Director of Public Prosecutions v Walsh

[2017] VCC 424

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-02289

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN WALSH

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2017
DATE OF SENTENCE:	11 April 2017
CASE MAY BE CITED AS:	DPP v Walsh
MEDIUM NEUTRAL CITATION:	[2017] VCC 424

REASONS FOR SENTENCE
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Subject:  Sexual penetration of a child under 16, transmit objectionable material
Sentence:  Non-conviction, two year good behaviour

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott
For the Accused	Mr R. De Vietri

Pages 1 - 7

 

 

HIS HONOUR: 

1You have pleaded guilty to an indictment containing two charges.  The first charge is that between 1 May 2014 and 31 May 2104, you took part in an act of sexual penetration with young woman under the age of 16 years.  The second charge is that between the same dates, you knowingly used an online information service to transmit objectionable material relating to the young woman and which depicted her in an indecent sexual manner.

2The maximum penalty for each of these offences is ten years' imprisonment.  So you can see that the parliament of this state regards each of these offences very seriously.  You have pleaded guilty to the charges and that is important.  You indicated that you would plead guilty at an early date.

3The chronology here is important because at the time of the offending, you were at law a child.  You did not turn 18 until 1 June 2014.  You were interviewed on 13 March 2015, approximately nine months after the offending.  You were not charged until 27 July 2015, approximately 14 months after the offending. 
A filing hearing was not lodged until 2 September and then the court process took over.  There was a committal mention on 11 November 2015 and a contested committal was held on 2 December 2015.

4The point of the committal was to examine the informant about reasons why there had been a delay, a consequence of which was that you were not proceeded with or against in the Children's Court.

5On 3 March of last year, 2016, you indicated through your lawyers that you would make an application for a permanent stay of the charges brought against you on the basis that they were an abuse of process.  You did indicate that if that charge was not successful, that you would plead guilty.  The stay application was heard by me on 24 May 2016 and I rejected the application and gave reasons, detailed I might add, on 27 May 2016.

6The matter then went to the Court of Appeal after I gave leave to your lawyers to take the matter to the Court of Appeal on an interlocutory appeal.  That was heard by the Court of Appeal on 4 August 2016 and they handed down judgment on 22 March 2017.  The Court of Appeal directed that this court deal with the matter as soon as possible.  We are dealing with it on 11 April 2017.  So I think it is fair to say that we have complied with the Court of Appeal's direction.  You indicated that the matter would indeed be a plea through your lawyers on 28 March 2017.

7That is all a very longwinded way of saying that I will treat you, for the purposes of sentencing, as having pleaded guilty at the earliest possible opportunity.

8The circumstances of your offending are contained in a prosecution summary that was read to the court by the learned prosecutor, Ms Piggott.  It is dated
29 March 2017.  It is not necessary that I here again set out that which is contained in the prosecution summary, save in a very, very brief way.

9The offending in Charge 1 occurred when you and the complainant had sexual intercourse in her bed with one other person present.  That offending had at about the same time had associated with it the transmission by the victim to you of two photographs of herself, one exposing her naked breast and the other exposing her covered pubic area.  You stupidly forwarded those images on to others and that is where the offence in Charge 2 occurred.

10In my view, the circumstances of your offending are properly described as opportunistic and silly.  It is the kind of offending that a silly young man, still a child, might engage in.  In no way are my sentencing remarks to be taken as reflecting poorly on the complainant, because they are not.  However, I think a fair reading of the prosecution summary shows that this offending in respect of each charge is at the bottom end of the scale for this kind of offending.

11The charges that you have been charged with have very broad range of offending.  This is towards the bottom end, especially of those normally seen in this court.  Normally sentencing on a charge such as this would be driven by application of the principle of general deterrence.  That is to say that the sentence imposed by the court should send a message to those who would seek to offend in like manner that if they are detected and brought before the court, the punishment will be condign.  However, and because you offended as a child and because you are still a young offender, the sentence does not need to reflect so much application of the principle of general deterrence and it must really be driven by the principle of what is best in the circumstances to ensure your rehabilitation, and I mean by that your rehabilitation from offending in a sexual way.

12When you pleaded guilty, you admitted some prior convictions which are relevant in terms of giving an indication of your background, but in some ways they are irrelevant because there are no prior convictions for sexual offences. 

13The outline of defence submissions filed by your counsel, Mr De Vietri is very helpful indeed.  He has set out a number of matters pertinent to you, which I will only briefly touch upon but these sentencing remarks need be read in the light of the very detailed and helpful submissions prepared by your counsel.

14You are currently 20 years of age.  You will turn 21 on 1 June of this year. 
At the time of offending, you were 17 years of age.  You were born in Bendigo and apart from a brief period of time in which you resided with your father in Adelaide, you have resided in Bendigo.  You reside with your mother who was in present in court to support you.  She has had her own difficulties with ongoing mental health issues and some drug abuse issues.  I admitted into evidence a discharge summary from Bendigo Health in relation to her.  I note that she has been diagnosed as suffering from schizophrenia and associated disorders. 
You are her designated carer for which you receive benefits from Centrelink.

15Your parents separated when you were young.  You have an older brother who is three years older than you.  You were educated at primary level in the Bendigo area and as I say, apart from a short period of time when you went to live with your father in Adelaide, you have been living and educated in Bendigo and the schools at which you attended are set out in the outline.

16You have had somewhat of a disadvantaged background.  Your mother re-partnered when you were about five years of age and her partner was an abusive man both towards your mother and he abused drugs and alcohol. 
This created a very uncertain environment in which you were to live.

17I think it is fair to say that you have had an unfortunate and unstable life as a young man, but you seem to have done your best to make the most of a poor situation.  You have aspirations to pursue a career in landscape gardening and you have had only a very limited work history, but nevertheless it shows that what has been set out in the outline is that you have pursued work and you have ambitions to pursue work.

18You have had problems with drugs.  In my experience, that is not an uncommon event for young people in the Bendigo area.  You seem to have done your best to address that.  You are presently engaging with the Youth Substance Abuse Service and I have received into evidence a positive report from that organisation and I hope that you continue to engage with them.

19The outline of submissions seeks an order by way of disposition that you be placed on a community corrections order without conviction.  Now, there are a couple of matters that need to be considered here.  Normally, such a submission would be accommodated by the court, but in my view because these offences occurred whilst you were a child, and because, as I say, the circumstances of the offending really were that of a young man behaving in a silly fashion and because the offending was opportunistic and because I think that there is little likelihood of you reoffending again in this way, I am of the view that the appropriate disposition is to adjourn this matter for a period of two years on condition that you agree to be of good behaviour.

20The question then arises as to whether or not the disposition should record a conviction.  Whether or not a conviction should be recorded is provided for in the Sentencing Act in s.8.  The court, in deciding whether or not it is appropriate to record a conviction, must have regard to all the circumstances of the case, including (a) the nature of the offence and (b) the character and past history of the offender and (c) the impact of the recording of a conviction on the offender's economical social wellbeing or on his or her employment prospects.

21Giving consideration to those matters, I have already said that in my view this offending falls towards the very bottom end for the kind of offending envisaged by each of these offences.  Whilst you have had some convictions in the Children's Court in the past or been dealt with in the Children's Court in the past, your history of past offending is limited and there is no past offending of a sexual nature.  Giving consideration to (c) the impact of the recording of a conviction, I am of the opinion that the recording of a conviction here for an offence whilst you were a child may have some impact.  The recording of a conviction for sexual penetration of a child under the age of 16 may affect your employment prospects.  For example, if you wish to engage in any form of work involving children, you may have trouble getting a Working with Children certificate and that may deprive you in relation to some form of work.

22The problem with the recording of a conviction in a case like this is that the fact of the record does not disclose all of the circumstances of the offending and might be read the wrong way.  So in my opinion, having regard to the factors set out in s.8, it is appropriate in this case not to record a conviction on either offence.

23Subject to you agreeing, Mr Walsh, what I propose to do is to adjourn this matter for a period of two years on the condition that you agree to be of good behaviour in the meantime.  What that means is that you must not commit any offence punishable by a term of imprisonment during that time, do you understand?

24OFFENDER:  Yes.

25HIS HONOUR:  Are you prepared to agree to that?

26OFFENDER:  yes.

27HIS HONOUR:  Very well. 

28Now that brings me to one other matter. The prosecution is seeking an order under s.464ZF of the Crimes Act for the making of an order permitting a police officer to take a forensic sample from your body. Whether or not that order is made is discretionary and s.464ZF(8) provides in determining such an application, the court must take into account the seriousness of the circumstances of the forensic sample offence in determining whether to make the order and must be satisfied in all the circumstances that the making of the order is justified and that the making of such enquiries on oath or otherwise as it considers desirable.

29Having regard to everything that I have been told and for the reasons set out above, I am of the opinion that an order should not be made in these circumstances and I decline to make the order.

30MR DE VIETRI:  Your Honour, would you like the accused to return to the dock?

31HIS HONOUR:  No, he can stay there, thank you.

32Now, Mr Walsh, I cannot say strongly enough that you must not commit another offence in the next two years, you understand?

33OFFENDER:  Yes.

34HIS HONOUR:  So stay out of trouble.

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  I do not want to have to see you back in my court again, you understand?

37OFFENDER:  Yes.

38HIS HONOUR:  Very well.  On the rising of the court, you are free to leave.

39MR DE VIETRI:  As the court pleases.

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