Director of Public Prosecutions v Trask

[2020] VCC 831

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00426

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER TRASK

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May 2020
DATE OF SENTENCE:	11 June 2020
CASE MAY BE CITED AS:	DPP v Trask
MEDIUM NEUTRAL CITATION:	[2020] VCC 831

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — sexual penetration with a child under 16 years — plea of guilty — standard sentence offence — victim impact statement — alcohol and drug abuse — general deterrence — denunciation — remorse — prospect of rehabilitation — sex offender registration

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited: R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of 5 years with non-parole period of 3 years

Section 6AAA declaration: 7 years with non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B Sonnet	Solicitor for the Office of Public Prosecutions
For the Accused	Ms A Wong	Victoria Legal Aid

HER HONOUR:

1Christopher Luke Trask, you have pleaded guilty to one charge of sexual penetration of a child under 16, for which the maximum penalty is a term of imprisonment of 15 years.

2Sexual penetration with a child under 16 years is a standard sentence offence, and the standard sentence is six years' imprisonment.

3You have a criminal history, although it is limited to an appearance in the Magistrates' Court in 2011 for drug offences, for which you were convicted and fined, and an appearance again in the Magistrates' Court in 2012 for driving offences, for which you were convicted and fined in conjunction with an adjourned undertaking. I regard your criminal history as irrelevant for the purposes of sentencing you.

4Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.

5In brief, the circumstances of your offending were as follows.

6In 2018, you attended a wedding in Warrnambool. The groom, Gary Dean,[1] was your employer. You were employed by him as an apprentice.

[1] A pseudonym.

7Another guest at the wedding was the victim, Kelsey Huang.[2] Ms Huang was aged 14. She was at the wedding with her mother, Sabrina Park,[3] who was a friend of the bride. You and Ms Huang were unknown to each other prior to the day of the wedding.

[2] A pseudonym.

[3] A pseudonym.

8The wedding ceremony was conducted at a venue in Warrnambool. At this venue, you did not interact with Ms Huang.

9The wedding reception followed at a restaurant in Warrnambool. At the reception, a fellow guest, Trevor Owens,[4] says that you consumed some pills which caused your behaviour to dramatically alter. You began to make sexual remarks about two girls at the reception aged about 16, and Mr Owens rebuked you for your behaviour.

[4] A pseudonym.

10Following the reception, you attended a gathering at the home of Mr Dean. Ms Huang was also present at this address. By the time you arrived at this address, she was in an upstairs bedroom sleeping with a friend of hers, Morgan Hahn.[5]

[5] A pseudonym.

11The adults present at the house, including you, continued to celebrate, which included drinking alcohol. During the course of the evening, Mr Owens again became concerned about sexual comments made by you about the two girls at the reception. He again rebuked you for your comments, but a friend of yours said the comments were ‘just a joke’, and your behaviour was laughed off and dismissed as a cause of concern.

12In the early hours of the morning, you entered the bedroom where the victim Ms Huang and her friend were resting. Ms Huang was awake and aware that you had entered the ensuite bathroom adjoining the bedroom. In order to get to the bathroom, you walked past the double bed where Ms Huang and her friend were lying.

13After using the bathroom, you then walked around to the side of the double bed where Ms Huang was lying. You placed your hand inside her shorts and underwear. You then inserted one or two fingers inside her vagina, pressing down on her clitoris. Ms Huang then made eye contact with you, at which time you stopped and left the room. Ms Huang states the offending lasted approximately two minutes.

14Your offending against Ms Huang is nothing short of outrageous. You violated a 14-year-old girl who had every right to feel safe and secure resting at the home of a family friend after what was meant to be a day of happiness and celebration.

15Ms Huang did not consent to being sexually penetrated by you. This matter has been resolved on the basis that Ms Huang was not consenting, but the prosecution is unable to prove your mental state at the time. Presumably, this resolution is premised on your state of intoxication, which may to some extent explain your behaviour but in no way excuses what you did.

16Your earlier sexualised comments about young girls make it clear that you were acting upon your sexual desires and seeking sexual gratification. You took advantage of a defenceless girl and, it seems, only desisted when you realised that she was in fact awake.

17After disclosing to a friend and then to her mother, Ms Huang reported the matter to the Benalla police on 16 November 2018.

18After Ms Huang disclosed your offending against her, you were first confronted by Mr Dean. You denied the offending to him but, in any event, he terminated your apprenticeship.

19On 17 November 2018, you voluntarily contacted the Benalla police and spoke to police. You said you had no recollection of sexually penetrating Ms Huang.

20On 5 March 2019, you were interviewed at the Warrnambool police station, in which you said that if you did digitally penetrate Ms Huang, you simply did not recall such an incident.

21You pleaded guilty on 6 March 2020 at a committal mention. This is an early plea. It has utilitarian value in that it has saved the victim, witnesses and the community the cost and trauma of a trial. Its utilitarian value is of heightened significance in the present circumstances of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I also accept that your plea is indicative of remorse on your part.

22The prosecution has filed victim impact statements by the victim, Kelsey Huang, and her mother, Sabrina Park. Ms Park says she is devastated that her 14-year-old daughter has been penetrated by a complete stranger, and that she could not protect her daughter from you. She says she is proud of her daughter for reporting the matter, but she worries about the impact on her daughter given that she is now at a critical stage of her education and her life.

23Ms Huang is now having counselling to help her cope with what has happened to her. Ms Huang says that after your offending, she felt on edge and very anxious. She says she no longer sleeps well. She says she is falling behind at school and she is worried about the impact on her final years of schooling. She says she feels supported at present, and that seeing a counsellor is helping her. However, she worries about the effects of your offending. She wonders if it will affect her relationships, and she thinks it will take her time to trust anyone.

24Ms Huang's statement is a reminder of the profoundly damaging consequences of premature sexual experience, which lie at the very heart of the law's absolute prohibition on sexual activity with children.

25I turn now to your personal circumstances. You were born on 20 August 1982. You were 35 years old when you committed the offence for which you now fall to be sentenced, and you are now 37 years old.

26A psychological report by Ms Carla Lechner, clinical psychologist, with whom you spoke on 4 May 2020, was tendered at the plea, and I refer to this report, in addition to the submissions made by your counsel, Ms Wong, in outlining your personal circumstances.

27You are an only child, brought up by your mother. Your father left your mother before you were born, and you have met him on only one occasion when you were around 17 years old.

28You have a close and loving relationship with your mother, although, at the time you spoke to Ms Lechner, you were still too ashamed to tell her about your offending. I assume you have now told her.

29You attended school until year 11 and thereafter have had a succession of jobs. Your most recent position was your apprenticeship with Mr Dean.

30You have always enjoyed music and played the drums. You have been a drummer in a number of bands since the age of 16 and have at times earned an income from your music.

31The downside to your music career is that it has exposed you to a lifestyle of drinking and drug-taking. You started drinking at 16, and have been a heavy drinker, consuming about 18 beers a night. Since your offending, you have cut back to around three beers a night.

32You have also used a number of drugs recreationally, including ecstasy, cannabis and ice. At times, your consumption of each of these drugs has been high. You were smoking around 3–4 g of cannabis a day, but since your offending, you have cut back to around half a gram daily.

33As I expressed at your plea, given the role of drugs and alcohol in your offending, I consider your efforts to cut back thus far half-hearted. I will return to this topic later on in these remarks.

34Ms Lechner considered that you were of average intelligence and were capable of reflective thinking. She considered that you were remorseful for your behaviour. You told her that you were close to your mother and had respect for women, and that consequently you were disgusted by your actions.

35Ms Lechner says that you were suffering a range of depressive symptoms in response to your legal situation and the shame of your offending. It was not submitted that there was any application of Verdins principles in your case.[6]

[6]R v Verdins (2007) 16 VR 269 (‘Verdins’).

36You suffer from epilepsy and take medication to control your seizures.

37You have a daughter, who is now around seven years old, from a previous relationship, and you see your daughter intermittently.

38You are presently in a relationship with Ms Kristi Maw. Ms Maw has three sons. Ms Maw wrote a letter to the Court stating that you are deeply ashamed and remorseful for your conduct. She says that she continues to support you.

39Also tendered at your plea was a letter from Colleen Smalley, a case manager with the Transitional Housing Program at the Salvation Army Homelessness Service. Ms Smalley says that since you lost your last job as a consequence of your offending, you and Ms Maw and her children have experienced homelessness and, at present, the family are living in transitional housing provided by her service.

40I accept the submission of your counsel that the separation from Ms Maw and her children will weigh heavily on you in custody, particularly in the present circumstances in which the family does not have stable housing. I will take into account the anguish you will feel being separated from your family in the sentence I impose.

41Ms Lechner assessed you as a low risk of sexual reoffending, given that you did not have a history of sexual offending, you do not suffer any mental disorder, you have a history of stable employment and relationships, and you have expressed remorse and empathy with the victim.

42I turn now to the objective gravity of your offending and your moral culpability. Your counsel, Ms Wong, has submitted that your offending should be regarded as ‘far from the most serious example’ of the offence of sexual penetration of a child under 16. Ms Wong relied upon the combination of the following features in support of this submission: that your offending was a single incident of short duration, it was opportunistic and not premeditated, it did not involve threats or violence, it did not expose the victim to the risk of disease or pregnancy, and it did not involve a breach of trust.

43However, the absence of these features, in my view, does nothing to reduce the obvious seriousness of your crime and your moral culpability, which I regard as high.

44Your offending was an opportunistic and disgraceful violation of a 14-year-old girl who did not consent to being sexually penetrated by you. You showed a complete disregard for her dignity, her privacy, and her bodily autonomy. Instead, you treated her as an object for your own immediate sexual gratification. This must have been a traumatic and humiliating experience for your young victim, which occurred in a setting where she was entitled to feel safe and protected.

45I turn now to the application of sentencing principles. The Sentencing Act 1991 (Vic) prescribes the purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.

46I must take into account the effects of your crime upon your victim, and I must have regard to current sentencing practices and to maximum penalties.

47General deterrence and denunciation are the primary sentencing considerations here. Children and young people must feel safe to go about their lives and to enjoy their lives free from the unwanted and harmful sexual advances of adults. It is the obligation of the law to make it clear to anyone who would behave as you did that this kind of behaviour will result in stern punishment, and to unequivocally denounce such conduct.

48Your offending occurred in the context of your intoxication. You had used both alcohol and drugs. Your excessive use of alcohol and drugs is longstanding and entrenched. In my view, this is relevant to both the application of the principle of specific deterrence and to my assessment of your prospects of rehabilitation.

49I find it astonishing that you have not made a more concerted effort to abstain from alcohol and drugs, given their role in your offending and the harm that you have caused your victim, and indeed, the consequences involved for you and your family. In my view, it shows a lack of insight on your part into the gravity of your offending.

50Your reluctance to properly address your obvious problem with alcohol and drugs does give me concern in what I would otherwise regard as your excellent prospects of rehabilitation. You are remorseful, you have no prior convictions for sexual offending, and you have been assessed as a low risk for future sexual offending. You have a good work ethic and you have the support of your partner.

51Ultimately, notwithstanding my concerns about your continued use of alcohol and drugs, I regard your prospects for rehabilitation as good, but you must address your drug and alcohol consumption. This will be your first time in custody and surely it will be a salutary experience for you and will motivate you to access treatment and for you to rehabilitate.

52I also consider that your failure thus far to properly address your drug and alcohol consumption does enliven, to a certain extent, the principle of specific deterrence, given the role of drugs and alcohol in your offending behaviour.

53I also take into account in sentencing you that, in the context of the current COVID-19 pandemic, conditions of imprisonment are more onerous.

54Finally, in addition to the matters I must take into account under s 5 of the Sentencing Act 1991 (Vic), I must also take into account that the offence of sexual penetration of a child under 16 is a standard sentence offence. I have had regard to the standard sentence as one of the matters to be taken into account in arriving at an appropriate sentence for you in the process of instinctive synthesis.

55The standard sentencing regime further requires that I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences. Given this, the table of comparative cases tendered by your counsel was of very limited assistance in my assessment of the appropriate sentence in your case.

56Mr Sonnet, the prosecutor, submitted that given the seriousness of your offending, the only sentencing disposition open was a term of imprisonment consisting of a head sentence and a non-parole period. Your counsel submitted that a combined sentence of imprisonment followed by a community correction order would meet the various sentencing objectives and would facilitate your rehabilitation.

57I declined to have you assessed for a community correction order. In my view, the only sentence open to me in all the circumstances is a sentence of imprisonment comprising a head sentence and a non-parole period.

58Having identified and considered all the relevant factors in assessing the appropriate sentence, as part of the instinctive synthesis, in this case, the sentence I impose will be lower than the standard sentence.

59On charge 1, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of five years.

60I direct that you must serve a period of three years before you are eligible for parole.

61Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of seven years and a non-parole period of five years.

62Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence that I have passed upon you, and I direct that this be entered into the records of the Court.

63The charge of sexual penetration of a child under 16 is a class 1 offence pursuant to the Sex Offenders Registration Act 2004 (Vic). Having committed a single class 1 offence, you are a registrable sex offender for a period of 15 years.

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