Director of Public Prosecutions v Yildiz
[2025] VCC 467
•14 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00758 & 9
Indictment No’s
P1031787.1 & P10056506.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ERAY YILDIZ |
---
JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2024 (Arraignment), 9 Dec 2024 (Opening and start of Plea), 14 April 2025 (completed Plea) |
DATE OF SENTENCE: | 14 April 2025 |
CASE MAY BE CITED AS: | DPP v Yildiz |
MEDIUM NEUTRAL CITATION: | [2025] VCC 467 |
REASONS FOR SENTENCE
---
Catchwords: Sexual penetration of a child under the age of 16 (x2) - Two separate victims, 4 months apart - Approached in public place; restaurant and train station - 23 years of age at the time - Victims 15 - Penile oral, unprotected on each occasion - Short criminal history – Late guilty plea - R v Verdins [2007] VSCA 102 - Disadvantaged background: Bugmy v The Queen [2013] HCA 37
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Grunwald (at Plea) Mr J. Makary (at Sentence) | Office of Public Prosecutions |
For the Accused | Mr M. Kozlowski | Cao & Co Legal |
HIS HONOUR:
1Eray Yildiz, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16. The charges relate to two girls who you met four months apart in public places and who you offended against back in May and then September 2022.
2There are two indictments in this matter with a single charge on each indictment for each girl.
3You were 22 or 23 years of age at the time of the offending. You are now 25 years of age, turning 26 in August and you have admitted a criminal history comprising only a single appearance back in 2020 for unrelated matters. That prior appearance has no relevance to my task at all. The subsequent matter I have been told about obviously does have some relevance, relating as it does to further sexual offending committed in December of 2022.
4The two offences I am dealing with have a 15-year maximum term of imprisonment.
5Each offence is covered by the standard sentence scheme within the Sentencing Act with a specified standard sentence of six years.
6There is an agreed summary in relation to each charge and I will sentence in accordance with that document. There is no point in my setting out in my reasons the full factual setting. The summary does that.
7So, I am going to provide only a brief summary of those agreed facts so that my reasons and the ultimate sentence might make sense to anyone who happens to access these remarks when they come to be published. As I said earlier this morning - maybe the victims heard this or maybe they did not - but they should rest assured that when my reasons are published, if they are published, they will be completely anonymised. There will be no reference to their names or to any other identifying feature. Further, though I will use their names and names of family members when delivering these reasons, it is just easier for me to do that, no-one can publish any detail which might lead in any way to their identification.
8Your first victim was Abby Gibson[1] and she was born in November 2006. She was 15 years of age at the time that she attended a restaurant in Epping on 8 May 2022 with her family. You were 22. You had no business approaching her at all, but you did. You flattered her, telling her you thought she was, as you put it, 'hot'. You asked her for her Snapchat. She asked you how old you were. You lied. You said you were 17. She told you she was 15. From that moment she was just completely off limits to you in any sexual fashion, as you knew. You did know that despite what you told Alison Mynard in November of last year when she assessed you.
[1] A pseudonym.
9At the bathroom in the restaurant, despite having been told her age, you asked her to suck your penis, and she said no. She went back to her family and later that day they all went off to a movie, and I infer from the impact statement and the date on the indictment that it had been a Mothers’ Day gathering that day.
10You sent her multiple text messages of a sexual nature. Again, you knew her age, you had been told it. That was during her time in the cinema with her family. After the movie she went home with her family and the messaging continued.
11The two of you agreed to meet up that night at midnight outside a kindergarten in Epping. You picked her up in a grey car. She had in mind perhaps a trip to McDonalds. You had other things on your mind, plainly, and had virtually from the moment of first clapping eyes on her. Seeking to explain how it was you were able to drive, you had to expand upon your earlier lie and told her that you could get your licence at the age of 17 up in New South Wales, thereby maintaining the fiction that you were close to her age. You took her out to Roxburgh Park, not the McDonalds, and whilst in the car you again asked her to suck your penis. Again, she declined saying 'I’m not doing that'.
12You went back to your apartment in Roxburgh Park and up to your room where there was some kissing. You took off her top. She did not want to remove her bra. You said to her, 'do you either want a fuck or you suck my dick?' You removed some of her clothes and asked her again to suck your penis and she did, and that is described in the summary, the duration of that and how it all ended. She saw you recording that event on your phone and she asked for your phone so she could delete the file. You gave some absurd explanation as to why you were not able to access it. You asked her to stay the night, but she declined and asked you to get her an Uber. She left and told a friend about what had happened when she got home.
13That matter was reported to the police on Christmas Eve 2022 and a video audio recorded statement was taken from her a few days later. You were interviewed on 6 January 2023 and made a predominantly 'no comment' interview with some denials. It was your right to approach the interview in that way.
14So that act took place on 9 May 2022 and plainly enough you were deliberately engaging sexually with a girl you knew to be under 16 and lied to her about your own age so as to not put you outside her acceptable age range. You simply used her.
15Your other victim, Elle Unwin[2], was also 15 at the time. Elle was born in September 2007. She was in fact only a few weeks shy of her 16th birthday when you approached her and her young friend at Melbourne Central station offering them vapes. That was at around 8.30 pm on a Friday night, Friday 9 September 2022. The friend declined, and so too did Elle, who said she would like your 'snap', a reference to your Snapchat.
[2] A pseudonym.
16You rode up the escalator together. You asked how old they were, and Elle told you she was 16 years of age, and the friend said she was 17. The friend said they had to leave or they would miss their train. You told the girls that you had two apartments and asked them to come back to one of them. Elle said that they could not as they had to catch their train. She gave you a hug and asked if you would like a kiss on the cheek. You responded by asking her if she wanted to go to the bathroom with you. She agreed to go with you. You took her by the hand and led her inside and asked the friend if she would like to join you as well. Her friend said no.
17Once inside, you and Elle started kissing. You told her you loved her and took off some of her clothes. At one point, you pushed her on the shoulders and down to her knees, and you pulled out your penis and put it in her mouth while holding the back of her head, asking as you did this whether she spat or swallowed. She did not answer. You got your phone out intending to record the act and when she saw the phone she understandably went to stand up but was pushed down.
18She got up again and you told her you would pay her if she continued. She said she had to go, and she exited the bathroom and was seen by her friend to look upset. You followed them and after showing some photos and a further attempt to have them come back to your apartment, they said their goodbyes and you all parted company.
19Elle was crying at the scene and told her young friend that she just wanted to go in there ‘to make out’.
20You called her later that night wanting to meet up again and you called her multiple times in the following days, telling her on one occasion 'watch your back I have your address.'
21She made a VARE statement on 5 October 2022.
22You were interviewed about that matter by the police on 29 November 2022, and lied, denying any sexual acts altogether, though of course that is not a matter in any way in aggravation. Those lies were, however, massively problematic and I am sure they had some role to play in the ultimate settlement of this matter. In Elle's case there were rape charges laid in relation to this act that I have described, and another, and your interview account of no sexual activity taking place was a very lame one indeed given the amount of time you had spent in the toilet together and what you told the police that you had done there, as in, nothing sexual at all. Just a very long, if not epic, urination. CCTV footage captured the two of you entering the toilet together and you were inside for about six minutes.
23There is a lengthy chronology of these matters before the court, set out at the end of each of the agreed summaries in this matter. That chronology includes dates being vacated owing to your decision taken along the way to change solicitors. These matters settled the day after the trial was listed to commence before me in August of last year. Special hearings had already been conducted with each girl, and I took the matter out of the Reserve List so as to be in a position to commence the first trial. There seemed to be some risk it would not actually be reached due to unavailability of a Judge.
24Owing to the manner in which the case has been settled, there were a number of charges which ultimately did not proceed, and I do not ignore that.
25So, that is only a brief summary of the two agreed summaries in this matter. As I have said, I will sentence pursuant to the more detailed agreed summaries that are before me marked as Exhibit A for Abby, Exhibit C for Elle. There is no need for me to mark the photographs in the depositions, these were photographs taken from relevant CCTV footage either at the station or at the restaurant, which show the appearance of each of these girls on the day in question.
26This was serious offending, and there plainly enough was an aspect of predatory behaviour here with the offer of vapes and lying about your own age. What on earth were you, a 22 or 23-year-old man, doing associating with young girls? One you knew, because you had been told, was under the age of 16, and the other, Elle, who was a person who looked young? You admit by your plea that you did not hold any reasonable belief that she was over the age of 16.
27That is so, whatever you might have said to the psychologist last November.
28I held some reservations in accepting the settlement of this matter and I contemplated if I could actually reject the plea in relation to Elle. However, to have done so would have propelled you into a rape trial with two such charges on the indictment. That offence has a 10-year standard sentence. An incriminating conduct notice had been filed in relation to your police interview and the alleged lies told within the interview. Your defence in relation to Elle was that there was no sexual activity at all. Your interview account and your defence of no sexual activity at all occurring within the toilet was so problematic that it would have exposed you to the real possibility of a guilty verdict being returned on each of those charges. It was not for me to expose you compulsory to that risk by rejecting your plea and nor in fact was there any real basis for me to reject your plea when I examined the case law in this area.
29You were admitting by that plea that you held no reasonable belief that she was over the age of 16. So be it.
30As to Abby, at least leading into the trial, you were arguing that you reasonably believed she was over the age of 16 and that there had been no discussion as to age. Of course, that was complete nonsense.
Impact
31I turn now to the impact of your crimes. There is a presumption of harm for cases involving children, and that is so whether they are 12 years of age, or a day shy of their 16th birthday. They are off limits to you, as you well knew in one case, and had at least some suspicions in the other. This case demonstrates that people of that age can be flattered, they can be excited, they can act in the moment, they can lose control, and very much to their later regret. There was no doubt some level of excitement for Abby, no doubt in the experience of having a secret meeting with what she thought was a 17-year old boy, one that started out pretty innocently with perhaps what she hoped was a trip to McDonalds and which quickly ran off the rails with in fact a 22 year old man filming that act that I have described. The same sentiment we can see in relation to Elle. She wants a kiss, a cuddle, a kiss on the cheek, or as she put it 'just wanting to make out' is the way she described it when she exited the toilet and was crying with her friend. Within moments, of course, she is on her knees in a public toilet with a 23-year-old man's penis in her mouth, and that man reaching for his phone to film the act. Children, even those close to 16, can get themselves into situations that they cannot really control or handle and which they later very deeply regret.
32The impact statements were read aloud by the prosecutor, or in Elle's case in fact by her. Abby and her parents’ impact statements are long, and they make for very sad reading indeed. I see no need to set out all the details of the impact in these my reasons, the impact statements do that. I do though go into a bit of detail here because beyond this point so much of what I am going to be saying relates to you and your prospects of rehabilitation, and what has been happening to you in your life and your background. Of course I will have regard to those things, I am required to, but I am sentencing you for your crimes - crimes committed upon them with the impact that is described by them. So I make no apologies for descending into some level of detail in relation to these impact statements.
33I will have regard only to the admissible portions of the victim impact statements placed before me. There were other acts described for which you do not fall to be sentenced, and of course I must not have any regard to them, or any impact said to arise from them.
34So, in Elle's impact statement she describes a loss of joy in life really. She feels humiliated. She has felt at fault. She looks back at her younger self, clueless and vulnerable and someone so easily taken advantage of, as you did. She feels sad for that girl. School became difficult and she disengaged, and she has social anxiety. She will not go back to Melbourne Central. She is cautious telling anyone that she is dating as to what took place. This offence has had deep impact for her, and of course that is so despite her apparent consent. As I say, the presumption of harm exists, and exists for a reason, and these impact statements in this case demonstrate why that is so.
35Abby feels shattered by the event and describes a loss of innocence and a loss of sense of security and trust. She cannot set foot in Roxburgh Park. It is a place which she associates with her loss of dignity, trust and peace. She could not face those who loved her, and she started to make some very bad decisions in her life using alcohol and drugs and trying to numb her pain. She lost control of her life and felt very lost. She looks at her life both before that day and since and notes the differences. She had a future, she was in a good Catholic school with dreams and friendships, and she became, as she describes, a shadow of that person. She does not think she will ever be the same and she feels broken. Her parents' sad impact statements echo her thoughts. Of course they are seeing it from their perspective, looking on at their child. The mother Alana[3] describes a daughter who has just completely changed, going from a compliant, caring, thoughtful and very innocent daughter who always attended school and who loved spending time doing family things, to a child who was absconding, taking drugs and ending up in police stations. A girl withdrawn and one who was acting out. There has been constant counselling. She describes Abby dropping out of school with a loss of ambition and drive. The mother feels some guilt, of course she should feel none. But she is not able to feel none, she is the mother, and the guilt she feels is that she was not able to protect her child. Abby’s father Jamie Terrie[4] describes how, as he put it, they lost the Abby they knew. He describes the massive changes in his daughter's attitude to life and how his once bright, vibrant and popular daughter had been plunged into the struggles that he has observed. He describes various traumatic events that have occurred since this timeframe.
[3] A pseudonym.
[4] A pseudonym.
36Now, I cannot sheet home to you every one of these things. He does, and he is Abby’s father, why would he not? There is just no question though that your criminal act has led to very large impact indeed. He describes his feelings when learning from Abby what you had done to her. Your conduct has left some deep scars, of that there can be no doubt. As he puts it, 'Our happy little girl was stolen and now we find ourselves on a deeply challenging path to reclaim what was lost together - one step at a time'.
37As I say, these are sad impact statements indeed - all of them. Of course, as sad as they are, I must guard against acting emotionally. I must not let the impact swamp the many other considerations that I must also have regard to in this case. But I am required to take into account the impact. I have set out only some of the detail. Your crimes have had a deep ongoing impact, and I take that into account.
In Mitigation
38Mr Kozlowski conducted the plea in mitigation. He relied upon a written outline of submissions for the plea dated 11 April 2025, as well as two reports from Alison Mynard. The second of those reports was an addendum which was obtained to deal with some problematic aspects of the first report. Mr Kozlowski placed before me a bundle of course completion documents, as well as a summary of the charges relating to Nina[5] for which you were found guilty last July and for which you are presently awaiting sentence. He also called your brother, Gokay Yildiz, to give evidence before me of the employment opportunities available to you upon your ultimate release from prison.
[5] A pseudonym.
39Either through the oral submissions made on the plea or the written materials filed, Mr Kozlowski provided to the court adequate detail as to your family, educational, work, drug use, relationship, physical and mental health background. I will not be going chapter and verse through all of that detail in these my reasons, which will be long enough as is.
40He made some submissions to the court as to your prospects of rehabilitation. He addressed me as to the objective gravity of the offending and as to the relevant sentencing purposes.
41In the plea in mitigation, he relied mainly upon the following matters in mitigation:
· Your guilty plea;
· The presence of some limited remorse;
· Your relative youth;
· Your disadvantaged background (Bugmy[6]); and
· The application of the first, fifth and the sixth limbs from the well-known case of Verdins v The Queen[7];
[6]Bugmy v The Queen [2013] HCA 37 (’Bugmy’)
[7]R v Verdins [2007] VSCA 102 (‘Verdins’)
42He conceded though that the offending was serious and that a prison term was inevitable here and one of a dimension requiring the fixing of a non-parole period.
Prosecution
43The prosecutor, Ms Grunwald, had prepared some written sentencing submissions dated 11 April of this year. I do not see any need to repeat them all in my reasons either. She made some oral submissions briefly today. None of the submissions, either written or oral, were in any way controversial. The Crown accepted that the general application of the principles from the case of Bugmy would have some application here, and they did not cavil with the application of the fifth and the sixth limbs from the case of Verdins. They did, however, argue that the material did not rise to the level of enlivening the first limb from that case. That there was no Verdins driven reduction in your moral culpability.
44They argued that there was still some minimisation of offending by you and that community protection was a matter of some concern given the chronology of the admitted, and for that matter, the proven offending that was found proven last July.
45The Director of Public Prosecutions was calling for a head sentence with a non-parole period, but so much had been readily conceded as being inevitable by your own counsel.
Background
46I am going to turn to your background, and I will do that quite briefly, as I have no reason not to accept the submissions and the material placed before me as to your family background. I just see no utility in repeating it all back to you. Much of it is set out in the first report of Ms Mynard and there is also some coverage of your background in your counsel's written submissions marked as Exhibit 1.
47You were born in August 1999. You are now 25 years of age, turning 26 in August. You were one of four children. You had two sisters who were 13 and 20 years older than you and also an older brother who was 12 years your senior.
48Sadly, your mother passed away from breast cancer when you were just three years of age and so you have no memories of her at all.
49You were close to your father but tragically he died in a car accident when you were five years of age. So it follows you were then raised by one of your sisters and her husband.
50Your brother Gokay was called to give evidence before me and he confirmed the death of both of your parents in his account to me.
51I am told that during your childhood there was some physical abuse. That is described in the expert report and also in the written submissions. You also claim you were yourself a victim of sexual abuse commencing when you were a Year 9 student - it was from a teacher. You did not tell Ms Mynard anything about that in her detailed first assessment conducted in November of last year, and you shared that detail only in the follow-up assessment that I was told took place in February of this year. The details of that alleged sexual abuse are included in that supplementary report of Ms Mynard, including the reasons why you had not mentioned it.
52By way of education, you left school at the age of 15, when the Department of Health and Human Services became involved in some shape or form.
53You worked at McDonalds for a couple of years as well as at a Hyundai dealership cleaning offices. You also, between the ages of 17 and 18, worked at a gaming café in some form of managerial position, and plainly, given the evidence of your brother, you have worked in the past with him in his business.
54Mr Kozlowski told me that during the height of the COVID pandemic, you were transient and started drinking and using cannabis in 2020, and it was during this stage of your life that you committed the offences I am dealing with. None of these things really explain the offending I am dealing with, occurring as it did in 2022. There is no hint of any disinhibition brought about by drugs or alcohol or those things having any role to play in these choices that you have made.
55I am told you were a capable, if not very capable, soccer player with some hopes of playing professionally. That you played soccer in your teenage years until you were involved in a car accident yourself.
56I have been told that since being in custody, you have resumed playing soccer and you would like to find a job in the future somehow aligned with that sport when you ultimately are released.
57Whilst in custody you have been undertaking a number of courses, and you have been employed as a personal carer for a disabled prisoner. You have described some unpleasant experiences befalling you in prison. These things are spoken of in more detail in the expert report.
58You have a criminal history. It comprises only a single appearance and it is of no relevance to my task. It appears you did very well in the course of what was a 10 month sentence deferral which led into the imposition of the very brief non-conviction adjourned undertaking in August 2020 for what were predominantly driving offences.
59Your counsel did tell me though of some subsequent matters. Now, some of those are proceeding by way of not guilty pleas. I was told they relate to alleged family violence matters and also an allegation of causing injury. They are listed I believe in May for mention. The key word there is they are 'alleged'. I can have no regard to those matters at all as of course they are not proven allegations.
60The subsequent proven matter is of course relevant. It is in a quite different position, pertaining as it does to more proven sexual misconduct. The summary was marked as Exhibit 4. That is all it is, because the matter proceeded by way of a contested hearing in the Magistrates’ Court. I was told by Mr Kozlowski that you were found guilty in July of last year of sexual assault of a 16-year-old girl and an offence of sexual activity directed at that same girl. I have been told that for whatever reason the Magistrate did not finalise the matter. That sentence is listed in June of this year. I suppose in July of last year it seemed likely that the outcome of the then trial matters would be known within weeks as the trials were listed in August 2024. That might explain why that matter was adjourned. It does not really matter. It was. The summary is no doubt based on the video audio recorded evidence of the young girl, Nina, which is in the depositional materials at p70 of the filed depositions. Plainly enough she was 16 years of age. You told her you were 18.
61That offending against a 16-year-old girl in the toilet of a gymnasium, which has been established beyond reasonable doubt, was committed on 17 December 2022. So, that was after you had been interviewed in November of that very same year in relation to the allegations made by Elle. Now, I enquired about that matter for three reasons. Firstly, had you been sentenced to a term of imprisonment that would have been relevant to the application of the Serious Sexual Offender Provisions in my sentencing task. Secondly, it would have been relevant to the amount of pre-sentence detention to declare, if some had previously been declared, and finally, it would be relevant to the judgements that I have to make as to rehabilitation in the future and risk in the future. Now, only that final consideration remains, for I have been told that the matter has not been dealt with, you have not been sentenced, and there has been no previous pre-sentence detention declaration. So, the Magistrate when dealing with you in June, or whenever it might be, will have to consider herself the application of the Serious Offender Provisions. They do not arise for me as I have only two relevant offences and no qualifying matters given that that hearing down below has not been finalised. It will be different by the time she deals with you given that I am now passing prison sentences on these two relevant sexual offences.
Bugmy
62I do not pretend that I have mentioned every detail of your background that has been placed before me or that which is contained within the report or the written submissions. I have dealt with it really only by way of an executive summary.
63An offender's circumstances and their experience during their childhood and in their formative years must be considered in the court's sentencing task, not just out of some historical curiosity, but because of course the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences, and they can sometimes explain, but not excuse, offending. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect into account when sentencing is just the mark of a humane society.
64Mr Kozlowski argued that the principles derived from the High Court case of Bugmy had some application here. Those principles have been referred to in many other cases in this State, including the decision of Herrmann[8] . He said that he was relying upon those principles in the general fashion described in the case law.
[8]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
65The application of these principles does not depend upon proof of any causal connection between the background and the offending, nor is there one here.
66I am satisfied that your early background had a level of disadvantage, that there was a level of dysfunction and instability in your developmental years. How could there not be? You had the large misfortune of losing both your parents when you were still very young, and I am prepared to accept that you were exposed to some physical and also some sexual abuse. So, yours was an unenviable background. I give it full weight in the way in which that phrase is employed in the case law, including those cases I have mentioned of Bugmy and Herrmann, but also other cases including Sabatucci[9], Newton[10] and the case of Dhal[11].
[9]Sabatucci v The Queen [2021] VSCA 340
[10]Newton (a pseudonym) v The King [2023] VSCA 22
[11]Dhal v The King [2023] VSCA 289
67This case law makes it clear enough that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though no causal link is required, and also the nature of the crime or crimes and the relative importance in a particular case of sentencing considerations, things such as deterrence, community protection and rehabilitation. See the case of Terrick.[12] Our backgrounds leave their mark and no doubt yours has left a mark on you.
[12]DPP v Terrick [2009] VSCA 220
68I take your background into account, as far as I am able to, including as giving rise to some reduction in your culpability.
Guilty Plea
69I turn to some of the other matters raised on the plea by Mr Kozlowski. Firstly, the fact of your guilty plea and the stage it was entered. This was not an early plea by any measure. Each counsel sought to convey that it was settled at what I would have described as the door of the court. Mr Kozlowski refers to it as being 'at the court’s doorstep' and Ms Grunwald used a similar expression with resolution on 'the doorstep of trial.'
70The first trial was listed to proceed before me. The next was to immediately follow.
71I have said already there is a lengthy chronology of the listing history of this matter. I am not going to descend to the full detail of that.
72I had my empanelment script ready to go and we had made enquires as to the availability of a jury panel. Your guilty plea is still important though. It is not to be treated by me as late as the chronology would suggest given the existence of some other charges which did not proceed in relation to each girl.
73No-one was suggesting it was an early plea. Plainly it was not. You have though ultimately taken legal responsibility for your crimes, and that is important.
74As a result of your guilty plea, the time, cost and the effort of a full trial up in this court has been avoided.
75The fact is though, neither girl was spared the experience of giving evidence as Special Hearings were conducted in September 2023, and for Abby in May 2024. Each was cross-examined.
76You have still facilitated the course of justice. A trial has not been necessary. Many witnesses have been spared the experience of giving evidence, and you must be rewarded for facilitating the course of justice - that is just the law.
77I take these various matters into account in mitigation.
Remorse
78As to remorse, Mr Kozlowski really could not point to any. He asked me to infer the presence of some remorse from the fact of your guilty plea. A guilty plea can be indicative of some remorse but that is not always the position.
79Here, I have your interview in each case. There were complete denials of any sexual activity at all in relation to Elle. The conduct of the special hearings was not suggestive of any remorse. You, through Mr Kozlowski, were putting to Abby that ages had not been discussed and that she had presented to you what you believed to be a 'P' plate licence and that she had asked to drive. Each of those things were being put on your instructions to her to suggest that you had acted reasonably as to her age, and of course each was false and each was rejected by the witness. That was at the special hearing in May of 2024. That such matters were put is not a matter in any way an aggravation, I want to make that plain, but it is not suggestive of remorse at that point.
80As to the agreed summary, it makes clear you knew she was 15, she told you she was 15. You lied about your own age. I have the far more recent account provided by you to Ms Mynard and that is problematic.
81You are undoubtedly still minimising your criminality to a degree despite what Ms Mynard says in her second report. She did not have your interview. She did not have the special hearings. She noted the absence of minimisation but really ought not to have. I do not accept her view on that score.
82Paragraphs 58 and 59 of the original report are not suggestive to me of remorse, nor the absence of minimisation.
83I am prepared to treat your guilty plea as indicative of some pretty limited remorse, and I am prepared to take that into account in your favour.
Rehabilitation
84I turn to your prospects of rehabilitation. This was serious offending. You were 22 or 23 years of age, and whilst I have not devoted, and I will not devote a separate portion of these reasons to your relative youth, it is of course a matter of some significance to my sentencing task for all the reasons set out in cases such as Mills[13] and Azzopardi.[14] Young people can make mistakes. They are not mature, they sometimes act in the moment and sometimes without much concern for consequences. They are not fully developed. They can be more easily rehabilitated, and they can also be damaged and/or corrupted by what occurs in a custodial setting. Youth is always a matter of significance to a court, though the weight given to it will always depend on the nature and the seriousness of the offending. I apply those principles from those cases to my task, adapted though as they must be to one who was 22 or 23 years of age at the time of offending, and 25, almost 26 at the time of sentence.
[13]R v Mills (1998) 4 VR 235
[14]Azzopardi v The Queen [2011] VSCA 372
85You, as a 22 and 23-year-old were plainly wanting to engage sexually with young girls. You have only a very slight prior criminal history which has no relevance at all to my task. The same of course cannot be said of that subsequently proven matter relating to Nina.
86In the space of eight or so months you have sexually offended against two girls under the age of 16 and one 16-year-old girl. On two of the occasions, you have misrepresented your own age. All of the conduct was arising in public settings and all of it involved you targeting the girl. This is obviously disturbing.
87I have risk assessments in the report of Ms Mynard, but what reliance can I place on such a result when the author concludes there has been no minimisation. (See paragraph 66(b)). Plainly there was and still is some minimisation, and that is despite your plea, despite your acceptance of your legal responsibility, and Mr Kozlowski accepted that that was so. I note also the expert's note as to attitudes that condone or support sexual violence where she cites your belief as to their ages. That is your account given to her. Even on the unduly favourable view she took on these topics, one I do not accept, she indicated you had a moderate risk of future offending.
88You have some family support, but for whatever reason, you just will not accept it at the moment. Your brother spoke of his frustration - I think is the right word - in not being able to visit or communicate with you for close to 18 months. He is prepared to offer you work upon your ultimate release but presently you will not engage in any way with your family. It is difficult to predict how that will play out. You would surely be far better to let them support you and to accept visits from them, but I suppose it is ultimately your decision.
89Plainly, the sentence I will impose will add to the long period you have already spent in prison, and it will be of some deterrent effect. You have done a large number of courses in prison, and you are working presently, as you always have in prison. These are positives. No doubt you will be asked to do some form of sex offender program. Ms Mynard speaks of some of your rehabilitative needs.
90No separate submission was made to me about delay, and that is hardly surprising given that there was a change of practitioner which led to some adjournments along the way, and also that this matter plainly should have been well and truly finalised last year. The matter settled in August. The plea was adjourned on your counsel’s application to December and then there was a further adjournment sought on the day of that plea, there had been a letter foreshadowing it. That was the application made on that date in December to get the addendum report. This matter has been outstanding for a long time, and it cannot have been easy for anyone concerned with this case to have had it outstanding, it cannot have been easy for you to have it hanging over your head, and of course I take that into account. But it cannot have been easy for anyone else, including the victims or their families waiting for this case to crawl to the finish line.
91I can only be relatively guarded as to your future prospects. The chronology of offending is really quite concerning. Counsel submitted on your behalf that you had reasonable prospects of rehabilitation. I accept that you do have reasonable or realistic prospects of rehabilitation into the future.
The reports of Ms Mynard
92I have mentioned already the reports of Ms Mynard. I am not going to set out much more detail from those reports. I act on the background contained within them. Also, on the diagnoses she speaks of. As I have said already, I just do not accept her view that there has been no minimisation. Plainly there still is. I do, however, accept that the fifth and sixth limbs from the case of Verdins are engaged here, that is, that there is an increased prison burden arising from the conditions spoken of and also some risk of deterioration of your mental health. So, I make a modest allowance in that regard. The written submission from Mr Kozlowski asserted that the third limb from that case was engaged. Mr Kozlowski amended that in the running. He withdrew any reliance on the third limb, he meant to assert that the first limb from that case was engaged, that is, that there was some reduction in your moral culpability arising from the post-traumatic stress disorder and its impact upon you. He relied upon paragraphs 74 and 75 of the report.
93The Crown challenged the application of the first limb. There has to be at the least a realistic connection between a condition and the offending to enliven this first limb. I regard Ms Mynard’s opinion as being very much speculative. Nor is it one that actually grapples with the reality of what you did. You plainly had the capacity to think through what you were doing, and plainly you did. In the case of Abby, you were taking calculated steps to bring about sexual contact, including lying about your own age and persisting with and expanding upon those lies when you met up with Abby to explain how it might be that a 17-year-old could be driving a vehicle. These were not good choices that you were making in terms of sexual partners, of course they were not, but they were choices that you were making, and they were ones not being taken in an impulsive fashion at all. You plainly, in the case of Abby, were considering her age. There was no other reason for you to drop your own age back to 17, other than to try to bring about sexual contact, which was what you were seeking virtually from the very outset in that restaurant. You were thinking these things through really quite deliberately. I am not satisfied on balance that the first limb is engaged in this case. Had it been engaged, by the way, it might not have produced any net benefit to you in any event given that the same condition leading to that reduction would undoubtedly have also heightened the need for community protection. In any event, I am not satisfied that the first limb is engaged here.
The Offences
94Let me then turn back to the offences.
95The agreed summary describes your offending - I am not going to repeat all the agreed facts - your counsel conceded the seriousness of this offending. He was right to make that concession.
96Sexual offences against children are inherently serious. They are not free of harm. I mentioned earlier the presumption of harm even if the child is close to 16 years of age, and surely this case demonstrates the fact that that presumption of harm is not illusory.
97In the case of Clarkson v The Queen[15] the Court of Appeal held that under the legislative scheme a child under 16 cannot consent to sexual penetration and that this prohibition has two purposes: protecting the child from harm that can come from premature sexual activity; and deterring adults who would contemplate having sexual contact with someone under the age of 16. This prohibition is founded on the presumption that premature sexual activity can cause long term physical and psychological harm and is unaffected by the presence of apparent consent. To conclude otherwise, and to treat apparent consent as somehow mitigating, would run counter to the legislative purpose. It is a difficult presumption to rebut, and no attempt was made to do so here for very obvious reasons. Abby Gibson speaks of the significant impact upon her. So too her parents. So too does Elle. These impact statements spell out very clearly the reasons why the presumption of harm actually does exist in this field.
98Now, each counsel employed adjectives to describe what level the offending fell at. No-one should mistake what was being suggested. As I said in the course of the plea this morning, no-one was saying that this was not serious offending or that it has not had large impact.
99It is just that one of my tasks as a judge passing sentence is to assess the relative gravity of the instance of an offence. I believe it is always a difficult task trying to plot where on the spectrum of offence seriousness an offence may sit. So it is then we try to employ adjectives, as each counsel did, but of course differing judges or differing counsel might apply different adjectives or have different views as to where a crime might fall on the spectrum of offence seriousness. We can all hold differing views as to what a mid-level or a high-level or a low-level example of an offence might look like. It becomes harder still where a hybrid phrase is then employed as it was here when I am dealing with the submission that something falls in the lower mid-range, or words to that effect. It suggests there is some clear mathematical point on a spectrum. That sort of thing just does not exist. I think it is far more profitable to look at the actual conduct itself rather than trying to place the conduct into some arbitrary category or go on some quest for an adjective.
100Of course, I accept your counsel's submission that there was no breach of trust involved here, as often enough there is. That is clear. He suggested that one could envisage forceful penile/vaginal penetration. Well, one could envisage almost anything, but if I start to envisage that, that would be crossing over to a quite different offence, one of rape. I have been sitting as a judge for 15 years, I can construct in my own mind a hypothetical example of any given crime that has virtually every aggravating feature, and in your case one that is much more serious than yours, but again, that is just a distraction from my true task of assessing the gravity of your crimes and that is best assessed by looking at what you did.
101You were initiating contact with these young girls. You were plainly doing so with sex on your mind, irrespective of their age. Mr Kozlowski initially suggested that I really could not reach that view and that I could not exclude the view that you were just wanting some non-sexual interaction. That was really a fanciful submission. The agreed summary put paid to that submission as he ultimately accepted. You went from commenting on Abby’s ‘hotness’ to asking her to suck your penis within moments. You were escorting Elle off directly to the public toilet. Within moments of meeting you learned that one of these girls, Abby, was completely off limits to you and yet you pursued her until you penetrated her. I have already mentioned it was an unprotected act. You lied about your own age. You knew she was 15. You filmed the conduct.
102As to Elle, you held no reasonable belief that she was over the age of 16. That just did not stop you. You just did not care. You were offering vapes and offering to pay money in her case when she was showing reluctance, as she did. Again, it was an unprotected act, this time in a public toilet.
103The way in which you approached complete strangers, not just strangers but children or young-looking teenagers in public places with sex in mind irrespective of their ages, is of course worrying. As I have said, you filmed the conduct in relation to Abby. That is a matter of some aggravation. You had in fact been prepared to plead to a separate charge in relation to the production of the child abuse material, but the matter settled in the way that it did with the concession made that I could have regard to the filming as part of the circumstances of the offence I am dealing with.
104This offence captures conduct against children who are aged from 12 to 16. There is a different offence if the child is under the age of 12.
105It is true then that each of these girls were on the high end of the restricted age, in that each girl was 15, and one, Elle, well she was only weeks from her 16th birthday.
106You were closer to the age of the girls than sometimes is the position.
107These are still serious crimes. Neither fall at the lowest or highest levels for that matter, and no-one suggested they did.
Purposes
108I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose. I do not ignore it.
109I have to give appropriate weight to the other purposes of sentencing. I am required to punish you justly and proportionately. I must also denounce your conduct, and that is of importance. You should be ashamed of yourself, more ashamed than you are.
110I must pay regard to the need to protect the community from you, and that is of some importance given your conduct.
111I have to give adequate weight to specific and general deterrence. Specific deterrence relates to the need to deter you. Plainly, I must deter you from such conduct in the future. Get it into your head; leave young girls alone.
112General deterrence relates to the need to deter other future offenders, and that must be given real weight in my task as well.
113This court has to pass sentences which will cause those considering committing crimes such as yours to reflect on and to hopefully re-consider their position. Sexual offences targeting children are serious crimes. Future like-minded offenders must understand that fact and the likelihood that if they choose to commit such crimes as you did, that serious sentences will be imposed upon them. We seek to deter them from offending in the way that you did.
114I have to pay regard to the impact of the crimes, and I have spoken of that earlier in these reasons. I must have regard also to the maximum penalties.
115I have to pay regard to current sentencing practices - that is not a single controlling factor. I have looked at the statistical material on the Sentencing Advisory Council site for this crime. Statistical material though has inherent limitations. I have looked also at the Judicial College of Victoria online collection of sentencing cases for sexual penetration of a child under the age of 16. Given that these are standard sentence matters covered by that scheme, I must only pay regard to sentences that have been captured by that same scheme, or by statistics relating to cases covered by the scheme.
116I am sentencing you for your crimes - that is not a statistical or mathematical exercise. The outcome in this case is not dictated by what has happened in other cases or by average outcomes or trends as disclosed in the statistics that I have mentioned. Those sorts of things will never give detail about an offender's background or the stage of the plea or whether for instance there is genuine remorse. They will never spell out all the matters in mitigation and aggravation. It is those very things which lead to the sentence being imposed, the sorts of things that I have been mentioning in the course of my reasons. Things that will never be ascertainable from the mere statistics.
117So, it follows, statistics will never disclose the reason why a particular sentence was selected.
Standard sentence scheme
118I am required to have regard to the standard sentence scheme and the standard sentence in this matter.
119The effect of that scheme has been discussed in many other cases, including in cases of Brown,[16] Victorsen[17] and the case of Quah[18].
[16]Brown v The Queen [2019] VSCA 286
[17]Victorsen v The Queen [2020] VSCA 248
[18]Quah v The Queen [2021] VSCA 164; 290 A Crim R 136
120The standard sentence for this offence is six years. That period is the sentence for an offence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. That is something done without reference to purely personal matters.
121It is my view that the crime against Abby falls towards, but not at the mid-range, taking into account only those objective factors affecting the seriousness of the offence, and the crime against Elle falls below that level. Abby was younger, she told you her age, you lied about yours, you had more time, far more time to think about her age and the limitations in place and the ramifications of your actions, and yet you persisted. You persisted in the lies to bring about sexual penetration. You then filmed what you knew to be the illegal sexual act with a child.
122The standard sentence though is only one of a number of matters that I am required to take into account. Where it does apply, as it does here, I must take it into account as one of those factors.
123It does not have primacy over other factors which have to be taken into account. It has been said in some of that case law that I have mentioned that it introduces an additional factor in the form of another legislative guidepost.
124It was never intended to interfere with the intuitive synthesis which is at the heart of sentencing in this State.
125It was never intended to bring about two-stage sentencing.
126The standard sentence does not represent some starting point from which the sentence is to be fashioned or structured with a series of either additions or subtractions made along the way. To do that would involve two-stage sentencing which is prohibited.
127The fact is, of course, there is no starting point.
128Nor does the scheme otherwise affect the matters that a court must take into account.
129It does not alter the requirement that exists for me to assess the seriousness of the offence or the manner of assessing the seriousness of the offence.
130These amendments do impact upon the consideration of past sentencing practices, as I mentioned earlier. When considering sentencing practices or looking at comparable cases, I must only have regard to sentences imposed for the offence of sexual penetration of a child under 16 when it has been dealt with as a standard sentence offence.
131This standard sentencing regime also has ramifications for the ratio of the non-parole period to the head sentence.
Totality
132I take into account the principle of totality of sentence. I have to consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. I have taken a last look at the effect of my order for cumulation to ensure the overall effect is not crushing and is consistent and commensurate with your overall criminality. Plainly there must be a meaningful level of cumulation here. I am dealing with two quite separate crimes. They have been committed upon two totally unconnected victims at different times, and of course with different impact. It is not a ‘job lot’.
133A court must never impose a sentence more severe than that which is required to achieve the purposes of sentencing. Prison is plainly a disposition of last resort. It always has been. It always will be. Mr Kozlowski concedes that a head sentence of a dimension requiring me to fix a non-parole period is simply inevitable here. That concession is undoubtedly correct.
134A court must never impose a longer prison sentence than is required to achieve the various purposes of sentencing.
135What I will do is I will pass individual sentence in relation to each charge. The longer sentence will be the sentence imposed in relation to Abby. That will be the base sentence. As I have said, you knew her age, you lied about your own, you pursued her and then you filmed the act of penetration. I will then pronounce a level of cumulation as between the two indictment sentences and reach in that manner a global head or total effective sentence as across these two indictments. I am then required to fix a single non-parole period.
136I can make no assumptions as to your being released on parole in advance of the expiry of the head sentences I will soon pronounce. That sort of speculation is prohibited. Whether you are released on parole will be a matter entirely in the hands of the Adult Parole Board. It will be really between you and them. I am not to speculate about that.
Forfeiture
137I will not today make the forfeiture order pertaining to the mobile phone. The transcript will reflect the discussions about that issue and the desire that your legal team have to recover from that phone some material in relation to some outstanding charges which are going for a contested hearing. The concern was that if I signed that order today, that the order might then be acted on and the material lost for all time. The preference is that I sign that order in chambers perhaps at a later time once arrangements have been made to recover the relevant material. I do though take into account the fact that the phone will be forfeited and hence lost to you.
138Just bear with me. Stand up.
Sentence
139On Charge 1, on Indictment P10317887.1, this relates to the offence against Elle, I convict and sentence you to three years' imprisonment.
140On the other indictment, that is P10056506.3 relating to Abby, I convict and sentence you to four years, three months' imprisonment.
Cumulation
141I direct that 15 months of the sentence imposed on the first indictment relating to Elle is to be served cumulatively, that is on top, of the sentence imposed on the other indictment.
Total Effective Sentence
142These orders for cumulation produce a global total effective sentence of five and a half years' imprisonment as between these two indictments.
Non-Parole Period
143I fix a period of three and a half years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
144You have already served 829 days of this sentence by way of pre-sentence detention, and I am required to enter that into the records of the court pursuant to s18 of the Sentencing Act.
6AAA
145I have told you that I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences after a trial, I would have sentenced you to seven years’ imprisonment and fixed a non-parole period of five years.
146Have a seat please.
Sex Offender Registration Act
147You have been sentenced by me in relation to what are described as two Class 1 offences under the Sex Offender Registration Act2004. It is agreed that this triggers an obligation for you to report under the Sex Offender Registration Act.
148Upon your release from custody, whenever that is, you must comply with your reporting and other obligations under that Act for the remainder of your life.
149I have to advise you about the nature of your obligations under the Act. There will be some written material coming to you that does that in great detail. I am going to be asking you in a moment to sign an acknowledgement of the fact that you have received the details of your obligations.
150Mr Kozlowski, you have seen these forms before, it is a very lengthy document. I have already signed it and all I am getting him to do is to acknowledge that he has received those explanations of his responsibilities.
151As you are aware, the Act imposes a number of conditions upon him. They are serious matters. They include impediments to future employment in a number of areas, also impediments to his future contact with children and the need to report any contact in a timely fashion. So, of course, he will need to familiarise himself with these matters because any breach of that Act, or his obligations, is a very serious criminal offence often punished by a significant term of imprisonment.
152No-one could sit where he is sitting and read through that, or be expected to read through that detail now, so that is not what we are doing. I am just getting him to acknowledge by his signature he has received that notification.
153Do you need to speak to your client about that at all, or not, do you - - -
154MR KOZLOWSKI: No, Your Honour, I'm sure he understands it.
155HIS HONOUR: So, he has heard me say all those things anyway, so I am going to ask him in a moment to simply sign that acknowledgment, and I'll have it witnessed by my associate, so that's all he is being asked to do. What I'll do is I think I'll have my associate go down the back of the court, together with you, I think, you go down as well, and if he needs to discuss it with you, I am happy for that to occur. But he will have plenty of time to read that document in due course, okay. Yes, pop down if you would.
156ASSOCIATE: That acknowledgement is signed - - -
157HIS HONOUR: I understand the acknowledgement has been signed.
158FinalIy then, I am required under the provisions of the Sentencing Act s5B(4) and (5) to state the reasons for imposing the sentence - this is in relation to the standard sentence obligations. Section 5B(5) requires me to refer to the standard sentence for the offence of sexual penetration of a child and explain how the sentence I have imposed on you relates to the standard sentence. I know that there are some of my brother and sister judges in relation to that provision who believe they can simply say that it is either less or more than the standard sentence. I do not believe that that pure mathematical statement, as correct as it would be, is the sort of statement contemplated by this provision.
159I am required to identify the facts, matters and the circumstances which bear upon the judgment I have reached as to the appropriate sentence for the crime.
160My lengthy sentencing reasons to this point will explain the reasons why the sentences imposed sit below the specified standard sentence. I regard these offences as involving one falling toward the mid-range, the other falling at a lower level, looked at purely objectively in terms of the seriousness. So, neither fall at the mid-range.
161Of course, my sentencing task is not limited to an examination of the objective seriousness of the offence. There are subjective matters, including a variety of matters in mitigation, which have to be factored into by task.
162I have arrived at what I regard as the appropriate individual sentence by a process of instinctive synthesis, taking into account all the matters I am required to take into account, including of course the existence of that standard sentence scheme. It is, as I have said, but one of the many factors that I must have regard to.
163Let me just see if there are any other matters that I need to attend to, from your perspective, Mr Makary.
164MR MAKARY: No, Your Honour.
165HIS HONOUR: For yours Mr Kozlowski.
166MR KOZLOWSKI: No, Your Honour.
167HIS HONOUR: You will go down and see your client and speak to him about the outcome today and his rights in relation to it, you will go down today and see him - - -
168MR KOZLOWSKI: Yes, Your Honour.
169HIS HONOUR: Yes, okay. Do I actually need to pronounce anything in terms of the forfeiture? Let me just think about it. I will simply adjourn the forfeiture order to a date to be fixed, and I will make a note on the order why, and my notes in my book and indeed my revised reasons will explain that I am not functus officio in this matter, that I will be prepared to sign that in chambers by way of an administrative order. I'll just wait for the say-so from the parties in relation to that. Well, there's nothing further to deal with so that completes the matter then. Mr Yildiz can be removed now then. Mr Kozlowski will come down and see you downstairs, Mr Yildiz. I think we will just adjourn the court to a date to be fixed please, thank you.
- - -
[15]Clarkson v The Queen [2011] VSCA 157
0
13
0