Director of Public Prosecutions v Treloar
[2018] VCC 2222
•21 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00403
Indictment No. H12978198
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYCE TRELOAR |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June, 24 October, 6 December 2018 | |
DATE OF SENTENCE: | 21 December 2018 | |
CASE MAY BE CITED AS: | DPP v Treloar | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2222 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Sexual penetration of a child under 16 – Damaging property – Possession of child abuse material – Persistent contravention of a family violence intervention order – Sexual assault of a child under 16 –– Moral culpability reduced – Accused has intellectual disability – Presumption of harm rebutted – Plea of guilty at earliest opportunity – Young offender
Cases Cited:Browne (a Pseudonym) v The Queen [2015] VSCA 274, Clarkson v The Queen (2011) 32 VR 361, Cotter v The Queen [2011] VSCA 240, Muldrock v The Queen (2011) 244 CLR 120, R v Hester [2007] VSCA 298, R v Mills [1998] 4 VR 235
Sentence: Three year Community Correction Order with Justice Plan for two years, Application for Sex Offender Registration Exemption Order granted
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G Hayward (22 June) Ms T Saville (24 October and 6 December) | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms G Connelly | Victoria Legal Aid |
HIS HONOUR:
1 Bryce Graham Treloar, you have pleaded guilty to an indictment containing three charges of sexual penetration of a child under 16 (charges 1, 2 and 7), a charge of damaging property (charge 3), a charge possession of child abuse material (charge 4), two charges of persistent contravention of a family violence intervention order (charges 5 and 8) and two charges of sexual assault of a child under 16 (charges 6 and 9).
2 The maximum penalties for these offences are 15 years’ imprisonment for sexual penetration of a child under 16,[1] 10 years’ imprisonment for damaging property,[2] possession of child abuse material[3] and sexual assault of a child under 16,[4] and 5 years’ imprisonment for persistent contravention of a family violence intervention order.[5]
[1] Pursuant to s 49B(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[2] Pursuant to s 197(1) Crimes Act 1958.
[3] Pursuant to s 51G(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4] Pursuant to s 49D(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[5] Pursuant to s 125A Family Violence Protection Act 2008.
3 Additionally, you have consented to this Court dealing with transferred related summary offences,[6] namely one charge of unlawful assault (charge 15) and one charge of contravene family violence final intervention order (charge 55). The maximum penalties for these offences are 3 months imprisonment[7] and 2 years’ imprisonment[8] respectively.
[6] Pursuant to s 145 Criminal Procedure Act 2009 (Vic).
[7] Pursuant to s 23 Summary Offences Act 1966.
[8] Pursuant to s 123 Family Violence Protection Act 2008.
4 The prosecution filed an amended summary of prosecution opening dated 22 June 2018, which your counsel accepted I could treat as an agreed statement of facts.[9]
[9]Exhibit P1.
The facts
5 At the time of the offending you were 19 years old and the victim AB[10] was aged 15 years. The age gap between the two of you is about 4 years. Your relationship began on 2 July 2016, however the first sexual offence was not committed by you until 24 July 2017.
[10]AB is a pseudonym.
6 When the relationship started, AB lived with her father. He stated: ‘I told them straight up that Bryce was overage and [AB] was underage. I said that if they had sex Bryce would go to jail. I said that they were allowed to have a kiss and a cuddle but they were not allowed to have sex’.
7 By way of context, you stayed over at AB’s home on a very regular basis. Between September 2016 and April 2017, there was sexual activity between you and AB. For example, AB masturbated you. On the first occasion, you told her not to as you did not want to get in trouble because it was illegal. AB also performed oral sex on you at her home. These are uncharged acts.
8 In December 2016 AB approached you and asked you to have sex with her. You said ‘no’. You told her that it was illegal and that you could get into a lot of trouble for it. Neither of you broached the subject again until around a month or two later.
9 In term 2 of 2017 AB ran away from home. She first stayed with her mother, and then after some family difficulties, she moved to your sister’s home in Sunbury.
10 AB’s father spoke with the Department of Health and Human Services Child Protection service and expressed his concern about your influence over AB. AB moved back with her father in July 2017.
11 Between January and September 2017 you and AB continued to have a relationship involving sexual activity. AB recalled that you introduced your penis into her mouth on a ‘few’ occasions, but not more than six to ten times. Although she could not specify the number of times you introduced your penis into her vagina, AB stated that it did not occur more than on a weekly basis. These are uncharged acts relied upon by the Crown as context and relationship evidence. They are relevant to show the nature of your relationship and that the charged offences are not isolated events.
12 On 18 August 2017 AB participated in a VARE interview with police setting out the nature of the relationship. Police later analysed both yours and AB’s mobile phones. Investigators obtained evidence from your phones depicting specific incidents of sexual activity.
13 At 7:52pm on 24 July 2017, you and AB were at your home in Yarragon. AB took a video on her mobile phone of you holding your penis. This video lasted for seven seconds.
14 A few minutes later another video was filmed using AB’s mobile phone which depicted you licking her vagina with your tongue, showing penetration. The video also showed AB introducing your penis into her mouth. The video lasted for one minute at 15 seconds. The video’s data shows GPS coordinates at your home. These facts give rise to charge 1 (sexual penetration of a child under 16) being a rolled-up count comprising two acts of penetration.[11]
[11] See Sentencing Act 1991 s 9(4A) note; R v Jones [2004] VSCA 68 [12]–[13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); R v Beary (2004) 11 VR 151, 156–7 [11]–[14] (Callaway JA).
15 At 6:05pm on 27 July 2017 you and AB had sexual intercourse at her home. A number of videos of this activity were recorded on AB’s mobile phone.
16 The video footage depicts you introducing your penis into AB’s vagina. It further shows you introducing your fingers into AB’s vagina. You were not wearing a condom at the time. This is an aggravating circumstance in relation to this offence; however, I accept there is evidence in the depositions of condoms being used by you on other occasions of penetrative sexual activity with AB.[12] These facts give rise to charge 2 (sexual penetration of a child under 16) being a rolled-up count comprising two acts of penetration.
[12] See eg Crawford (A Pseudonym) v R [2018] VSCA 113 [60] (Maxwell P and Kyrou JA); BM v The Queen [2013] VSCA 3 [23]–[28] (Maxwell P, Whelan JA agreeing); R v Khem (2008) 186 A Crim R 465, 468 [13] (Ashley JA), 469–70 [16]–[20] (Neave JA),472–3 [33]–[34] (Pagone AJA); R v Magnier [2004] VSCA 202; R v MSK and MAK (2004) 61 NSWLR 204.
17 Between 2 July 2016 and 16 August 2017 you and AB had an argument at your home. During this argument you grabbed AB’s phone valued at $400 and threw it on the floor, damaging the phone.
18 On another occasion in the same period you lost your temper during an argument and punched AB’s television causing it to break. The television was valued at around $300. These facts give rise to charge 3 (Damaging property).
19 Between 2 July 2016 and 16 August 2017 you and AB had an argument at your home. You began walking off and AB followed you and continued to argue with you. You turned around and grabbed her and said ‘can you just stop?’ As you held onto her AB moved and your hand went around her neck. You then put her on the ground and walked away. These facts give rise to related summary charge 15 (Unlawful assault).
20 On 16 August 2017 police arrested you at AB’s home. You were interviewed and you said that you had been in a sexual relationship with AB. You said that you had oral sex with her between three and five times. You also said that AB performed oral sex on you on ten occasions. You said that AB sent you around 20 photos which you never got round to deleting.
21 Police seized your mobile phone. Upon analysis of its contents investigators found a number of images constituting child abuse material. All the images were of AB. She is depicted in various stages of undress and in different poses including masturbation.
22 Police downloaded the contents of your Facebook account and identified that between 14 July and 16 August 2017 AB had sent you child abuse material comprising 27 photographs and two videos of herself in various stages of undress and in different poses including masturbation. Police also found the video footage that is the subject of charge 1. These facts give rise to charge 4 (Possession of child abuse material).
23 The child abuse material of AB found in your possession, on your mobile phone and your Facebook account were classified according to the categorisation model for child exploitation material of the Australian National Victim Image Library (‘ANVIL’). They were categorised as follows:
(a)Category 1 (no sexual activity): 25 images
(b)Category 2 (solo/sex acts between child): 2 images and 1 video
(c)Category 4 (adult/child penetrative): 1 video
(d)Category 7 (non-illegal/indicative): 4 images
24 On 17 August 2017 an interim family violence intervention was issued at the Latrobe Valley Magistrates’ Court. You were listed as the respondent and AB was listed as the protected person. You were present at court when the order was made and you were served with a copy order on that date. The order had full exclusion conditions.
25 On 23 August 2017 a final family violence intervention order (‘FVIO’) was made at the Latrobe Valley Magistrates’ Court. You were listed as the respondent and AB was the protected person. You were present at court when the order was made and you were served with a copy order the order on that date. The order included conditions prohibiting you from contacting AB except for two hours each evening. The order expired at midnight on 5 June 2018.
26 You persistently contravened the family violence intervention order on five occasions. On 2 September 2017 you and AB met at an unknown location. You both took a number of videos of each other of a non-sexual nature.
27 On 3 September 2017 you and AB met at an unknown location. There were several videos on AB’s mobile phone of the two of you, including a video showing you both kissing. These facts give rise to charge 6 (Sexual assault of a child under 16).
28 On 9 September 2017 you and AB met at an unknown location. She took a video of you of a non-sexual nature.
29 On 16 September 2017 you went to your mother’s home in Yarragon. You were unaware that AB was also there, and despite you discovering that she was there, you stayed and you both spent around an hour talking in the garage. Your mother told AB that she had to leave.
30 On 23 September 2017 you updated your profile picture on Facebook account to one of you kissing AB on the cheek stating ‘love you my baby’. These five breaches of the FVIO give rise to charge 5 (Persistent contravention of a family violence intervention order).
31 On the weekend of 29 September and 1 October 2018 you and AB arranged to stay at the Comfort Inn Suites in Traralgon. You engaged in sexual intercourse, where you introduced your penis into AB’s vagina. These facts give rise to charge 7 (Sexual penetration of a child under 16).
32 A family violence intervention order was still in force during this weekend and you persistently contravened that order by approaching and communicating with AB and engaging in sexual activity with her. These facts give rise to charge 8 (Persistent contravention of a family violence intervention order).
33 Video footage from AB’s phone shows you licking her nipples and you laying naked on top of her clothed body and kissing her breasts. These are uncharged acts led a context evidence.
34 On 30 September 2017 a 29 second video filmed on AB’s mobile phone depicts you massaging AB’s naked body and then touching her in the area of her vagina and also touching her in the area of her anus. These facts give rise to charge 9 (Sexual assault of a child under 16, which is a rolled-up charge comprising both acts).
35 On 7 October 2017 you met AB in Warrigal, further contravening the intervention order in force at that time. On 21 October 2017 you updated your profile picture on your Facebook account with a photo of you and AB and posted various messages declaring you’re your love for her. These acts form part of the circumstances giving rise to charge 8 (Persistent contravention of a family violence intervention order).
36 Between 23 August and 25 October 2017 you breached the interim and final family violence intervention orders by contacting AB by telephone call or text message on 537 occasions outside the exempted hours of 7:00pm to 9:00pm. These facts give rise to related summary charge 55 (Contravene family violence intervention order).
37 Your relationship with AB began in 2016 when you were 17 years old and AB was aged 15 years. Once AB turned 16 you resumed your relationship and you remain partners in a caring and loving relationship, which of course is no longer unlawful. The FVIO has expired and is no longer in force.
Victim impact statement
38 The Crown tendered two victim impact statements, one prepared by AB[13] declared 20 June 2018 and one prepared by AB’s father.[14] It is fair to say that AB’s victim impact statement is very supportive of you. She says: ‘This is hard to write because I don’t see myself as a victim by Bryce, I see myself as a victim from my parents and the system. I love Bryce with all my heart and always will, he is my everything my number 1 forever’. The document includes some copy photographs of the two of you together.
[13] Exhibit P2.
[14] Exhibit P3.
39 The courts have said that in some circumstances evidence of forgiveness of a victim ‘should be treated with extreme caution’[15] and the weight I should give to this consideration varies with the circumstances of the case.[16] In your case, by reason of the closeness in your ages and your intellectual disability, which I will detail later, I accept there was not present in this case the unequal power balance or breach of trust which is so often present in cases of this type. Accordingly, I will take into account in your favour AB’s forgiveness of you and the fact you are now living together as a couple in a caring and loving relationship.
[15] See eg R v Hester [2007] VSCA 298 [27] per Neave JA citing the comments of Simpson JA in R v Glen (unreported, NSW Court of Criminal Appeal, Grove and Simpson JJA and Loveday AJ, 19 December 1994) 4. See also Smith v The Queen [2010] VSCA 192 [8] (beach AJA, Nettle and Bongiorno JJA agreeing)
[16] See R v Skura [2004] VSCA 53; Cotter v The Queen [2011] VSCA 240 [48]–[49] (Nettle JA, Neave JA and Sifris AJA agreeing); R v MG (unreported, South Australian Court of Criminal Appeal, 4 October 2016, Blue, Nicholson and Hinton JJ) [133]–[140] (Hinton J);
40 Nonetheless, it is clear that AB’s relationship with her father has completely broken down as a result of these offences being committed and this, and the consequent legal proceedings, has caused her what your counsel described as ‘psychological trauma’, which I do take into account in sentencing you.
41 Moreover, as the Court of Appeal opined in Clarkson v The Queen[17] there is a presumption of harm in cases involving child sex abuse. The court said:
[17] (2011) 32 VR 361.
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[18]
However, in this rather exceptional case I accept that you have rebutted the presumption of harm in the sense used by the court in Clarkson.
[18] Ibid 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
42 I also take into account the adverse effects of these offences on Mr AB and the consequent breakdown in the daughter/father relationship. This has naturally caused Mr AB stress which in turn has had some adverse effects on his mental and physical health. Otherwise, I have disregarded those aspects of Mr AB’s victim impact statement which were objected to by your counsel.
Offence seriousness
43 Sexual offending by adults against vulnerable children is a scourge on our society. Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment. General deterrence, denunciation and just punishment must be given significant weight.[19] However, in many ways this is a somewhat exceptional case.
[19] See eg Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA); Toomey [10] (Buchanan JA, Vincent and Nettle JJA agreeing); Ryan v The Queen (2001) 206 C.L.R. 267, 283 (McHugh, J).
44 I accept that by reason of the following considerations:
(1) AB was aged 15 at the time the offending conduct commenced.
(2) The difference in your ages is just under 4 years.
(3) You and AB were in a consensual romantic relationship for about twelve months prior to you committing the first sexual offence.
(4) The relationship commenced before you knew AB was under the age of consent, although you were aware of her age prior to the relationship becoming one involving sexual activity.
(5) Uncharged sexual activity short of penile/vagina sexual intercourse occurred in circumstances where, I accept, AB’s consent was, relatively speaking, freely given and a reflection of genuine affection between you.[20]
[20] Clarkson v The Queen (2011) 32 VR 361, 365 [7] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
(6) By reason of one of your older sister’s behaviour, you grew up with a perception that a sexual relationship commenced when a girl was aged 14 was not harmful and you conceived you own daughter when you were aged just 14.
(7) You and AB remain in a caring and loving relationship since she has turned 16, which is ongoing.
(8) It was AB who first suggested your relationship progress to penis/vagina sexual intercourse, which you initially resisted on the basis this would be unlawful.
(9) You suffer from a severe intellectual disability that effects your perception of the unlawfulness of your behaviour.
(10) There was no power imbalance in your relationship or breach of trust involved in the commission of the offences; and
(11) The presumption that AB suffered harm, over and above the breakdown in her relationship with her father, is, in my opinion, rebutted in this case.
This is one of those ‘exceptional cases’ referred to in Clarkson v The Queen[21] where I should view your offences as being less grave and your moral culpability reduced. So much so, I am of the opinion that it is not necessary for me to impose a sentence which involves your confinement in order to achieve the purposes for which these sentences are imposed.
[21] Ibid.
45 Moreover, while the other non-sexual offences you have committed are serious enough, many of which involve breaches of family violence intervention orders, they must be seen in the context of your relationship with AB overall and your intellectual disability. I also accept your counsel’s characterisation of the factors which bear on my assessment of the seriousness of charge 4.[22]
[22] Exhibit A1[11].
Personal circumstances
46 A great deal of material has been placed before me regarding your background and personal circumstances, particularly in relation to your mental health and intellectual disability. In addition to your counsel’s written submissions[23] I have had regard to the contents of the following documents:
[23] Exhibit A1.
(a)Victoria Police exemption order application risk summary by Dr Karla Lopez dated 8 October 2018.[24]
[24] Exhibit CP1 – Tendered on the Application for SORA Exemption.
(b)Victoria Police exemption order application addendum risk summary by Dr Karla Lopez dated 28 November 2018.[25]
[25] Exhibit A10.
(c)Psychiatric report by Dr Nina Zimmerman dated 18 May 2018.[26]
[26] Exhibit A2.
(d)Letter from Ms Chanel Keane dated 21 June 2018.[27]
[27] Exhibit A3.
(e)Letter from Ms Angela Payne dated 22 June 2018.[28]
[28] Exhibit A4.
(f)Letter from Ms Lauren Bourke, Department of Education and Early Childhood Development, dated 14 June 2010.[29]
[29] Exhibit A5.
(g)Report by Charlie Hamilton dated 25 August 2006.[30]
[30] Exhibit A6.
(h)Intellectual disability assessment report by Ms Kate Joyner dated 10 October 2008.[31]
(i)Court Integrated Services Program (CISP) progress report by Mr James Shackell dated 22 February 2018.[32]
(j)Letter from Ms Phillipa Chantry, Department of Health and Human Services, dated 5 December 2018.[33]
(k)Community Correction Order assessment outcome report dated 17 August 2018.[34]
(l)Psychological report of Associate Professor Troy McEwan, Forensicare, dated 12 October 2018.[35]
(m)Department of Health and Human Services client overview report dated 16 October 2018.[36]
(n)Statement of intellectual disability dated 12 October 2018.[37]
(o)Justice Plan dated 16 October 2018.[38]
(p)Psychological report of Ms Amy Cookson dated 2 October 2018.[39]
[31] Exhibit A7.
[32] Exhibit A8.
[33] Exhibit A11.
[34] Exhibit C1.
[35] Exhibit C2.
[36] Exhibit C3.
[37] Exhibit C4.
[38] Exhibit C5.
[39] Exhibit C6.
47 At the time of the offending you were 19 years old. You are now 20 years old. You have no prior or subsequent convictions or findings of guilt and you have no outstanding matters. You are therefore a young offender[40] who is a first offender. Accordingly, I must give significant weight to your prospects of rehabilitation,[41] which I assess as being very good. Individualised rehabilitative treatment is to be preferred to sending you to adult prison or YJC. Accordingly, the benchmark for what is serious as justifying incarceration is ‘quite high’ in your case.[42]
[40] Sentencing Act 1991 s 3.
[41] R v Mills [1998] 4 VR 235, 241–2 (Batt JA, Phillips CJ and Charles JA agreeing); Azzopardi v The Queen (2011) 35 VR 43; DPP v Ghazi (2015) 45 VR 852.
[42] R v Mills [1998] 4 VR 235, 241.
48 You and your two older sisters were raised by your parents until they separated whilst you were in primary school. You were exposed to domestic violence as your father was abusive towards your mother and you and your siblings. You did not have much contact with your father after your parents separated, however you have reconnected in recent times. Your mother and father remain supportive of you and have been present in court along with one of your sisters.
49 In your early development your mother reported that you exhibited behavioural issues[43] and described you as ‘moody, aggressive and defiant’.[44] You were 10 years old when you were diagnosed with a moderate intellectual disability following a formal assessment of your cognitive ability.[45] In 2008 Ms Joyner administered the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV) and she assessed your full scale IQ to be 58.[46] This assessment has been subsequently confirmed.[47] In September this year Ms Cookson administered the WAIS-IV and assessed your full scale IQ as being 69.[48]
[43] Exhibit A6.
[44] Exhibit A7 p 7.
[45] Exhibit A7 p 10.
[46] Exhibit A7 p 1.
[47] Exhibit A5; Exhibit C3 p 2.
[48] Exhibit C6 p 3.
50 You attended primary schools in Longwarry and Yarragon. From an early age it was evident you had cognitive deficits and you were supported in your schooling by funding associated with the Program for Students with Disabilities.[49] You reported that you were angry and frustrated as you ‘couldn’t learn properly’ whilst at school.[50]
[49] Exhibit A5.
[50] Exhibit C2 [17].
51 You commenced your secondary schooling at Trafalgar Secondary College but you left school when you were 14 years old. Although you were enrolled in year 9, your lack of attendance meant that you did not complete the year. Instead, you completed a year of VCAL at Warragul TAFE. You have observed it is difficult for you to engage in education and training as you require constant support to learn, which is not usually available.[51]
[51] Exhibit C2 [19].
52 You have maintained sporadic employment as you would move from job to job as you become bored.[52] You have worked at a bakery, on dairy farms, in panel beating, furniture removal and as a courier. You began a car panel beating apprenticeship but this was short-lived as you felt that you were not receiving any real training and the pay was insufficient. You are currently employed on a ‘permanent casual basis’[53] as a storeman in a warehouse where your father also works.
[52] Exhibit C2 [19].
[53] Exhibit A4.
53 You have had one previous relationship that lasted for three years with a girl one year older than you when you were 15 years old and in secondary school. She gave birth to your daughter in 2013 but the relationship ended shortly thereafter. Your relationship with your daughter’s mother remains amicable and you continue to have some contact with her and your daughter. There was fortnightly contact at your mother’s house, but this has become less frequent since the imposition of strict bail conditions in the present matter. You still remain in telephone contact and see each other during family events.
Mental health and intellectual disability
54 Dr Zimmerman noted that your problems forming social relationships is consistent with your mild intellectual disability.[54] Moreover, at this level of disability social judgment is immature for your age. This in turn, places you at risk of manipulation.[55] Your difficulty in being able to express and convey yourself to others greatly frustrates you. In the past this has led to behavioural outbursts whilst at school.[56]
[54] Exhibit A2 [42].
[55] Exhibit A2 [43].
[56] Exhibit A5.
55 You displayed aggression toward others in your childhood, including your mother and sisters. These fits of anger continued as you grew older, both at home and in school, and persists now into adulthood. You have caused damage to your mother’s home and your sister’s home and you frequently punch walls and throw objects which has sometimes led to property damage. These incidents can occur between two and four times per week.[57] It is noteworthy that at the time of Associate Professor McEwan’s report, ten months had passed since your last aggressive outburst.[58] It is probable that an outburst of this nature provides the explanation for you committing charge 3.
[57] Exhibit C2 [13].
[58] Exhibit C2 [14].
56 You have been experiencing varying levels of depression and anxiety from an early age, which began as a result of your early exposure to domestic violence.[59] Whilst at school you would make threats of self-harm.[60] Dr Zimmerman opined that your difficulty in communicating and expressing yourself also places you at an increased risk of depressive or anxious disorders.[61]
[59] Exhibit A3.
[60] Exhibit A7 p 3.
[61] Exhibit A2 [43].
57 Your continued involvement with the criminal justice system has led to a deterioration in your mental health. You have exhibited suicidal ideation and have made two attempts to end your life over the course of the current proceedings.[62] It is evident that your anxiety is exacerbated around court hearings and appointments, which was compounded by your relocation from your home in East Gippsland.[63]
[62] Exhibit A11.
[63] Exhibit A3.
58 Following assessment using the Glasgow Anxiety Scale for People with an Intellectual Disability, it was concluded you do not meet the criteria for a major depressive episode, however, your symptoms are consistent with a diagnosis of generalised anxiety disorder.[64] With the assistance of the Department of Health and Human Services, you have obtained a mental health care plan and have been referred to a psychiatrist. You are due to commence sessions in January 2019.[65] You have also been registered with the National Disability Insurance Scheme, which may lead to further support for you if you are deemed to be eligible.[66]
[64] Exhibit C2 [35]–[36].
[65] Exhibit A11.
[66] Exhibit A11.
59 Finally, I note I have received a Statement of Intellectual Disability under the Disability Act 2006 to the effect that you have the concurrent existence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour each of which became manifest before the age of 18 years.[67] A Justice Plan dated 16 October 2018 has been prepared in your case.[68]
[67] Exhibit C4.
[68] Exhibit C5.
Substance abuse
60 You began using cannabis when you left school in your mid-teens. This developed into a habit of up to two grams of cannabis per day. You were using cannabis to self-medicate and relieve anxiety. Since engaging with treatment providers after being released from remand you have managed to reduce this level of use.[69] You maintained a brief period of abstinence whilst in the community, using on a fortnightly basis,[70] however you subsequently relapsed. Apparently, you indicated ambivalence towards cannabis use, seeing it as the only way of managing your mood.[71] You presently have a diagnosis of cannabis misuse disorder currently in remission in the context of legal requirements.[72] You acknowledged that your substance use had a negative effect on your thought processing.[73] You have recently attended a cannabis information session, primarily focusing on harm minimisation.[74] You hope to completely abstain from cannabis use in the future.
[69] Exhibit C2 [38].
[70] Exhibit C3 p 3.
[71] Exhibit C2 [38].
[72] Exhibit A2 [43a].
[73] Exhibit A8 p 3.
[74] Exhibit A11.
61 Regarding other substance use, you reported to Community Correctional Services that you have never had a problem with alcohol and your consumption is on an occasional basis.[75] However, Associate Professor McEwan noted that you consume alcohol about once a month and you drink to get drunk, and you like getting drunk because it helps you to sleep.[76] Additionally, during adolescence you tried ‘chroming’ on one occasion but this had a bad effect on you. In the past you have stolen your mother’s prescription medication. You deny using any other illicit drugs.[77]
[75] Exhibit C1 p 2.
[76] Exhibit C2 [40].
[77] Exhibit C2 [39].
Mitigating Circumstances
62 You made admissions in your record of interview and pleaded guilty at the earliest reasonable opportunity. Your early pleas of guilty have utilitarian benefit and also indicate an acceptance of responsibility on your part and a willingness to facilitate the course of justice. You have saved AB the trauma of giving evidence in a trial. Accordingly, you are entitled to a significant discount for your pleas of guilty.
63 So far as remorse is concerned, Dr Zimmerman remarked that your level of remorse is tempered by your difficulty in understanding notions of harm, but you do regret behaving in the way that you have.[78] I take this in account in your favour.
[78] Exhibit A2 [43].
64 As I noted earlier, you are a young first offender whom I accept has very good prospects of rehabilitation.
65 Associate Professor McEwan assessed your risk of sexual recidivism using the structured clinical judgment framework of the Risk for Sexual Violence Protocol (RSVP).[79] She took into account your risk factors and the context of your sexual offences and judged you to be at a low risk of sexual reoffending.[80] She further opined that although your intellectual disability would not have caused you to offend in the manner you have, it would have negatively influenced your decision-making and ability to consider the consequences of your actions.[81]
[79] Exhibit C2 [58].
[80] Exhibit C2 [63].
[81] Exhibit C2 [68].
66 Dr Karla Lopez also assessed your risk of reoffending using the Static-99 assessment tool, however that tool was later considered not to be appropriate in your circumstances.[82] In light of the ‘absence of the pertinent risk factors using an evidence-based risk assessment’ she also are considered you to be a low risk of sexual recidivism.[83]
[82] Exhibit A10 p 3.
[83] Exhibit A10 p 6.
67 I accept that your significant intellectual disability has the effect of reducing your moral culpability and diminishes the weight I need to give to general deterrence, denunciation and just punishment in your case.[84] I also accept that a sentence involving imprisonment or detention in a youth justice centre would weigh more heavily on you than a prisoner or detainee of normal intellectual function.
[84] See Muldrock v The Queen (2011) 244 CLR 120, 138–9 [53]–[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
68 Whilst on bail in respect of these charges you have participated in the CISP program where you attended all appointments and ‘presented exceptionally well’, you were ‘honest and forthright’ and ‘contributed in an exemplary manner’. You engaged with the program ‘keenly’, ‘listened to suggestions’ and followed directions.[85] As I said earlier, I find you have very good prospects of rehabilitation.
[85] See exhibit A8.
Application of sentencing principles
69 I was not referred to any comparable cases and I have been unable to identify any. The unusual circumstances surrounding your offending conduct and the concatenation of your personal circumstances must be rarely encountered by the courts.
70 The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect on your victims and your personal circumstances.
71 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
72 Despite the serious nature of these offences, general deterrence, denunciation and just punishment must be moderated in your case. Moreover, I consider in light of the circumstances I have previously referred to, very little weight needs to be given to specific deterrence and protection of the community. I sentence you on the basis you have very good prospects of rehabilitation.
73 Ultimately, I have concluded that the only appropriate sentence which will achieve the purposes for which these sentences are imposed is a community correction order.[86] In determining the terms and conditions of the order, I have had particular regard to the evidence of Associate Professor McEwan and Ms Devine given on 6 December 2018, along with the submissions of your counsel on that day, the prosecutor’s submissions, the community assessment outcome report dated 17 August 2018[87] and the justice plan dated 16 October 2018.[88]
[86] See Sentencing Act 1991 s 5(4).
[87] Exhibit C1.
[88] Exhibit C5.
74 Pursuant to s 40 of the Sentencing Act 1991 I will impose the same community correction order on all charges as they are effectively founded on the same or similar facts.
75 The terms and conditions of the community correction order will be as follows:
It will be with conviction for a period of three years with the usual core conditions and the following specified conditions:
You must attend at the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine within two clear working days after the commencement of the order.
You must perform 300 hours of unpaid community work over a period of 3 years as directed by the regional Manager. I will order pursuant to s 48CA(2) of the Sentencing Act 1991 that all of the hours you satisfactorily spend undertaking treatment and rehabilitation may be counted as hours of unpaid community work.
You must be under the supervision of a Community Corrections Officer for a period of 3 Years.
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or 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 the offending as directed by the Regional Manager.
You must participate in the services specified in the Justice Plan dated 16 October 2018 for 2 years.
You must appear at court for a review of your compliance with the order as directed by the Court. You must attend for review on 12 March 2019 at 9.30 am at the Melbourne County Court.
76 Do you consent to me making a community correction order with those terms and conditions? Yes.
77 Stand up Mrs Treloar.
On the indictment charges of:
Sexual penetration of a child under 16 (3 charges) charges 1, 2 & 7
Damaging property (1 charge) charge 3
Possession of child abuse material (1 charge) charge 4
Persistent contravention of a family violence intervention order (2 charges) charges 5 & 8
Sexual assault of a child under 16 (2 charges) charges 6 & 9
And the transferred related summary charges of:
Unlawful assault (1 charge) charge 15 and
Contravene family violence intervention order (1 charge) (charge 55)
You are convicted and sentenced to a community corrections order for 3 years with the terms and conditions I have previously detailed and which are consented to by you.
78 Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 18 months detention in a Youth Justice Centre.
79 I will make the order sought by the Crown under s 464(ZF)(2) of the Crimes Act 1958 that you undergo a forensic procedure.
80 I will also make the disposal order sought by the Crown under s 78(1) of the Confiscations Act 1997.
Application for Registration Exemption Order under s 11A of the Serious Offenders Registration Act 2004 (‘SORA’)
81 I have before me an application for a registration exemption order made on behalf of the prisoner pursuant to s 11A of the Serious Offenders Registration Act 2004. I am satisfied on the balance of probabilities that the statutory prerequisites for the making of an exemption order are met in this case. The application is not opposed by the Chief Commissioner of Police or by the Crown.
82 Accordingly, I will grant the application and I, by order, declare that Mr Treloar is not a registrable offender in respect of the following offences committed by him:
Sexual penetration of a child under 16 (3 charges) charges 1, 2 & 7;
Possession of child abuse material (1 charge) charge 4; and
Sexual assault of a child under 16 (2 charges) charges 6 & 9.
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