Director of Public Prosecutions v Tilley
[2022] VCC 323
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-19-01943, CR-21-00663, CR-21-02386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALLUM TILLEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 March 2022 | |
CASE MAY BE CITED AS: | DPP v Tilley | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 323 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Director of Public Prosecutions | Ms M. Brown Mr N. Hutton | Commonwealth Director of Public Prosecutions Office of Public Prosecutions |
| For the Accused | Ms L. Andrews | Daniel Taylor Lawyers |
HIS HONOUR:
1 Callum James Tilley, you have pleaded guilty on one indictment to a charge of rape; on another indictment to a charge of sexual penetration of a child under the age of 16, and on another indictment to a Commonwealth matter of grooming. The rape is a standard sentence matter, that being 10 years. The sexual penetration is a standard sentence matter as an adult but the offending commenced whilst you were a child, of six years and it does not apply to the grooming.
2 As I have indicated during the course of discussion this is really a totality question and I will go through each and do the best I can. You are now, as I understand it, 22 years of age. You were 17 years of age when the offending commenced. At that point in time you had no prior convictions and oddly enough you still do not, so for each of these matters you have to be treated as a person with no priors.
3 Insofar as remorse is concerned, I accept that you have pleaded guilty to these matters on settled indictments and whilst remorse is problematic, I will give you the benefit of the doubt in relation to that. Clearly you must get the utilitarian benefit of these pleas of guilty and the decision of Worboyes plays a part in each and every one of them.
4 Because of the nature of the offending on the Commonwealth indictment you will be placed on the Sex Offenders Register. I advise you that the reporting will be for eight years. It is somewhat debateable insofar as the other two indictments are concerned but I will leave that matter for the Sex Offenders Registration Board to do as they see fit there.
5 Because of the timing of all this and because I will be sentencing on the Commonwealth matter last, you are not to be sentenced as a serious sex offender. The offending overall has to be regarded as serious. I will deal with each one individually in a moment. All call for the application of general and specific deterrence, denunciation, and appropriate punishment.
6 Because of the circumstances you are now in, you are charged with sexual penetration where because of the between dates it could have been heard had you been apprehended early enough in the Children's Court. You were under 21 at the time of the first two indictments which means you could have received Youth Justice. That is no longer available and you are still obviously a young offender and the whole circumstance becomes somewhat problematic.
7 Insofar as the standard sentences are concerned I will be making comments insofar as the objective seriousness of each of the offences that are subject to it are concerned. I simply point out that what I will be doing is applying the principles that were confirmed by the Court of Appeal as compiled by His Honour Champion J in the case of Brown. I will take the standard sentence into account as one of the factors to consider in my intuitive synthesis of all the relevant factors and my consideration of that sentence will be reflected in the sentences that I impose.
8 The sentence that I impose in respect of the charge of rape will be significantly lower than the standard sentence. In my view the matter is significantly lower than the mid range of sentencing for such matters and I will refer to that again in a moment.
9 Insofar as the sexual penetration charge is concerned, you are still young. It was a consensual relationship and again I will be referring to those matters. I also regard that as significantly less than the mid range for such an offence.
10 I think at this stage I will point out the comments made by Their Honours Priest and Forrest JJA in the matter of McPherson. Paragraphs 30 and 31, I think, is worth putting into these sentencing remarks. I was not aware of this decision until it was pointed out to me the other day.
11 'The standard sentence and maximum penalty were factors that went into the intuitive synthesis calculus along with many other factors, including those we have mentioned. It is often said by this Court that manifest excess is a ground that is hard to establish and that permits little argument. Our impression, and in the absence of specific error, is that all it is is that the sentence imposed, in all the circumstances was well beyond the appropriate range for this level of offending'.
12 They were then granted leave to appeal and gave a sentence with a minimum term. They endeavoured to resolve the tension between the standard sentence for the offence, the maximum penalty, and the need for denunciation, punishment and the like. They also took into account the applicant’s very particular circumstances of mental ill health, childhood trauma and disadvantage, as well as the principles of parsimony.
13 They then went on to say this: 'Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending. The standard sentence is designed to represent a "mid-range" example of the offence, however the offence covers such a wide range of sexual misconduct, as does both rape and sexual penetration, as to make the notional "mid-range" very difficult to identify. The misconduct can be penetration by finger, penis or tongue, or by an object. It can be momentary or protracted. It can be committed on all sorts of ages. The impact on the victim can be manageable or catastrophic.
14 'That is not to say the phrase is meaningless; it must be given its place in the sentencing calculus, but it is an intangible concept and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in "two-stage" sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is, no more, no less'.
15 Can I say with the greatest of respect to Their Honours I totally agree with those comments. In any event that is what I will be doing insofar as standard sentencing is concerned.
16 I will now go through each of the offences in the order in which you were charged, not necessarily in the order in which they were committed because of the reasons I have already indicated.
17 Insofar as indictment 759.1 is concerned, that is the rape, you were 19 years old at the time of the offending. The victim was 17 years old at the time of the offending. She had moved to Sale in early December. The two of you first met at Jack Ryan's, an Irish hotel in Sale, several times before the night and just before she left you added her on Snapchat.
18 Shortly after the two of you began communicating with one another via Snapchat and on Facebook and in February of 2019 the two of you met and went to her school. You met her after school and went back to your house in Sale and that afternoon you began a consensual sexual relationship. She describes the relationship as something more than 'friends with benefits' but not boyfriend/girlfriend.
19 A couple of weeks into the sexual relationship you were discussing what you were, and were not, comfortable with within a sexual relationship and the victim in this matter raised the issue about being tied up during sex. In March 2019 she decided to end the relationship for various reasons and sent you a text to that effect. You asked if you could still be mates and you asked whether that meant you could not have sex anymore and she said maybe.
20 On 8 March 2019 the two of you began a photo chat on Snapchat. She said she was going to have a few drinks and eventually she came round to your house and began drinking with you. Apparently your brother and his girlfriend were also there. A considerable amount of alcohol would appear to have been drunk. At one stage the victim sat beside you and started cuddling you and she then suggested that you move into the bedroom.
21 Once in the bedroom you licked her vagina and inserted your penis into her vagina and then there was another oral sex and then reinserting your penis into her vagina. She said, 'You don't want me to be loud, do you?' You said that you were not fazed and continued to penetrate her with your penis. You did not interpret that as her saying stop. After a few minutes you heard her say stop. You continued to penetrate her for another two or three thrusts before stopping and withdrawing your penis. That is a charge of rape. The next day she texted you and said 'When I tell you to stop you have lost my consent'. You replied, 'Okay, sorry. I was just trying to play'.
22 When interviewed by police you admitted these matters and told the police you knew you should have pulled out straightaway and it was wrong by not stopping immediately. You said that you did not stop immediately because you thought she was enjoying it and it was a spur of the moment decision. Clearly it was an act that is rape as a matter of law.
23 In terms of the matters that I have just referred to, it is of very short penetration. It must have only been seconds. It commenced on at least two forms of sexual penetration prior to it with consent and it is a situation where a 19 year old in those circumstances and - intoxication is no defence, but in those circumstances where both of you I suspect were intoxicated, did not withdraw immediately when being asked to. It is my view that that is a matter that is at the very lowest of rape.
24 Rape is never trivial, one clearly understands that. The legislation is such that special reasons cannot be raised in a rape matter so it has to be a gaol sentence. Were this matter being heard by itself, I would be very, very concerned about that because in these circumstances at your age, with your difficulties with no priors I would have thought that a very serious community corrections order would have been an ample disposition but the law would have prevented me from doing so.
25 But be that as it may, and bearing in mind that you are pleading to other charges in the overall circumstances I am going to impose a custodial sentence. There were no threats involved. I do not have to go through the non-aggravating features but no threats, no violence, nothing along those lines. That is the charge of rape.
26 The next matter that I will deal with is the charge of sexual penetration with a child under the age of 16 years.
27 The offending began, according to the Crown opening, on 1 March 2018 when you were 17 years and 11 months and ended in November 2019 when you were 19 years and eight months. I make it clear from the outset that I am not prepared to find dates in this matter. The evidence is vague in many respects. I simply point out that assuming on the assumption for these purposes that intercourse took place on more than two or three occasions between 1 March and your birthday about a month later, it would have been a course of conduct and would have been dealt with in the Magistrates' Court, and in all probability not even entertained a custodial sentence.
28 That is not the situation. I am aware of the authorities that relate to matters that could have been dealt with in the Children's Court but at the end of the day it is clear that the offending continued into the time that you were an adult with the consent of the - not that that mitigates in any way, shape or form, of the complainant and accordingly you are before an adult court.
29 During the alleged period of time you were residing in Valentine Court in Sale. The complainant was also residing in Sale. She was 14 years or so at the start of the offending and was 15 years and 11 months at the conclusion of it. The timeframes here are difficult. All I am simply going to say is that intercourse took place between you regularly over a significant period of time being months, and I think it would be unfair to you to try and make it any more precise than that.
30 She resided with her mother. The two of you met effectively over Snapchat. You told her that you were 19 years of age and about two weeks after first communicating the two of you agreed to have sexual intercourse and she said to you that 'I want to have sex but no attachments'. The sex took place on a number of occasions in various places, near the soccer fields, near the little campus of St Patrick's College, access from a mechanic's shop and all sorts of places.
31 She described the house that you lived in. You, at that stage, were living there with your two brothers. On reading your background, effectively in many ways you and your two brothers had to bring each other up in a very difficult environment, and I am aware of that from the earlier material. I do not have to go through each and every act that took place; I am satisfied obviously that there was a course of conduct.
32 She said that her relationship with you originally was to be a one night stand but after a while she 'started catching feelings' for you. She says that you met on a very regular basis and engaged in consensual sexual contact on a number of occasions during the day.
33 The circumstances here are that she told the police that the two of you would sometimes have sexual intercourse 'nearly 50 times a week'. She also said that having sex with you was 'making out, just doing regular stuff, no choking, no anal or anything'. She said that you would try to get her to perform oral sex on you but she would never do this so clearly there was no force from you. There was no indication of any force and mostly very careful in this day and age. I just simply leave those matters that she told the police to the view of the reader.
34 In any event the matters were detected because of her attendance at a medical practitioner's. The relationship with you ended in November 2019 and as I understand it, you were not then interviewed for a period of many months so there is an element of delay involved in all of that. The decision that Ms Andrews handed me of Atkins, I think it was.
35 MS ANDREWS: Clarkson, Your Honour.
36 HIS HONOUR: I am just trying to find it. Clarkson. The Court of Appeal in that matter said: 'Proof that the child consented is the beginning, rather than the end, of the sentencing Court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the Court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given'.
37 As I have already indicated, consent is not mitigatory. I make that very clear and I am totally aware of that. It then goes on to say: 'There are exceptional cases. For example, in a relationship between a 15 year old girl and an 18 year old boy where the consent is, relatively speaking, freely given and genuine, and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing Court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity'.
38 In that situation, as here, the offending did not involve a breach of trust or authority, so that plays a part in this situation. It is obviously illegal. It was known to you to be illegal but a mutual relationship. You are not charged in this particular instance with rape and you certainly cannot be sentenced for it. In my view those factors as described in Clarkson put this at a lower end of the scale. However it is a course of conduct charge and it must be reflected in the sentence that is imposed.
39 I then turn to the third of the indictments, which is the Commonwealth matter. These matters get complicated because I cannot work out when you are on bail for other matters that was over a period of some years in any event. On 12 October 2020 you were remanded. I should also point out in the case of the rape that the Crown considered in their original submissions that it was at the lower end of rape as such.
40 In this particular matter I will refer to now, there is one charge of using a carriage service to groom a person believed by you to be under 16 years of age. It is a situation where in August of 2021 you spoke to a covert operative, believing it to be a 14 year old female. You engaged in a conversation with that operative on a number of occasions over a period of a number of days. You were told that the person you were speaking to was 14 and you made a number of sexual references and sexual requests. You sent obscene photographs of yourself.
41 It would seem that the offending had ceased prior to your being sentenced as with this case with the sexual penetrations and when the police raided your home they were able to find the messages. That again is a crime which can have all sorts of different consequences to it. I accept here that there was no attempt to meet up and clearly there could not have been an actual meeting, but sometimes they go a lot further than that.
42 In this situation it is conceded very sensibly by your counsel that a sentence of imprisonment that does not require parole or a recognisance would be appropriate and Ms Morgan, for the Crown, has again very sensibly agreed that that is the appropriate disposition. In those circumstances I do not have to go any further. It is pretty clear what the consequences of this sort of offending can be and I am simply operating, as I have already indicated a couple of times, on the basis of totality, bearing in mind your still young age. There are no victim impact statements before me.
43 Material has been placed on your behalf. As I indicated to you, I am aware of your background in terms of being brought up by your brothers. Your background and childhood was marked by significant disadvantage and I have two reports from Ms Cidoni which are on file and can be read by anybody with a genuine interest.
44 Your mother had a diagnosis of intellectual disability, and I can put it as simply as this. You were removed by DHHS at the age of three and were in multiple short term care placements. You went back into your mother's care when you were 10 but you were removed again at the age of 11 and you had been sexually abused by one of the partners. Your father died when you were 11 and for that period of time after that as an 11 year old you were homeless.
45 Some time later you were placed in the foster care of a Mr Barker. He provided you with a level of stability and support that you had not previously experienced. He endeavours to continue to support you, and indeed he has been to Court to support you on previous occasions.
46 You attended numerous primary schools. It is often an indicator with this sort of offending. You then attended Sale College completing Year 12. After leaving school you partially completed a boilermaker's apprenticeship. You have worked on farms.
47 You find yourself in this position. You have been in custody for some 205 days at the age of just turned 22. Ms Cidoni found that you have a compulsive personality style and an unspecified personality disorder. You clearly have had, in the past, extreme difficulty understanding the nature of sexual offending and whilst you might understand the illegality of it, the nuances seem to be, at least in the past, lost upon you.
48 You do not seem to have the ability to appreciate the emotional components of sexual behaviour and that has carried through to these relationships. It is a situation where the relationships have all been with people essentially younger than you. Whether that is dealing with people who do not pose a threat to you emotionally or whatever, I do not know and I will not play the psychologist in this situation.
49 I think that there is a causal link in a sense between the offending and the principles of Verdins are engaged to a certain extent. You certainly are not a strong application of them, but I do think that you just have not had the understanding of sexual relationships to fully understand the illegality and the wrongness of what you were doing.
50 You have been assessed having a risk of reoffending as medium. I would assume that in the course of disposition you do the sex offender's program and that would give me confidence that you would not reoffend again but that is more a matter for the future.
51 You will get the Worboyes discount obviously. You have been undergoing sentence in COVID times and you will have to continue undergoing sentence in COVID times. However, in all the circumstances it is offending of a serious nature. The words probably sound more serious than the actual events, but I am left with little option but to impose a custodial sentence which reflects totality as well the seriousness of the offending.
52 I understand that you have been assaulted on a number of occasions in prison, and with no prior convictions to then go straight into a custodial environment must have been frightening for you and I take into account that would have a significant effect upon you and make gaol a more frightening experience than it might otherwise be.
53 The submissions of your counsel have been tendered and they are there for anybody to view who has a genuine interest in the matter and obviously all of these matters will be sent to the Parole Board.
54 In any event, taking into account as best I can all the relevant provisions, on Charge 1 of rape, 18 months. On Charge 2 of sexual penetration course of conduct, I make that clear, two years. On the charge of grooming six months; that sentence to commence today. I direct that six months of the sentence imposed on the rape indictment be served cumulatively upon the two years imposed on the sex pen indictment. That gives a total effective head sentence on all indictments of two and a half years.
55 I direct that 20 months be served before becoming eligible for parole, that 20 months being the 60 per cent. I cannot see that I could justify going less than 60 per cent in this particular situation. I direct that 205 days be reckoned as having been served under this sentence.
56 Just so that you understand hopefully the benefits of your having been sensible and pleaded to these matters, had you gone to trial on them - it is somewhat artificial because of the very different natures of trials and what may have occurred, but theoretically at least had you gone to trial on these matters and been convicted by juries I would have sentenced you to be imprisoned for a period of four years with a minimum period of two and a half.
57 Are there any other orders I need to make? I think I have got to make a - on the charge of rape the disposal orders are made and handed down on that indictment. Are there any other orders I need to make?
58 MS MORGAN: Your Honour needs to make some reference to the two related summary offences that are on the notice.
59 HIS HONOUR: Thanks for that. Yes. There are two uplifted summary matters on the Commonwealth indictment. For reasons of making this work as much as anything else on each of those you are convicted and discharged.
60 MS MORGAN: Thank you, Your Honour, and I just note for completeness that there's no forfeiture order for the Commonwealth matters because it's anticipated that we will have a signed document from Mr Tilley or his representatives consenting to consent, so there's no ancillary orders that are required for the Commonwealth indictment. As Your Honour pleases.
61 HIS HONOUR: Thanks for that, Ms Morgan. There's no other matters that I need to take into account? I think just in brief the prospects of your rehabilitation in the ultimate are really up to you but clearly if you can get your head around sexual behaviour the risk of you reoffending will perhaps be zero, I would have thought. Thank you, Ms Morgan. Thanks Ms Andrews.
62 MS ANDREWS: Thank you, Your Honour.
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