Director of Public Prosecutions v Williams
[2021] VCC 1139
•18 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01144
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FELONY WILLIAMS |
---
JUDGE: | Her Honour Judge Todd | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2021 | |
DATE OF SENTENCE: | 18 August 2021 | |
CASE MAY BE CITED AS: | DPP v WILLIAMS | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1139 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL
Catchwords: Plea of guilty – two charges of supplying a drug of dependence to a child ; two charges of sexual penetration with a child under 16 years; related summary offence of committing an indictable offence while on bail; youthful offender with intellectual disability; circumstances of covid-19 pandemic
Legislation Cited: Crimes Act 1958; Sentencing Act 1991, Migration Act 1958, Disability Act 1992
Cases Cited:Cooke v The Queen [2021] VSCA 70; Osborne v The Queen [2018] VSCA 160; Treloar v The Queen [2020] VSCA 6; R v Verdins & Ors [2007] VSCA 102; Worboyes [2021] VSCA 169.
Sentence: Community Corrections Order of 36 months duration with Justice Plan condition.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Office of Public Prosecutions |
| For the Accused | Mr R. de Vietri | Victoria Legal Aid |
HER HONOUR:
Introduction
Plea of guilty and maximum penalties
1Felony Williams, you have pleaded guilty to two charges of supplying drugs of dependence to a child, an offence which carries a maximum penalty of 15 years imprisonment, and to two charges of sexual penetration with a child under 16 years, an offence which carries a maximum penalty of 15 years. This charge is also captured by the 'standard sentence' provisions: The standard sentence for this offence is six years.
2You have also pleaded guilty to a related summary offence: committing an indictable offence while on bail, which carries a maximum penalty of 3 months imprisonment or 30 penalty units.
Circumstances of the offending
3The Prosecution Opening, dated 29 October 2020, sets out the circumstances of your offending. It was tendered on the plea and became Exhibit A and is attached to, and forms part of, these reasons. I will summarise some of the facts giving rise to your offending here.
4You met the victim of Charges 1, 3 and 4 online over Snapchat in late January 2020. She was aged 14 at the time and you became aware of her age in the course of your Snapchat conversations. At the time you were living in Melton, and the victim in Bendigo.
5The victim of Charge 2 (the second of the supplying a drug of dependence to a child charges) was a friend of the first victim; that is how you met her. She was also 14 at the time of the offending.
Charges 1 & 2
6On 2 February 2020 you travelled to Bendigo to meet the first victim at the train station; you spent the day together wandering around Bendigo, visiting the mall and an abandoned factory.
7You met a number of the victim’s friends at the mall, one of whom told you that she was only 14 and that your relationship with her was illegal.
8You went to an abandoned factory on Garsed Street with the victim and a group of her friends. Some of the group were smoking the cannabis that you had brought with you; at that stage the second victim asked to share some but another person in the group would not allow it and said she was too young. This was said in your presence.
Charge 3
9Later that afternoon, you and the first victim walked to the Bendigo train station together. You sat in an alcove together and took several 'selfies' while waiting for the train.
10While you sat waiting, you put your hand inside the first victim’s pants and underwear and penetrated her vagina with your fingers. This constitutes Charge 3: sexual penetration of a child under 16.
11The victim said she did not really know what to do, so she just let it happen. Soon after, she asked you to stop and you did.
12The two of you then walked to the railway station so you could catch the train home. In the car park, you met the victim's mother who had arrived to collect other family members. The victim introduced you as her boyfriend and you asked her mother if you could stay at their place for the night. Her mother said no; you returned to Melbourne on the train.
Charge 4
13Two days later, on 4 February 2020, you went to Bendigo again to meet the victim. She skipped school that day so she could meet you.
14You visited the abandoned factory on Garsed Street again with some friends. At some point the friends all went back into town and left you and the victim alone. You spent some time in an upper level room where the words 'sex den' were graffitied on a wall. You kept asking the victim if she wanted to have sex with you; she kept saying she did not. Eventually she agreed.
15You told her to lie down; she asked why and you told her you were going to 'do it' and she was going to 'deal with it'. The victim again indicated she did not want to, but nevertheless lay down. You pulled her pants down, put a condom on and penetrated her vagina for approximately five minutes until you ejaculated. This constitutes Charge 4: sexual penetration of a child under 16.
16The victim said it hurt when you penetrated her; she later said that you told her she needed to 'deal with it'. You told her not to tell anyone.
17When you had finished you borrowed the victim's phone and called your sister, telling her 'I got a root'. Your sister told the victim, who was also on the call, not to tell anyone she had sex with an 18-year-old.
18You travelled back to Melbourne by train that evening.
19Over the following days, the victim disclosed these events to friends, and to her mother. Eventually, both a school counsellor and a social worker became aware of the events and complied with their obligations to report the matter to Police.
20Initially, the victim told Police she did not want to disclose what happened. This changed later, and when she did make a disclosure, she added that she was receiving threatening text messages from your sister and from you.
Arrest and interview
21You were arrested on 20 April 2020 and taken to Melton Police Station where you participated in a record of interview. An independent third person was present via phone.
22In your interview, you told the Police about meeting the victim. You denied anything sexual happened the first time you met. You told Police that the second time you met the victim had asked you if you want to have sex and essentially that she pressured you into doing it. You agreed that you knew she was 14. You later agreed that you had penetrated her vagina with your fingers on the first occasion you met.
23You were charged and released on bail the next day.
Prior criminal history
24You have no prior history of offending, though you were on bail for another offence at the time and I will return to that later in these reasons.
Procedural history
25I will now spend a moment to look at the procedural history of your case. You were charged and bailed on 21 April 2020. A committal mention was adjourned for resolution discussions on 31 July 2020 and on 18 September 2020 you pleaded guilty and your case was transferred to the County Court for a plea hearing. No witnesses were cross-examined. This is a plea at the earliest opportunity. That becomes important later in the sentence that I impose from a number of perspectives.
26I add for completeness and for the context of this sentence that you were dealt with in the Magistrates' Court on 26 May 2021 for a consolidated group of charges involving a mixture of state and Commonwealth offending.
27I note you were remanded on these matters on 23 February 2021. So at the time of this sentence, you have been in custody 176 days – or 5 months and 26 days.
28On the Commonwealth charges (two charges of using a carriage service to transmit indecent communication to a person under 16), you were sentenced to 96 days imprisonment, which was effectively the presentence detention or nearly all of it you had already served. You were also sentenced for two charges of committing an indictable offence while on bail, for which you were fined; and you are also sentenced to a state term for trafficking cannabis and a charge of robbery to commence from 26 May 2021. The duration of this term was three months. That sentence is therefore due to expire on 25 August 2021. I understand that those matters are subject to a sentence appeal to the County Court as of today, but I sentence you on the basis that the Magistrates' Court sentence is currently being served and is almost complete at the date of this sentence.
Nature and gravity of the offending: culpability and degree of responsibility
29I must address the nature and gravity of your offending and your culpability and degree of responsibility.
30I note that you have no prior criminal history however you were on bail for one charge of robbery at the time of this offending.
31Your counsel sensibly conceded that the sexual penetration of a child charges in particular are inherently serious offences. It was noted that in relation to Charge 3, when the victim asked you to stop, you did so. In relation to Charge 4, you used a condom; and this is an absence of an aggravating feature of this kind of offending. The offending on each charge was relatively spontaneous. It was argued that the circumstances of those offences did not involve a high degree of aggravating features such as violence, threat or inducement though I note that the Prosecution Opening includes statements that suggest you were at least very insistent and persistent in your pressing the victim to have sex with you on the day you had penile vaginal sex with her. The isolated location where you had sex with the victim underscores her vulnerability at the time.
32I note that the victim stated that she had received threatening messages from you, or perhaps your sister, afterwards. There is little detail about this; it is clear that it is possible that an older relative had become involved after these event and I hesitate to make any findings against you while it is not clear exactly who was behind any post-offence messaging.
33I note that although there were four chronological years between you and the victim, the evidence suggests that your functional age may be regarded as lower than the 18 years you had at the time, and that you struggled having relationships with age-appropriate people on account of your disability.
34It was submitted that given the well-established harmful nature of sexual offending against children, public denunciation in general and general and specific deterrence are very important sentencing considerations. I agree, and have given those matters thought in the construction of this sentence. I am sentencing you on the basis of the presumption of harm to the young person involved, and with general deterrence in mind, though there are significant matters that might reduce the role for this as it applies to you, I will come to this soon. It is clear that no meaningful consent to the sexual activity was obtained by you; nor could you have obtained it from a 14‑year‑old person. I am sentencing on the basis that the impact on your victim is both profound and long-lasting.
Personal circumstances and psychological material
35You are now 19 years old. You were 18 at the time of the offending.
36You are a New Zealand citizen of Maori heritage. You were born in Gisborne, New Zealand. You spent your first 13 years living with your grandmother.
37Your mother and father have both had their struggles with drug and alcohol related issues.
38After the death of your father when you were only 13, you moved to Australia with your mother.
39At the age of eight you were subject to abuse.
40You attended school up to Grade 10. You performed poorly at school and were bullied. You were identified as a 'high needs' student with learning difficulties. You had the assistance of a teacher's aide in Grades 8 and 9.
41At the age of seven, you have been assessed by clinical psychologists who found that your general cognitive ability and overall adaptive functioning were in the 'extremely low' range and consistent with a diagnosis of intellectual disability. Your full-scale IQ was assessed as 64 and it was identified that foetal alcohol syndrome was a probable feature of your circumstances.
42Prior to your being remanded into custody on this matter, you lived with your mother, your aunt Rosa, your sister and two brothers. You have other siblings and half-siblings in New Zealand.
43You smoked cigarettes from an early age and cannabis regularly since you were 17.
44Your mother works driving forklifts. You have had some regular work assisting a landscaper. And I note that you got this work by walking up to the landscaper in the street and asking for a job. You have been pleased to be given a job at Hopkins Prison where you are currently held. You make number plates and earn $50 a week.
Impact on victims
45I must take into account the impact of your offending on your victim. I will take into the victim impact statement that was filed on the plea. I have thought about it carefully. The victim says she does not feel comfortable in her own body anymore and feels like she is not good enough as a person. She was only 14. She ought not have been put in that position by you. One aspect of this case is the complicated, private harmfulness of the victim’s internal and unspoken lack of consent, and I accept although that this was not communicated to you, it made things more difficult to her. I refer to the case of Osborne v The Queen.
Matters in mitigation
46I have considered the matters of mitigation in your case. You entered a plea of guilty to these charges and by doing so saved the community, but most particularly the witnesses from the costs, both human and financial, of conducting a trial. Your plea is particularly important during the COVID-19 pandemic when it is particularly difficulty to conduct a criminal trial. This entitles you to a very significant discount on your sentence, consistent with what the Court of Appeal has recently articulated in the case of Worboyes.[1]
[1] [2021] VSCA 169.
47On your Plea, a report authored by neuropsychologist Laura Scott, dated 18 December 2020, was tendered and became Exhibit 2.
48Ms Scott's report includes the following opinions:
· that you present with a globally reduced level of intellectual functioning, and obtained a full-scale IQ score of 68;
· that you have significant impairments in both cognitive and adaptive functioning;
· you have a reading ability estimated to be Grade 3 level;
· you are vulnerable to manipulation and have a severe disorder of impulse control;
· your cognitive impairments severely diminish your capacity to think clearly and make calm, well-reasoned decisions;
· you struggle to make sound judgment about social interactions;
· your mild intellectual disability and ADHD were likely significant contributors to your offending behaviour;
· you present a significant risk for manipulation and victimisation in prison;
· you will be at risk of unintentional breaches of prison rules and failure to follow commands; and
· there is a significant risk in your case of institutionalisation and an extended period in custody may make it much harder for you to reintegrate into the community.
49At paragraph 13 of her report Ms Scott writes :
'Understanding the wrongfulness of one's actions requires the ability to recognise social norms, identify when one breaches these norms and understand the impacts of one's actions. Mr Williams has longstanding difficulties in each of these areas. He has limited understanding of social norms and capacity to read emotions (both his own and that of others). He shows impulsive behaviour and poor self-monitoring. His cognitive impairments reduce his capacity for abstract thinking, reasoning, perspective-taking or consideration of potential future outcomes of action. As such, his ability to appreciate the wrongfulness of his actions is somewhat diminished.'
50Ms Scott continues:
'Mr Williams is highly impulsive which would increase the risk of engaging in inappropriate behaviours that offer immediate gratification without considering the consequences. Impairments in communication and social cognition would also undermine his ability to comprehend nuanced or evolving social situations (such as the victim consenting to some activities and not others or initially consenting then withdrawing consent).'
51Dr Rajan Darjee is a consultant forensic psychiatrist; his report was tendered on the Plea and became Exhibit 3.
52Dr Darjee's report includes the following opinions:
· that Mr Williams is immature in both social and interpersonal functioning;
· that he does not have a mental illness but his intellectual disability means that he has had significant difficulties with understanding and decision-making;
· that he functions socially and personally like someone significantly younger than his chronological age;
· that Mr Williams has a limited ability to interact with age-appropriate peers and can superficially come across as more capable than he really is;
· that his intellectual disability is more likely to make him struggle and be vulnerable in prison and as such prison will weigh more heavily upon him than upon someone without such an intellectual disability;
· that his risk of reoffending is in the average category, meaning that he is no more or less likely than the average man convicted of a sexual offence, to commit a further sexual offence in future; and
· that Mr Williams does not have a particular sexual interest in children as such, nor is he likely to commit future offending involving a high degree of coercion, intrusion or aggression.
Verdins considerations
53Your counsel submitted that each of the limbs 1 to 5 of the case of Verdins were engaged in the light of the expert evidence tendered on the plea.
54The Prosecution accepted that there should be some moderation of your moral culpability in the light of the findings set out in the neuropsychological report and the other report. Balanced against this is that in your statements to other people, you clearly have some understanding of the wrongfulness of the relationship with victim. I find that while you knew what you were doing was not allowed you did not have the intellectual capacity to properly understand the harmfulness of your conduct, and my assessment of your moral culpability is reduced accordingly. I agree at the end of the day that 1 to 5 of the Verdins limbs are engaged by reference to the opinions already quoted.
55I have considered the kind of sentence to impose on you in relation to your disability and reduced the role for general and for specific deterrence in your case. I accept on the basis of the matters in the neuropsychological report that a sentence of imprisonment will be, and indeed is likely to have been, particularly difficult for you in your circumstances.
Youth
56I am also sentencing you as a very young person. You were 18 at the time of your offending and only 19 now. I am sentencing you on the basis that your rehabilitation is central to the sentencing calculus, and that your lack of capacity to understand the harmfulness of what you did was to some degree informed by your youth, as well as by your disability.
Prospects of rehabilitation
57I regard your prospects of rehabilitation as decent. I have read the letters of Rose Patmore, your aunt, and Shirley Williams, your mother. It is clear you are surrounded by an affectionate family. They are aware of your difficulties and clearly offer their continued support and affection. You will need various forms of professional support to thrive. I accept that you were cooperative with Police when you were arrested and although there were some denials and perhaps some minimisation, these were unsophisticated and temporary. You ultimately did make admissions to what you had done.
Remorse
58I accept that your plea contains within it an aspect of remorse. I accept that your limitations might make it harder for you to reflect about what you did and express statements about your feelings about having done the wrong thing. I note that in the Corrections Order report you do express to the assessor in your own terms your reflection about what you did.[2]
[2] Page 2 of the Report says:
'He reflected on the offending with both remorse and shame and referred to himself as a "shit cunt" now knowing [at the time of offending] how badly his actions had impacted the victim.'
Deportation
59You are a citizen of New Zealand and as the result of this, as well as your earlier sentence, the relevant Commonwealth Department has initiated cancellation proceedings pursuant to the Migration Act. This mandatory cancellation has been triggered by the nature of these and the other charges. You are currently receiving migration law advice. You have a right to challenge the cancellation and how this will unfold in your case I cannot say, nor will I speculate about. I accept that the uncertainty about your future does give you an added layer of anxiety and difficulty. There is the potential for you to spend time in immigration detention. Your mother and your immediate family are all here in Melbourne and you have been living in this city for 10 years. Moreover, there are practical questions that arise about the mechanics of deportation in the pandemic environment which add an additional layer of uncertainty to your future. I have taken this into account in my assessment of the weight of imprisonment upon you at this time.
60I have done my best to set aside considerations of what may or may not unfold in the migration context. I will impose the sentence I think appropriate in all the circumstances of your case.
No prior convictions
61Although you have now been dealt with for other offending, at the time of this offending you had no prior convictions. You are being sentenced as a young person of previous good character and I have taken that into account.
Conditions of incarceration – COVID-19 environment
62Your incarceration has taken place during the COVID-19 pandemic and I accept that this must have caused additional stress and difficulty for you and for your family during this time. All new prisoners are required to spend time in quarantine. Personal visits and access to programs can be curtailed and this has had an impact on reducing your sentence.
Relevant sentencing principles
63I have already set out the fact that you have been sentenced in other matters before today. You were charged and bailed on this case on 21 April 2020 but on 4 May 2021 your bail was revoked after other offending was detected.
Totality
64The principle of totality is engaged in these circumstances. I have had regard to the context of the other offending, your sentences on those offences, and I am taking those sentences into account to some degree in my calculus of the imposition of this sentence. It is your first period of imprisonment. You are very young, suffer from a range of intellectual problems and, I have already accepted, are vulnerable in custody.
65Were it not for these matters, by which I mean all of the significant matters in mitigation of your sentence, the sentence I would impose today would be much longer and of a different form. The role for totality is particularly important. It would involve quite lengthy incarceration. I have considered the roles of general and specific deterrence, the need for just punishment in your case, and the need for your conduct to be denounced.
66I was referred to two cases in the course of your plea. They were Cooke v The Queen [2021] VSCA 70 and Treloar v The Queen [2020] VSCA 6. I have read those cases. They are somewhat useful, but not alike to yours. I have tried to sentence you holding in mind the general sentencing landscape. In relation to Charges 3 and 4, sexual penetration of a child under 16, I am obliged only to have regard to sentences imposed under the standard sentencing regime – and this is what I have endeavoured to do.
Mandatory sentencing provisions
67The two sexual offences (Charges 3 and 4) also engage the 'standard sentencing' provisions under s5A of the Sentencing Act. The standard sentence for Charges 3 and 4 is six years. The standard sentence indicates the appropriate sentence for offending 'in the middle of the range of objective seriousness'.
68The standard sentence of six years gives me a legislative guidepost to imposing sentence in your case. I have had regard to that guidepost in sentencing you. This sentence will be much lower than the standard sentence indicated. In arriving at the sentence in your case, I have identified and then considered each of the relevant factors including the standard sentence, the objective seriousness of the offending and matters in mitigation and, having done that, these are the sentences I have determined to be appropriate.
69Were it not for the significant matters engaged by your intellectual disability and the questions of totality that arise, the sentence I would have imposed would have been quite different to the one I am about to impose.
Disposition
70On each of Charges 1 and 2, and Charges 3 and 4, and the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a Community Corrections Order of 36 months duration.
71As you are currently completing a sentence that I am advised concludes on 25 August 2021, seven days from today, I note that s38(2) of the Sentencing Act permits me to order that a Community Corrections Order commences immediately after this date.
72On that assumption, your Community Corrections Order will commence on the following day, on 26 August 2021.
73Your Community Corrections Order will have attached to it a 'Justice Plan' condition. I note that I have, pursuant to s80(2) of the Sentencing Act ,considered the Justice Plan that was devised in preparation for this sentence (see Exhibit E) and I have had regard to the objectives and principles specified in Part 2 of the Disability Act 2006. Of particular note is the objective to promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability.
s6AAA
74Pursuant to s6AAA of the Sentencing Act, but for the plea of guilty, the sentence imposed would have been a period of imprisonment of three years with a minimum non-parole period of two years.
75I note for completeness, there is no pre-sentence detention to be declared on this sentence.
Conditions of the CCO
76You will be first subject to the standard conditions of a CCO. You must not commit any other offences that are punishable by imprisonment during the 36-month period. If you do, you will be brought back to court before me and resentenced for these offences; and without very powerful reasons, you would expect that that will involve your imprisonment.
77You must report to the Melton Community Corrections Service within two days of your release from custody by telephone.
78You must advise your supervisor at the Corrections Office of any change of address where you are living or working and you must do so within two clear working days.
79You must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer.
80You are not able to leave the State of Victoria without their prior permission and that is for the entire 36 months.
Special conditions
81You must participate in the conditions provided for under the Justice Plan including undertaking an assessment for offence specific treatment under paragraph 2 of the Plan, and any programs that flow from that assessment.
82You will be required to complete programs to further address your drug and alcohol use.
83You must report for supervision with your case manager as requested.
84You are required to submit to mental health assessment and treatment.
85You are required to participate in rehabilitation in the form of forensic intervention services and I expect this will be administered by services under the Justice Plan.
86I require you to perform 100 hours of unpaid community work over the term of this order, but pursuant to s48CA of the Sentencing Act, I direct that time spent in treatment and rehabilitation programs be credited towards those hours.
87I also require you to participate in judicial monitoring. This means that you have to come back to court to report to me how it is going.
88As a result of the nature of these offences and previous offending, Mr Williams is liable to mandatory registration under the Sex Offenders Registration Act. This is for life.
- - -
0
5
0