Director of Public Prosecutions v Yardley

[2017] VCC 421

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02230

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK YARDLEY

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2017
DATE OF SENTENCE:	11 April 2017
CASE MAY BE CITED AS:	DPP v Yardley
MEDIUM NEUTRAL CITATION:	[2017] VCC 421

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Jones	Office of Public Prosecutions
For the Accused	Mr S. Moglia	Lethbridges

Pages 1 - 7

 

 

HIS HONOUR: 

1Jack Raymond Yardley you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 and one charge of production of child pornography.  These offences each carry the maximum penalty of ten years' imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained Exhibit 1, the summary of prosecution opening upon plea.  That opening was accepted by you through your counsel.

2I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise. 

3You were born on 6 November 1997 therefore at the time of these offences in late 2015 and early 2016 you had just turned 18 years of age.  The victim was born on 26 July 2000 and therefore she was 15 years of age at the time of the offending.  You developed a friendship with the victim in late 2015.  The victim then expressed her love for you.  On three occasions in late 2015 and early 2016 you had penile vaginal sex with the victim.  Charge 1 is a representative charge covering these three occasions.  Charge 2 is also a representative charge.  It covers the two occasions from 12 January 2016 and 12 March 2016 when you had oral penile mouth sex with the victim.  On
12 March 2016 the oral sex was before the penile vaginal sex.

4Charge 3 is a rolled up charge covering two occasions when you recorded images during sexual encounters.  On 12 January 2016 you took an image of the oral sex act on the victim's phone.  This was later sent to your phone.  On 11 January 2016 you used your mobile phone to make a video of the sex act.  The victim was not aware that these images were being recorded.  She only learnt of the existence of the photo when you and your friends were laughing about it in her presence.

5The offending was discovered on 19 March 2016 when the victim's father checked her mobile phone and found the image of the oral sex.  You were arrested on 21 March 2016.  You made a no comment record of interview.

6I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept that you are genuinely remorseful.  You have no prior convictions.  I sentence you as a person of previously good character. 

7I have been told something of your personal circumstances.  You are 19 years of age having been born on 6 November 1997.  You are a single man with no dependents.  You live with your grandparents.  Your parents separated when you were young.  You are in employment as an apprentice plasterer.  You are in the probationary stage of that employment.  You have strong support from your family and friends even after you fully disclosed this offending to them.

8After your arrest you moved from your home and have lived with your grandparents in Sunbury, thereby avoiding ongoing contact with the victim. 
I accept that you now appreciate the serious and wrongful nature of your conduct.

9A large number of references and testimonials were tendered on your behalf.  They describe your prior good character, assistance provided to family members, community work with the St John's Ambulance and visiting some elderly persons and generally positive and responsible attitude.  The number and quality of these references is a credit to you.

10A psychological report from Simon Candlish was tendered on your behalf. 
I accept his opinion that you are in a low risk category in respect of sexual recidivism.  A report from your treating psychologist, Tim McCorriston indicates that you have taken this matter very seriously and you are well motivated and engaged.  I assess your prospects of rehabilitation as being good.

11Against these matters in mitigation however your actions were very serious indeed.  Whilst you were only 18 years of age at the time of the offending the victim was only 15 years of age.  There were a number of sexual acts and images were taken of the victim without her knowledge.  The filming does represent a serious example of a disrespectful criminal act.

12There are three victim impact statements.  The victim felt manipulated, controlled and exploited by you.  She loved, trusted and respected you and she believed these feelings were reciprocated.  She lost her trust in people.  She experienced many negative thoughts and felt worthless, abused and broken.  Her school life and social life were adversely affected.  The victim described herself as a happy, confident and loving girl whose life had been shattered.  Fortunately the victim is now feeling increasingly strong, independent and confident, although she still has both good and bad days.

13The victim's parents both describe their distress and dismay at your offending and its great impact upon the victim, her whole family and their own lives.  These victim impact statements are a powerful reminder of the great impact offending upon children has not only upon the child victim but also upon the child's parents and other family members.  I have had regard to the victim impact statements but they must not overwhelm other relevant sentencing considerations.

14As well as the matters to which I have referred I must also take into account he need for general and specific deterrence.  Specific deterrence is less relevant as you have no prior convictions and I assess your prospects of rehabilitation as being good.  General deterrence is of considerable importance in a case such as this.  This type of offending involving sexual offences against children must be discouraged.

15I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  Your counsel submitted that I ought to consider imposing a community corrections order.  It was submitted on behalf of the prosecution that an immediate custodial sentence was not required, rather a community corrections order assessment ought be undertaken with a view to a community corrections order being imposed.

16I did organise an assessment and I have been provided with an assessment outcome report this morning.  The comments of the reporter are that you have no prior involvement with Community Correctional Services.  You were co-operative throughout the assessment, you answered all questions put to you to an appropriate standard.  You fully understood all that had been explained to you.  You gave your consent to such an order being made and you reported that you would fully comply with all conditions imposed upon you. 

17You were assessed as suitable for a community corrections order. 
The following conditions were recommended, community work, treatment and rehabilitation, programs to reduce reoffending and supervision.

18Although you have indicated to the assessor that you consent to the making of such an order, it is necessary for me to explain the order to you and obtain your consent to the making of the order before I am able to impose a community corrections order.  I propose, subject to obtaining your consent to impose a community corrections order which will be of 18 months' duration.  The report from the Community Corrections recommended a community corrections order of at least 15 months' duration.  I intend to impose an 18 month community corrections order.

19There are mandatory conditions which I must read to you.  You must attend at the Broadmeadows Community Correctional Services Offices in Broadmeadows within two clear working days of this date.  These are the mandatory terms, you must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  You must report to and receive visits from the Secretary or a 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 lot leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.

20They are they mandatory terms of the community corrections order. 
Mr Yardley, do you understand those terms?

21OFFENDER:  Yes, I do, Your Honour.

22HIS HONOUR:  The additional conditions that I propose are firstly unpaid community work.  You must perform 100 hours of unpaid community work over a period of 18 months as directed.  If you fail to comply with that order, you can be given a direction to perform additional hours.  Supervision, you must be under the supervision of a Community Corrections Officer for a period of 18 months.  Treatment and rehabilitation, you must participate in programs and or courses that address factors relevant to the offending as directed by the regional manager specialised offender assessment and treatment service.

23Do you understand those additional conditions, Mr Yardley?

24OFFENDER:  Yes, I do, Your Honour.

25HIS HONOUR:  Do you consent to the making of that order?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  You must understand that if you breach that order, you will be liable to be brought back before me and you will dealt with in respect of both the breach of the order and in relation to the offences for which I am sentencing you today.  Do you understand that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR: Thank you. Just before I get you to sign the order, there is no pre-sentence detention. There were some ancillary matters. There was an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act, the application was opposed. I do intend to make an order that pursuant to s.464ZF(2) of the Crimes Act, you undergo a forensic procedure for the taking of samples in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.  The reasons for making the order are contained on the order which I have signed.  I must inform you as a matter of law that a member of the police force may use reasonable force to enable the procedure to be conducted.

30In essence the seriousness of the offending was such that I felt that it was in the public interest that the application be granted. 

31A disposal order was sought by the prosecution.  This was not opposed.  I make the disposal order that is sought.

32There was an application for a forfeiture order.  This was in respect of the mobile phone.  This application was opposed.  It is a mobile phone that had been used to both film sex acts and to receive an image of a sex act.  I intend to make an order that it be forfeited.  I intend to make the forfeiture order sought by the prosecution.

33MR MOGLIA:  As Your Honour pleases.

34HIS HONOUR:  The final matter, by virtue of my sentencing you today, you become a registrable offender under the Sex Offenders Registration Act 2004. I must point out to you that these are mandatory requirements and I am obliged by law to make these orders and you will be required within 28 days to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the act for the remainder of your life, pursuant to s.34 of that Act.  This is a mandatory requirement.

35There are various forms which my associate might get you to sign.  So now we can have the community corrections order signed.

36MR MOGLIA:  May I approach the dock, Your Honour?

37HIS HONOUR:  Yes, do you want to deal with that?

38Have I dealt with everything?

39MR MOGLIA:  I think the sex offender registration receipt has to be signed.  I'm not sure whether Your Honour has to see it.

40HIS HONOUR:  That can be done after I leave the Bench.

41MR MOGLIA:  But that can be done.

42HIS HONOUR:  Yes.  Anything else?

43MS JONES:  No, Your Honour.

44HIS HONOUR:  No, all right.  I will leave and you can do that.  Thank you.

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