Hyperactivity Disorder (ADHD) at school and other problems.  You had then, and still have, very poor literacy skills.  Despite your poor literacy skills you began a building apprenticeship.  You completed three years of that apprenticeship and worked as a house framer.  Unfortunately you did not complete the fourth year of that apprenticeship.  You later worked as a labourer in a horse stud and a dairy farm in the local area.  It was apparent from what your counsel said on your behalf that you had struggled with work situations and that when things had become too difficult for you you had left your employment.  You have been unemployed since 2010.

18You left home when you were 16 but have returned to live home with your mother at various times.  Between when you were about 19 and 21 you had a relationship with a young woman and lived with her for about two years.  You have a five year old daughter with that young woman.  You have not seen your daughter for some years.  You had, in the past, abused alcohol, but after your relationship ended you started using methylamphetamine or ice.

19In 2013 it appears that your use of ice escalated and your relationship with your mother broke down.  She took out an intervention order against you on her behalf and an order was also taken out on behalf of your brother because of your behaviour.  It appears, from what your counsel said, that you acknowledge that your behaviour had been bad whilst you were under the influence of ice.

20Two reports were tendered on your behalf from Ms Pamela Matthews, psychologist.  A report dated 14 June 2010 was tendered as Exhibit 1 and a report dated 17 July 2014 was tendered as Exhibit 2.  It appears from those reports that you had difficulties with your cognitive functioning.  I will refer again to those difficulties and your counsel relied on those difficulties in the plea on your behalf.

21You have a prior criminal history which includes ten prior court appearances for offending which includes offences of theft and driving offences.  Of particular relevance is an appearance in September 2010 in the County Court on a charge of sexual penetration of a child under the age of 16.  You were not convicted on that occasion and were placed on a Community Based Order for 24 months.  Your counsel said that the girl involved on that occasion was 14 years old.  That order was breached and you returned to court twice to have that order confirmed.  Despite the terms of that order and despite returning to the court to have that order confirmed you have still not done the Sex Offender Program which was required by that order.  I will return to that topic later in these sentencing reasons.

22It is also of particular relevance that in May 2012 you appeared in the Magistrates' Court on a charge of failing to comply with your reporting obligations.  Subsequent to this offending you have appeared in court twice.  In March 2014 you received a sentence of four months' imprisonment in the Magistrates' Court in respect of a plea to 17 charges.  Those charges were mainly charges of theft which occurred between June 2013 and September 2013.  In July 2014, a few days ago, you appeared again in the Magistrates' Court and were sentenced to a term of imprisonment of six months on 15 charges.  Amongst those 15 charges were eight charges of failing to comply with reporting obligations between June and September 2013.

23In sentencing submissions your counsel particularly relied on your cooperation with the police and your plea of guilty.  Your counsel also relied heavily on the contents of Ms Matthews' reports, particularly her latest report.  Your counsel submitted that Verdins principles ought to operate in respect of your sentence in reduction of your moral culpability, moderation of general deterrence and specific deterrence, and moderation of sentence in recognition of the fact that the sentence would weigh more heavily on you compared to others.

24Your counsel submitted that you had some limited insight and, as I understood it, that you had some prospects for rehabilitation based on Ms Matthews' opinion that you were at moderate risk of reoffending and that you had not yet done a Sex Offender Program.  Your counsel submitted that totality should be taken into account and that a non-parole period should be set which should reflect both the totality and the need for you to potentially have some supervision under a lengthy period of parole.  Your counsel also submitted that your personal history generally should be taken into account in sentencing you.

25Ms Matthews' report is of particular importance in sentencing you.  It is Ms Matthews' opinion that your intellectual functioning has not changed or improved in any significant manner since she assessed you in 2010.  It is Ms Matthews' view that you cognitively function in the mid to upper primary school range and that your social functioning is in the early adolescent range.  I accept that this explains why you tend to gravitate towards the company of younger people.

26Ms Matthews makes a number of observations in respect of her risk assessment.  She had previously assessed the risk of you reoffending as low to moderate in respect of sexual offending.  Her opinion in this latest report is that the risk is now moderate.  She says that while the risk level has not changed the risk factors now pertain to your behaviour rather than to your youth.  Ms Matthews says that you acknowledge that you knew your behaviour was wrong and that you explain it in terms of meeting your needs for emotional support.  She says that your cognitive disability would impair your judgement.  She also says that your current behaviour would meet the diagnostic criteria for paraphilic disorder but not paedophilia.

27Ms Matthews says that you have some limited insight and have evidenced some limited responsibility for your behaviour.  Ms Matthews suggests that you would be very vulnerable in a custodial environment and that your time in custody would be more onerous than that for other men of your age given your difficulties.  That opinion is borne out by your current circumstances of incarceration which are in a disability unit at Port Phillip prison.  It appears that that has suited you better and that in some ways you have been doing better in that unit and have been engaging in programs.

28In respect of your offending the offence of sexual penetration of a child under 16 is the most serious of these offences.  You were nine and a half years older than the girl concerned.  She was just 14.  You knew she was under 16.  I accept that the sex you had with her was consensual but the laws that make this activity unlawful are designed to protect children.  The laws are designed to protect children from the bad decisions of others and their own bad decisions.  Courts frequently refer to the harm caused to young people when they start having full sexual relationships too early.  You have been to court before for having sex with an underage girl.  You have been told that it is illegal to have sex with a girl under 16 but you did it again, and not just once. 

29You made very bad decisions.  You say you knew it was wrong.  I accept that you have intellectual difficulties which make it harder for you to understand and harder for you to control your own behaviour.  On the basis of what Ms Matthews says I accept that your moral culpability is less than would be the case for someone without your difficulties, but I consider that you do have significant moral responsibility and culpability for having sex with this girl.  You knew you could get into trouble but you went ahead because you wanted to meet your emotional needs.  It is very important that you do not do this again.

30Punishment, general deterrence and specific deterrence ought be appropriately moderated in application of Verdins principles.  That said I consider that specific deterrence still has a role to play in sentencing you for this offence, and other offending, to send the message to you that there will be increasingly worse consequences for you if you continue to break the law.  I have also taken into account in moderation of this and other sentences that imprisonment will be more difficult for you because of your difficulties described by Ms Matthews.

31It is also important that you learn to stop stealing other people's property and driving when you should not.  You have again engaged in dishonest behaviour and driving offences when you have been in trouble with this sort of thing before.  The offence of burglary is particularly serious.  You broke into someone's house.  You stole things when you were in that house.  The car was worth a considerable amount of money.  Your offending in relation to the iPad shows that you have some capacity to organise matters to get some money for drugs.

32Similarly you have not complied with reporting obligations under the Sex Offender Registration Act despite being in trouble for that before and despite being interviewed about your obligations in September 2013.  You deliberately and blatantly ignored those obligations.  You also deliberately and blatantly disregarded court orders when you breached the intervention orders.  I take into account that you did not cause physical harm to any person or property.  I regard summary charge 21 as a more serious charge of that type because you knew you were not supposed to be anywhere near that girl and you knew why.

33It appears that this spate of offending occurred in the context of your use of methylamphetamine which had increased in early 2013.  In view of your history of repeated offending, alcohol and drug use and intellectual difficulties I consider that your prospects for rehabilitation are low.  It is encouraging that you are engaging in programs in custody and are enjoying them.  It appears that one on one education works best for you.  I consider that your prospects for rehabilitation will improve with further education and treatment.  It is also encouraging that you are trying to do better in respect of your relationships with your family and that you show some insight in respect of your offending.

34No one has been able to provide me with an explanation as to why you have not been able to do a Sex Offender Program despite previous court orders.  It is to be hoped that whilst you are undergoing the sentence that I am imposing that you will be provided with an appropriate program in relation to your sex offending.  I consider that you do have capacity to benefit greatly from such a program.  Further, it is vital that you be engaged in such a program in order to provide greater protection for the community on your release.

35A sentence of imprisonment is clearly warranted for your offending, particularly for Charge 1 but also for other matters.  The offences vary in seriousness but a sentence of imprisonment is warranted for sentencing purposes of denunciation, punishment, general deterrence, specific deterrence and community protection, albeit moderated in application of Verdins principles.

36You are entitled to a significant discount for your plea of guilty.  Your plea of guilty has saved the inconvenience, trauma and expense of a trial.  I have taken into account that you cooperated with the police and made significant admissions.  It appears that you have some limited remorse for your offending.

37In setting the appropriate non-parole period I have taken into account your limited prospects for rehabilitation and that you potentially benefit from parole if the parole board considers you suitable.  In setting the parole period that I am setting I am appropriately reflecting the seriousness of your offending together with your prospects of rehabilitation and your age and relative immaturity.

38In sentencing you and in fixing the degree of cumulation and concurrency I take into account the principles of totality and proportionality.  You are relatively young and immature and I have sought to avoid a crushing sentence.  I consider in the circumstances that it would be appropriate the sentence that I am imposing be served concurrently with the sentence you are presently serving. 

25 JULY 2014

1.Christopher Taylor in respect of Charge 1, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of 20 months.

2.On Charge 2 of theft you are convicted and sentenced to one months' imprisonment.

3.On Charge 3 of burglary you are convicted and sentenced to six months' imprisonment.

4.On Charge 4 of theft you are convicted and sentenced to six months' imprisonment.

5.On Charge 5 of theft you are convicted and sentenced to two months' imprisonment.

6.On Charge 6, obtaining property by deception, you are convicted and sentenced to four months' imprisonment.

7.On Charge 7 of theft you are convicted and sentenced to one months' imprisonment.

8.On Charge 8, failing to comply with reporting obligations, you are convicted and sentenced to one months' imprisonment.

9.On Charge 9, failing to comply with reporting obligations, you are convicted and sentences to two months' imprisonment.

10.On Charge 10, failing to comply with reporting obligations, you are convicted and sentenced to two months' imprisonment.

11.On Charge 11, failing to comply with reporting obligations, you are convicted and sentenced to two months' imprisonment.

12.In respect of the summary charges the sentences are as follows.  Summary Charge 4, unlicensed driving, you are convicted and sentenced to 14 days imprisonment.

13.Summary Charge 5, breach of a family violence intervention order, you are convicted and sentenced to one months' imprisonment.

14.Summary Charge 7, breach of family violence intervention order, you are convicted and sentenced to one months' imprisonment.

15.Summary Charge 8, breach of family violence intervention order, you are convicted and sentenced to one months' imprisonment.

16.Summary Charge 9, breach of family violence intervention order, you are convicted and sentenced to one months' imprisonment.

17.Summary Charge 10, breach of family violence intervention order, you are convicted and sentenced to one months' imprisonment.

18.Summary Charge 11, breach of family violence intervention order, you are convicted and sentenced to one months' imprisonment.

19.Summary Charge 12, use methylamphetamine, you are convicted and sentenced to seven days imprisonment.

20.Summary Charge 14, careless driving, you are convicted and fined $250.

21.Summary Charge 17, unlicensed driving, you are convicted and sentenced to 14 days imprisonment.

22.Summary Charge 18, unlicensed driving, you are convicted and sentenced to 14 days imprisonment.

23.Summary Charge 19, use methylamphetamine, you are convicted and sentenced to seven days imprisonment.

24.Summary Charge 21, breach of family violence intervention order, you are convicted and sentenced to two months' imprisonment.

25.The sentence on Charge1 is the base sentence.  One month of the sentences on Charges 4, 6, 8, summary charge 5, summary charge 8 and summary charge 21 and two months of each of the sentences on Charges 3 and 9 are to be served cumulatively on each other and on the sentence on Charge 1. 

26.The total effective sentence is 30 months' imprisonment.  I fix 18 months as the period you will be required to serve before being eligible for release on parole.  But for your plea of guilty I would have sentenced you to a term of imprisonment of 40 months with a non-parole period of 28 months.  I declare that you have served 73 days of this sentence by way of pre-sentence detention.

27.As I said earlier you will be required to report for life under the Sex Offenders Registration Act.  If you could please take your seat and Ms Ollquist, accompanied by Mr Kelly, will come and give you the documentation and ask you to sign, the signature just indicates that you have received the documentation. 

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