Director of Public Prosecutions v Wright
[2021] VCC 1978
•1 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAHANA WRIGHT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2021 | |
DATE OF SENTENCE: | 1 December 2021 | |
CASE MAY BE CITED AS: | DPP v Wright | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1978 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Sexual penetration of child under 16 - sexual assault of child under 16
Legislation Cited: Sentencing Act 1991,
Sex Offenders Registration Act 2004
Cases Cited:
Sentence:2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director at hearing For the Director at sentence | Ms F. Holmes Ms E. Finnigan | Office of Public Prosecutions |
| For the Accused | Ms A. Burnnard | Victoria Legal Aid |
HIS HONOUR:
1 Tahana Wright, you have pleaded guilty to an offence of sexual penetration of a child under the age of 16 and an offence of sexual assault of a child under the age of 16.
2 The maximum sentence on Charge 1 is imprisonment for 15 years and the maximum sentence on Charge 2 is imprisonment for 10 years.
3 The prosecution read and tendered a summary prosecution opening for the plea dated 22 November 2021, which is exhibited. I will address parts of it only.
4 The complainant in this matter was aged 14 at the time of the offending. She is now aged 16. You were aged 20 and you are now aged 22. The complainant became known to you in about 2012, when her sister began a relationship with one of your brothers.
5 There were many occasions over a period of years when the complainant and you would meet as a result of family gatherings. When the complainant was about seven years old and you were about 12, you were playing a game of truth and dare with other children which resulted in kisses between you and the complainant. You spent time living between the family home in a country town and an address in another country town which was where your brother and the complainant's sister lived. Whilst residing at that address, you would occupy the front loungeroom and frequently the complainant would occupy a room towards the back of the address.
6 On an occasion when the complainant was staying at her sister's address with her family for her sister's baby shower, she was 12 years old and she and her family were staying in the loungeroom at the time. When everyone was asleep you snuck into the room and tilted the complainant's head back towards you. You began kissing the complainant using your tongue. This type of behaviour occurred on a number of occasions after that date and progressed in nature. And that is the context in which the offending, which took place between August and November of 2019, occurred.
7 In relation to Charge 1, on an occasion during August or September 2019, the complainant and you were in the bedroom that you were then occupying at the second address. You asked the complainant if she would put your penis in her mouth and use her mouth to which she said, 'Yeah'. You inserted your penis into the complainant's mouth and allowed her to suck it for a couple of minutes before stopping her and you pulled her off you. The complainant was 14 years old at the time of the incident.
8 In relation to Charge 2, on another occasion, this time in early November of 2019 when the complainant was still 14 years of age, you entered the bedroom in which she was sleeping during the night and you manoeuvred the complainant so that she was on her stomach. You removed her underwear and your own pants and underwear and began rubbing your penis against her leg, bottom and vaginal area. You continued to rub your penis on the complainant in those areas until you ejaculated on her after which you replaced your underwear and her underwear and snuck out of the room.
9 The complainant disclosed the offending a few days after that latter incident. You were arrested on 7 November 2019 and to your credit you made full admissions of your offending. Indeed, relevant to the application of s5(2H) of the Sentencing Act 1991, you provided the evidence upon which the prosecution relied on Charge 1. The complainant had made no mention of that incident in the information that she provided to the investigators.
10 Indeed, your admissions were full enough that they not only created the case against you on Charge 1, but provided a much stronger case on Charge 2. That is relevant in that, on that basis alone, it would enable me to impose a sentence that did not involve a custodial sentence. In relation to the application of ss.5A and 5B of the Sentencing Act, I regard the objective facts relating to the offending towards the lower end of the scale of offending for those types of offences.
11 The prosecution also relied upon a victim impact statement from the complainant's mother. That was read to the court and I take that into account. Your counsel, Ms Burnnard, provided me with an outline of defence submissions dated 26 November 2021 which is a very thorough presentation of the case that she also presented orally on your behalf.
12 She also provided me with a copy of a psychological report of Alison Mynard dated 20 October 2021 and an addendum report by the same psychologist dated 22 November 2021, a bundle of character references and Mercy Health records relating to your admission to the hospital immediately following your arrest and your questioning by the police.
13 She also provided me with a letter from Dr Manjur Morshed concerning the diagnosis of your father's terminal cancer dated 11 November 2021. All of those documents and a bundle of references from your family members underscore the remorse which you have expressed to the police, to Ms Mynard and to members of your family in clear terms.
14 Your background history is well set out in the reports of Ms Mynard, but suffice to say for present purposes that you were born in Australia to parents of New Zealand heritage. Your father worked as a packer, your mother works in car manufacturing. You are the youngest of eight siblings.
15 You grew up in the western suburbs of Melbourne surrounded by family members. You attended church as a child; indeed it is clear that your family have strong religious beliefs. You are 22 years of age as I have said, being born on 5 August 1999. You have no prior criminal history or history of criminal offending since these offences. You were 20 years old at the time of the offending conduct.
16 Your schooling was patchy to say the least. Unfortunately you had been born with a clubfoot which required surgery during your first year of life. It has led to you being self-conscious and to some extent picked upon. It is clear that you had a difficult time at school socially and you had few friends. You were also raised in a conservative, religious environment and sexual behaviour was not discussed in the home.
17 During the course of the interview conducted by police, you repeatedly expressed your remorse and your shame for your conduct. I mention just a few of the things that you said:
“ … I was just so stupid and I was young, and it just, like, escalated from there and I think whatever she - whatever she told you is probably ………. probably true.”
“I know - I know it was wrong of me - it was wrong of me to do so, and – and I should have just - I – I tried to, like, get away from it as far as I could. Like, I didn't want to be around, like, people and I didn't want to - I didn't want to show any of my emotions that drove me to do ………. if my parents were here right now, they'd be ashamed of me. This is my fault.”
“… I just felt so, like, full of guilt and regret which caused me to just, you know - you know, try and commit suicide because I didn't want to - I felt like I didn’t want to be here, I didn't want to be around anybody - - - especially her 'cause I'd hurt her in a - in a way."
18 You explained to police that the relevant intimacy and the relationship between you and the complainant started when you were at a young age, with a ‘truth or dare’ game, amongst you and her and other family members.
19 The interview is also noticeable by the fact that you were visibly distressed and very quietly spoken throughout. At the conclusion of the interview, the police were so concerned about your suicidal ideation that they took you to the nearby Mercy Hospital where you were admitted to the psychiatric ward and stayed for four nights. Your suicidal ideation ameliorated somewhat during the four days that you were present at the hospital.
20 It was pointed out to me that you are particularly concerned about your father's terminal cancer and have sought to assist as best you can with his care.
21 Your counsel urged me on the basis of the two reports from Ms Mynard to conclude that Verdins Principle 1 and Principle 3 were engaged. She also urged me to accept that Principles 5 and 6 and 2 were engaged.
22 The prosecution opposed the submission, so far as it related to Verdins Principles 1 and 3. Your counsel relied principally on the contents of the two reports from Ms Mynard. And whilst they are constructive, and I think well-founded in identifying the mental impairments from which you suffer, I am not convinced that they support a conclusion that your moral culpability is reduced by your mental impairments. Nor am I convinced that it reduces the need for the application of the principle of general deterrence in your case, for similar reasons.
23 It is clear from the reports of Ms Mynard, and I say that they seem to be very carefully prepared and well written, that you have symptoms consistent with complex post-traumatic stress disorder, depression and anxiety. The post-traumatic stress disorder has its origins in your relatively early childhood and continues to persist to this day. I am satisfied that you suffer from each of those conditions.
24 Perhaps more instructive is the, I think well-reasoned, opinion that you are emotionally immature and that you have been delayed in your emotional development. That comes through clearly in the text of the two reports that Ms Mynard provided, to a point where you perceived you and the complainant as being of a similar emotional age of maturity and to a point where you felt that you had an emotional connection with her that was more akin to someone in your peer group rather than somebody six years younger.
25 Ms Mynard makes it clear in her reports that you require rehabilitative measures to reduce your risk of reoffending (although she expresses the opinion that your risk of similar offending is very low) and to deal with your complex PTSD. She notes that the Mercy Hospital records speak of you possibly suffering from borderline personality disorder. But she points out that your history suggests complex post-traumatic stress disorder and that the two differential diagnoses are similar in terms of emotional dysregulation, difficulties with relationships and uncertain sense of self.
26 So, although I am not persuaded that your mental impairments reduce your moral culpability, it seems to me that your age of 20 at the time of the offending and your delayed emotional development do go to reduce your moral culpability. And I take that into account. I have deliberately not set out the reasoning and the references to events in your early life which support the diagnoses and prognoses in Ms Mynard's reports. Those reports are exhibited, and in my opinion they set out a reasoned foundation for the opinions that she expresses.
27 It is clear from that history and from references in the Mercy Health medical records that this is not the first occasion upon which you had felt and expressed suicidal ideation. It seems to me that you present as a person who would be extremely vulnerable in an adult prison. That is an opinion which Ms Mynard expresses very clearly. That is relevant also to the application of s.5(2H) of the Sentencing Act, in particular sub-s.(c) which reads,
'[If] the offender proves on the balance of probabilities that-
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment …'
28
I am satisfied on the basis of sub-ss.5(2H)(a) and on the basis of sub-s.5(2H)(c)(ii) that I am not required to impose a term of imprisonment on you. I do not intend to do so.
29 Your counsel summed up other mitigating factors such as your early plea of guilty, expressions of remorse to police and to others and your admissions at the earliest opportunity which led to the plea of guilty. And in these COVID times your plea of guilty is to carry greater weight than usual.
30 You have no prior criminal history. Not only did you make admissions, but you provided all of the evidence that was relied upon by the prosecution in relation to Charge 1. And your admissions generally substantially strengthened the Crown case.
31 I have no doubt that you are genuinely remorseful. You were 20 at the time of the offending, and your counsel rightly points out that, if you had been sentenced before you were 21, one of the options available to the court would have been to impose an order for detention in a Youth Justice Centre rather than in an adult prison. Whilst I do not seek to lay the blame for the delay on anybody, the fact of the delay has placed you at that disadvantage by removing that option.
32 The principles are clear that for a youthful offender such as yourself, rehabilitation is a very important sentencing consideration, and I regard that as being particularly so in your case. Not only because of your mental health history and your history in early life, but because I think that the degree of remorse you have shown indicates that it is unlikely you will offend again, and that you will have learnt a stern lesson from this. In my opinion you are a good candidate for rehabilitation.
33 Also, arising from the COVID pandemic are the unduly onerous conditions of management within the prison system which, as your counsel pointed out, heavily reduce access to study and other programs or facilities, the suspension of in-person visits and the general increase and uncertainty for all prisoners. So for that reason alone, imprisonment would have been considerably more onerous than in non-pandemic times.
34 In addition of course, you would have had the burden of your father's terminal illness hanging over your head, with little opportunity to see him in person, during the period of your incarceration.
35 I do not regard specific deterrence as being significant but general deterrence is and as I have indicated, I do not regard the Verdins Principles as bearing upon my duty to impose a sentence that deals adequately with the need for general deterrence. Nor do I regard them as reducing the need for me to impose a sentence which adequately denounces your conduct and punishes you for your offending.
36 However, in all the circumstances, it seems to me that this offence can be dealt with by a community correction order with a combination of punitive and rehabilitative conditions.
37 Mr Wright, you have been assessed by Community Corrections, and no doubt the obligations of a community correction order have been spelt out to you, but I need to go through them. I intend, subject to your willingness to abide by the terms of the order, to impose an order which would last for two years. It would commence today and end on 30 November 2023. You would be required to attend at the Werribee Community Correctional Services at 8 Synott Street, Werribee, Victoria 3030, within two clear working days after the commencement of the order. That attendance would be by telephone and the telephone number of that community correctional services office is on the order which you will be supplied with, but it is important that you report within those two clear working days, which would be by 4 pm on 3 December, that is, this Friday.
38 The order is subject to a number of mandatory terms. These are terms that apply to all community correction orders. No doubt they have been explained to you, but I am going to read them again to you.
39 The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is enforced;
· you must comply with any obligational requirement prescribed by Regulation 17 of the Sentencing Regulations - that relates to your obligations to report to the centre and not to turn up drunk or affected by drugs when you do so;
· you must report to and receive visits from the Secretary or his or her delegate;
· you must report to the community corrections centre within two clear working days of the order starting;
· you must let a community corrections officer know within two clear working days of you changing your address or job;
· you must leave not Victoria without first getting permission to do so from the Secretary or his or her delegate;
· you must obey all lawful instructions and directions of the Secretary or his or her delegate.
40 In addition to the mandatory terms, I intend to impose the following conditions:
· you must perform 200 hours of unpaid community work over the two-year period as directed by the regional manager, and I order that 100 hours of treatment and rehabilitation, satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid work condition. Now do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: If you fail to comply with that order, the Secretary of the Department for Justice or his or her delegate might give you a direction to perform additional hours of unpaid community work in accordance with the relevant provision of the Sentencing Act.
· you must be under the supervision of a community corrections officer for a period of two years;
· you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager - that's added at the recommendation of the community corrections officers who assessed you, rather than because of an obvious problem with abuse of alcohol, and their reasoning for that is noted in their assessment outcome report;
· you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to the offending, as directed by the regional manager;
· you must reappear at this court for review of your compliance with the order as directed by this court, with the first review being on 10 March 2022 at 9.30 am at the County Court and that will be before me. Whether you have to attend in person or via video link as we have today will be communicated to you when we see how the pandemic continues.
41 Now you have heard all of those conditions and it may sound like a lot to digest, but I ask you first of all, do you understand those conditions?
42 OFFENDER: Yes, Your Honour.
43 HIS HONOUR: If you fail to comply with any of the conditions of the order, you risk that you may be held in breach of the order, do you understand?
44 OFFENDER: Yes, Your Honour.
45 HIS HONOUR: And if you are held to be in breach of the order, you will be brought back before this court and probably before me, and one of the options available to the court is to re-sentence you for the original offending. Do you follow that?
46 OFFENDER: Yes, Your Honour.
47 HIS HONOUR: So the court will have the option of discharging the community correction order and sending you to prison for the original offending. Also, you will be liable for a term of imprisonment of up to three months for breaching the order.
48 If you fall ill or if there is another reason for you not being able to comply with the terms of the order, then you should contact the regional office at Werribee and indicate the difficulties you are having with the compliance. It would then be open to the authorities to amend the order, or to suspend the order, or to seek to have the order discharged. If any of those events occur then I advise you to get some legal advice.
49 Now, you have heard all of the conditions. Do you understand everything that I have said about compliance with the order?
50 OFFENDER: Yes, Your Honour.
51 HIS HONOUR: Are you willing to comply with the terms of the order?
52 OFFENDER: Yes, Your Honour.
53 HIS HONOUR: It is your order, it is quite a long haul, it will be onerous at times, but if you focus on your rehabilitation as well as the condition for unpaid community work, you will be able to reduce the number of hours you will actually have to carry out with the unpaid community work. Do you follow?
54 OFFENDER: Yes, Your Honour.
55 HIS HONOUR: All right. I will treat your indication to me via this video link as your consent to abide by the terms of the order and I will now sign the order which will put that into effect.
56 On Charges 1 and 2 on the indictment, you are convicted and sentenced to undergo a community correction order in the terms that I have just outlined to you.
57 But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 12 months.
58 In addition I need to deal with one further matter. The charges to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 and by reason of you being sentenced for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. Pursuant to s50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is life.
59 My associate will email to your solicitors the Notice of Reporting Obligations form which I have signed. I formally waive any requirement that you sign the acknowledgement that you have received that form, do you understand?
60 OFFENDER: Yes, Your Honour.
61 HIS HONOUR: Counsel are there any other matters?
62
MS BURNNARD: Yes, Your Honour there are. It appears to me that
Your Honour may have made an error in the formulation of the sentence. I am very conscious that Ms Finnigan has a commitment in another court, but there is certainly a matter to raise and perhaps a discussion to have, does Your Honour wish to have that now?
63 HIS HONOUR: I certainly do.
64 MS BURNNARD: It appears to me that Your Honour has sentenced Mr Wright on the basis that he has committed a category 2 offence. That is a mandatory imprisonment scheme and that scheme is relevant to s5(2H) of the Sentencing Act. Neither of the offences on the indictment are category 2 offences requiring consideration of 5(2H). The general principles that Your Honour's referred to are obviously relevant, but they're not relevant for the purpose of 5(2H).
65 HIS HONOUR: Well, can I just point out to you the last sentence of the prosecution opening, which says, s5(2H) Sentencing Act applies for category 2 offences, this section has applicability in this case. And - - -
66 MS BURNNARD: I'm not sure where Your Honour is reading that from, because my copy of the Crown opening refers to - I do see that, that is an error, Your Honour because the - - -
67 HIS HONOUR: Well, nobody pointed that out to me at the - in the course of the hearing.
68 MS BURNNARD: I apologise for that, because I'd missed it. My submissions and what I was focusing on and what is set out in the written outline is that the offences are standard sentence offences pursuant to s5A and 5B. So, they don't require a term of imprisonment, per se.
69 HIS HONOUR: All right, that's fine. I understand what you're saying. As you say the reasoning still applies and it won't make any difference, I'm not required to impose a term of imprisonment, whether s5(2H) applies or not.
70 MS BURNNARD: No.
71 HIS HONOUR: I don't want to have a needless debate about it, it was unfortunate that nobody pointed it out to me during the course of the plea hearing, and I've just assumed that it did apply without checking that. And I assumed that would be the case because nobody told me it wouldn't.
72 MS BURNNARD: That is unfortunate. But further, Your Honour, in accordance with s5B of the Sentencing Act which is one of the standard sentence provisions, Your Honour must formally take the standard sentence into account and - - -
73 HIS HONOUR: Yes, well I do take the standard sentences into account.
74 MS FINNIGAN: Thank you, Your Honour, and I apologise on behalf of the prosecution for the error in relation to the section. I am satisfied that Your Honour has noted your reasons in accordance with s5A and 5B, which do apply.
75 HIS HONOUR: Thank you very much.
76 MS FINNIGAN: And there's nothing further from the prosecution.
77 HIS HONOUR: Thank you.
78 MS FINNIGAN: Thank you.
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