Director of Public Prosecutions v Treloar (a pseudonym)
[2021] VCC 211
•3 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AIDEN TRELOAR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE DAWES |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2021 |
DATE OF SENTENCE: | 3 March 2021 |
CASE MAY BE CITED AS: | DPP v Treloar (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 211 |
REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Grooming for sexual conduct with a child under 16; sexual penetration of a child under 16.
Legislation Cited: Crimes Act 1958 (Vic) ss 49M(2), 49B(2); Sentencing Act 1991 (Vic) ss 5A, 11A.
Cases Cited:R v Verdins (2007) 16 VR 269; Muldrock v the Queen (2011) 244 CLR 120; R v Willis [2019] VSC 398.
Sentence:TES 2 years, 3 months imprisonment; NPP 1 year, 6 months imprisonment. SORA reporting period is life.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Farrell (For Plea) Ms B. Kelly (For Sentence) | Ms B. Kelly, Solicitor for Public Prosecutions |
For the Accused | Ms S. Buckley | Victoria Legal Aid |
HER HONOUR:
1Aiden Treloar,[1] you have pleaded guilty to the following charges.
·Charge 1 - grooming for sexual conduct with a child under 16. The offending occurred between 30 March and 7 April 2020. The maximum penalty for this offence is 10 years' imprisonment.[2]
·Charge 2 - sexual penetration of a child under 16. The offence occurred between 6 and 7 April 2020. The maximum penalty for this offence is 15 years' imprisonment.[3]
[1] A pseudonym.
[2]Crimes Act 1958 (Vic) s 49M(2).
[3] Ibid s 49B(2).
2At the time, the victim resided at home in Horsham with her mother and stepfather. She was born on 6 January 2006 and was aged 14 years.
3You were 25 years of age and resided on your own at an address in Murtoa, a town that is approximately 30 kilometres away from Horsham.
4The Summary of Prosecution Opening has been tendered and is agreed to be an accurate account of events. It includes a reference to other misconduct evidence that is not covered by the indictment. This evidence is part of the narrative and places the offence of sexual penetration into context. A general summary of the facts is as follows.
5You first met the victim through a mutual friend, in early 2020. After a few weeks, you became friends on Facebook and started to communicate with each other via Facebook Messenger and Snapchat. You also communicated via SMS after you exchanged mobile phone numbers.
6Charge 1 relates to contact between 30 March and 7 April 2020, using the social media platforms and text messaging.
7Initially, your communication consisted of general conversation. Your level of contact increased and you asked the victim if she could sneak out of the house and go driving with you at night. You said that you ‘liked’ the victim and asked her to stay the night with you. She responded by saying that her mother would not allow that, as you were so much older. She told you that she was 14 years of age.
8You asked the victim if she would have sex with you. She said that she had only just turned 14. You then told her that she should not tell anyone about it, or you could get into a lot of trouble.
9On 30 March 2020, you told the victim to ask her mother if you could hang out together. When she said that her mother would worry that something would happen, you said, 'Tell her that you promise nothing will happen and that I promise and swear on my life nothing will happen'.
10You asked if she still wanted to do stuff that you had talked about earlier. When the victim enquired about what you meant, you responded by referring to sexualised activity including 'stuff in bed’, ‘BJs and stuff’, ‘sex and BJs'. The victim said that she could try and stay at your house but was concerned that her mother would track her phone. You told her to turn the phone off, so that the tracking device would not work.
11On 3 April 2020, you engaged in sexually explicit conversation with the victim. You said that you wanted to ‘do BJ first' and 'I could lick you out and then we could do it'. You sent the victim an image of condoms and lubricant. You suggested that she should send you intimate images of herself and that you would do the same. You offered to buy her something or to give her money if she would come and stay. The victim said that you could stay at her place one night. When you said that her mother wouldn’t like that, the victim said that she would hide you in her room. Despite this, a meeting did not eventuate on that occasion.
12On Monday, 6 April 2020, you contacted the victim, telling her to sneak out of the house and she agreed. At approximately 9.00pm, you collected her from the southern end of Begg Street, Horsham. You then drove her to your house in Murtoa. Upon your arrival, you went into your bedroom and the victim stayed in the kitchen area. You soon approached her, asking whether she was coming into the bedroom? She followed you there and stood at the doorway where she remained. You got up, put your arms around her and moved her over to the bed. You shut the bedroom door. You sat together on your bed watching television.
13As you lay together on the bed, you tried to undo the string on her shorts. The victim stopped you and rolled over onto her side. You rolled the victim onto her back and commenced simulated intercourse with her. After a short period of time, you stopped and you then asked the victim if she wanted to have sex. The victim was reluctant, saying things like 'ok, whatever', but eventually agreed.
14You removed both yours and the victim's pants. The victim lay on her back and you moved on top of her, inserting your penis into her vagina. You moved your penis back and forth inside her vagina for a few minutes. You were wearing a condom and ejaculated. Eventually, you both fell asleep.
15The victim stated that when she agreed to sneak out at night, she felt bad about refusing your previous requests to do so. After she arrived at your home, she said that she did not really know what to do. She focused on the television, trying to distract herself and was a little bit scared to look anywhere else. The victim stated that when she sat down on the bed and at the time of the sexual penetration, she felt scared.
16At approximately 5.30 the following morning, you woke the victim up to take her home. You dropped her off in Begg Street, Horsham and told her to tell her mother that she had gone for an early morning walk. As the victim got out of the vehicle, you told her not to tell anyone and that it was your secret.
17As the victim arrived home, her parents saw her outside the house. She told them that she had been unable to sleep and then went to have a shower. The victim's mother was concerned when she found a number of items in her daughter's handbag, including a change of clothes and shoes. She looked through the victim's mobile phone and observed messages that you had sent that morning saying, 'what you doing?' and 'did they believe you?'
18The victim's mother contacted you and you attended at their home. You told her that nothing was going on. Throughout the day on 7 April 2020, you denied having sex with the victim to her mother and to a mutual friend.
19The victim soon admitted to her mother that she had been out all night. She eventually disclosed to the mutual friend that you had sex with her. The matter was reported to police and an investigation commenced.
20On 7 April 2020, police executed a search warrant at your address. On 9 April 2020, you attended the Horsham Police Station, where a record of interview was conducted with an independent third person present on the phone. You were cooperative with the police, making admissions to communicating with the victim via social media, discussing having sex together. You admitted to having sexual intercourse with her by putting your penis into her vagina and ejaculating into the condom after two minutes. You agreed that you were aware the victim was 14 years old. You told the police that the victim was desperate to have sex with you. In my view, this explanation is not supported by the agreed facts.
21You admitted to the police that you knew what you did was wrong, as the victim was underage. You understood that there could be serious consequences for your conduct. I am told that you accept that your offending is serious.
22The offence of grooming is becoming more prevalent in our community, as the internet facilitates communication between offenders and children. There is a paramount public interest in protecting children from this type of conduct. The victim was 11 years younger than you. Parts of your communication were sexually explicit in nature and entirely inappropriate. You were persistent in attempting to persuade the victim to meetup with you.
23I accept that the duration of this offending was relatively short, occurring over nine days and that it was not sophisticated. The victim knew your name, you used your own social media accounts, as well as providing her with your mobile phone number. Clearly, she was also aware of your address.
24Your sexual conduct was predatory and premeditated. You engaged in grooming your victim, prior to persuading her to attend at your home. This offence is inherently serious, as you took advantage of a 14-year-old child. You told her not to tell anyone about what happened and that it was your secret.
25The timing of the sexual penetration was relatively confined; it occurred over a few minutes. It cannot be categorised as momentary, however. Fortunately, you did not use threats or any violence towards the victim and there is no evidence that she suffered any physical injuries from your conduct. There was a much lower risk of her contracting a sexually transmitted disease or becoming pregnant, as you were wearing a condom. There is no evidence that you were aware of any particular vulnerability of the victim, other than her age.
26Sexual offences are crimes of violence that cause harm to victims. There is a presumption of harm to a child who is subjected to inappropriate sexual conduct. In this case, the victim said that she felt scared around the time that the sexual act occurred. She was alone with you in your bedroom, at night and a long way from her home. The fact that the victim agreed to participate in sexual intercourse with you is not a mitigating factor.
27Victim Impact Statements prepared by the victim and her mother have been provided to the court. Not surprisingly, the victim is distressed and traumatised. Her self-confidence and self-esteem have been negatively impacted. She suffers from anxiety and depression, which have been exacerbated by your conduct. Her capacity to trust others has reduced. No matter where she is, she feels unsafe.
28The victim has flashbacks that make her feel as if she cannot escape from the memory of what occurred. Regrettably, she blames herself for what happened.
29The victim's mother has also prepared a Victim Impact Statement. She, too, is traumatised by your offending. She feels that she has failed to protect her daughter as she did not prevent your conduct. She is now overprotective and these events have affected her relationship with her daughter.
30It was conceded by your counsel that your conduct has had a profound effect on the victim and her mother. I take the Victim Impact Statements into account. The victim is not responsible for what occurred. I hope that she can put these events behind her, as she moves on with her life.
31There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use, or any other related problems. You are someone of previous good character. You have not come to the attention of police since you were charged with these offences. You are entitled to call upon that good character in your plea.
32You were charged with these offences when you were released from the police station. Your filing hearing proceeded on 15 April 2020. This matter resolved to a plea of guilty at the first committal mention, on 12 August 2020. Your plea of guilty has a significant, utilitarian benefit. You have saved the court and community the time and expense of running a trial. You have spared the victim and her family the ordeal of giving evidence. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that. The plea of guilty has an additional benefit at the moment, as jury trials have been substantially delayed in light of the COVID-19 pandemic. Your early plea of guilty also demonstrates an acceptance of responsibility for your offending. Your counsel submits that it is consistent with remorse. I accept this submission and will return to the aspect of remorse later in these reasons.
33The charge of sexual penetration of a child under 16 years attracts standard sentencing provisions.[4] The relevant standard sentence is six years' imprisonment.
[4]Sentencing Act 1991 (Vic) ss 5A, 11A.
34The standard sentence for an offence is one where the Act specifies the appropriate sentence for an offence in the middle of the range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.[5] Objective factors are to be determined by reference to the nature of your offending ‘to the extent that it illuminates your actions’.[6]
[5] Ibid s 5A(1)(b).
[6]R v Willis [2019] VSC 398.
35The nature of your offending is defined without reference to your personal factors. There are a number of factors that are relevant when assessing the objective gravity of the offending. These include:
·You knew that the victim was 14 years of age.
·There was a considerable age disparity between you.
·Your offending was premeditated. You had plenty of time to consider the illegality of your conduct. This did not deter you from persuading the victim to attend your home and having sexual intercourse with her.
·You collected the victim and drove her to your house. She had no capacity to return to her home on her own.
·The victim was alone in your company late at night. While she ultimately consented to your conduct, she did not initiate the sexual activity.
·You knew what you were doing was wrong. You told the victim not to tell anyone what had happened or that you would get into a lot of trouble.
·A single act of sexual penetration occurred which was of short duration, with a much lower risk of pregnancy and/or disease.
·No overt violence was used and no physical harm eventuated.
36I take the standard sentence into account as one of the factors that is relevant to the instinctive synthesis of imposing sentence. I accept that it is a guidepost to be considered when determining the appropriate sentence in this case. I also take the maximum penalty into account.
37There are relatively few cases demonstrating current sentencing practices for this offence, after the introduction of the standard sentence provisions. I have been provided with a limited sample, one of which has a pending appeal. I have considered these prior to imposing sentence. In addition, I am required to fix a non-parole period which is at least 60 per cent of the total effective sentence unless it is in the interests of justice not to do so.[7]
[7]Sentencing Act 1991 (Vic) s 11A.
38You were 25 years old when you committed these offences. Your age is a relevant consideration, even though it falls at the upper end of the range for a youthful offender. In light of the seriousness of this case, however, the mitigating effect of age and your relative youth is reduced. It is not extinguished, however. These factors are still relevant when considering your prospects of rehabilitation. Denunciation and deterrence must have a greater emphasis, however, as the seriousness of your offending increases.
39You were born on 6 June 1994 and are now aged 26 years. You are the eldest of three children and have an older half-sister from your father's previous relationship. You were born in Horsham and your parents currently reside in Nhill. You experienced learning difficulties throughout your schooling, requiring an integrated aide from Grade 4 onwards.
40Your family relocated to far north Queensland, where you completed your primary school education. You were first diagnosed with a borderline intellectual cognitive ability secondary to a diagnosis along the autism spectrum in 2006, when you were 12 years old. You commenced secondary schooling in Queensland before transferring back to Nhill Secondary College partway through Year 9. You remained there until you completed Year 12 VCAL.
41You have a strong work history in a variety of positions and have completed short vocational courses. You have been in receipt of a Disability Support Pension since 2015, which has been your main source of income.
42After leaving school you worked at a processing plant in Nhill until you were 21 years old. You then completed a course in aged care and commenced employment as a community-based aged carer for West Wimmera Health Services. Your services were terminated as a result of your offending and you have been unemployed since April 2020.
43You have also been actively involved in voluntary work in the community for many years. You have worked as a boundary umpire for the Dimboola Football Club, trained to become a volunteer in the State Emergency Services, as well as participating in other community-based events in Horsham. You are actively involved in the Holy Trinity Lutheran Church, having undertaken various voluntary roles there, over the past five years. Pastor Gus Schutz and Mr Cameron Pickering have provided references, stating that you have consistently been a willing and reliable participant in local community activities.
44In June 2020, you commenced a Certificate III in Civil Construction and you have now completed that course. You hold a full driver's licence.
45In the past, you have engaged in one serious relationship that lasted for approximately 15 months. It ended shortly prior to the birth of your son, in May 2016. Prior to that relationship, you had been involved with two other women for relatively short periods. You have not been in an intimate relationship for approximately five years.
46You currently reside alone in Murtoa in private rental accommodation. Your son, who is now four years old, spends every second weekend with you. I am told that he suffers from developmental delays. You maintain an amicable relationship with his mother. You enjoy a positive relationship with both of your parents. They remain very supportive of you and were present in the course of your plea hearing. Your mother assists you when caring for your son. You also receive regular support from a family friend who lives nearby.
47You have recently requested access to the NDIS and on 25 June 2020, you were found eligible to participate in the scheme. You are now assisted by a visiting support worker to your home once each fortnight. You receive formal assistance with cleaning, meals and grocery shopping, developing your social skills and learning to maximise your independence. You have been regularly engaged in receiving generalised treatment from psychologists and a counsellor since April 2020.
48At the request of your solicitor, you participated in an assessment with Mr Jeffrey Cummins, psychologist. In his report dated 1 October 2020, he states that you have never been the subject of any domestic violence nor sexual abuse. In the course of the interview you presented as having impaired cognitive functioning. You did not present as being psychotic or schizophrenic. You told Mr Cummins that you felt upset and frustrated with yourself regarding your offending behaviour. Your explanation was that you felt lonely at the time and wanted a girlfriend. You apologised for the emotional hurt you have caused the victim and to your parents.
49Mr Cummins' report has been tendered and it is relied on in part. Mr Cummins determined that a neuropsychological assessment was required, in order to clarify your level of cognitive functioning. He did not reassess you, after the provision of the neuropsychological report.
50In those circumstances, your counsel does not rely on the part of Mr Cummins' report that deals with your capacity to accurately assess the wrongfulness of your behaviour which ‘has been impaired because of your reduced cognitive functioning and your mild autism spectrum disorder’.
51Mr Cummins believes that you would be at significant risk of being ridiculed, intimidated and possibly physically assaulted if you were incarcerated. In his view, you require further counselling or treatment to develop a more comprehensive understanding of the notion of informed sexual consent. In his opinion, your risk of re-offending is low to moderate.
52On 16 December 2020, you were assessed by clinical neuropsychologist, Dr Loretta Evans. In a report dated 21 December 2020, Dr Evans made the following findings:
·You are currently prescribed medication for depression.
·Your full-scale IQ is 74. This is reflective of a very low intellect, which falls within the 2nd – 8th percentile of the population. Your areas of cognition range between the very low range to an average range.
·You presented with an underlying neurodevelopmental disorder that is permanent and has been present from birth.
·While your level of insight is poor, your underlying cognitive limitations do not result in an absence of insight.
·You are capable of clarity of thought, at a simplistic level. You demonstrate a basic understanding of right from wrong and have the capacity to appreciate the potential repercussions of your actions. However, deficits in social-emotional reciprocity and processing do impede your decision-making, to a degree.
·You demonstrate a pervasive developmental disorder along the autistic spectrum, in which the key contributing features are your social immaturity and lack of social skills.
·It is likely that your decision-making tends to be driven by egocentricity and based on your own needs and wants, which is potentially further compounded by impulsive tendencies.
·The underlying symptoms associated with a disorder along the autistic spectrum are likely to be a contributing though not a causal factor to your offending behaviour.
·From a neuropsychological perspective, you are not likely to experience any major adverse effects from imprisonment. The structure and predictability of a custodial environment is likely to be of benefit to you, by reducing your ‘cognitive load’.
·Your risk of exploitation and being bullied in custody would be extremely high. Disability-specific placement would be imperative to ensure your safety.
·A specifically tailored program that is cognisant of your intellectual and social inefficiencies would assist in your rehabilitation. With intensive intervention and repeated exposure, you are able to learn at a basic level.
·From a neuropsychological perspective, Dr Evans considers that without intervention, your risk of re-offending is likely to be moderate.
53Your counsel submits that your intellectual disability and autism spectrum disorder reduce the overall moral culpability of your offending conduct. Further, that the principles of Muldrock v The Queen[8] are applicable. The principles of general and specific deterrence, as well as punishment, should be moderated. In light of your diagnosis, it was also submitted that you are more vulnerable to the effects of imprisonment than a person without those mental health issues, enlivening the fifth limb of Verdins[9].
[8] (2011) 244 CLR 120.
[9]R v Verdins (2007) 16 VR 269.
54The prosecution position is that the defence bears the onus of establishing that these mitigating factors apply. The prosecution considered whether the mitigating principles of Verdins[10] might be applicable but did not address the applicability of the principles in Muldrock[11].
[10] Ibid.
[11]Muldrock v the Queen (2011) 244 CLR 120.
55While the prosecution has pointed to your capacity to function in the community as a relevant consideration, this does not provide a complete picture of the impact of your limited intellectual capacity.
56These facts were disclosed to Dr Evans and considered in her assessment. Her opinion and conclusions were not challenged.
57I accept the opinions expressed by Dr Evans. In my view, a reduced intellectual capacity does lessen your moral culpability. Further, the principles of deterrence and punishment, while not eliminated, should be sensibly moderated in light of your lifelong afflictions. The community would not expect that the principles of punishment and denunciation carry the same weight for a person with cognitive limitations, as they would in the case of an ordinary person. This is counterbalanced by the principle of community protection, which remains a relevant sentencing consideration.
58I also accept that the burden of imprisonment and the level of hardship you will undergo will be more onerous for you, in light of your circumstances.
59While your capacity to demonstrate remorse may be limited, you have expressed remorse for your conduct and Dr Evans is satisfied that it is genuine. It appears, however, to be driven by the personal ramifications of your offending, rather than a thorough appreciation of the impact of your actions on others.
60You have recently demonstrated that you have the capacity to participate in treatment. Dr Evans states that with intense supervision and repeated exposure, you are able to learn at a basic level, although treatment needs to address your intellectual and social inefficiencies in order to be effective. You have indicated that you are prepared to engage in offence specific treatment, in order to reduce the risk of recidivism.
61In my view, despite your lifelong conditions, your prospects of rehabilitation are reasonable. You have no criminal history and are fortunate to have ongoing, consistent family support. Your work history is strong and you are prepared to access treatment. You now have the additional assistance in place of the NDIS which provides greater access to community supports.
62It was submitted on your behalf that a Community Correction Order on its own or in combination with the maximum gaol term of one year would be an appropriate disposition.
63In light of the seriousness of your offending, I do not accept this submission. I am satisfied that a term of imprisonment is required and the only appropriate disposition.
64I am aware that the evolving measures taken by Corrections to deal with the COVID-19 pandemic will add to your hardship as a prisoner, particularly as this is your first time in custody. The prosecution concedes as much.
65When you are first taken into custody, you will be required to spend 14 days in isolation in quarantine. I accept that in the current environment, imprisonment will be more stressful for you than it would be if you were in the community. This is not only due to your personal position of confinement, but also to the hardship you will undergo being absent from your family and your son. The provision of educational and vocational courses has also been reduced at the current time. Overall, these hardships justify a sentencing benefit.
66The prosecution has made an application for you to be placed on the Sex Offenders Register for life as you have committed a Class 2 and a Class 1 offence. There is no dispute that registration is mandatory. The defence have submitted in their written submissions, however, that the period of registration should be 15 years. Your counsel submits that s.34(3) is applicable. That is, the two offences to which you have pleaded guilty, arise from the same incident and are to be treated as a single offence.
67The meaning of single offence is qualified as ‘offences that arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person’.[12] While the victim here is the same, the offending period of Charge 1 exceeds the 24-hour limit. In my view, these are clearly two separate criminal acts and I declare that the period of mandatory registration is for life.
[12]Sentencing Act 1991 (Vic) s 5(1).
68I take into account the maximum penalty for these offences. The principle of totality needs to be considered and I have taken care not to doubly punish you. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
69I have decided that there must be a level of cumulation of sentence. Your counsel acknowledges that the separate criminality of offending warrants a degree of cumulation, should a term of imprisonment be imposed.
70Mr Treloar, would you please stand?
71Balancing all these factors as best I can, I sentence you as follows.
72Charge 1, you are convicted and sentenced to nine months' imprisonment.
73Charge 2, you are convicted and sentenced to two years' imprisonment.
74I direct that Charge 2 be the base sentence and that three months of Charge 1 be cumulative upon that.
75That is a total effective sentence of two years and three months.
76I fix a non-parole period of one year and six months.
77The declaration that I make under 6AAA is, had the matter not proceeded as a plea of guilty, I would have imposed a sentence of three years with a minimum of two years.
78I make the orders for forfeiture and disposal and I understand that there is no objection to those orders.
79Have a seat, Mr Treloar, please.
80I will now ask my associate with the assistance of Ms Buckley to ask you to sign the Sex Offenders Register material and, Ms Buckley, could I also indicate that in light of your client's medical or his cognitive condition, I would like to make sure that Dr Evans' report is provided to custody before your client is taken downstairs.
81MS BUCKLEY: Yes, Your Honour.
82HER HONOUR: I understand that that may have already been arranged.
83MS BUCKLEY: That has been done, Your Honour, and the report of Mr Cummins has been provided as well.
84HER HONOUR: All right. Thank you.
85In relation to the custody officers, can I just please reiterate that it is very important that Mr Treloar is placed in an appropriate disability-specific unit and that should commence immediately please.
86CUSTODY OFFICER: Yes, Your Honour.
87HER HONOUR: Thank you very much.
88Ms Kelly, is there anything further?
89MS KELLY: No, Your Honour.
90HER HONOUR: Ms Buckley, is there anything further?
91MS BUCKLEY: No, Your Honour.
92HER HONOUR: Thank you.
93HER HONOUR: You can remove Mr Treloar. Thank you.
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