Director of Public Prosecutions v Torres (a pseudonym)
[2019] VCC 1182
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE TORRES (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 July 2019 |
| DATE OF SENTENCE: | 1 August 2019 |
| CASE MAY BE CITED AS: | DPP v Torres (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1182 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – persistent sexual abuse of a child under 16 – young
offender - plea of guilty
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Williams v The
Queen [2018] VSCA 171; Boulton v The Queen; Clements v The
Queen; Fitzgerald v The Queen (2014) 46 VR 308
Sentence: Total effective sentence of a Community Correction Order for 3 years.
Section 6AAA declaration: 2 years’ imprisonment with a non-parole
period of 16 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F Holmes (Plea) Ms A McVean (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D Hallowes SC (Plea) Mr D Walsh (Sentence) | Dribbin & Brown Criminal Law |
HIS HONOUR:
1Luke Torres[1], you have pleaded guilty to one charge of persistent sexual abuse of a child under 16, for which the maximum is a term of imprisonment of 25 years.
[1] Luke Torres is a pseudonym.
2The circumstances of your offending are detailed in the prosecution opening, which was tendered on the plea as exhibit 1. The victim of your offending was your niece, Kayla[2], who was born on 21 April 2006. Lara[3] is Kayla's mother and your older sister. You and Lara have the same mother.
[2] Kayla is a pseudonym.
[3] Lara is a pseudonym.
3During the period of the offending, you lived at home with your parents who were the grandparents of Kayla. Kayla frequently stayed at her grandparents' house, approximately twice a month, as well as during school holidays and on four occasions whilst her parents were in Bali.
4The charged offending occurred between 2 August 2012 and 20 June 2017. You were then aged between 14 years and 18 years and 10 months and Kayla was aged between six and 11 years of age. The offending occurred at your parents' (Kayla's grandparents') house.
5The prosecution opening detailed acts of sexual misconduct committed by you against Kayla prior to the charge period, starting when Kayla was five to six years of age and you were approximately 13 years of age. This sexual misconduct is comparable to that in the charged offending. Of course, you do not fall to be dealt with for those matters.
6The charged offending was particularised as follows.
7In October 2012, when Kayla was in her bed at night, you pulled down her pants and licked her vagina. This offending occurred on a further four to five occasions until she told you to stop. You never performed this particular act again.
8You also forced Kayla to masturbate your penis by placing her hand on your penis, holding your hand down tightly and pulling it up and down. This would occur on a regular basis in various locations in your parents' (Kayla's grandparents') home, but most often in her bedroom there.
9You would also masturbate in front of Kayla, often when you were playing board games together and often after you had compelled her to masturbate you. This occurred on a regular basis.
10You would regularly make Kayla touch her own vagina, telling her that it was fine to touch herself. You would grab her finger and put it on her vagina asking,
'Did I hit the spot?'11Whilst you were both fully clothed, you would lie Kayla on her stomach and rub your body and penis up her back, tensing and untensing your penis and rocking back and forth. Sometimes this would continue for 10 to 15 minutes and sometimes you would ejaculate. This offending would occur on a regular basis.
12Sometimes, when you and Kayla were fully clothed, you placed Kayla onto her hands and knees. From behind her, you would put your penis between her legs and rock back and forth. Kayla says that you would also make her rock back and forth until there was a wet patch on her leg. This particular act did not occur as frequently as the other acts.
13You stopped offending against Kayla in mid-2017, telling Kayla that it was because she was a big girl now. On 29 January 2019, Kayla handed her mother a letter outlining your offending and writing that she was afraid of you. Your offending was then reported to Victoria Police.
14Significantly, you never persisted with any act if asked to stop. No threat was used by you to secure your victim's silence. Her fear of you, albeit I accept genuinely held, was based upon your skills in martial arts, your greater age and stature, rather than upon any threatening act of yours.
15Your offending ceased before any disclosure had been made by your victim or any investigation commenced.
16Tendered on the plea were Victim Impact Statements from Kayla, her father, and from her mother, your sister, Lara; exhibits 3, 2 and 4 respectively. Each speak of the impact of your crime upon them and their family. Kayla writes that she,
'Always felt guilty and embarrassed. I thought it was my fault. I must have done something bad for something like this to happen. If I told anyone how they would seem, how they treat me, they would treat me differently. I would always just be extremely depressed. I'd never know why I'd become so depressed because I tried to forget about everything. I stopped trusting everyone and I have now realised that I shut down in an extremely unhealthy way. I was just extremely confused. I didn't know what was happening to me. I was depressed and powerless.'
17Kayla concludes, 'It affected my whole life. It can never be forgotten or forgiven.' Kayla also speaks of her sense of loss at no longer seeing her nanny and poppy, your mum and dad. This separation has been a direct consequence of your actions. As you are only too well aware; your family has been torn apart.
18Kayla’s father speaks of his almost overwhelming guilt that he failed to protect his daughter and thus he has failed as a father.
19Kayla's mother, Lara, has written of her disbelief as to how this could have happened in a family that she used to think of as the perfect family. That strong family bond has now been completely shattered. Anxiety, grief, anger and confusion are her daily companions. She too believes that she has failed her daughter, that she has failed to protect her. She feels betrayed and notes that, 'My family dynamics have changed from seeing and speaking to my parents every single day to them now being practically strangers in our lives. We all lose. We have all lost. There are no winners in this situation no matter what happens.'
20Whilst the impact of your crimes upon your victims must not be allowed to overwhelm the sentencing process, there can be no doubt of the lasting or traumatic impact of your offending upon those who are closest to you.
21I turn now to your personal circumstances. You were born on 2 August 1998 and are now one day short of your 21st birthday. You were aged between
14 and 18 years, 10 months at the time of the offending. Your parents fled from their native Chile to escape Pinochet's regime and made their way to Australia. Lara, the mother of your victim Kayla, is the first child of your mother. You and she have different birth fathers. Your parents both worked, your father as a labourer and your mother as an early childhood educator. You grew up in the outer-eastern suburbs and continue to live with your parents in the family home where this offending occurred. You completed Year 12, gaining excellent academic results. You were a part-time karate instructor from 2015 to February 2019 but gave up this work when you were charged in relation to the index offending.22You began a teaching degree in 2017 at Deakin University. During your first trimester at university, you were preoccupied with suicidal thoughts and you attempted suicide. You also gave up your teaching degree upon being charged and are currently studying for a Bachelor of Arts, majoring in creative writing.
23From March 2019 to the present day, in addition to your studies, you worked part-time as a labourer with the same company as that for which your father works. Currently, you have a girlfriend, who provided a reference to the court, exhibit 11TJR, and it appears that you now indulge in age appropriate, mutual and respectful physical intimacy.
24Tendered on the plea as exhibit 6TJR was a report from Pamela Matthews, forensic psychologist dated 7 July 2019 and a treatment report from Daria Sizenko, exhibit 7TJR also dated 7 July 2019. Ms Matthews details your personal history. Relevantly, you reported to her that you first encountered pornography around the age of eight, being shown some by a friend. You then wanted to learn more about these “adult secrets” as you perceived them. By the age of 12 or 13, pornography was becoming a regular staple of your life. You reported that your offending began after your victim walked in on you masturbating. This apparently occurred on more than one occasion. You did not tell your parents for fear that you would get into trouble for masturbating. It seems that this was the context for you introducing your victim to those adult secrets which you felt you were discovering via your regular accessing of pornography. You told Ms Matthews that it was not until you received formal sex education at school that you began to realise that your behaviour was not normal. Nonetheless, you continued your offending. You spoke of wanting to stop but of not being able to due to a lack of willpower
25You demonstrated to Ms Matthews an understanding of the impact of your offending upon your victim, both now and in the future. You stated that she did not deserve that and further, neither she nor your parents deserved to be punished for your actions. You expressed a keen desire to do everything you can to make things better, although you realise that you cannot make things right.
26Recognised actuarial models placed you at medium risk of sexual reoffending, although this risk was elevated due to your young age.
Ms Matthews' opinion was that‘… the risk will only decrease with the passing of time. However, additional intervention focusing on factors contributing to him failing to cease his offending behaviour is likely to be of benefit. Therapeutic attention to the role of pornography used in his offending as well as possible deviant interest is required. Further attention to his mental health issues and additional reinforcement of stress management skills are also advised.’
27Your history and presentation suggested a major depressive disorder in addition to symptoms of generalised anxiety disorder. In this regard,
Ms Matthews stated that,'Although it is not possible to assess how long Mr [Torres] has been experiencing symptoms of anxiety and depression, it is likely that such started around the end of primary school to early high school.'
28Significantly, she added,
'Based on his prior issues with stress management and coping, he is likely to find imprisonment more taxing than his peers, unless appropriate psychological report and precautions are put in place. His ongoing suicidal thoughts, although currently reduced, continue to be of significant concerns, with Mr [Torres] likely to act on such thoughts if he is met with further stressors but is not provided with support.'
29Ms Sizenko's treating report identifies that during 16 sessions from early March to July 2019, you began addressing both your offending and your mental health. You were able to identify curiosity, the nightly accessing of pornography and a desire to 'understand what it is all about’, referring I take it to sexual acts and sexuality as major drivers of your offending. In treatment, you noted that at the start of your offending, you had a limited understanding of sex, wanting to learn more, believing that there was an element of mutuality between you and your victim in joint exploration of the secrets that adults have.
30You identify that you have failed to consider the long term consequences and potential effects of your actions upon your victim. You identified your own weak will as a major contributing factor to the continued offending. You candidly admitted that there came a time when you knew what you were doing was wrong but you carried on and you accepted responsibility for failing to either stop or to seek help at his point. You were unable to articulate a reason as to why you continued. You expressed guilt and shame for your actions and a willingness to do everything possible to reduce the harm to your victim.
Ms Sizenko stated that you need further treatment both to navigate the risk of reoffending and to address your mental health challenges.31In light of your age at the time of the plea, a report assessing your suitability for a Youth Justice Centre (YJC) sentence was ordered. This report, dated 25 July 2019, by Ms Jessica Paegert, exhibit 12, found that you met the statutory criteria for YJC in that you were particularly impressionable, immature, likely to be subjected to undesirable influences in an adult prison and that there were reasonable prospects for your rehabilitation.
32The report noted your acceptance of responsibility for your offending and that you entered a plea at the earliest opportunity. You accepted there was no valid reason or excuse for your behaviour. You have the continued support of your parents, both of whom attended the plea and provided letters to the court, exhibit 9 and 10, but you intend to live with your paternal grandparents in the future so as to enable your parents to rebuild their relationship with both your victim and with the victim's mother. You understand how important that is and you do not wish your presence to be an obstacle to that progress. You spoke freely to Ms Paegert about your treatment with Ms Sizenko.
33That report concluded,
'In combination of Mr [Torres] accepting responsibility for his offending, his awareness of the impact of on his victim, his feelings of remorse, his current engagement in treatment with Ms Sizenko, his motivation to continue treatment, the support from his family and girlfriend, his current employment and studies at university, he demonstrates strong prospects for rehabilitation.
Whilst he has no prior history in the criminal justice system, it is acknowledged that the nature of the offending before the Court demonstrates a level of planning and poor problem-solving skills by him. It is recognised that Mr [Torres] has never been exposed to a custodial environment and his presenting mental health issues lead to a conclusion that Youth Justice assess Mr [Torres] to be at risk of being impressionable and at risk of undesirable influences in an adult custody setting.'
34On your behalf, Mr Hallowes, Senior Counsel, did not seek in any way to minimise or lessen the impact of your offending upon your victim and indeed upon your entire family, who I note sit in court today. The centre of the court divides them; a family that was close before your offending came to be revealed. Mr Hallowes acknowledged the seriousness of the offending, which took place over a substantial period of time from childhood to past your 18th birthday. He noted correctly that there were no threats used by you to ensure acquiescence, no impressing upon your victim that you must not tell, no purchase of silence. If, at any time, your victim asked you to stop a particular act, you would do so. These were, said Mr Hallowes, important factors when assessing the objective gravity of your offending.
35In mitigation of penalty, Mr Hallowes urged upon the Court your youth which he rightly described a powerful factor to consider. Whilst general deterrence clearly had a role to play, that must be balanced, he submitted, by the immaturity and youth of the person committing the offence.
36Whilst you continued to offend after you realised that what you were doing was wrong, you nonetheless stopped the offending of your own free will. He referred to the report of Ms Matthews and her diagnosis of a major depressive disorder which probably existed at the time of this offending. Whilst he did not posit any connection between your mental ill-health and your offending, he did submit that this should play a role in my assessment of your moral culpability and also tend to some sensible moderation of the need for general and specific deterrence. He submitted that prison would be more burdensome for you than for your peers and that there was a serious risk of prison having an adverse effect upon your mental health, thus engaging principles 5 and 6 of the
well-known case of Verdins[4].[4]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
37He urged upon me your plea of guilty, which brought with it not merely the utilitarian benefit of saving the community the time and the cost of a trial, but also in this case, had particular value in that you saved your victim and members of her immediate family, your immediate family, from the trauma of having to give evidence. He further submitted that in your case, your plea is a clear indication of your remorse. You have demonstrated an awareness of the impact of your offending not only upon your victim but of its devastating effect upon your wider family and the consequential fracturing of relations between mother and daughter of which you, and you alone, are the cause.
38He submitted having regard to the above and your continued support, there were positive prospects for your rehabilitation and that his ultimate submission was that in your case, there were powerful mitigating factors permitting the course to take an exceptional although not inappropriate course of a sentencing disposition that did not require you to lose your liberty today.
39Ms Holmes, learned counsel for the prosecution, in brief but focused submissions, accepted the value of your plea, accepted your youth but ultimately submitted that the objective gravity of your offending and the sentencing purposes of general and specific deterrence, denunciation and just punishment required an immediate term of imprisonment. However, Ms Holmes made the concession on behalf of the prosecution that such a period of confinement could be served in a Youth Justice Centre rather than in an adult prison environment.
40Luke Torres, persistent sexual abuse of a child is a most serious offence as is made clear by the maximum penalty of 25 years that Parliament has seen fit to pass. Sexual offending against children will always be viewed as serious offending. The courts are becoming more and more aware of the, at times, incalculable and lasting damage that such offending causes to its victims.
You have heard what your victim has to say about the impact upon her. You have heard what your victim's mother and father, who are also victims of your offending, have had to say about the impact upon them. The courts have a duty to send a very clear message that they will do everything they can to protect children and to deter anyone who is minded to offend against children.41Now, I am aware that your offending against your victim commenced when you were but a child. You had no discussion or education about sex in the home and therefore, it seems, at a tender age, you were learning about sexual intimacy from pornography sites. I make the observation that this developing trend is something that we as a society are going to have to confront, as more and more younger males, children, are learning about sexual intimacy from pornography sites rather than from lessons given within their home by their parents.
42I am aware that at the start, your offending had perhaps the character of experimentation and exploration. However, your victim, Kayla was nearly eight years younger than you. Your offending continued for a period of over five years, well after you had come to know, by your own admission, that it was wrong.
43It involved an act of lingual vaginal penetration by you, although I recognise that once your victim told you to stop, you did so and that you never repeated that act again.
44I am acutely aware that any sentence I pass cannot give back to your victim that which she feels has been taken from her, nor can any sentence I pass heal your broken and fractured family. The sentencing process is not about revenge and it cannot be about retribution. In sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence (that is, sending a message from this Court to deter others from behaving as you have done) and I must assess the need to deter you from any repeat of such behaviour, although I find that you are unlikely to trouble the courts again.
45I must express the community's denunciation of your conduct and take into account the effect of your crime upon your victims. I must have regard to current sentencing practices. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty. I must try to balance your personal circumstances with the circumstances of your offending. That is the exercise in which I have to engage and I am required by law to pass no greater sentence than is necessary in all of the circumstances.
46In your case, given your youth, I have had to consider whether a Community Correction Order standing alone would sufficiently address relevant sentencing purposes. I have reminded myself of the principles in the well-known case of Boulton[5] which were reaffirmed in the case of
Williams v The Queen [2018] VSCA 171 at 47, where their Honours stated:'As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of reoffending by promoting the offender's rehabilitation. And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes a CCO may remain open, even in cases of very serious offending.'
[5] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308
47Now clearly, principles of general and specific deterrence, denunciation and just punishment are always important in offending of this kind. These principles must be balanced with the fact of your youth and with the excellent prospects of your rehabilitation as I find them to be.
48After long consideration, I have come to the view that I can pass a sentence upon you that does not require you to lose your liberty today. In coming to that decision, I have taken into account your youth at the time of the offending and to your plea of guilty, which was entered at the earliest opportunity. To that plea attaches not only the utilitarian benefit of saving the time and cost to the community of a trial but also in this particular case of saving your family from the trauma of having to give evidence.
49I have regard to your remorse which I find to be genuine and to your willingness and intent to do everything you can do to put matters right.
I stress Mr Torres, for the moment, that is beyond your means. You must remove yourself and allow your family, if they can, to rebuild those relationships that have been so broken by the revelation of your offending. However, your intention to remove yourself from your parents' home so as to enable the rebuilding of those relationships between your sister and her mother and father, if possible, is a genuine and, in my view, an important first step.50I have had regard to your assessed risk of reoffending, which will reduce in time, and your need for and willingness to engage in treatment. I have regard to the fact that custody will be more burdensome for you than for a person without your mental health challenges and to the risk of custody having an adverse impact upon your mental health. I do accept, finally, that the fracture of your family weighs heavily upon you.
51On the charge of persistent sexual abuse of a child under 16, you are convicted and you are sentenced to a Community Correction Order of three (3) years.
There are conditions. Now, Mr Walsh, I anticipate that you will explain to
Mr Torres the core conditions of a Community Correction Order.52MR WALSH: Yes, Your Honour.
53HIS HONOUR: There are core conditions to a Community Correction Order. One of the most fundamental conditions is that you must not commit an offence which is punishable by imprisonment during the course of the order. So that means, Mr Torres, if you go into a 7-Eleven and you should steal a can of Coke you will be in breach of this Order. Let me make it very, very clear to you, Mr Torres, if you are in breach of this Order, you will be brought back in front of me and you will be in no doubt as to the course that I will take because I will resentence you and everything that I have taken into account in coming to the sentencing disposition today will be put to one side.
54Now, you must perform 450 hours of unpaid community work. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to your offending as directed by the regional manager. You are required to participate in the specialised offender and treatment programs. You must be under the supervision of a community correction officer for the period of three (3) years and I will make a condition of judicial monitoring. That means that you will come back in front of me, Mr Torres, on a regular basis and I will monitor your compliance under this order and I, as a Judge, do that quite often and make it very clear I do not hesitate to express views to Corrections if I think that you are not being compliant.
55You must attend for review on 7 November 2019 at 9:30am at the Melbourne County Court.
56Now, I have to ask you, do you consent to being placed on such an Order,
Mr Torres?57ACCUSED: I consent, Your Honour.
58HIS HONOUR: All right. You take a seat, I am going to sign it and then
Mr Walsh can go, if he chooses, with Ms Marthick, my associate, who will take to you a document where you sign that you understand the obligations.59Pursuant to s6AAA, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of two (2) years with a non-parole period of sixteen (16) months.
60Now, under the provisions of s34C(1)(a) of the Sex Offender Registration Act 2004 (Vic), you are now a registerable offender and the reporting period is the remainder of your life.
61Now I have a document which you are to sign. Now, in brief, Mr Torres, what will happen is that an appropriate date, you will report to your local police station. You will speak to the registration officer and you are required to give your details and you are required to give your details and to update your details should there be any change.
62Most importantly, for a young person such as you, a requirement to provide every online identity, every email address, every avatar you have in any virtual world. Do you understand me?
63ACCUSED: I understand.
64HIS HONOUR: Yes, all right. If you fail to do that and you fail to comply, you will be prosecuted and the Court takes a failure to comply with these obligations very seriously indeed and if you come in front of me, almost certainly on a charge such as that, you will go to prison. Have I made myself clear?
65ACCUSED: Yes, Your Honour.
66HIS HONOUR: All right. Now, I will sign a document and again, Ms Marthick will come to you and ask for your signature.
67MR WALSH: Your Honour, if I may be excused just to approach the dock.
68HIS HONOUR: Yes, certainly Mr Walsh. Please go with Ms Marthick.
69Ms McVean, there was a s464 application, I am going to grant it.
70MS McVEAN: Thank you, Your Honour. As Your Honour pleases.
71HIS HONOUR: Now I am signing an order requiring you to provide a forensic sample to the police for their maintenance on the database. You will need to go to your local police station and provide that sample. Should you fail to do so, police are empowered to come to you and to seek to take the sample and if you should refuse to provide one, then they are entitled to use such force as is reasonably necessary in order to obtain one. I am sure there will be no issue around that but I am told by parliament that I must give you that warning and of course, as a judge, I do what I am told.
72I say to the family, I have noticed the grace and the dignity with which you have conducted yourselves throughout this proceeding. You may leave this court thinking that this was a very lenient sentence. I want you to be assured that your voice has been heard but as I have made clear in the course of my judgment, the sentencing process cannot be about revenge or retribution. I do, however, want you to leave Court knowing that your voices have been heard and I thank you for that.
73All right, I will stand down. Thank you, Ms McVean. Thank you to the Informant and thank you, Mr Walsh. I will stand down.
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