Director of Public Prosecutions v Taylor-Cox

[2018] VCC 100

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR-17-02522

DIRECTOR OF PUBLIC PROSECUTIONS

v

KALUB TAYLOR-COX

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:	14 February 2018
DATE OF SENTENCE:	14 February 2018
CASE MAY BE CITED AS:	DPP v Taylor-Cox
MEDIUM NEUTRAL CITATION:	[2018] VCC 100

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr C. Morgan	Mario Vaccaro Solicitors

Pages 1 - 8

 

 

HIS HONOUR:

1Kalub Taylor-Cox, in mid-2016 you met and befriended the victim at a youth group.  You both communicated with each other on social media and by telephone.  You were not yet 18.  The victim was 14.  Her parents were not keen on the two of you communicating and seeing each other and they made that known to you, directly telling you she was 14 and too young. 

2However, on 1 July 2016, you met up with her and went to a secluded place.  And after cuddling you put her hand on her breast.  About two weeks after, that is, after you had in fact turned 18 by a few days, you met up again in the same secluded place.  You were endeavouring to touch her and she told you that she was too young or the age gap was too big.

3After some time you put her hand under her skirt and penetrated her vagina.  Some weeks later, the victim told her mother and the police were notified.  You were charged and have pleaded guilty to one charge of an indecent act with a child under the age of 16 and one charge of sexual penetration of a child under the age of 16.

4In the victim impact statement, the victim said she had to move and has lost friends.  She has lost sleep and has had to go to counselling. 

5Although you committed these offences when you were 17 and a few days after you turned 18, you are in fact now 19 and a half.  The delay between the offending is now too long for you and for the victim.  The delay mitigates as you have had the burden of the stress of these matters upon you for a length of time.  But also in your favour, in the meantime you have settled.  I will say more about that shortly.

6You were raised by your mother and stepfather in the north-east of Victoria, having moved from the West of Melbourne.  Your grandparents play a significant role in your life.  Your family life was supportive and remain so. 

7You now work as a bricklayers labourer for your grandfather, a successful bricklayer.  You are keen to take up an apprenticeship with him, which is to be encouraged. 

8You were in a relationship with a young woman and your child was born in July 2016.  You were taken to the Children's Court for this and given a bond to be of good behaviour.  In addition, there are intervention orders.  You did not fare well mentally through this process.  You have picked up, moving to Melbourne and working for your grandfather.  This has assisted you to settle, as I indicated. 

9Your schooling in western Melbourne was difficult because of relentless bulling due to your weight at the time.  Your family then moved to the north-east region.  You left school partway through Year 11.  You were not attending school regularly and decided to seek a pre-apprenticeship in the automotive trade; you have a passion for cars. 

10Any abuse of alcohol or drugs in your late teens seems now to be behind you.  I emphasise the need to be moderate with alcohol and do not take up cannabis or any other drugs that you might have tested out in your early teens.

11A comprehensive report was prepared by the very experienced psychologist, Mr Crewdson, and it was tendered on the plea.  Many tests and assessments were done.  In the end, the opinion expressed was that you had trouble with anxiety and depression.  Hopefully, those matters will abate as this matter is finalised and you remain in Melbourne and employed.

12You have a mental health plan managed by your general practitioner, which is to be encouraged.  The tests and assessments as to your risk of sexual offending into the future put the risk as low in the psychologist's assessment, it seems in the view of those who know you well, your parents and grandparents, who spoke to the psychologist and spoke to your counsel, you are or were at the time immature.  However you have developed insight into your behaviour and accept your responsibility for your conduct with the victim in this matter. 

13Your plea of guilty is of real value, relieving the victim of the stress of giving evidence.  Your sentence will be much less and of a different kind because of your plea.  Because of your age, I must give emphasis to your rehabilitation.  That said, do not be mistaken that this was serious behaviour.  There is always a presumption of harm when these offences are committed.  However, as was made clear by the Court of Appeal in Clarkson, offending of this type is to be seen at the lower end of the spectrum. 

14In imposing punishment, I must make sure that penalty is proportionate to what you did.  Matters such as denunciation and deterrence are not overlooked but they must yield in this case to the establishment of condition that will facilitate your rehabilitation.

15The prosecution submitted that given that you were on notice of the seriousness of underage sexual encounters by reason of the matters that ultimately ended up at the Children's Court and given the warnings of the victim's parents, this offending should be met with a community corrections order with a condition that you do a sex offenders course.  Your counsel submitted a community corrections order or an adjournment on condition you be of good behaviour was appropriate. 

16I had you assessed for a community corrections order and you are found to be suitable.  A community corrections officer communicated that sex offenders course could be managed so that it is not in a group setting but one on one but it would need to be about 18 months in order for time to be had for assessment and the for you to proceed through the sex offenders course.

17I have given that anxious consideration and in the end I have come to the conclusion that given the past offending and this, and that this was spread over two events, albeit you were 17 and 18 and now have come to a better understanding of sexual encounters, that it would be appropriate to have this reinforced and you further educated by participating in a sex offenders course. 

18To that end, the penalty that I will impose will be a community corrections order and one, ultimately, of 18 months with conditions that you do programs that are directed at you not reoffending, in particular, a sex offenders course and that you be under supervision.  I will elaborate upon the precise conditions shortly. 

19One issue that goes to a proportionate penalty and to your rehabilitation is whether a conviction should be imposed. I have considered the matters that are set out in s.8 of the Sentencing Act, which includes that I must consider the seriousness of the offending and, in addition, I am to consider all the circumstances, including what impact it would have on your social and economic well-being. 

20In the end, although it is a lifelong penalty, it must be remembered that a finding of guilt for these offences is, of course, lifelong.  I consider in this case that a penalty of a conviction is warranted and the penalty of a community corrections order will be one with conviction.  Oddly, I cannot impose an aggregate term for sex offences like this; I must impose two penalties. 

21For committing the crime of an indecent act with a child under the age of 16, you are convicted and placed on a community corrections order that goes for one month and involves one condition of supervision. 

22For committing the crime of sexual penetration of a child under the age of 16, you are with conviction placed on a community corrections order for 18 months.  The conditions that are attached to that are that you be under supervision and that you must undergo courses that you are directed to do, in this case, the sex offenders course.  Those community corrections orders, of course, are concurrent. 

23Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a penalty of nine months in the Youth Justice Centre. 

24An application has been made pursuant to provisions of the Crimes Act. That application is that you provide a forensic sample, a scraping from your mouth so your DNA can be extracted and kept on a database.  I consider that application and I intend to grant it. 

25The reasons for that are the seriousness of the offence that you committed warrant that and although it is not a prior matter, the fact that there is other sex offending involving a young person also is important, so it is in the interest of justice, taking everything into account, that you provide that sample. 

26What will occur is that four weeks from now, a window opens, if I can describe it that way, and it stay open for another four weeks.  Within that window you have got to get to a police station and have the sample taken from you.  Now, if you resist or when you are there and they go to take the sample - and they are authorised to use reasonable force to take the sample - the way through it is just to cooperate; it is straightforward.

27One other matter that troubles me is something I have no say in.  As I have said many times before and other judges likewise and hopefully those in the Parliament are listening and will make some adjustments or propose to do so.  It all relates to the Sex Offenders Register.  I have been told by the prosecution that having reviewed this matter carefully, they submit that this is what has to happen:  you must go on the register. 

28There is not choice about it because of the offence that you committed, given the previous matter in the Children's Court, and the period of time that you must remain on it, we have no choice about; it is for life as well. 

29Now, why it troubles me is that the Sex Offenders Register is an important concept and an important tool for investigators, police officers, to keep an eye on and manage and prevent sex offending or protect members of the community from those that create a risk that they will imperil the sexual safety of members of the community. 

30I do not consider that you are in that category.  I do not consider that you do pose a risk of the kind required normally when I have a discretion about the sex offenders.  I think you will get on with your life, form relationships that are appropriate.  You will probably have other family yourself and bring them up like you were brought up and you may get a chance to do so with the child that you already have.  But I have got no choice in the matter and that Sex Offenders Register registration has to occur. 

31What occurs now is an extra level of silliness and it is that I have to sign a document that says that I have given you a document.  You have to sign a document that says you have got the document.  But all of that is nonsense.  The key this is what is on the document and that is that there are serious responsibilities you have, to get on the register and remain on it and keep people informed of what is happening in your life.  If you do not meet those responsibilities, there are serious consequences for failing to do so. 

32Young people, I try to emphasise to them as best I can, read it carefully, get some advice about it.  But it includes all range of things:  all cars that you have, you have got to tell them about; all phones that you have, you have got to tell them about; all internet identities, so if you go a gaming site - I do not know if this is you, for some it is - and you have some sort of name or something, you have got to tell them all that; if you have an email that you just use for some purpose on the internet and it does not mean anything and it is not your real email, you have got to tell them about that one as well as your real one. 

33It just goes on and on.  If you get a tattoo - heaven forbid - you have got to do that.  Not sure if you have tell them if you grow a beard but I would not be surprised, so just go through it carefully, all right?

34Right, so this community corrections order that I have placed you on, the longer one, is 18 months.  It goes from today till 13 August 2019.  You will be 21.  You must attend at the Sunshine Community Corrections service, that is the one that you will be attached to.  I will telephone you when you have to get there.

35The first things that I need to tell you is that there are certain conditions that apply to all community corrections orders for everyone.  Of those conditions, the first is very important, you must not commit another offence for which you could be imprisoned during the time the order is in force. 

36Well, all I can say is do not commit any offence ever.  Do not commit one for which you can be imprisoned during the time that this order is enforced and if you do, you come back to me.  I will be none too pleased.  Just operate on the basis that almost every offence that you can think of is punishable by imprisonment, so stealing a can of soft drink from the service station, that is punishable by imprisonment, even if you would not go.  All right.

37Further, you must comply with any obligation requirement under the sentencing regulations.  When you get down to the community corrections service, I think they will want to take a photograph of you so they know who you are and so on, you have just got to cooperate with that. 

38The rest of these conditions are all about cooperation.  You must report to and receive visits from the office of Corrections.  You must report to the Community Corrections centre, that is at Sunshine - the address is here - within two clear working days, so go down tomorrow or the next day. 

39You must let the community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so.  If your parents live in Yarrawonga and want to go across the river, you better tell the officer of Corrections that that is on the cards.  You must obey all lawful instructions from the office of Corrections, all right?

40In addition, you have got to be under supervision.  That will mean they will check up with you through the 18 months just to see how things are going, all right?  I have not put you on a mental health condition but tell them how you are going in that area, that if things are going off the rails, let them know.  But stick with your doctor about all that, all right?

41You must participate in the programs that address factors relating to your offending, which is the sex offenders program; so that is for 18 months.  There is another one running at the same time for one month, the same conditions except you do not have to do a sex offenders program under that, just be under supervision, all right? 

42You sign those and it brings the matter to an end.  Together with that there is a document that we have spoken about.  I sign a document to say that I have given you a document and you sign the other document to say that you have got it.  You can come out of the dock and get around to where you lawyer is.  Thank you. 

43I have got this document back that acknowledges that I have given you a document and that will be forwarded to the Chief Commissioner of Police.  Is there anything else required?

44MR CORDY:  No, Your Honour.

45HIS HONOUR:  No.  Thank you, Mr Morgan, for your assistance in this matter at short notice.  Mr Cordy. 

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