Director of Public Prosecutions v Thompson
[2024] VCC 1892
•25 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00304
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN THOMPSON |
---
JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2024 | |
DATE OF SENTENCE: | 25 November 2024 | |
CASE MAY BE CITED AS: | DPP v Thompson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1892 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sexual penetration of a child under 16 – rolled up charge
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571
Sentence: 4 years imprisonment NPP 2 years 5 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. D. Cordy | Ms. A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr. I. Polak | Michaelson Lawyers |
HER HONOUR:
1Adrian Thompson, you have pleaded guilty to a single rolled up charge of sexual penetration of a child under 16, comprising 2 occasions. The maximum penalty for this offence is 15 years imprisonment, with a standard sentence of 6 years. I shall return to this shortly.
Circumstances of the offending
2The circumstances of your offending were outlined by the prosecution and will be summarised here.
3The offending occurred on 27 January 2023. You were then 27 years of age. The complainant, Erica Quinn,[1] a pseudonym, was then 15 years of age and the subject of a 'missing persons' report.
[1] A pseudonym.
4On 26 January 2023, the complainant contacted her friend Zack Gibbs,[2] who was then aged 18 years. The two met at a house in Shepparton together with 2 of the complainant's friends, Gracie Cooper,[3] a pseudonym, aged 13, and Jazmin Burns,[4] aged 15, a pseudonym. I should say Zack Gibbs is also a pseudonym. The group all consumed alcohol before deciding to catch a bus to Cobram, arriving at about 8.30 pm.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
5Once in Cobram, Gibbs contacted you and you all met outside the Grand Central Hotel. You were introduced to the complainant who told you she was 15 years old when you said you were aged 23.
6Gibbs was refused service at the pub on account of being with underage girls. The group moved to the Cobram Hotel. You bought Gibbs a beer to celebrate his 18th birthday while the complainant and her friends waited in a nearby park.
7You bought further drinks and took them to the park, sharing them with the girls. Gibbs told you that the girls were too young, but you ignored him.
8As the group had nowhere to stay that night, you offered your home address where you lived with your parents.
9You ushered the group through the back gate and into your room which had a double bunk bed. You then shared beers and a bottle of blue spirits with the complainant. Gracie was lying with Gibbs on the top bunk, Jazmin was passed out on the double bed at the bottom where you were also lying with the complainant.
10The complainant felt exhausted and wanted to sleep, barely able to move due to her alcohol consumption. She said she was cold, so you put a blanket over her and pulled her towards you, putting her leg over your hip and groping her buttocks.
11You inserted your fingers into her vagina which is an uncharged act. She giggled before passing out.
12The complainant woke up some time later to find you kissing her neck. Her shorts and underpants had been removed and you penetrated her vagina with your penis for about 5 minutes. This is the first act of penetration in the rolled-up charge.
13Gibbs observed you penetrating the complainant and told you she was only 15 and you stopped. She was in and out of consciousness.
14On waking up again the complainant felt you roll her on top of you. The others in the room had left after your father yelled at the group to be quiet. The complainant was falling about and you told her to stop moving and lifted her up so she was straddling your hips. You then penetrated her vagina a second time with your penis and continued until you ejaculated. This is the second act of penetration in the rolled-up charge.
15The complainant found her phone and called one of her friends before meeting them in the Cobram skate park. In the public toilet the complainant noticed her underwear was full of semen and blood, so she disposed of them. She then told her friends what you had done to her.
16The 3 girls caught a bus back to Shepparton where they were approached by police. The complainant disclosed the offending to Constable Williams. The complainant’s clothing was seized and she underwent a forensic medical examination.
17On 31 January 2023 you were interviewed by police. You stated that:
(a) You received a call and met your friend who had brought three females with him;
(b) You were told the girls were 18 years of age;
(c) You offered for them to stay at your place that night;
(d) The complainant initiated you sleeping with her, and you had consensual sex;
(e) You thought they were 18 years of age and that is what you were told;
(f) You penetrated her on two occasions; and
(g) She was moaning and not telling you to stop.
Offence gravity
18Sexual penetration of a child under 16 is a most serious offence. Your victim was young, vulnerable and clearly alcohol affected, in part by alcohol you had provided to her. You were told her age, first by the complainant herself and then by your friend Gibbs on no less than two occasions. Further, you misstated you own age and lied to police when interviewed.
Victim Impact
19Ms Quinn has provided a Victim Impact Statement which eloquently details the impact of your offending on her. She now views physical relationships differently and has lost trust in other people. She states that 'no matter how many times I scrub my body in the shower, I still feel his hands on me.' She is constantly scared that something is going to happen to her.
20Your offending has clearly had a significant and ongoing effect on your victim and will no doubt continue to do so.
Plea of guilty and remorse
21Your plea of guilty comes late, after a sentence indication in the week prior to the special hearing. Nevertheless, you have spared the complainant the ordeal of giving evidence. This has significant utilitarian benefit. You have also saved the court and the community the time and expense of running a trial. In those circumstances you have facilitated the administration of justice and you are entitled to a benefit for that.
22By your plea of guilty you have demonstrated an acceptance of responsibility for your offending and a degree of remorse which was echoed in the psychological report I received on your behalf. You stated to the psychologist that your behaviour was 'immoral…because of the age difference…at 15 years old, she’s a child and vulnerable and not fully developed and can’t comprehend things like an adult.'
Personal circumstances
23I turn now to your personal circumstances.
24You are now 29 years of age, having been born in August 1995.
25You are the eldest of three children and lived at home with your parents and younger brother until your remand. You retain the support of both parents and your mother attended court to support you in this matter. You are also close to your younger brother, and I have received a character reference from your former partner. I consider this family support to be a protective factor for you.
26You attended Cobram Secondary College until Year 8 before attending a community school in order to obtain a Year 10 certificate. You had a difficult childhood during which were abused by a family friend. You were also regularly bullied at school.
27After leaving school you wasted several years but have gone on to hold a number of casual labouring jobs. You have worked in various factories, a distribution centre and an abattoir.
28You have recently completed a traffic management course and have obtained your construction ticket but have been on Newstart for some time.
29You have a 6 year old daughter who lives with your former partner but due to these charges you have not had recent contact with her. You had a subsequent relationship that ended earlier this year.
30According to your general practitioner you have suffered from anxiety and depression in the past but are not currently medicated. You have experimented with a number of drugs over the years, however, alcohol is a bigger problem for you and you now recognise that you need assistance with your dependency.
31I received a psychological report from Ms Carla Lechner dated November 2024. She opines that you suffer symptoms of alcohol use disorder in early remission and complex PTSD, together with a possible ADHD diagnosis.
32You continue to maintain to Ms Lechner that you thought your victim was 17 when you were clearly and repeatedly told she was 15. You fall in the low to moderate risk category for sexual reoffending as compared with other sex offenders. Ms Lechner recommends that you address your alcohol addiction and psychological mindset around sex and self-worth to mitigate your risk.
33Ms Lechner found that you 'impressed as cognitively, socially and emotionally immature with a limited capacity for reflective thinking, partly on account of a high level of emotional arousal, partly due to your history of substance abuse and partly on account of information processing problems.'
34Since your remand you have been working in industries, in particular trade steel, and plan to get a qualification in welding.
Sentencing principles and considerations
35Mr. Thompson, this was disgraceful, opportunistic behaviour. Your victim was only 15 years of age. You knew this, and were reminded of it, yet you plied her with alcohol before twice having sex with her while she fell in and out of consciousness. It is shameful conduct.
36General deterrence must play a paramount role in the sentencing exercise. Others in the community who are minded to treat vulnerable children in this way must realise that such behaviour will result in a period of immediate imprisonment.
37Similarly, I take specific deterrence into account. I must make it clear to you that the court and the community will not tolerate such behaviour. I note you have no prior convictions. I hope this sentence makes it clear to you that you cannot act in such a way in future.
38Community protection does have a role to play, where your victim was particularly vulnerable by reason of her age and by reason of the alcohol you gave her.
39Just punishment and denunciation are also relevant considerations.
40Sexual penetration of a child under 16 is a standard sentence offence with a standard sentence of 6 years.
41The standard sentence for an offence is a sentence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. I must take the standard sentence into account as one of the factors relevant to sentencing. This requirement is to be treated as a legislative guidepost having the same function as the maximum penalty. It does not affect the established instinctive synthesis to sentencing or require or permit two-stage sentencing.
42The court must only have regard to sentences imposed in cases where the standard sentence regime applies.
43I have taken the standard sentence for sexual penetration of a child under 16 into account as one of the factors to consider in my instinctive synthesis of all the relevant factors in your case. I consider your offending to fall just under the mid-range of seriousness.
44Pursuant to s. 11A of the Sentencing Act 1991, the non-parole period I impose for a standard sentence offence must be at least 60% of the total effective sentence unless it is in the interests of justice to impose a lower non-parole period.
45Your counsel, Mr Polak, submitted that in your case it would be in the interests of justice to impose a non-parole period lower than 60% of the head sentence because you are in an unusual position. You have clearly defined problems including PTSD, you have no prior convictions and you are somewhat immature.
46Mr. Cordy, for the prosecution, submitted that these reasons do not justify a non-parole period lower than the prescribed percentage. I must say I agree. Your offending was serious and your circumstances are not so unusual as to cause me to consider a non-parole period under 60% of the head sentence. You remain a low to moderate risk of reoffending.
47Mr Thompson, would you please stand.
Disposition
48On Charge 1, a rolled-up charge of sexual penetration of a child, you are sentenced to 4 years imprisonment.
49I direct that you serve a minimum non-parole period of 2 years and 5 months before being eligible for release on parole.
50Pursuant to s.18 of the Sentencing Act 1991 I declare that you have served 73 days by way of pre-sentence detention, excluding today.
51As sexual penetration of a child under 16 is a Class 1 offence pursuant to the Sex Offenders Registration Act 2004, I direct that you be placed on the Sex Offenders Register for a period of 15 years.
52Pursuant to s6AAA of the Sentencing Act1991, had you not pleaded guilty, the sentence I would have imposed would have been 6 years imprisonment with a non-parole period of 4 years.
53Would you please now sign the acknowledgment of registration paperwork which we will have provided to you. Mr Polak, you can assist Mr Thompson with that if you wish. Thank you, Mr Polak. You can be seated, Mr Thompson.
54Is there anything further from you Mr Cordy.
55MR CORDY: No, Your Honour.
56HER HONOUR: Mr Polak, anything further from you.
57MR POLAK: No, Your Honour.
58HER HONOUR: Thank you. You can take Mr Thompson out, thank you. Thank you, we will adjourn the court.
---
0
0
0