Director of Public Prosecutions v Vella

[2017] VCC 71

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01195

DIRECTOR OF PUBLIC PROSECUTIONS

V

SIMON VELLA

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2016
DATE OF SENTENCE:	13 February 2017
CASE MAY BE CITED AS:	DPP v Vella
MEDIUM NEUTRAL CITATION:	[2017] VCC 71

REASONS FOR SENTENCE

---Subject: Criminal law - sentence        

Catchwords:      jury verdict of guilty following trial- one charge of sexual penetration of child under 16 – complainant aged 14 and 15 at relevant times – complainant became pregnant and child born – complaint client of DHHS living in residential care – offender aged 30 and 31 at relevant times – complainant held herself out to be aged 18 – offender was told her true age and continued relationship with her – ceased when sent letter from DHHS – importance of general deterrence.    

Cases Cited: Clarkson v R ACrimR 72; Edwards v R [2001] WASCA 263 at [9];

DPP v Abad 279 [2016] VSCA

Sentence: 12 months’ imprisonment with 2 year CCO.         

NOTE A PSEUDONYM HAS BEEN USED TO PROTECT THE IDENTITY OF THE PROSECUTION WITNESS  ---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Hennessy appeared at trial and the part-heard plea hearing; Mr J Livitsanos appeared for the remainder of the plea hearing and to take sentence.	OPP
For the Accused	Mr Luke Barker	Emma Turnbull Lawyers

HER HONOUR: 

1Simon James Vella, you have been found guilty by a jury of one charge of sexual penetration of a child under the age of 16.  I will be sentencing you to a term of imprisonment in combination with a Community Correction Order and I shall now explain my reasons for doing so. 

2The circumstances of the offending were as follows.  You met the complainant at a Pokies venue when she was aged 14 and you were 30.  You became friends with her and also with her friend, Jacinta Borto[1], who was 17.  The two girls began visiting you at your home where you lived with your parents which was located near their home, a residential unit run by the Department of Health and Human Services. 

[1] pseudonym

3The complainant told you and others that she was 18 and included this on her Facebook page.  She had held herself out to be 18 since she was 12 or 13. 

4By early December 2014, Child Protection officers were aware that the two girls were absconding from the residential unit for days at a time and spending time at your house which was pointed out to them by Ms Borto. 

5Two officers went to your house on 8 December and spoke to you about this.  They gave differing versions of what was said concerning the age of the complainant.  One officer said he told you she was 14 and the other said you were only told she was under 18.  There was no dispute that you were told that the girls were missing from the unit where they lived and that the two men were their youth workers.

6Ms Borto gave evidence that around Christmas 2014, she told you that the complainant was only 14 and that in January or February she told you this again.  She said she thought you had not believed her the first time she told you in face-to-face discussion and it did not seem to register with you.  The second time was in a telephone conversation when you told her that you did not want to believe it because you did not want to get into trouble for it.  She said you were very upset during the call. 

7A letter known as a harbouring letter was sent to you from the Department dated 1 April but not delivered to you until 29 April.  It notified you that the complainant had been absent from her placement and that it was an offence to harbour a child in such circumstances or prevent her return.  On receipt of this letter, you ended the relationship. 

8It is apparent that you knew her true age, at least from the first conversation with Ms Borto.  I do not accept that you did not register this information at that time.  It is also likely that you already knew her true age from the conversation with the youth workers. 

9Knowing her age, you continued the relationship with her regardless and this is what the jury found.  You were interviewed by the police in July 2015 and you made a number of implied admissions that you had had sex with the complainant three times before you received the harbouring letter and it was not until you received that letter that you realised she was under age. 

10The complainant's baby was born in January 2016 and a DNA comparison was made indicating that you cannot be excluded as the father.  Since then, you have accepted that the baby is your child and you wish to take up an active role as her father. 

11Your background is that you are now aged 32 and you are a single man, the father of two children from a previous long-term relationship.  You come from an intact family, but your childhood was marked by aggression between your parents and frightening verbal and physical altercations between your father and maternal grandfather.  You left school early and your years at school appear to have been characterised by failure to achieve academically and disruptive behaviour including fighting and quite serious destructive acts. 

12On leaving school, you did some training and entered the workforce and although you maintained employment for some years, you fell out with your last employer and have been unemployed since, except for casual employment at present as an assistant in a business run by a friend.  That friend, Mr Galea, has provided a reference in which he describes you as having been dismayed and embarrassed by the offending and regret your behaviour.

13It is put on your behalf that you are keen, as I said earlier, to have a role in your infant daughter's life and that you have participated in at least some access visits with her. 

14Following the breakdown of your long-term relationship about 19 months ago, you have only seen your other children once very recently.  You are hoping this will change as you wish to be involved in their lives.  That breakdown appears to have been closely linked to your dependence on drugs, methamphetamine in particular, beginning in your teenage years but escalating later. 

15In a recent report by consultant psychologist, Mr Simon Candlish, symptoms of depression were identified as well, which are also linked to your drug dependence.  Mr Candlish was unable to say whether depression was driving the use of drugs or whether depression was a consequence of the destruction associated with substance abuse. 

16I take this to be a reference to the problems drug use caused in your relationship which, combined with other issues, brought about the end of that relationship.  Mr Candlish is of the opinion that you are still affected by depressive symptoms and that these will be assisted by leading a less socially restricted life and by engaging in therapy to address a tendency to experience problems in relationships, both intimate and non-intimate. 

17Importantly, after having administered several tests, Mr Candlish concluded that you are at low-risk of sexual reoffending. 

18Apart from some minor driving offending some years ago, your criminal history is limited to two court appearances for a number of serious charges said to have emanated from your drug use and from the relationship breakdown.  Two Community Correction Orders were imposed and it seems that one of those has been breached by this offence. 

19I also note that at the time of the first plea hearing in this matter, there were some pending matters involving burglary charges. 

20The maximum penalty for this offence is ten years' imprisonment.  It is a serious offence which in this case is aggravated by the fact that the complainant became pregnant.  This is a case in which the child complainant gave what is referred to in the decision of Clarkson[2] as "apparent or ostensible consent".  It is made clear in that case and other authorities that a child's consent can never be a mitigating factor.  That is the starting point for a consideration of the circumstances in which the consent was given.  In other words, in this case, the circumstances in which the relationship became a sexual one. 

[2] Clarkson v R ACrim R 72

21It is an examination of those circumstances that will enable an assessment of the gravity of the offending and your culpability. 

22The complainant was a highly vulnerable child, removed from her mother's care and placed in the care of the Department.  She was aged 14 when the relationship began and turned 15 on 27 April 2015, a week or two after the likely date of conception of the baby.  You were a mature man some 17 years older.  That is a significant age difference which also amounts to an imbalance of power between you. 

23Strictly speaking, you were not in a position of trust or authority except insofar as a very young person trusts an older person.  The age difference is the same as in the case of Edwards[3] where the child was very vulnerable and where the exploitation of her by the older man was said to be a betrayal. 

[3] Edwards v R [2001] WASCA 263 at [9]

24It is said that you and the complainant felt genuine affection and friendship towards each other which is attested to by your sister who was often in the company of you both, and who described your relationship as being very equal, loving and respectful.  Because of your age difference and the imbalance of power, those aspects of the relationship do not amount to mitigating circumstances, just as consent does not. 

25The law does not accept that there is an equal balance in a sexual relationship between a child and an adult, particularly when the adult is a lot older as you are.  The law is intended to protect young people from premature sexual relationships and there is a presumption that harm will flow from this type of offending. 

26In this case, the resulting pregnancy is a manifestation of that harm.  Indications that the complainant is enjoying motherhood and responding positively to her new responsibilities is not a minimisation of that harm.  The presumption of harm is to be taken into account in the sentence imposed. 

27In the recent case of DPP v Abad[4], the circumstances were not dissimilar.  The offender was aged 31 at the time of the offending and the complainant was 14.  The prosecutor told the sentencing judge that the offending was at the very low if not the lowest end of the scale of offending and that a Community Correction Order would be within range.  The judge imposed an Adjourned Undertaking to be of good behaviour.  The Crown appealed against the sentence submitting that the absolute minimum sentence that ought to have been imposed was a Community Correction Order.

[4] DPP v Abad [2016] VSCA 279

28The Court of Appeal concluded that the sentence was manifestly inadequate but did not disturb it because a custodial sentence had not been pressed for at the sentencing hearing and it would have been unfair for the Director to have changed course at that late stage. 

29The harm caused to the complainant in this case was manifestly more severe than in the case of Abad.  As a young teenager, the complainant in this case became pregnant and gave birth and now, virtually a child herself, she has the care of and the responsibility for a baby.  As already noted, it is not of relevance to the assessment of harm that she is enjoying motherhood and responding well to the change in her circumstances. 

30The need for general deterrence demands a sentence that reinforces the court's denunciation of this type of offence, and reassures the community that the sexual exploitation of young people is unacceptable and where appropriate, will be dealt with severely.  Accordingly, a custodial sentence is necessary. 

31In this case, it is likely that you would benefit from assistance in the form of counselling to help you to overcome the tendency towards social isolation that may have contributed to the forming of an inappropriate relationship with a young girl.  This would be in addition to participation in the Sex Offender Program which will be required of you either in custody or through the means of a Community Correction Order for which you have been assessed as suitable.

32Will you stand now please, Mr Vella?

33I sentence you to 12 months' imprisonment.  You will then commence a Community Correction Order which will last for two years starting on the day of your release.  You will be under supervision and must perform 100 hours of unpaid community work in six months.  The conditions will include a drug assessment and treatment if necessary, as well as the Sex Offender Program and a mental health assessment and treatment. 

34You will be registered under the Sex Offenders Registration Act for 15 years after your release, meaning that you must notify the police of your contact details and other details every year.  You will be given a paper to sign shortly. 

35The Correction Order will require you to report to Sunshine Corrections office within two days of your release.  That order is available for signature now as well. 

36MR BARKER:  May I approach my client with the paperwork, Your Honour?

37HER HONOUR:  Certainly.

Mr Livitsanos, is there anything I have neglected?

38MR LIVITSANOS:  No.  No, there is not, Your Honour.

39HER HONOUR:  Thank you. 

40MR BARKER:  Thank you, Your Honour.  That order is now signed.

41HER HONOUR:  Thank you, Mr Barker and Mr Livitsanos.

42MR LIVITSANOS:  As Your Honour pleases.

43MR BARKER:  Thank you, Your Honour. 

44HER HONOUR:  Adjourn the court please.

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