Director of Public Prosecutions v Todd-Vanderlei
[2023] VCC 1475
•23 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-23-00627
Indictment No. N12655392
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS TODD-VANDERLEI |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 23 August 2023 | |
DATE OF SENTENCE: | 23 August 2023 | |
CASE MAY BE CITED AS: | DPP v Todd-Vanderlei | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1475 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - sexual penetration of a child under the age of 16 – standard sentence - presumption of harm - serious offending - substantial victim impact - possession of a drug of dependence - charge of trafficking in a drug of dependence to a child - youthful offender - rehabilitation - prior criminal history.
Legislation Cited:
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 4 years, non-parole period of 2 years and 8 months and sex offender register for 15 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Wallace | Office of Public Prosecutions |
| For the Offender | Mr C. Pearson | Adrian Paull Criminal Lawyers |
HIS HONOUR:
1Thomas Vanderlei-Todd, you have pleaded guilty to one charge of trafficking in a drug of dependence to a child, three charges of sexual penetration of a child under the age of 16 and one charge of possession of a drug of dependence. The maximum penalty for the trafficking is 20 years' imprisonment; for the sexual penetrations, the maximum penalty is 15 years' imprisonment, and for that offence the standard sentence is six years' imprisonment. The possession charge has a maximum penalty of five years' imprisonment.
2At the time of the offending, you had recently turned 21 years old. The complainant in this matter was born in March 2008 and was 14 years and eight months old at the time of the offence.
3On Sunday, 13 November 2022, the complainant attended an event at the Melbourne Convention Centre. She was dropped off there by her mother in the morning. She stayed at the Convention Centre for several hours. At 3.05 pm, she went to the Flinders Street Railway Station steps. She remained there for half an hour. At 3.42 pm, you approached the complainant and offered to sell her Xanax pills. She purchased five pills from you. This is the basis of the trafficking charge. You asked the complainant her age and she told you she was 14 years old.
4You were with a friend named 'Mundy'. Mundy asked the complainant if she wanted to hang out with you and him. At 3.46 pm, you left with the complainant and Mundy and walked over to St Paul's Cathedral across the road. You and the complainant exchanged Facebook profiles. At around 4.00 pm, the three of you went to the BWS liquor store in Flinders Street. You told the complainant to remain outside because she looked underage. You purchased eight cans of Bourbon and Cola. You gave the complainant a can of Bourbon and Cola, which she drank. You also offered her some of your own drink and she consumed some of your can as well.
5The three of you then walked to the Capitol building in Swanston Street. There, you asked the complainant whether she was going to take the Xanax. She took one Xanax pill. You and the complainant then walked back towards Flinders Street and sat outside a restaurant. You asked the complainant if she wanted to 'hook up' with you and suggested you could hook up in a bathroom. She said, 'I don’t know, I don’t really wanna'. You told her she would not regret it. The complainant reminded you she was 14 years old. You told her if you were stopped by police, she should say she was 17 and she was your cousin.
6You asked the complainant to go to your home in Geelong. She said she had to go home. You asked her if she wanted to hook up, but she said 'no'.
7At around this time she texted a friend of hers and said that a random man had approached her, and she had reminded him she was 14. She also texted to this friend that you were 21 years old.
8At 6.58 pm, CCTV footage captured you and the complainant entering a female toilet. Soon after that you left the toilet. At 7.01 pm, you walked to the disabled toilet and the complainant followed you.
9She stumbled and grabbed the handrail. Inside the toilet you told the complainant to get on her knees, she was affected by the drugs and alcohol she had consumed. You put your penis in her mouth for approximately one minute. This is the basis of Charge 2, sexual penetration, which is a rolled-up charge. You told her to get up and bend over and she said 'what'. You said, 'bend over'. She complied. You penetrated her vagina with your penis and then her anus with your penis. These two penetrations are the basis of Charges 3 and 4. The duration of those offences was over a few minutes. You did not wear a condom. You subsequently penetrated her mouth again with your penis, which is the second part of the rolled‑up Charge 2. You asked the complainant if she 'liked it'.
10You said to her that if she went to Geelong with the two of you, you could engage in further sexual acts. You left the toilet at 7.11 pm and the complainant left at 7.12 pm.
11You walked to an external seating area outside the railway station. At 7.25 pm, you hugged the complainant, who was sitting down. At 7.30 pm, she left you.
12Mundy walked the complainant to Platform 13, where she took a train to get home. She sent a message to the same friend, as earlier indicating she had sex with you and needed help. In subsequent video calls and Instagram messages she told her friend she had had sex with you in a bathroom. Her friend observed her to be sleepy and zoning out.
13The complainant arrived at her train station at 8.23 pm. Her father collected her and drove her home. He observed her to be 'out of it'. The complainant told her father what had happened with you.
14On 14 November 2022, she attended a Police Station with her mother and reported the incident. She made a VARE detailing the circumstances of the offending.
15You were arrested on 9 December 2022. You were shown the CCTV images from Flinders Street Railway Station. You made an admission to trafficking Xanax pills to several people. You made admissions to selling the complainant one or two Xanax pills. You said she told you she was 18 years old, but you thought she was about 16 or 17 years old. You denied having sexual intercourse with her.
16In this interview you exhibited a memory of events and that is why I find it difficult to accept your explanation to Mr Cummins that you had no memory of the circumstances of this case.
17You were remanded in custody. You have been in custody since your arrest.
18I was provided today with Victim Impact Statements from the complainant, her father and her mother. The complainant read her victim impact statement to me; it is an eloquent document; she is obviously an intelligent person. She describes the ongoing impacts, both physical and psychological, of your conduct. It is clear also from the victim impact statements of her mother and father that the repercussions of your conduct have been across the whole of the family and have affected relationships within the family.
19I do not propose to summarise the Victim Impact Statements of her father and mother, they asked for those not to be read, so it is not appropriate that I summarise in any detail those victim impact statements, but your behaviour has affected the complainant, her mother, and her father. The impacts on the complainant and her parents are important matters in deciding sentencing in a case such as this.
20Your personal circumstances are set out in the psychological report of Mr Jeffrey Cummins, dated 8 August 2023. You are now 21 years old. You had only recently turned 21 at the time of the offences. Your biological father died when you were around the age of seven or eight. Your parents had separated when you were too young to remember. You carry your father's surname of Vanderlei.
21Your mother re-partnered when you were approximately three years old and her relationship with your stepfather continues, although they live at separate addresses. You have a reasonable relationship with your stepfather. He had a background of having served a sentence for a serious offence before he met your mother.
22The report indicates that your mother still has her own mental health issues and some historical issues in relation to drugs, but you are close to your mother, and she has attended court to support you, and that is a significant factor.
23You have two half siblings from your biological father's side and two half siblings on your mother's side. You have some limited contact with your 29-year-old half-brother.
24You told Mr Cummins that you were the subject of some physical violence growing up, but you did not wish to elaborate on that.
25You were educated at Newcomb Secondary College. You passed Year 9 and then you left after the first term of Year 10. At primary school, you had been diagnosed with Oppositional Defiant Disorder and needed support in maths, writing and reading. You were prescribed Dexamphetamine in about Year 7, but you did not like taking it and you rarely did.
26Since you left school, you have not undertaken further education. You have done some work assisting your mother, doing cleaning. When this offending occurred, you were unemployed and relying on a Centrelink benefit. You were living with your mother in Whittington.
27You have a history of drug use. You commenced smoking cannabis at the age of 14. The material indicates you stopped using cannabis after you served 20 days on remand in 2020. You became dependent on Xanax which you have used to manage anxiety from about the age of 16. You describe heavy and constant use of Xanax. You have also abused Valium and you have tried ketamine, methamphetamine and GHB. You describe that your biggest problems have been with Xanax and alcohol, particularly using them together. You told Mr Cummins that at the time of the offending, you were using 10 Xanax daily.
Offence seriousness
28This was serious offending. The maximum penalties for the trafficking charge of 20 years and for the sexual penetration offences of 15 years reflect that the offences are inherently serious, as does the standard sentence of six years for the sexual penetration offences.
29Consent is generally irrelevant as a mitigating factor in a case such as this. The law presumes enduring physical and psychological harm to children who engage in premature sexual activity, and it seeks to protect such children by prohibiting sexual activity with any child under the age of 16.
30It is apparent from the victim impact statement of the complainant that the harm, both physical and psychological that the law presumes, has occurred in this case. Of course, it is to be hoped that the complainant, who is plainly an intelligent young woman, with assistance, can move on psychologically from the impacts of your behaviour and that this process provides some closure to her in relation to these events.
31A serious aspect of this offence is that you took advantage of a 14-year-old sitting alone on the Finders Street steps by selling her Xanax, even though she told you her age, and then you further took advantage of her by engaging in multiple penetrative acts without using a condom, increasing the risk of pregnancy or a sexually transmitted disease.
32It is not suggested by the prosecution that you gave the complainant the drugs and alcohol with an intent to engage in sexual activity, but there is clear evidence that she was significantly affected by the Xanax and the alcohol when the sexual activity took place. She had rebuffed your requests for sex on at least two occasions, prior to the two of you entering the toilet together.
33The prosecution accepts by the charge that they have proceeded with, of sexual penetration under the age of 16, that it is not asserted that you had no reasonable belief in consent, and I am not sentencing you for a rape offence. Nonetheless, to engage in sexual activity in these circumstances, where the complainant was intoxicated by the drugs you had sold her, is a serious aspect of this offending.
34Given the circumstances of this case, I do not find that the lesser age gap between you and the complainant is particularly significant. This is not a case where you and the complainant, on a relatively equal footing, met and formed a mutual relationship leading to sexual activity. This is a case where you sold drugs to a 14‑year-old girl you had never met before, and then when she was affected by those substances, you took her to a toilet and engaged in multiple penetrative acts with her. You were directing the course of these events and I find that there was a power imbalance between the two of you.
35In the circumstances, your moral culpability for the offending is significant.
Standard sentence
36So far as the standard sentence for Charges 2, 3 and 4 is concerned, this operates as a yardstick only and is applicable to an offence in the mid-range of seriousness, only taking into account its objective features. A standard sentence is not a mandatory sentence, nor is it the primary sentencing consideration or the starting point from which to add or subtract time, it is just one of the many matters to be taken into account in performing the instinctive synthesis of all matters relevant to sentencing.
37For standard sentence offences where the sentence to be imposed is less than 20 years, the non-parole period must be 60 per cent of the head sentence unless it is in the interests of justice to impose a lower period.
38In the case of a standard sentence offence, the court may only have regard to current sentencing practices as they relate to other standard sentence cases.
39Various comparative cases from this court and the Court of Appeal were referred to and discussed on the plea, as an indication of current sentencing practices, and I have had regard to those cases, they are a guide but not a controlling factor in deciding the appropriate sentence. There are always differences in the facts of the case and the personal circumstances of offenders and what is required is individual justice.
Criminal history
40You have a criminal history that is concerning for someone of your age. In 2020, you were sentenced to 20 days of time served and a Community Correction Order for a series of dishonesty, driving and drug offences, amongst others. In March 2021, for sexual exposure in a public place, assault offences, dishonesty offences and a riotous behaviour offence. You were sentenced to 116 days, again along with a Community Correction Order. The time you spent in custody was declared as pre-sentence detention. That Community Correction Order was breached in May 2021 with the result that the order was confirmed. There was a variation of the order in March 2022, where the expiry of the order was extended until 29 August 2022. Your record is concerning. The sexual exposure offences, although different in character, are relevant to the offending in this case.
41You are not to be sentenced again for your previous offences, but your criminal history is relevant to considerations of specific deterrence, that is the need to deter you from committing further offences, your moral culpability and to the assessment of your prospects of rehabilitation.
42In his report, Mr Cummins referred to a risk assessment he conducted in February 2022 in relation to your prior conviction for sexual exposure, and to a further risk assessment he conducted on 17 July 2023, taking into account these offences.
43On one of the tests, he administered in the July risk assessment, you were assessed as having a well above average risk, reflecting a range of factors including your prior convictions and some of the circumstances of this offence.
44Mr Cummins ultimately concluded that you are a moderate risk, which seems to be in the middle of the risk spectrum set out in his report. He offered the opinion that your state of intoxication from alcohol and Xanax at the time of the offending was highly relevant to the offending.
45The report of Mr Cummins indicates you are suffering from symptoms indicative of a major depressive disorder. You expressed remorse, shame and embarrassment to Mr Cummins about the offences you committed. It is obvious from the report and from your personal history that to address your rehabilitation you will need to address your abuse of drugs, most importantly your abuse of Xanax. It seems to me that you will also need to undergo a sex offender's program in the prison to obtain parole in this matter.
46I accept that you are not yet an entrenched offender, although you are heading in that direction. In my opinion, your prosects of rehabilitation are uncertain but will be reasonable if you are able to deal with your substance abuse problems.
Guilty plea
47You entered your guilty plea in this case after I had given a sentence indication that I would not exceed a period of imprisonment of four years. I accept your guilty plea is indicative of some remorse. Since you entered that guilty plea, I have been provided with a report of Mr Cummins in which you seem to express regret at your behaviour, although, as I have already observed, you said you did not have memories of these events because of your use of Xanax on the day, and I do not entirely accept that.
48You made offers to resolve this matter quite some time ago. I have been told that the sticking point was whether the sexual penetration offences could be rolled up into one charge. The prosecution resisted that. Ultimately, that led in this case to a sentence indication, after which you pleaded guilty. No-one was ever cross-examined in this case and offers were made at an early point.
49So, I accept that although you did not enter your plea at the earliest opportunity, it is, nonetheless, reasonable to characterise it as an early plea.
50I also accept your guilty plea indicates a willingness to facilitate the course of justice. Very importantly, you have spared the complainant and her parents the experience of having to re-live these events in a trial. You have saved the court and the prosecution the time and resources in conducting a trial. The utilitarian value of your plea is more significant at the current time where this court still faces a backlog of trials because of the pandemic. I apply the principles in the case of Worboyes which still apply in this matter.[1] You must receive a palpable discount in sentencing for your guilty plea.
[1] Worboyes v The Queen [2021] VSCA 169
Time in custody
51You have been in custody since these offences were committed and you were then arrested in December of last year. I am told, and I accept, you have been in protective custody at Ravenhall Correctional Centre for the past seven months.
52Mr Pearson submitted, and I accept, you have been bullied whilst in prison and you have struggled with the routine. When you are ultimately released, you will return home to live with your mother, but in the long term you want to move away from Geelong and the peer group you have established in that town.
53It was common ground between the parties in this case that the only appropriate sentence is a significant period of imprisonment with a non-parole period. Considerations of general deterrence and specific deterrence, just punishment for your conduct and denunciation of this serious offending, require such a sentence.
54However, in my view your age remains a significant moderating factor in deciding the length of the sentences to be imposed. You had only recently turned 21 at the time of the offending and you have now spent most of your 21st year in prison in protective custody. There is a danger that a very lengthy period of imprisonment could entrench your criminal conduct and impair your development to maturity and leading a law-abiding lifestyle as a contributing member of the community.
55Therefore, I must still give significant weight to the principle of rehabilitation in sentencing you. In your case, your age, and the need to facilitate your rehabilitation operates, as I have said, as a moderating factor on the length of the sentences to be imposed in this case, and also the need to allow for a relatively significant period of supervision on parole, if you are released at the end of your minimum period.
56Mr Pearson submitted that it is open to me to impose a minimum of lower than 60 per cent of the head sentence, and such a minimum would be in the interests of justice. Of course, the minimum non-parole period must be consistent with the objective gravity of the offending. I have formed the view that a minimum term below 60 per cent is not appropriate in this case.
57In sentencing you, I have taken into account the need for general deterrence, denunciation, just punishment and specific deterrence, that is the need to deter you from further offending.
Totality
58I have also taken into account the totality principle which requires that the overall sentence I impose must be proportionate to the total criminality of your offending. In this case that means there is a need for very substantial concurrency between the sentences to be imposed. You will be a serious sexual offender in relation to Charge 4 on the indictment. For that offence the serious offender provisions provide that community protection is the most important sentencing principle and any sentence I impose is to be cumulative unless otherwise ordered.
59There is a tension between the totality principle and the serious sexual offender provisions which modify but do not exclude the operation of the totality principle. However, in this case, where the offences are all closely connected in time and where the sexual offences are very closely connected in time and circumstance, the need for concurrency to comply with totality remains significant.
60Mr Vanderlei-Todd, in this matter I sentence you as follows:
Charge 1, you are convicted and sentenced to 12 months' imprisonment;
Charge 2, you are convicted and sentenced to three years' imprisonment;
Charge 3, you are convicted and sentenced to three years' imprisonment;
Charge 4, you are convicted and sentenced to three years' imprisonment;
Charge 5, you are convicted and sentenced to one month imprisonment.
61I direct that two month of the sentence on Charge 1, five months of the sentence on Charge 2 and five months of the sentence on Charge 3, are cumulative on the base sentence which is Charge 4. That makes a total effective sentence of four years' imprisonment. I fix a minimum non-parole period in this matter of two years and eight months.
62The sex offender's register order is for 15 years, three Class 1 offences but they occurred within a 24-hour period.
63Pre-sentence detention is 257 days.
64I indicate that but for your plea of guilty, I would have imposed a sentence of six years with a minimum non-parole period of four years and two months.
65I make the disposal order sought. Are there any other orders I need to make?
66MS WALLACE: No, but just for clarity, the one month on Charge 5 is wholly concurrent - - -
67HIS HONOUR: That's wholly concurrent, yes.
68MS WALLACE: Thank you, Your Honour.
69HIS HONOUR: So, it's a total effective sentence of four years, two years and eight months, at which time you will be eligible for parole.
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