Director of Public Prosecutions v Taylor (a pseudonym)
[2021] VCC 715
•4 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS TAYLOR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 May 2021, 28 May 2021 | |
DATE OF SENTENCE: | 4 June 2021 | |
CASE MAY BE CITED AS: | DPP v Taylor (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 715 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Sexual penetration of child under 16 – Common assault – Make threat to inflict serious injury – Persistent contravention of family violence intervention order
Legislation Cited: Sentencing Act 1991 s. 5A(1)(b), s. 5B(2)(b), s. 6AAA, s. 18(6); Sex Offenders Registration Act 2004
Cases Cited:N/A
Sentence: 18 months imprisonment, Community Correction Order for a period of 18 months, Sex Offender registration, Disposal Order.
Section 6AAA declaration: 3 years imprisonment, with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
| For the Accused | Ms J. Buxton | SLKQ Lawyers |
HER HONOUR:
1
When delivering these sentencing reasons I will use the names of the people involved, but in order to ensure that the identity of the victim of Charge 1, Angel Owens,[1] is not published or able to be identified from the reasons, the revised and published reasons will use pseudonyms for the accused, for
Angel Owens and for Jessica Barnett.[2]
[1] A pseudonym.
[2] A pseudonym.
2Travis Taylor,[3] at age 21 you are before this court to be sentenced for serious offences. The series of events in your life that led you here are important to understanding why you committed these offences, and the sentences I will impose.
[3] A pseudonym.
3You are now 21 years old, and soon to turn 22. You have an older brother and an older sister. Your father was violent and abusive towards your mother, including punching her in the stomach when she was pregnant with you. Your mother and father separated before you were born, but his abuse of her, and of you and your siblings, continued. Your mother did her best to protect you from your father's bad behaviour.
4From the ages of 10 to 16 you were often put in DHHS care. You have reported living in four different residential units and being subjected to physical abuse and restraint, both by staff and other residents, whilst living in those circumstances.
5Your schooling was disrupted by your difficulties with paying attention and your behaviour. You had difficulty learning to read and write, and were easily frustrated. You were bullied and had trouble coping if things did not go your way. Your behaviour was difficult to contain, for example by reasoning with you.
6From an early age you displayed behaviours which ultimately led to the diagnosis of high functioning autism spectrum disorder. Whilst you can pick up on obvious emotions being displayed, you have difficulty reading and understanding the more subtle cues and facial expressions of those around you.
7Your language skills, both your understanding and speech patterns, reflect the ASD diagnosis. You can talk, 'at', someone when speaking about a subject that interests you. You have difficulty with changing routines and structures, organising and planning things, and concentrating if the subject is not interesting to you. You also have difficulty controlling impulsive responses.[4]
[4]Dr Eisenmajer p2.
8You were also diagnosed, as a teenager, with ADHD. The doctor who assessed you then considered that you have average intelligence, but he pointed out that while you were able to learn and to acquire information, your ability to reason and your ability to analyse social situations was less than for a person without ASD.
9You like playing the guitar. Since leaving school you acquired work skills, and became a qualified spray painter. You have also worked at abattoirs. Whilst you have been on remand you have completed a number of work related courses, and started studying a Certificate II in Engineering. You have also worked to improve your literacy and numeracy skills whilst you have been in custody.
10In 2019 you were unemployed. You found it difficult to get work and you were suffering from having no earnings. You could not live at your mother's house for a time. Not having a job and not being at home was more difficult for you due to the lack of structure and routine, in view of your ASD.
11When you were 17 years old you had a girlfriend, who was 15. You were together for around 18 months, but the relationship ended when you were 18. You say that a police officer from SOCIT explained to you that it was an inappropriate relationship, because of your ages. After that relationship ended you had a girlfriend who was a few years older than you, and then you met Angel Owens, who was then 14 years old. You met her through friends and discovered that her background and involvement with DHHS was similar to yours. She would call you for protection, and told you her parents were using ice. You and she became boyfriend and girlfriend. At this time you were 19 and then 20 years old, compared to Angel Owens being 14 and then 15. You felt protective of Angel Owens and had a sense of responsibility for her. You were aware of her age from shortly after you met her.
12Your mother and Angel Owens’ mother both warned you that Angel Owens was underage and too young for you. Apparently Angel Owens’ father approved of you, but her mother did not.
13During your relationship with Angel Owens you had sex with her two or three times. On one of these occasions, on 7 September 2019, she became pregnant. This matter came to the attention of police not because of a complaint by Angel Owens or her family, but because when she was speaking to police about another matter they learned that she was, at age 15, pregnant. Police obtained a court order and a DNA sample was taken. The DNA profiling results were 940,000 times more likely if you were the biological father. The pregnancy was terminated.
14Ms Ferrari, who examined you and prepared reports for this plea, said:
Travis Taylor indicated he is aware that his relationship with Angel Owens was inappropriate given her age, and he regrets engaging in sexual activity with her prior to the legal age of consent. He did not attempt to justify or minimize his behaviour, and took responsibility for his actions. He admits he should have listened to their mothers and he should have known better given his previous interaction with SOCIT regarding a former relationship. He could not explain why this did not register as being a similar issue with Angel Owens’ age, having ended his previous relationship due to the same reason following advice from SOCIT. Travis Taylor stated if Angel Owens no longer wants a friendship or relationship in the future, that he accepts this and will not attempt to contact her.
15On 4 December 2019 you were interviewed at the Shepparton police station, regarding Charge 1. You denied engaging in sexual intercourse with Angel Owens and you consented to providing a DNA sample.
16
On 17 September 2019 an Intervention Order was made at the Broadmeadows Magistrates' Court. Angel Owens was the Affected Family Member, and you were the Respondent. You were served with the Order that day. The Order included conditions that you were not to commit family violence against
Angel Owens, nor go or stay within five metres of her. You were not to go or stay within 200 metres of any place where she lived, nor damage any property belonging to her, and you were not to keep her under surveillance.
17From early December 2019 up until 12 December 2019 you and Angel Owens regularly spent time together. Images downloaded from your phone show you together on 3, 7 and 11 December 2019. Messages from your phone show that you and Angel Owens were in frequent contact on 12 and 13 December 2019. (Charge 4, Persistent contravention of a Family Violence Intervention Order).
18
Jessica Barnett, the second complainant, was 68 years old. In early December 2019 she met Angel Owens. Jessica Barnett was told that Angel Owens was homeless, hungry and pregnant. Jessica Barnett said she could stay with her.
Angel Owens lived with Jessica Barnett until 12 December 2019.
19On that day, Angel Owens’ mother contacted police asking them to check on Angel Owens. A safe custody warrant and whereabouts were in place regarding her. Police phoned Angel Owens. She told them that she wanted to stay with Jessica Barnett. Police were given Jessica Barnett’s address to conduct a welfare check.
20On the evening of 12 December 2019, you and Angel Owens were at Jessica Barnett’s home. You became aware that police were coming to Jessica Barnett’s home to check on Angel Owens, and you became quite agitated. You told Jessica Barnett that she was, 'A fucking dog'. You wanted Angel Owens to leave with you.
21Jessica Barnett asked you to leave. She touched your arm to guide you out of her house. You said, 'Don't fucking touch me', and forcefully pushed her arm away, making contact with her right forearm. (Charge 2, Common assault). You produced a knife from your pocket and pointed it at Jessica Barnett. (Charge 3, Make a threat to inflict serious injury) You encouraged Angel Owens to leave with you, which she did. Jessica Barnett phoned the police.
22The next day, on 13 December 2019 at about 8.45 pm police searched a V-Line train stopped at the Seymour train station. They found you, Angel Owens, and your mother, and they escorted all of you from the train. You then ran from the train station, but you were arrested nearby a short time later. Angel Owens refused to make a statement but told police that she willingly left Jessica Barnett’s house with you.
23You were on bail at the time of the offending committed on 12 December 2019. (Summary charge 10, Commit indictable offence whilst on bail).
24On 13 December 2019 the police commenced an interview with you at the Melbourne West police station. During the interview you denied the allegations, saying that at the relevant times you were at Highpoint and then you went to a friend's house. You said you did not know Angel Owens had been staying at Jessica Barnett’s house and that you were not there. You also said you were not fully aware that there was a full intervention order in place because you had never got the papers to prove any of it.
25Angel Owens has not made a victim impact statement.
26Jessica Barnett’s victim impact statement was read to the court. She described her fear of you and her fear of retribution against her by someone on your behalf. She feels anxious and afraid.
Mental State
27Your personal history, and your ASD diagnosis, explain why you became involved in a relationship with Angel Owens despite her being so much younger than you. You had a lot in common, and your ASD meant that your immaturity in respect to relationships made you and Angel Owens similar in terms of your emotional development.
28Your history and ASD also provide some explanation for your overreaction and behaviour when you confronted Jessica Barnett on 12 December. I accept that you were less able to deal with the stress of that situation, and to think clearly, and so behaved in an aggressive and inappropriate way.
29Regarding Charge 1, while I accept that your history and ASD diagnosis explains why you were involved with Angel Owens, and that your relationship on an emotional level was fairly equal, despite your ages, I am troubled about the impact of your ASD upon your decision to engage in sexual activity with Angel Owens. As I noted earlier, you knew at the time she was underage. You had been told so by both your mothers. You had in the past been told about this issue by police, regarding another relationship.
30Taking into account the reports of Ms Ferrari and Dr Eisenmajer, I accept that your ASD means that to some extent you were less able to control your emotions and behaviour, and so exercise appropriate judgment, in respect to Charge 1.
31Your mental state means also that whilst you have found the structures of being in custody somewhat helpful, and you have made the most of the educational opportunities whilst on remand, you are also vulnerable to being stood over and exploited. I was told that this in fact had occurred, and I take this into account in arriving at the type and length of the sentence I will impose. I also take into account that your time on remand last year was negatively impacted by the COVID-19 restrictions.
Gravity of Offence
32In assessing the gravity of the offending, it is relevant in that Charge 1 occurred in the context of a fairly equal relationship in terms of maturity, despite you being around five years older than Angel Owens. This was not an exploitative relationship, but one more akin to a relationship between people of similar ages, without a power differential. Whilst at law consent is not a defence, in view of Angel Owens’ age, this offence can be treated as one at the lower end of the scale of gravity. Angel Owens was a willing participant in the activity, being emotionally attached to you, as you were with her.
33The fact that she became pregnant, however, increases the gravity of the offending. Not only was Angel Owens too young to engage in sexual activity, she was too young to become pregnant and then to have to deal with the consequences and decisions regarding that.
34Whilst in some cases of this type of offending a non-custodial disposition has been imposed, I do not think that it would be appropriate in your case. You were aware of the prohibition on sexual activity with a girl Angel Owens’ age, and you ignored the advice of both your mothers. Your behaviour made her pregnant. Furthermore, you had, over the course of 2019, had contact with the police regarding your contact with Angel Owens and had been charged and sentenced for harbouring her when she was supposed to be in the care of DHHS.
Other Sentencing Considerations
35General deterrence is a significant factor in sentencing for offending involving sexual activity with a minor. Whilst such offending is less grave when involving young people of a similar age, it is still against the law and people should understand that it will lead to charges and criminal penalties.
36By reason of your age at the time of these offences, and now, and by reason of your diagnosis of ASD, the weight that will be given to general deterrence and denunciation will be less than otherwise would be the case, but these principles are still relevant to the sentencing discretion.
37The sentences I will impose are also intended to act as a deterrent upon you committing offences in future. Unless you focus on your rehabilitation, including the counselling you are receiving, you will find yourself in trouble again. You must avoid relationships with underage girls. You must learn ways to regulate your temper and your reactions to difficult situations. If you do not you are likely to find yourself before the courts again and facing further time in custody.
38Your chances of staying out of trouble with the law depend to a great extent on your engagement with counsellors, you finding work, and forming relationships that are not putting you at risk of further offending. If you engage with your counsellors and others who are trying to help you to set your life up in a better way, you will be able to remain out of trouble. Whilst the ASD which affects you will impact your behaviour in future, if you take the steps that have been put in place for you, you do have reasonable prospects of rehabilitation.
Plea of Guilty
39You were charged with the offending in relation to Jessica Barnett on 16 December 2019. You have been on remand for those charges since. A contested committal was run, in 2021. You were committed for trial on that matter on 6 May 2021 and the matter resolved to a plea on 12 May 2021.
40In respect to Charge 1, you were not charged until 5 October 2020. That proceeding resolved to a plea of guilty at the committal mention on 8 January 2021. You therefore have, in relation to Charge 1, the benefit of an early plea, which carries significant utilitarian benefit.
41In regards to the other charges, the utilitarian value of your plea is less, in view of the contested committal being run. Despite that, your pleas of guilty to the charges before me mean that your sentence will be reduced to reflect those pleas. The mitigation afforded to you is the greater because of the effect of the COVID-19 pandemic on the operations of the court.
42I accept that you understand that what you did in respect to these various matters was wrong, and that you are to some extent remorseful for your actions.
Standard Sentence
43I am required by the Sentencing Act 1991 to take a number of matters into account, including the Standard Sentence applicable to Charge 1, which is six years' imprisonment. The period specified as the standard sentence is, 'The sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness'.[5] The standard sentence is but one of the many factors that I am required to take into account. The approach I must take to sentencing is still that of distilling all the relevant factors and arriving at, via the instinctive or intuitive synthesis, the sentences I consider appropriate in all the circumstances. In your case the sentence on Charge 1 will be significantly lower than the standard sentence, reflecting amongst other factors that this was offending at the lower, although not the lowest, end of the range of gravity for this offence, your personal circumstances and the significant mitigation afforded by your early plea of guilty.
[5]Sentencing Act 1991 s5A(1)(b)
44When sentencing you on Charge 1, I may only have regard to sentences imposed in other cases where the standard sentence applied and was taken into account.[6] The principles which were articulated in past cases do still apply. I was referred to a number of cases, none of which involved a charge of sexual penetration of a child under the age of 16, where the standard sentence applied.
[6]Sentencing Act 1991 s5B(2)(b)
Sentences
45Travis Taylor, the sentences I impose are:
(a) On Charge 1 – you are convicted and sentenced to 18 months' imprisonment.
(b) On Charges 1, 2, 3 and 4 on the indictment you are convicted and ordered to undergo a CCO for a period of 18 months.
(c) On the Summary charge, you are sentenced to seven days' imprisonment, which will be concurrent with sentence of 18 months on Charge 1.
46So the total effective sentence is 18 months' imprisonment, combined with a community correction order for a period of 18 months, which will commence when you are released from custody.
47The conditions of a community correction order are that you undergo treatment and rehabilitation in respect to drug use, in respect to your mental health, and that you engage in programs to reduce the risk of reoffending. You will also be under the supervision of a Corrections officer.
48I need to tell you that if you breach the CCO that you can be charged with breaching the community correction order, which is an offence which in itself carries a jail term of three months, and if you breach the CCO you will be brought back before me for resentencing on the charges on which I imposed the CCO.
49If we can just unmute Mr Taylor for the moment, please. Mr Taylor, do you consent to the making of a community correction order?
50OFFENDER: Yes, Your Honour.
51HER HONOUR: We will just leave the link open for the time being because I have to mention a few other things to you. Pursuant to s6AAA of the Sentencing Act, I declare that if you had not pleaded guilty you would have been sentenced to three years' jail with a non-parole period of two years.
52By reason of your finding of guilt on Charge 1 you will be subject to the requirements of the Sex Offenders Registration Act 2004 for a period of 15 years. Documents regarding your obligations will be provided to you. You should be aware, Travis Taylor, that if you breach the requirements under the Sex Offenders Registration Act, that that can lead to further criminal charges.
53You have been in custody since your arrest on 13 December 2019. You were not charged with the offending in relation to Charge 1 until October 2020. Pursuant to s18(6) of the Sentencing Act 1991 the pre-sentence detention I can declare on Charge 1 must be reckoned from the time of your initial remand in December 2019. I therefore declare that you have served 539 days of pre-sentence detention, not including today, and I direct that this declaration be entered into the records of the court, and I will make the disposal order that is sought by the prosecution.
54Travis Taylor, your sentence is 18 months' jail with an 18-month CCO which will commence when you are released from custody.
55Mr Plummer and Ms Buxton, is there anything else?
56MR PLUMMER: No, Your Honour.
57MS BUXTON: Nothing further from me, thank you, Your Honour.
58
HER HONOUR: Do you need a chance to speak to your client over the link,
Ms Buxton?
59MS BUXTON: I would be very pleased to do that if that is possible, thank you.
60HER HONOUR: All right. This matter is now finished, and the court will adjourn, and if everyone could leave please except Ms Buxton and her client and anyone who needs to be involved in that conversation.
61MS BUXTON: Thank you, Your Honour.
62MR PLUMMER: If Your Honour pleases.
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