DPP v Calladine
[2020] VCC 2014
•14 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00763
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA CALLADINE |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2020, 27 October 2020 | |
DATE OF SENTENCE: | 14 December 2020 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2020] VCC 2014 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sexual penetration of a child under 16 – standard sentence – produce child abuse material – possess child abuse material –guilty plea – youthful offender – gravity of offending at low end – first time offender – cognitive deficits – low risk of re-offending – vulnerability in custody / detention – very good prospects of rehabilitation – application for sex offender registration exemption order
Legislation Cited: Crimes Act 1958 (Vic), ss 49B(1), 49B(3), 51C(1) and 51G(1); Confiscation Act 1997 (Vic), s 78(1); Sentencing Act 1991 (Vic), ss 5(1), 5A(1)(b), 5A(3), 5B(2), 5B(5), 6AAA; Sex Offender Registration Act 2004 (Vic), ss 11A, 11B(1)
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Boulton v R (2014) 46 VR 305; Brown v R [2019] VSCA 286; Clarkson v R [2011] VSCA 157; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Garside [2016] VSCA 74; Director of Public Prosecutions v Ghazi [2015] VSCA 188; Director of Public Prosecutions v Jenkins [2019] VCC 1504; Director of Public Prosecutions v Mafrici [2020] VCC 396; Director of Public Prosecutions v Moulden [2019] VCC 386; Director of Public Prosecutions v Prior [2019] VCC 1672; Director of Public Prosecutions v Yuen [2020] VCC 1527; R v De Leeuw [2015] NSCCA 183; R v Mills (1998) 4 VR 235; and R v Rankin [2001] VSCA 158
Sentence: 2 year community correction order with conviction with special conditions – 300 hours of community work, mental health assessment and treatment and participation in programs to address offending. Sex offender registration exemption application granted
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Mr G. Thomas | Greg Thomas Barrister & Solicitor |
HER HONOUR:
Introduction
1 Joshua Calladine, you have pleaded guilty to one charge of production of child abuse material contrary to s.51C(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’) (Charge 1), three charges of sexual penetration of a child under 16 years of age contrary to s.49B(1) of the Crimes Act (Charges 2, 3 and 4), and one charge of possession of child abuse material contrary to s.51G(1) of the Crimes Act (which is Charge 5). The maximum penalty for each of Charges 1 and 5 is 10 years’ imprisonment, whilst the maximum penalty for Charges 2, 3 and 4 is 15 years’ imprisonment.
2 Sexual penetration of a child under 16 years of age is also a standard sentence offence, and as this offending was committed after 1 February 2018, the standard sentencing regime set out in the Sentencing Act applies. Pursuant to s.49B(3) of the Crimes Act, the standard sentence for each of Charges 2, 3 and 4 is six years' imprisonment.
3 These offences arise from a series of incidents which occurred between 5 September 2019 and 20 January 2020. You were 18 years of age at the time of the offending. At the outset I note that irrespective of the sentence I impose on you in this case, given that you are being sentenced as a young offender (that is, you are still under 21 years of age at the date of sentencing) the serious sexual offender provisions in the Sentencing Act do not apply.
Circumstances of the Offending
4 The full circumstances of the offending, arrest and record of interview are set out in the Summary of Prosecution Opening for Plea dated 1 October 2020. However, in shorter compass, on 17 January 2020, you and Lynn Adams,[1] who was 14 years of age at the time, were involved in a criminal offence together. As a result of that offending, police attended at your home and executed a search warrant. Your phone was seized and analysed as part of that investigation.
[1] A pseudonym has been used to protect the identity of the victim in this matter.
5 On 20 January 2020, police members became aware that your phone contained videos, images and messages related to sexual activity with Lynn, who was known by police to be a person under the age of 16. Police members then spoke to Lynn about the material on your phone. Lynn refused to give a statement.
6 On 24 January 2020, a police member extracted the data from your phone and reviewed and catalogued the images, videos and messages. Those images, videos and messages provide the basis for the charges on the indictment. Whilst there appears, on the face of it, to be some artificiality in the distinction drawn between the conduct constituting the production of child pornography and the conduct constituting sexual penetration of a child under 16, it is explicable on the basis of what could be proven through the documents in the absence of any evidence from Lynn.
7 On 5 September 2019 you used your mobile phone to take a video and photographs of yourself penetrating a young female’s mouth with your penis. The young female is believed to be Lynn. You then saved the video and photographs.
8 On 21 September 2019 you used your mobile phone to take three videos and photographs of a young female sitting on your pelvis with your penis exposed, and two of the same female lying on a bed exposing her breasts. The young female is believed to be Lynn. You geotagged the videos to Lynn’s home address and saved the video and photographs.
9 On 23 September 2019, you used your mobile phone to engage in a text conversation with Lynn in relation to penile/vaginal intercourse which the two of you had engaged in. The conduct the subject of this conversation is the basis of Charge 2 – sexual penetration of a child under 16 years of age.
10 On 24 September 2019, you used your mobile phone to engage in a text conversation with Lynn in relation to penile/vaginal intercourse which the two of you had engaged in. The conduct the subject of this conversation is the basis of Charge 3 – sexual penetration of a child under 16 years of age.
11 On 19 October 2019, you used the SnapChat App on your phone to take a video and photographs of yourself penetrating a young female’s vagina with your penis. The young female is believed to be Lynn.
12 On 21 October 2019, you used your SnapChat App on your phone to take a video and photographs of yourself penetrating a young female’s mouth with your penis. The young female is believed to be Lynn.
13 On 27 October 2019, you used your mobile phone to take a video and photographs of yourself penetrating a young female’s mouth with your penis. The young female is believed to be Lynn. You then saved the videos and photographs.
14 On 30 November 2019, you used your mobile phone whilst in a bathroom to take a video and photographs of yourself penetrating Lynn’s vagina with your penis. You then saved the video and photographs. This is the basis of Charge 4 – sexual penetration of a child under 16 years of age.
15 On 5 December and 17 December 2019, you used your mobile phone to take video and photographs of yourself penetrating a young female’s mouth with your penis. You then saved the video and photographs. On each of those occasions the young female is believed to be Lynn.
16 The videos and photographs produced by you on each of 5 September, 21 September, 19 October, 21 October, 27 October, 30 November, 5 December and 17 December 2019 constitute the basis of Charge 1 – production of child abuse material.
17 At the time your phone was seized it contained 18 category one videos, and 11 category four videos. It also contained 118 category one, 17 category three, and 17 category four images. Each of the video and images are believed to be of Lynn. It is not alleged by the prosecution that you were in possession of child abuse material depicting any other child. The possession of this material constitutes the basis of Charge 5 – knowingly possess child abuse material.
Arrest, Interview and Remand
18 You were arrested and interviewed on 20 January 2020. You made substantial admissions during the record of interview – conceding that you had been in a relationship with Lynn and had had sexual intercourse with her. However you were not totally honest with police in that you denied that there had been any sexual activity since August 2019, and you stated that you had stopped doing sexual things with Lynn once you had turned 18 years of age.
19 You were remanded in custody to appear at a filing hearing on 24 January 2020, whereupon you were then released on bail. You therefore have five days of pre-sentence detention.
Guilty Plea
20 This matter resolved to a guilty plea at the earliest opportunity at committal mention stage following negotiations between the parties. No witnesses were required to give evidence.
21 Your plea has greatly facilitated the course of justice given the difficulties which would have arisen in prosecuting this matter in the absence of a statement from the victim. Further, your pleas have utilitarian value, saving the court and the community the expense and the time of running a trial. These factors gain additional significance in the current climate of the pandemic and the substantial impact that COVID-19 has had on the efficient running of the criminal justice system.
22 I am also satisfied that your plea of guilty reflects an acceptance of responsibility by you for your offending and also reflects remorse – a conclusion which is further supported by your reported attitude towards your offending when being assessed by each of psychologist Gina Cidoni,[2] Community Corrections[3] and Youth Justice.[4]
[2] Exhibit 1 – Psychological Assessment Report, authored by Gina Cidoni, dated 28 September 2020, [59].
[3] Extended Pre-Sentence Assessment Outcome Report, dated 26 November 2020, p4.
[4] Pre-Sentence Report – Suitability for Youth Justice Centre Order, dated 8 December 2020, p4.
23 Accordingly, I am satisfied that your guilty pleas in this matter are of considerable value and deserving of a substantial discount on sentence.
Victim Impact
24 There is no victim impact statement in this case. Indeed, as already noted, Lynn did not make a statement to the police about your offending against her. I note that there is only a small age gap between yourself and Lynn, the offences have not occurred in the context of any breach of trust, and they have occurred in the context of a boyfriend/ girlfriend relationship – albeit the sexual aspects of that relationship were illegal given your respective ages. I also note that you have complied with your bail conditions which included a prohibition from contacting or associating with Lynn in any way despite the fact that it appears that Lynn has attempted to contact you on a number of occasions since your release on bail.
25 Whilst ordinarily, even in the absence of a victim impact statement, the court would be entitled to rely upon a presumption of harm caused by premature sexual activity in a case involving sexual offending against a child,[5] given the specific circumstances of this case I am not in a position to determine what impact, if any, your offending has had on Lynn.
Personal Circumstances
[5] See, eg, R v Rankin [2001] VSCA 158, [9]-[10]; Clarkson v The Queen [2011] VSCA 157, [3] and [7].
26 You are still only 19 years of age and you come before the court with no prior criminal history, albeit you do have that outstanding charge in the Magistrates’ Court which resulted in this matter coming to light. You had only just turned 18 years of age when this offending occurred. Accordingly you fall to be sentenced as both a youthful and first time offender.
27 I am told that you had a difficult and dislocated upbringing. You were born in Victoria. You have a twin sister, an older maternal half-sister and an older paternal half-brother. Your parents separated when you were only 12 months old and you, and your twin sister, were raised mostly by your mother. When you were about six or seven years of age your mother became ill with Stevens-Johnson syndrome. This syndrome has caused your mother to need a wheelchair to assist her in mobilisation, and has also caused her to be hospitalised in a coma from time to time during your childhood. Most recently in August 2020, your mother was admitted to hospital with blood poisoning and ended up in intensive care in an induced coma. Her recovery has fluctuated and has involved periods in rehabilitation and then re-admission to hospital.
28 You had considerable difficulty during your secondary school years. Your twin sister attempted suicide when you were both in Year 7. You then started to have behavioural problems at school which resulted in you changing schools on a number of occasions. You became homeless for between 12 and 18 months when you were 15 years of age, and spent some three months in Queensland. You then returned to Victoria, living with your father for approximately six months before returning to live with your mother. You managed to complete Year 10 at school, but left during Year 11. You have been largely unemployed since leaving school, although you did attempt to set up a lawnmowing business.
29 Currently you do not have any contact with your twin sister, and historically you have had a conflictual relationship with your half-sister who has been living with you in your mother’s home whilst your mother has been hospitalised. Your mother is supportive, but her health situation makes it difficult for her to be consistently present for you.
30 When you were released on bail on 24 January 2020, there were a number of restrictive conditions placed upon you. They included residing at your mother’s address, a curfew between 10pm and 6am, reporting at the Sunshine police station twice weekly, complying with an intervention order where Lynn is the protected person, and engaging in Youth Justice Supervised Bail. You have remained compliant with your bail conditions throughout the last 10 and half months, despite the ongoing difficulties with your mother’s ill-health and the significant impacts of COVID-19.
31 Significantly, as noted in both the Youth Justice Supervised Bail Progress Report dated 6 August 2020,[6] and the Youth Justice Pre-Sentence Report dated 8 December 2020, whilst your initial response to supervision was relatively positive with face to face meetings, you started to struggle with attendance once phone supervision commenced. Your engagement was at a level where Ms Ascher, who was your Youth Justice worker, had real concerns as at August 2020 that you may have some undiagnosed cognitive deficits that were impacting on your ability to develop positive relationships and to academically achieve. Further she noted that at that stage you appeared to lack insight into your offending behaviour, and the impact of your behaviour on others, and presented as childlike with a simplistic mindset on life in general. Further she noted that you were struggling to follow through with simple tasks and with motivation.
[6] Exhibit 3.
32 Since that time there has been a significant change in your circumstances and presentation. In September you were assessed by a psychologist, Ms Cidoni, and it was confirmed that you do have cognitive deficits – which I will address further in due course. Around the same time you also gained the assistance of a family friend, Ms Lorraine Crabbe, who has been instrumental in providing supports to you and your family over the past few months. Ms Crabbe gave evidence before me on 27 October 2020 and described your home life, up to the point where she became involved, as being chaotic and hostile. However, with her assistance, a routine has been instilled into the household, you and your family members are now working together as a team, you have taken on responsibility for a number of jobs around the house, and the discord between family members has largely settled. Further, Ms Crabbe has worked together with yourself and Youth Justice to instigate targeted intervention for your needs.
33 As outlined in the Youth Justice Pre-Sentence Report, you now have the following supports and programs in place:
· NDIS worker Brighton Kunaka is supporting you in an application for a review of your eligibility for an NDIS plan – he is of the view that you do meet the NDIS eligibility criteria and all that is needed is for the required documentation to be provided in the format that NDIS require;
· Mr Kunaka, and Mr Wahry Abuiessa from PWD Care, are both taking you on outings on a weekly basis;
· you have commenced counselling with Mr David Morell, a psychologist, having attended your first appointment on 7 December 2020. Mr Morell has made a recommendation to Youth Justice that you would benefit from a referral to the Problem Behaviour Program facilitated through Forensicare;
· with the assistance of Ms Ellie Ferour of Youth Now, you have enrolled in a civil construction course in Sunshine which is due to commence on 15 December 2020 and will take six months for you to complete full-time;
· you are meeting with Ms Ferour on a weekly basis to assist you in obtaining part-time employment and your driver’s licence;
· Ms Crabbe is transporting you to appointments to assist you; and
· there are a number of other referrals to community and therapeutic services currently in process.
34 Importantly, Ms Ascher noted in the Pre-Sentence Report that:
[t]hroughout the assessment process, Joshua has engaged well, but historically lacked motivation to change, predominantly due to his presenting symptoms of depression and anxiety. Ms Crabbe, family friend, became involved in supporting Joshua and the family. There has been a noteworthy change in Joshua’s demeanour over the last couple of months, where he is now demonstrating increased motivation and less procrastination.[7]
[7] Ibid, p5.
35 Further, Ms Ascher notes that you are embracing all of the changes in your life with enthusiasm,[8] and that your mother – in the short period that she was allowed home from hospital – was delighted in the overall changes in the home environment and told Ms Ascher that she had never seen you so motivated to achieve in life.[9] I note that your mother has repeated those sentiments in her letter to the court which was tendered today.[10] I also note that you have re-established a relationship with your father, and that he has also attended court in support of you today and will continue to support you in the future.
Mental Health Issues, Cognitive Issues, and Risk of Re-Offending
[8] Ibid.
[9] Ibid, p7.
[10] Exhibit 4.
36 As already noted, on the plea I received a psychological report authored by Ms Gina Cidoni, dated 28 September 2020.[11] Ms Cidoni also gave oral evidence on the plea hearing on both 2 October and 27 October 2020.
[11] Exhibit 1.
37 Consistent with the concerns raised by Ms Ascher of Youth Justice, when Ms Cidoni initially met you via telehealth on 29 July 2020, she had concerns about your cognitive functioning. This led her to undertake a further assessment and cognitive testing of you, in person, on 28 September 2020. As a result of that testing, Ms Cidoni assessed you as having a full scale IQ of 77, meaning that 94% of your age-related peers would do better on the testing. Your verbal and non-verbal reasoning abilities are both in the low average range, your working memory is in the low borderline range, and your processing speed is in the average range when compared to your peers.[12] Ms Cidoni was of the view that your cognitive functioning is at a level where you are challenged with verbal expression, and have general difficulties with reasoning and solving complex problems that require you to identify and apply rules.[13]
[12] Ibid, [43].
[13] Ibid, [55].
38 Ms Cidoni was of the opinion that in addition to your cognitive difficulties, you also presented with persistent depressive disorder – and some secondary anxiety most likely exacerbated by the current circumstances.[14]
[14] Ibid, [56].
39 Significantly, Ms Cidoni was also of the view that you present as being immature for your 19 years of age, impressionable and having low self-esteem.[15]
[15] Ibid, [58].
40 In Ms Cidoni’s opinion, the combination of your youth, impressionability and poor mental health, would not only result in you struggling in adult prison or detention, but your exposure to delinquent youth in such a setting would also make you vulnerable to the emergence of other maladaptive behaviours and a worsening of your mental state.[16] I have taken those matters into account in your favour in sentencing.
[16] Ibid, [63].
41 Insofar as your risk of sexual re-offending is concerned, Ms Cidoni administered the SVR-20 in order to ascertain your risk level. Your score on that assessment placed you within the low risk category for the likelihood of sexual violence.[17] Ms Cidoni also noted that you showed appropriate remorse and a sound grasp that your behaviour was seriously wrong.[18] I note that during cross-examination on 27 October 2020, and after having reviewed the text messages which had passed between yourself and Lynn, Ms Cidoni confirmed her opinion as to you being a low risk of sexual re-offending.
[17] Ibid, [49] and [59].
[18] Ibid, [59].
42 Finally, in her report, Ms Cidoni proffered the opinion that any risk of you re-offending would be mitigated through a combination of professional therapeutic guidance, and encouragement in the forming of positive attachments in the community, attending school, training or work, developing parent/sibling relationships and developing positive peer connections.[19]
Youthfulness and Prospects for Rehabilitation
[19] Ibid, [60].
43 You fall to be sentenced as both a young offender – being 18 during the entirety of the offending – and a first time offender. Additionally, you have a low risk of re-offending, remorse and insight, and a proven ability to comply with a community-based supervision and treatment regime through your efforts on Youth Justice supervised bail. You also have the support of friends and family, support workers in the community, training opportunities and are working towards obtaining employment.
44 Taking all of those considerations into account I assess your prospects of rehabilitation as being very good – and as a youthful offender, I have given significant weight to your prospects of rehabilitation in sentencing you in accordance with the principles set out in R v Mills,[20] and applied and re-iterated in Azzopardi v The Queen,[21] and Director of Public Prosecutions v Ghazi.[22]
Impact of COVID-19
[20] (1998) 4 VR 235, 241.
[21] [2011] VSCA 372, [34]-[44], [92] and [93].
[22] [2015] VSCA 188, [35].
45 I also take into account the impact that the COVID-19 pandemic would have on you if I was to impose a term of imprisonment or detention upon you. Given the current state of the pandemic – with over a month of zero new cases in Victoria and with the easing of restrictions – if I do sentence you to a term of detention, it is apparent that you will still be impacted by the pandemic in a limited way, but not to the extent that has abounded during the earlier parts of 2020.
46 Firstly, you would be required to undertake a test for coronavirus on reception into the detention centre and would be required to remain in isolation, at minimum, until the results of that test have been received.
47 Secondly, you would be subjected to additional stress for both you and your family in respect of concern for your health, and concern for the health of your family in the community – with the uncertainty of whether a further wave might emerge – particularly against the backdrop of your mother’s ill health.
48 I note that at present face-to-face personal visits and educational programs have been able to resume at youth justice centres – albeit with appropriate social distancing requirements in place – and therefore you will not be subject to the same impacts as those who have been in detention during the stage 4 restrictions in Victoria.
49 I have, however, in determining the appropriate sentence in this case taken into account the added burdens of detention which would apply to you if I was to impose a term of detention now.
Gravity of Offending
50 Sexual offending by adults against children is regarded as extremely serious by the courts, and ordinarily calls for the imposition of condign punishment. General deterrence, that is deterring other people in the community, denunciation and just punishment ordinarily must be given significant weight. However, I am of the view that your offending falls into the realm of the ‘exceptional case’ as referred to by the Court of Appeal in Clarkson v The Queen [2011] VSCA 157 where the Court said:
[a]t the other end of the scale, there are exceptional cases – for example, in a relationship between a 15-year-old girl and an 18-year-old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced.[23]
[23] At [7].
51 Your offending occurred in the context of you being in a relationship with Lynn. That relationship commenced when you were 17 years of age. You initially believed that Lynn was 15 turning 16, later discovering that she was 14 turning 15. However, your counsel conceded on your behalf that you accept through your pleas of guilty, that these offences occurred at a time when you were 18 years of age and were aware that Lynn was 14 years of age.
52 Insofar as the charges of sexual penetration of a child under 16 are concerned, as previously noted they occurred in the context of a boyfriend/ girlfriend relationship, where there was a small age gap between the two of you, no breach of trust, and in circumstances where you yourself are an immature young man with a low level of intellectual functioning.
53 It is not alleged, by way of the summary of agreed facts, that you at any point engaged in physical violence or coercion of the complainant. Ms Duckett did however during her submission on the plea, and during cross-examination of Ms Cidoni, raise concerns about the fact that you engaged in sexual intercourse without a condom, and further raised concerns about some of the content of the messaging between yourself and the complainant. In particular she submitted that you actively sought sexual encounters using persistent text messaging and constantly sexualised contact between the two of you. Ms Duckett submitted that each of these matters increased the gravity of the offending.
54 I accept that the failure to use a condom is an aggravating feature of the offending.
55 However, in respect of Ms Duckett’s submissions as to the content of the messages between yourself and Lynn, I am not satisfied to the requisite standard that the content of those messages aggravates the offending. The messages contained within the depositions clearly do not capture the entirety of the communications between the two of you and are open to interpretation. Further, as noted by Ms Cidoni under cross-examination about this topic, the text messages which are available, have to be considered in the context of the simplicity of your language skills, your low level of IQ, and your concrete way of thinking. Ms Cidoni expressed the opinion that whilst there were more appropriate ways in which you could have responded or communicated, that the messages themselves reflect a teenage relationship exchange, and do not reflect a grooming relationship as is often seen between an adult and a child. I both accept, and agree, with that opinion.
56 Accordingly, taking into account all of the circumstances, I am of the view that the penetration offences fall at the lower end of the scale of seriousness for this kind of offending – akin to the exceptional class of cases referred to in Clarkson.
57 Turning to Charges 1 and 5 – being production and possession of child abuse material respectively – the legislature and the courts recognise the seriousness of this kind of offending due to the corruption and exploitation of children that it engenders.
58 In assessing the objective seriousness of any particular instance of possession of child abuse material, the following factors are of relevance:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(vi) the length of time for which the pornographic material was possessed.[24]
[24] See, eg, Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477, [21]; R v De Leeuw [2015] NSWCCA 183, [72]; Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Garside [2016] VSCA 74, [25].
59 Whilst the videos and images here are of penetrative sexual activity between a child and adult, it is not submitted that any of the material relates to anyone other than Lynn and yourself, and it is accepted that the material was produced in the context of your relationship with her. Significantly, there is a limited age difference between you, and you yourself had only just become an adult at the time of the offending. No other child abuse material was found in your possession. Nor is it alleged that you produced or possessed the videos and images for the purpose of sale or further distribution. I am aware, and do take into account, that the charge of production of child abuse material is a rolled-up count, not a single occasion offence. However, despite that factor, when all of the circumstances of the offending are taken into account, I am still of the view that both the production and possession of child abuse material charges are also at the lower end of the scale of seriousness for this kind of offending.
Standard Sentence Provisions and Current Sentencing Practice
60 As noted at the outset the three charges of sexual penetration of a child under 16 years of age are standard sentence offences, with a standard sentence of six years. Pursuant to s.5A(1)(b) of the Sentencing Act, ‘the period specified as the standard sentence for the offence 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’. Section 5.A(3) states that objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to a particular offender or class of offenders; and wholly by reference to the nature of the offending.
61 The nomination by the legislature of a standard sentence does not make that sentence a starting point from which I add or subtract time. As explained by the Court of Appeal in Brown v R [2019] VSCA 286:
…a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
·is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
·does not affect the established ‘instinctive synthesis’ approach to sentencing;
·does not require or permit ‘two-stage sentencing’; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.[25]
[25] At [4].
62 The requirement to take into account current sentencing practice as one of the factors in the instinctive synthesis, still remains even when sentencing under the standard sentence regime. However, pursuant to s.5B(2) of the Sentencing Act, when considering current sentencing practice for a standard sentence offence, the Court must only have regard to sentences previously imposed for the offence as a standard sentence offence. It follows that non-standard sentence cases are only relevant insofar as they relate to sentencing principles, they cannot be relied upon in respect of the actual sentences imposed.
63 Given the short period of time for which the standard sentencing scheme has been in operation, there are a limited number of cases available from which to attempt to discern a sentencing practice. However, I was referred, and had regard to, a small number of cases where the offence of sexual penetration of a child under 16 years of age had been committed by youthful, or relatively youthful, offenders including DPP v Yuen [2020] VCC 1527, DPP v Mafrici [2020] VCC 396, and DPP v Jenkins [2019] VCC 1504[26], all County Court sentences, where a community corrections order, a period of detention in youth justice centre, and a term of imprisonment with a non-parole period were imposed respectively. I also read and had regard to other cases where the accused was sentenced for the same offence – but in very different circumstances to the present circumstances – for example DPP v Moulden [2019] VCC 386 and DPP v Prior [2019] VCC 1672.
[26] Albeit in this case the standard sentence provisions only applied to one of the three charges of sexual penetration of a child under 16.
64 Each of these cases turns, as it must, on its own facts and the sentencing Judge’s intuitive synthesis of those facts in light of the applicable sentencing principles. As such, those previous cases are of assistance as examples of the application of the relevant sentencing principles applicable in the area, and can be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. However, ultimately, whilst I have had regard to previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.
Sentencing Submissions
65 Mr Thomas on your behalf submitted that taking into account the various factors in this case including your youth, immaturity, lack of prior convictions, plea of guilty, and nature of the offending, that a Community Correction Order would be an appropriate disposition in this case.
66 Ms Duckett on behalf of the prosecution submitted that taking into account all of the matters before the court, including the need for deterrence, just punishment and denunciation of your offending, that an appropriate disposition in this case would be a term of detention in a youth justice centre.
Pre-Sentence Reports
67 I note that I had you assessed for your suitability for both a community corrections order and a period of detention in a youth justice centre.
68 You were assessed as suitable for a community correction order with a recommendation that any order imposed be at least 18 months in length in order to accommodate your participation in appropriate programs. According to the assessor you presented as motivated to engage and as keen to seek assistance to reduce the risk of further offending. Further you presented as remorseful, and displayed insight into your offending behaviour and your mental health concerns at the time of the offending.
69 You were also assessed as suitable for a youth justice centre order. Ms Gibb of the Classification and Placement Unit at Malmsbury Youth Justice Centre made the following assessment:
[o]verall, Joshua is suitable for a Youth Justice Centre Order, given he demonstrates good prospects for rehabilitation, evidenced by his engagement with Youth Justice whilst on bail, responsibility taken for offending and positive supports in place. Additionally, he would be highly impressionable and vulnerable in an adult custodial environment due to his young age, low intellectual functioning, mental health issues and being his first time in custody for sexual offending.[27]
[27] At p8.
70 However, despite meeting the suitability criteria, and thus being assessed as being suitable for a youth justice centre order, Ms Ascher has raised concerns about your vulnerability, even within a youth justice centre setting. In particular she made the following observations:
Youth Justice assesses that Joshua would be particularly impressionable in the adult prison system and would be equally vulnerable in youth detention. This is due to Joshua’s immaturity, cognitive deficits, mental health issues and nature of the offences. Furthermore it may render Joshua more susceptible to being exploited and targeted in any custodial environment. Joshua has not been subject to a custodial order in the past, other than five days in police cells on remand.[28]
[28] Ibid.
71 I note that these concerns reflect those which were raised by Ms Cidoni in her report and which I referred to earlier in these reasons for sentence.
Sentencing Purposes and other Sentencing Principles
72 Pursuant to s.5(1) of the Sentencing Act, the only purposes for which sentences may be imposed are just punishment, deterrence – both general and specific, rehabilitation, denunciation and protection of the community.
73 Despite the serious nature of your offending, by reason of your youth and the particular circumstances of your offending, general deterrence, denunciation and just punishment attract less weight in the sentencing synthesis than they would if you had been older and your offending had occurred in a different manner. Further, the impact on you of your short time on remand together with all of the other circumstances I have previously referred to in these reasons for sentence, mean that in this case, very little weight needs to be given to specific deterrence and community protection. However, as previously noted, in all of the circumstances of this case, I am of the view that significant weight must be given to rehabilitation in sentencing you.
74 There is scope for a community correction order to be both punitive and rehabilitative. As identified by the Court of Appeal in its guideline judgment of Boulton v R (2014) 46 VR 308:
…a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in the view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[29]
[29] At [131].
75 Ultimately, I have concluded that in this case the only appropriate sentence which will achieve all of the purposes for which sentence is imposed is a community correction order with requirements to perform both unpaid community work and to undergo treatment. I am of the view that to place you in custody or detention now would not be conducive to your ongoing rehabilitation, nor to ensuring long term community protection. However a community correction order can be appropriately tailored to not only meet the sentencing purposes of rehabilitation and community protection, but to also appropriately denounce and punish your conduct, and act as a deterrent to yourself and others from engaging in this kind of offending.
76 In determining the length of the order, and the conditions attached to it, I note that I have, amongst other things, taken into account considerations of totality and the recommendations in the Extended Pre-Sentence Assessment – Outcome Report authored by Community Corrections.
Relationship of Sentence to Standard Sentence
77 As a matter of completeness, and in case it is not completely clear from the preceding reasons for sentence, I note pursuant to s.5B(5) of the Sentencing Act, that the sentence I am about to impose on Charges 2, 3 and 4, is lower than the standard sentence for those charges. I have considered the standard sentence for Charges 2, 3 and 4 as one of the factors in my instinctive synthesis of the relevant facts and principles, however having regard to all of the relevant factors in this case including the seriousness of the offending being at the lower end of seriousness for this kind of offending, and the significant mitigatory factors in this case including your youth, lack of prior offending and prospects of rehabilitation, I am of the view that a sentence lower than the standard sentence is appropriate.
Sentence
78 So Mr Calladine, this is the point at where I will get you to stand, please.
79 On Charges 1 through to 5 inclusive, so on all five charges, you are convicted and sentenced to a community correction order which will commence today and run for a period of two years. So that is an order that you do in the community. You are not being sent to Youth Justice Centre, or to gaol, you remain in the community and the order will run for two years from today, all right? In addition to the mandatory conditions of the order, which you will see in a moment, which include things like you not being allowed to leave the state of Victoria, not being able to commit offences whilst on the order and Mr Thomas will take you through those in a moment when he shows you the order, you will be subject to the following special conditions:
(i) you must report to Sunshine Community Correctional Services by telephone within two clear working days of the commencement of this order. So that means you need to report by telephone to Sunshine by 4pm on Wednesday;
(ii) you must perform 300 hours of unpaid community work during the period of the order;
(iii) you must undergo mental health assessment and treatment as directed; and
(iv) you must participate in programs and/or courses that address factors relevant to the offending as directed.
80 HER HONOUR: Do you understand each of those conditions?
81 OFFENDER: Yes Your Honour.
82 HER HONOUR: All right. I will come back to what that means in a moment.
s.6AAA Declaration
83 Pursuant to s.6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to the offences and been found guilty of them, I would have sentenced you to a sentence of 20 months detention in a Youth Justice Centre. So you have saved a considerable period of time in custody, or in detention, by reason of pleading guilty to the charges before the court.
Ancillary Orders
84 Pursuant to s.78(1) of the Confiscation Act 1997 (Vic), I make a forfeiture and destruction order in respect of the mobile phone seized from you. So you will not get that mobile phone back. That will be destroyed by the police, all right?
Application for Exemption from Obligations under the Sex Offenders Registration Act
85 I also have before me an application for a registration exemption order made on your behalf pursuant to s.11A of the Sex Offenders Registration Act 2004 (Vic). I am satisfied on the balance of probabilities that the statutory prerequisites pursuant to s.11B(1) for making a declaration that you are not a registrable offender in respect of each of the five charges on the indictment, are met in this case. I note that the application is not opposed by the Chief Commissioner of Police.
86 Accordingly, I will grant the application and, by order, declare that Joshua Calladine is not a registrable offender in respect of the following offences committed by him:
(a) production of child abuse material – Charge 1
(b) sexual penetration of a child under 16 (3 charges) – Charges 2, 3 and 4; and
(c) possession of child abuse material – Charge 5.
87 So what that means is that you will not be placed on the register and that you will not have to comply with any reporting obligations, because of the charges that you pleaded guilty to. So you are free from needing to follow any of those obligations, all right?
Any other matters
88 Counsel, are there any other matters which you wish to raise before I address Mr Calladine in respect of his obligations under the community corrections order? Ms Duckett?
89 MS DUCKETT: No, Your Honour, thank you.
90 HER HONOUR: All right, thank you. Mr Thomas?
91 MR THOMAS: No, Your Honour.
92 HER HONOUR: No. All right. So Mr Calladine, you have heard the conditions I have placed on the community corrections order and you have said that you understand all of those conditions.
93 I have to tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Community Corrections and the matter comes back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may face then a term of youth detention or imprisonment for the offences, all right? So what that means is, it is really important you do everything that you are asked to do under the order and that you also do not get yourself into any sort of trouble.
94 So for example, you are learning how to drive at the moment, all right? Or you are working towards getting your driver's licence at the moment. There are certain road rules. For example, if you drink - drink driving, for example. That can be punished by imprisonment. If you did that during the two years that you are on the order, that would actually break the order that I have put you on and you would have to come back before the court and then I have got to decide what to do and one of the things I can do is relook at this entire matter and decide whether to keep you on the community corrections order, or put a different type of order in place, all right. So do you understand how that works?
95 OFFENDER: Yes Your Honour.
96 HER HONOUR: All right and the same thing can happen if you do not do what you are asked to do. So if you are asked to go and do some counselling, for example and you do not do the counselling, then again you can be brought back before me, for me to consider what to do about the order. Do you understand that?
97 OFFENDER: Yes Your Honour.
98 HER HONOUR: All right, good. So, given all of that, so given that it is going to be for two years, you have got to do those conditions and you have got to stay out of trouble as well, do you agree to do that order?
99 OFFENDER: Yes Your Honour.
100 HER HONOUR: Good, all right. So what I am going to do is, I am just going to ask my associate, Ms Ventura and also Mr Thomas, to just come up to you. Have you got a mask with you, Mr Thomas, because we will need to just put masks on while you - good, so if you all put your masks on. They are going to approach you and just go through the order with you and get you to sign it, all right? Thank you, you can have a seat, Mr Calladine. Thank you very much. All right, so Mr Calladine, I can tell you that the fact that you have made a significant turnaround has really assisted you in relation to the sentence that I have imposed today.
101 What I hope is that you continue on that path and you keep doing what you have been doing and really engaging well with all of the supports that are in place. If that happens, then I am not going to see you back here again and that will make me very happy to not see you back here again, in the nicest possible way, all right? So very good. Really important you just stick to everything you are asked to do and you stay out of trouble, all right? All right, thank you. Counsel, we'll make sure that a copy of both the community corrections order and also the SORA exemption order be provided to you. I'll have to formalise that SORA exemption order in due course, but we'll get that to you either later today or tomorrow, at the very latest. All right.
102 MS DUCKETT: The court pleases.
103 HER HONOUR: Anything further?
104 MR THOMAS: No Your Honour.
105 HER HONOUR: No? No, all right.
106 MS DUCKETT: There isn't any.
107 HER HONOUR: All right, thank you.
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