Director of Public Prosecutions v Wentworth (a Pseudonym)
[2017] VCC 1296
•14 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PATRICK WENTWORTH (a Pseudonym) |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2017 | |
DATE OF SENTENCE: | 14 September 2017 | |
CASE MAY BE CITED AS: | DPP v Wentworth (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1296 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea – Sexual Penetration of a Child under the age of 16 – Uncharged Acts – Context of Offending
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: Calazzo (a Pseudonym) v The Queen [2017] VSCA 242;
R v De Simoni (1981) 147 CLR 383; R v Renzella [1997] 2 VR 88
Sentence: 3 years and 6 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Glynn | Office of Public Prosecutions |
| For the Accused | Mr C Thomson | James Dowsley & Associates |
HER HONOUR:
1 Patrick Wentworth[1], on day three of your trial, you pleaded guilty to two counts of sexual penetration of a child under the age of 16, which carries a maximum penalty of 10 years’ imprisonment.
[1] Patrick Wentworth is a pseudonym.
2 The circumstances of your offending were set out in full in the Summary of Prosecution Opening which was tendered on the plea and I sentence you on the basis of the facts contained in that document. I mention them briefly here.
3 You are 27 years old and were 24 years old at the time of offending. The victim is now 16 and was 13 or 14 at the time of the offending. You met the victim through your families, and you were introduced to the victim by her father who told you she was 12 years old.
4 Each of the counts to which you have pleaded guilty is a representative charge. Count 1 is representative of two incidents when you inserted your penis into the victim’s vagina, on occasions in the summer of 2014-15, the victim was 13 and visited your house with her father’s partner, who was a good friend of your mother. On the first occasion (count 1), you went for a drive with the victim to buy a drink. You were flirting with each other, then engaged in sexual activity for a few minutes, before deciding to have sex, which occurred in the car. On the second occasion, some time later in the summer, your mother invited the victim to stay the night at your house so that her father and his partner could have some time together. Late in the evening, you were in the lounge room with the victim and started cuddling her. You smoked some ice, the victim asked for some, and you allowed her to smoke ice. You then went out to the yard where you had sex.
5 Count 2 is representative of three incidents that occurred in 2015 while the victim was in the custody of the Department of Health and Human Services (‘DHHS’) and living in a supervised residential care home. You knew she was living there because she told you so on Facebook. You asked if they let her see her boyfriend “coz hes too old for u”. On the first occasion (Count 2), on or about 11 October 2015, you had a discussion on Facebook Messenger in which you offered to pick her up. She told you she had her period, but you said you would have sex with her anyway. You discussed vaginal versus anal sex and she said she would only agree to vaginal sex. You agreed to meet at a local supermarket. You picked her up in your sister’s car and took her back to your home. You supplied ice and you both used it. You then had sex in your bedroom.
6 On another occasion in 2015, you arranged to meet the victim, picked her up at a bus stop near her residential care home and drove to a nearby park, where you both used ice that you supplied. You had no pipe so you simply swallowed the ice. You then had sex. After about an hour with the victim, you dropped her off at a bus stop near her residence, to avoid your car registration details being noticed by staff at the residential care home.
7 On a third occasion in 2015, you arranged to pick the victim up at the same location as you had previously. You spent several hours together. During this time, you left the victim in the car while you went to a pokies venue, and you then went together to get food from McDonalds. You then drove her to a quiet location where you parked your car. You supplied some GHB in liquid form to the victim and she swallowed it. You then had sex. You then drove to the city and bought some ice from a man who came to your car. You supplied the ice to the victim who smoked it in the car.
8 The victim made some initial disclosures in early September 2015 and then a statement by VARE on 20 October 2015 in relation to the matters the subject of Count 1. You made no comment when interviewed on 12 April 2016. A second VARE detailing the remaining allegations, which are the subject of Count 2, was made on 1 June 2016. You were charged on 1 August 2016, committed for trial on 15 December 2016, and pleaded not guilty when arraigned on an 11 count indictment on 29 May 2017. After a ruling on some preliminary matters, a plea offer was made and accepted. You were re-arraigned on the present Indictment on 31 May 2017 and pleaded guilty. You were bailed to 28 July 2017 for plea but were arrested on 17 July 2017 for failing to appear in the Magistrates’ Court in relation to other matters. The plea in this court was adjourned to 1 September 2017.
9 Whilst you have no prior convictions, you have been dealt with for subsequent matters unrelated to sexual offending. On 9 February 2016 you were sentenced to a 12 month Community Corrections Order (‘CCO’) in relation to breaches (on 26 July and 25 August 2015) of an Intervention Order taken out by your mother on 11 May 2015 after concerning behaviour by you related to your increased drug use. You completed 79 of the 90 hours of unpaid community work ordered but disengaged from supervision and treatment aspects of the order in September 2016. The breach of CCO and other matters, which all occurred on separate days between September 2016 and late February 2017 and included charges of theft, obtaining $300 by deception, and driving while licence suspended, are yet to be heard. There are therefore 46 days of Renzella[2] time in custody that I will take into account when imposing sentence on you.
[2]R v Renzella [1997] 2 VR 88 (‘Renzella’).
10 Your personal circumstances were set out in the psychological report of Carla Lechner dated 29 August 2017 which was tendered on the plea. You were born in Melbourne. Your father left you and your mother and sister when you were 8 years old but introduced you to ice when you were in high school. You left school during year 12 and worked, about 40% of the time since then, in retail, cabinet making, construction and hospitality. Your work history has been interrupted by intermittent but escalating drug use. You told Ms Lechner that there was “no excuse”[3] for your offending behaviour, that it was “wrong because she’s a child and not in any state to make decisions like an adult, like I was, regardless of me being on drugs”[4], and that you were affected by ice and GHB at the time of offending which “makes you lose all inhibitions and hypersexual”.[5] You told her you were not sexually interested in children, and that all of your further offending was caused by your resuming heavy drug use after being charged with the matters before this Court. She noted that you expressed “shame and regret”[6] for your actions and have “good insights”[7] as to why you have been charged and the potential impact of your actions on the victim.
[3] Exhibit B - Report of Carla Lechner dated 29 August 2017, 4.
[4] Ibid.
[5] Ibid.
[6] Ibid, 7.
[7] Ibid, 7.
11 Ms Lechner assessed you according to the STATIC-99 tool as being at moderate/low risk of sexual re-offending. She noted that you only met the risk criteria in 3 (substance abuse problems; failure to comply with supervision; employment problems) out of 20 items on the SVR-20 tool. She concluded that overall you are at low risk of sexual re-offending and that your sexual offending was secondary to your intensive drug use and associated hyper-sexuality. She felt that your risk of re-offending would be further lowered by continued abstinence from drug use. She noted that you presented with symptoms of Stimulant Use Disorder – in early remission in a controlled environment, but otherwise suffer from no psychological disorders. She noted that you have been working on your rehabilitation in custody.
12 Your counsel relied on a number of matters in mitigation, which I summarise briefly. Your plea of guilty, albeit at a late stage, saved the community the costs of a trial and saved the complainant from having to give evidence in front of a jury and being subject to cross-examination. Your remarks to Ms Lechner demonstrate some self-awareness and remorse. You committed no further sexual offences against young girls even though you have used ice regularly. You have spent your time in custody constructively, returning clear urine screens, and working on your physical fitness and in the prison kitchen. You have also completed courses in literacy, barista training and traffic management. You have reconnected with your family, are planning to live with your mother when released, and have been promised employment in your mother’s partner’s fencing business. It was submitted that you have reasonable prospects of rehabilitation given your continued abstinence from drug taking, family support and employment prospects. In the light of these matters, your counsel asked that you be re-assessed by Corrections Victoria for suitability for a Community Corrections Order. The report of Corrections Victoria dated 1 September 2017 noted your limited history on such orders and your level of motivation to comply, and you were found to be suitable for a CCO, with conditions including supervision, unpaid community work, drug treatment/rehabilitation and referral for sex offender programs.
13 Your counsel submitted that a short jail sentence plus a Community Corrections Order requiring treatment for drug addiction would satisfy all the relevant sentencing purposes.
14 Counsel for the prosecution submitted that your offending is serious for a number of reasons: the age of the victim; the age difference between you; the fact you must have known of her vulnerability, particularly when she was in DHHS care; the offending was not spontaneous, and it was repeated; and that it occurred in the context of you supplying her with drugs. As to the matters relied upon in mitigation, it was submitted that your own drug use was not mitigatory because you knew of its impact on you, and that your plea of guilty was made at a late stage and does not support a finding of remorse on your part and therefore resulted in less utilitarian benefit than an early plea.
15 It was submitted by the prosecution that your prospects of rehabilitation must be viewed as clouded, for a number of reasons. Firstly, although Ms Lechner concluded that your offending was linked to your drug taking and that your risk of sexual re-offending was low, the risks of general offending cannot be seen as low because your subsequent alleged offending between July 2015 and June 2017 has been linked to ongoing ice use by you. Secondly, in this context, a history of 6 weeks of abstinence while in custody can be seen only as a first step on what will be a long path to rehabilitation. Finally, your recent history shows non-compliance with court orders and persistent offending against people close to you.
16 I turn first to the gravity of your offending. As noted above, Count 1 and 2 are representative counts. In sentencing you, I am entitled to look at the whole picture, including the conduct which is represented in each count. In the light of that conduct, I must impose the appropriate and just sentence in all the circumstances. If I consider that those circumstances render the offences charged more serious, the result may be a higher sentence than I would otherwise have imposed in the absence of the representative nature.[8] I indicate that I have considered the drug supply and use in the relevant incidents only insofar as they provide context and full detail in relation to the victim’s account. I have not treated this material as an aggravating factor because no charges in relation to it are proceeding.[9]
[8]Calazzo (a Pseudonym) v The Queen [2017] VSCA 242.
[9]R v De Simoni (1981) 147 CLR 383.
17 I consider that the conduct which is represented in each count makes the offences charged more serious. There was a substantial age gap between yourself and the victim – you were nearly twice her age. She was introduced to you as a family friend and you were told at that time that she was 12 years old. Your conduct towards her at your own home constitutes a troubling breach of trust. Your behaviour towards her was exploitative, and you showed a complete lack of regard for her welfare, using her to gratify the heightened sexual desires brought about by your own drug use. I accept that the aggravating feature of compulsion or coercion was not present in your offending and I make no finding that you supplied the victim with drugs in order to procure consent. However, your offending was not spontaneous, and you encouraged the victim to sneak out of her home or residential care to be with you, and on a number of occasions plied her with drugs which you both used prior to having sex. It is of particular concern that your conduct occurred over a number of months, and that the second count (and the two further occasions) occurred when the victim was living in residential care under the authority of the Department of Health and Human Services.
18 I consider your offending to be a serious example of offending of this kind.
19 I accept that there is some utilitarian benefit in your late plea, on day 3 of the trial, that by your plea you accept responsibility for your actions, and that you have expressed remorse to Ms Lechner for your offending. I draw no conclusions from the absence of a Victim Impact Statement from the victim. I take into account that you are a relatively young man, who, in spite of having a drug problem from at least since leaving school, had no prior convictions at the time of offending. I accept that when clean of drugs, as you have been for the six weeks you have spent in custody, you are able to connect well with your family. I accept that, from a psychological perspective, you are at low risk of sexual re-offending. However, your offending has been tied to your drug abuse, and your subsequent conduct, including your recent history of non-compliance with court orders, has occurred in the context of further drug use. For these reasons, I consider that your prospects of rehabilitation are guarded. I note, on the positive side, that, when drug free, you have the support of family and the offer of accommodation and work.
20 The basic purposes for which a court may impose a sentence of imprisonment are denunciation of your actions, just punishment, deterrence, both specific and general, the protection of the community, and rehabilitation. I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, your personal circumstances and those of the victim.
21 I am required to balance the interest of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.
22 Given the seriousness of your offending, I consider that a custodial sentence must be imposed, one which exceeds the 12 month maximum term which may be combined with a CCO. However, given your low risk of sexual reoffending but the need for ongoing drug rehabilitation, I consider that a longer period than usual of supervision on parole would be appropriate.
23 I consider that the conduct comprising Count 2 is more serious than the conduct comprising Count 1 because it is further offending by you, which occurred while the victim was living in a residential care facility, and because it is representative of two other occasions of similar conduct. I consider that it is appropriate to provide a degree of cumulation in respect of the individual sentences. I take into account the principle of totality in sentencing you on the individual counts, which are both representative counts, and in providing the appropriate degree of cumulation.
24 I note that you have spent 46 days in custody in relation to other matters. On the authorities[10], it is appropriate for me to take these days into account and I do so below.
[10]Renzella [1997] 2 VR 88.
25 Would you please stand. On Count 2, sexual penetration of a child under the age of 16, you are convicted and sentenced to 3 years’ imprisonment. This is the base sentence. On Count 1, sexual penetration of a child under the age of 16, you are convicted and sentenced to 2 years and six months’ imprisonment. Six months of the sentence on Count 1 is to be served cumulatively on the sentence imposed on Count 2. The total effective sentence is one of three years and six months. I fix a non-parole period of two years.
26 I declare that you have served 13 days of pre-sentence detention which is to be deducted administratively from your sentence. I also note that there are a further 46 days in which you have been in custody on other matters that are to be deducted administratively from your sentence.
27 The offences of which you have been convicted are registrable offences pursuant to the Sex Offenders Registration Act 2004 (Vic) and by reason of your convictions for these offences, you are a registrable offender and obliged to comply with the reporting conditions imposed by the Act. In your case, that will be for life.[11]
[11] S34(1)(c) Sex Offenders Registration Act 2004 (Vic).
28 I note that the reporting burden that you carry as a registered sex offender is not a matter that can objectively influence the imposition of a just sentence. I am required to give you written notice of the reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you of the length of the reporting period, which as I have just announced, is life. My Associate will shortly hand you the written notice.
29 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your plea of guilty I would have sentenced you to 5 years’ imprisonment with a non-parole period of 3 years.
30 The prosecution has sought an order pursuant to s.464ZF of the Crimes Act 1958 (Vic) in relation to the retention of a forensic sample and you do not oppose that order being made. I make that order because, having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.
31 In making this order, I need to inform you, Mr Wentworth, that I am signing an order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database. I advise you that if at the time of the request for such a sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
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