DPP v [LA] (a pseudonym) & Anor
[2017] VCC 957
•12 July 2017
IN THE COUNTY COURT OF VICTORIA AT WANGARATTA
CRIMINAL DIVISION
Revised Not Restricted
Suitable for Publication
DIRECTOR OF PUBLIC PROSECUTIONS
v
[LA] (A PSEUDONYM)
and
[AW] (A PSEUDONYM)1
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JUDGE: His Honour Judge Murphy
DATE OF HEARING: 11 – 12 July 2017
DATE OF SENTENCE: 12 July 2017
CASE MAY BE CITED AS: DPP v [LA] (a pseudonym) & Anor MEDIUM NEUTRAL CITATION: [2017] VCC 957
REASONS FOR SENTENCE
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CRIMINAL LAW – Sentence – Sexual penetration of a child under 16 – Young offenders – Representative charges – Plea of Guilty – Utilitarian benefit – Consent not in issue – No predatory conduct – Offending occurred over a brief period of weeks – Crown concession that imprisonment not appropriate – Whether a Community Corrections Order appropriate – Sex Offender Registration mandatory – Forensic Sample Orders – Judicial discretion – No Forensic Sample Orders imposed
– Adjourned undertakings imposed – Boulton v The Queen (2014) 46 VR 306; [2014]
VSCA 342, considered
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| APPEARANCES: | Counsel | Solicitors |
For the Crown For the DefendantLA: | Mr A Moore Mr A Halphen | Office of Public Prosecutions Slater & King Lawyers |
For the DefendantAW: | Mr C Morgan | Kerry Clancy Solicitors |
To ensure there is no possibility of identification, these reasons for sentence has been anonymised by the adoption of a pseudonym in place of the name of the defendant’s, the complainant’s and other persons involved.
HIS HONOUR:
1. LA,2 you have pleaded guilty to two charges of sexual penetration of a child under the age of 16.3 The complainant’s in those matters being TS4 (who I will refer to as the first complainant) and RC5 (who I will refer to as the second complainant). Both of these charges are representative charges.
2. AW,6 you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.7 The single complainant is TS, the first complainant. This is also a representative charge. All three charges for both LA and AW involve penile/vaginal penetration. The maximum penalty is 10 years imprisonment.8
3. The circumstances of the offending were outlined in the Crown opening which was read in open court today, which I incorporate by reference and will annex an anonymised version to my sentencing remarks. I do not need to repeat the details of the offending which were representative counts and involved a course of conduct over a period of approximately one month in July and August 2015. In your case, LA, that involved sexual intercourse with both of the complainants on two separate occasions in the three incidents. In your case, AW, that involved sexual intercourse on a single occasion in both cases with a number of different sexual permutations which form part of the overall context of the offending.
4. The seriousness of the offending is first to be analysed. At the time, LA, you were 19 and a half years of age, and AW, you were just over 20 years of age. The first complainant was aged 15 years and nine months, and the second complainant was aged 15 and four months. As was put by both your counsel, the age disparity between the two of you was not extreme and it is not really
2 A pseudonym.
3 Contrary to section 45(1) of the Crimes Act 1958 (Vic) (‘the Act’) as in operation during the period of
offending.
4 A pseudonym.
5 A pseudonym.
6 A pseudonym.
7 Contrary to section 45(1) of the Act as in operation during the period of offending.
8 Crimes Act 1958 (Vic), s. 45(1) as in operation during the period of offending.
disputed by the learned Crown prosecutor that there was no real power imbalance between the two of you. It was not predatory conduct and essentially the sexual assignations involved in this offending were consensual.
5. There was also some mutual affection between LA and the first complainant, as the first complainant had previously had a ‘crush’ on you. There had also been some affection between AW and the first complainant.
6. Your counsel, LA, asked the Court to characterise this offending as sexual experimentation by teenagers in a relatively similar age group. I adopt that characterisation as it is also supported by the analysis of Pamela Matthews in a report tendered during the plea.9 Significantly in relation to you, LA, Ms Matthews identifies you as being relatively immature, which therefore puts the chronological age between you and the complainants as narrower than it actually is.
7. Both of your counsel submitted that this offending ought to be characterised as in the lower level offending of this type. I accept this characterisation.
8. The learned Crown prosecutor in a helpful submission conceded that the two of you were frank and honest in your records of interview which took place in October 2015, which is now nearly two years ago and in addition to making extensive admissions, you also made admissions to sexual conduct that was not actually specifically made by the two complainants in their VARE interviews. Accordingly, both of you are to be characterised as being significantly honest and frank in your records of interview.
9. It follows form this, and by your pleas of guilty, that you have facilitated the course of justice, and facilitated the police investigations into the matters. You are entitled to full credit for that, and I give you full credit.
10.Relevant in putting this case in a somewhat exceptional class or category is that no victim impact statements were tendered. The learned Crown prosecutor and his instructor have, in fact, as indicated during the course of the plea, interviewed the two complainants in this matter. The learned Crown prosecutor stated that they were reluctant, but prepared, to give evidence in the matter, but are relieved that the matter has resolved and they are now in a position to move on, as it has been hanging over their heads for nearly two years as well.
11.In contrast to other types of offending involving underage sex, it does appear on the material that has been put forward that this is unlikely to have a major impact on the two complainants involved, which is a significant matter in terms of characterising the seriousness of the offending, because it is well-known that underage sex can have, and does have, a significant impact on the development of females, and can often have lifelong effects. As it is proper to characterise this offending as sexual experimentation among teenagers, the potential impact on the complainant’s is unlikely to be significant. All of these matters put the seriousness of the offending, in terms of characterisation, at the lower end of the scale for this type of offending.
12.That is not to say that you, LA, did not know that the two complainants were underage and nevertheless still proceeded to engage in sexual activity. This is serious in the sense that you had sexual intercourse with both complainant’s when you knew that you shouldn’t have. In relation to you, AW, you are in a slightly different position. You were six months older than LA, but you did not think to ask the question of how old the complainant was in your matter.
13.Turning to the personal circumstances of you both. LA, you are now aged 21 and a half, and AW, you are aged 22. Both of you come before this Court with no prior convictions, and nothing alleged you since this offending. This is a very significant matter in dealing with a case like this, where you have been able to get through your teenage years without running into trouble with the law. Additionally, I have received a letter from you, LA, indicating that you are involved in a charity to look after children or families that are subject to
significant childhood problems and seriously ill children. You are also a volunteer with the Country Fire Authority. This indicates that you are contributing to the community, and you are entitled to credit for this, even though you are a relatively young man.
14. In relation to you, AW, there is no character evidence as such, but your counsel put that you have been in the workforce and you have got a job waiting for you to commence next week. Since you completed your Victorian Certificate of Applied Learning (VCAL), you have been contributing to the community. The fact that both of you have been in the workforce, you are entitled to credit for. I take this into account, for both of you, as record of your good character.
15. Turning to you specifically, LA, as I indicated to your counsel, you have drawn a short straw in life and you are making the best of it having had a significant kidney transplant and childhood illness. All these matters are set out in the report of Ms Matthews and the accompanying documents. The letter from your mother also indicates the troubles you have had due to your engagement with the health system, for which you have spent a significant time out of school.10 All of these matters have retarded your educational performance, and also your social development. Ms Matthews indicates you are an immature young man, which again goes to assessing your culpability for this conduct, which occurred over a period of about a month or so in July and August 2015.
16. In terms of looking at you as an individual within the community, because you do carry this personal baggage of a major childhood illness, general deterrence carries much lesser weight that it might otherwise carry. It must have been a significant burden on your mother in particular over the years. It does say something for you, because despite all of your problems, you have not fallen into other offending. You indicated during the record of interview that you do not drink very much because it affects your kidney. This indicates
that it is unlikely you will become involved in alcohol-type offending, as we see so often in this Court.
17. In addition to both of your personal circumstances, there has been a significant delay, some of which is not attributable to you. It took until July of last year for Police to charge you, and the matter proceeded by way of a committal hearing in January of this year. The matter was called on for trial at the first available opportunity. So you have had these matters hanging over your heads since you were first interviewed, which is now over 18 months ago.
18. You have both pleaded guilty, I give you credit for that. I also give you credit for the fact that you are both remorseful. The pleas of guilty, however, could have been entered at an earlier stage. Mr Morgan indicated that I should regard your plea, AW, as being an early plea as the matter was only resolved in the last couple of days to a revised set of charges. I accept this submission, and will give you credit of an early plea. This is relevant to assessing your remorse and your likelihood of reoffending.
19. In terms of disposition, both of your counsel sought that this matter be dealt with my way of an adjourned undertaking. The learned Crown prosecutor resisted this, and submitted that the both accused be placed on a Community Corrections Order (‘CCO’). In Boulton v The Queen,11 the Court of Appeal said that a CCO is appropriate in cases where there should be a rehabilitative component to a disposition. I have considered individually whether there should be a rehabilitative component of any potential disposition. In relation to you, LA, Ms Matthews indicates that you might benefit from some sort of supervision. Giving this matter consideration and given that this matter is one course of conduct with no prior offending, you have got enough problems in your life living with the health problems that you cannot get rid of. Accordingly, a further supervisory type of disposition under the Office of Corrections would not be in the interests of the community.
20.In saying that, a disposition that will put you under my supervision is in the community’s interest, by way of an adjourned undertaking. If you fall off the wagon, you will be brought back before me and I will deal with you.
21.In relation to you, AW, because this is one off type of offending with a single complainant, given that you are moving into adulthood, I do not regard a rehabilitative disposition as an appropriate disposition. The type of coercive supervision that follows with an adjourned undertaking is more appropriate.
22.In dealing with each of you, in considering the circumstances of the offending, I have considered whether it is appropriate to enter a conviction in relation to the matter. Dealing with you, LA, as I indicated before, you have drawn the short straw in life through no fault of your own. You will have these problems hanging over your head for a substantial period of your life. So in the circumstances where you were an immature man where there was a narrow age gap, further reduced by the psychological age between you and the two complainant’s, where there is no suggestion of predatory conduct and where, in circumstances this was sexual experimentation by teenagers, I do not regard it as appropriate to enter a conviction against you. It is likely that a conviction will impede your employment prospects in the future.
23.In relation to you, AW, similar principles apply. You are slightly older than LA, however, as put by your counsel, had this matter been brought before the Court without delay, you would have been under the age of 21. You are both relatively young men, and with any disposition of a young person, rehabilitation is seen as a primary sentencing consideration, except in extreme cases, as recently indicated by the Court of Appeal. So in these circumstances, in relation to you, AW, I do not propose to enter a conviction against you. The finding of guilt will remain on the record, but the conviction does not.
24.As I indicated, the learned Crown prosecutor referred to the fact that both of the complainant’s are ready to move on, and have not sought to file a victim
impact statement. This matter is relevant to the whole of the matter, and also to the disposition I must impose.
25.In sentencing each of you, I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society.
26.I am required to impose a sentence that punishes your offending, that deters you and others from this type of offending, and I must have regard to the protection of the community. I must also have regard to your rehabilitation, and a range of factors, such as the seriousness of the offences, each of your culpability for them, your personal circumstances, and those of the victim(s), if any.
27.Given your age, I do not regard general deterrence as a significant consideration. In your particular case, LA, because of your significant health problems, and also because of your immaturity, rehabilitation is to be a primary consideration. It is in the community's interest that both of you be rehabilitated and continue a productive life. It is also in the community's interests that the sentence of the Court denounce your conduct. That denunciation includes what I say to you now, which is that young males must, before they engage in sexual activity with girls, make sure that they are over 16 years of age, and are in a position to fully consent (unless there is less than a two year age gap).That is the law, and you have transgressed that law. On that basis, your conduct is to be denounced.
28.I do it in the context that you, LA, were an immature gentleman at that stage.
You, AW, were also effectively in the same position. That there was not a big age difference is not an excuse, but it does offer some sort of explanation.
29.I give you both credit for your contribution to the community thus far, and the fact that you have both completed the VCAL and been in the work force is a good sign. I hope that this can continue into the future.
30. I take into account both of your remorse. In relation to you, LA, you have written me a letter,12 together with the letter of your mother and the report of Ms Matthews, indicates that you are remorseful for your conduct. AW, there is also remorse in your conduct, and by both of your pleas of guilty.
31. In all of the circumstances, all of the sentencing objectives will be met by imposing an adjourned undertaking on both of you, for a period of 18 months. If, in the next 18 months, you commit an offence carrying a term of imprisonment, you will be brought back before me for a breach of the undertaking and I can re-sentence you for this offending.
32. The learned Crown prosecutor sought a forensic sample, pursuant to section 464ZF of the Crimes Act,13 for both of you. The power to order this is discretionary, and was opposed by each of your counsel. I have considered the application by the learned Crown prosecutor, and am unable to accept it. The second reading speech when the Crimes Act was amended stated that it was never the intention that Courts would order that accused persons undergo forensic sample procedures as a matter of course. Courts are required to consider whether a forensic sample order may be appropriate in cases where there is likely to be recidivism. Given that each of you do not have any prior criminal record and I regard the prospects of you reoffending as relatively low, in those circumstances, I do not regard it as appropriate to make a forensic sample order against each of you.
33. As a consequence of the findings of guilt, you will both be placed on the Sex Offenders Register. In relation to you, LA, as this matter involves two charges of sexual penetration of a child under 16, you will be on the Register for life. In relation to you, AW, you will be on the Register for 15 years.
34. Both of you must comply with the requirements that follows registration on the Register. The paperwork will detail this more, but you must report to Police,
12 Exhibit 3 on the Plea.
13 1958 (Vic).
and inform the relevant officer of your mobile phone numbers and your addresses. It is a burdensome obligation on you that you must comply with. LA, you must comply with this for a period of life, and AW, for a period of 15 years. I will ask that counsel explain this in detail, and ask that each of them sign the relevant documentation.
- - -
IN THE COUNTY COURT
OF VICTORIA Indictment No: C1610859.1 AT WANGARATTA
THE DIRECTOR OF PUBLIC PROSECUTIONS
v
[L A] and [A W]
SUMMARY OF PROSECUTION OPENING FOR PLEA
Date of document: 12 July 2017
Filed on behalf of: Director of Public Prosecutions
Prepared by: Solicitor’s Code: 7539
Solicitor for Public Prosecutions Telephone: [redacted]
[redacted] Direct: [redacted]
[redacted] Reference: [redacted]
Introduction
The accused LA is pleading guilty to one representative charge of sexual penetration of a child under 16 years in respect of the victim TS and one representative charge of sexual penetration in respect of the victim RC. The accused AW is pleading guilty to one representative charge of sexual penetration in respect of the complainant RC.
The LA / TS charge is representative of sexual penetrations which took place during three separate incidents. The LA / RC charge is representative of sexual penetrations which took place during the second incident. The AW / TS charge is representative of sexual penetrations which also took place during the second incident. In all charges the form of penetration is specified as penile vaginal. The other forms of penetration are contextual only.
The accused, LA, born [redacted], was aged 19 at the time of the offences. He lived with his mother and step father in [a regional country town in Victoria]. He met the complainant, TS for the first time, at a 17th birthday party in [a regional
country town in Victoria] for DM, on [redacted]. He only met complainant RC
once before his offending against her.
The accused, AW, born [redacted], was aged 20 at the time of the offence. He lived in [a regional country town in Victoria] with his father. He went to secondary school with both complainants. They commenced year 7 when he was in year 12.
The complainant, TS, born [redacted], was 15 years old at the time of the offences. She lived with her mother and father in [a regional country town in Victoria] and was a student.
The complainant, RC, born [redacted], was 15 years old at the time of the alleged offences. She was living with her father in [a regional country town in Victoria] and was also a student. The complainants are cousins.
AW was aware that TS had a crush on him at school a few years earlier. TS had been good friends with AW, they would talk every lunch time and she liked him but gave up because of the age difference.
Incident 1: LA and TS
On 17 July 2015 the accused LA and TS met for the first time at a birthday party held [at a property in a regional country town in Victoria]. The party was for DM, a mutual friend of both LA and TS.
At the party TS was drinking spirits (Jack Daniels, Gin and Vodka) and the accused was drinking VB cans. They sat around a fire for a while talking and the issue of age came up. TS told the LA she was 15 years old. LA said he was 19. LA said he wanted to date TS. He asked her if she would date him when she was older. They said that when she was 16 they could date.
10.The complainant decided to sleep in a spare room at the party house. The accused LA planned to sleep in his swag in the rear of his Ute. TS suggested he sleep in the spare room of the house with her, as it was extremely cold.
11.They sat on the bed talking. The complainant TS lay down on the bed and the
accused LA started to cuddle her. They started kissing and then had sexual intercourse for half an hour. The accused told the complainant he was about to ejaculate and she sat up. He put in his penis in her mouth and ejaculated.
12.The following morning the accused LA and TS were woken up by DM. The accused left immediately.
13.Thereafter, the accused and complainant communicated most days via social media (Facebook and Snapchat) as well as by text messages. TS met up with LA on an occasion when he was in [a regional country town in Victoria]. RC went along with TS and met LA. RC says she had no real discussion with LA about her age.
Incident 2: Both Accused and Both Complainants
14.On the weekend of 21-23 July 2015, LA and AW, who were friends, went to TS’ house at [redacted]. TS’ parents were away for the weekend. TS had messaged LA inviting him over. She told RC that LA and AW were coming over. They both knew AW as they had attended secondary school together. TS says that RC knew what they would be doing because she was ‘cluey’ about that sort of stuff.
15.LA got there before AW. TS and RC were both already at the house. The accused LA and complainant TS commenced sexual activity on the mattress on the lounge room floor. RC went into the bathroom to put makeup on and then waited in a TS’ bedroom.
LA / TS
16.The accused LA got on top of complainant TS and they took each other’s pants off. The accused digitally penetrated the complainant and she masturbated his penis. He then inserted his penis into complainant TS’ mouth and vagina. TS says they stopped at one point because AW and RC were in the lounge room. According to TS, LA said to AW, ‘Dude you are kind of distracting me’. AW and RC went into TS’ bedroom. LA and TS had sexual intercourse again after this and then AW came in and said he wanted to swap.
AW / TS: After First Partner Swap
17.After AW’s request to swap, it was agreed that AW would have sex with TS in the lounge room and LA would have sex with RC in the bedroom. AW then had sex with TS in the lounge room involving, on his own admissions in his record of interview, digital, vaginal and oral penetration. TS in her VARE only talks about penile/vaginal intercourse. AW said to TS before they had sex ‘you’ve been waiting for this for a while haven’t ya’, presumably referring to the crush she had on him a few years earlier.
LA / RC: After First Partner Swap
18.LA went into the bedroom with RC to have sex. In the bedroom RC took her pants off and LA said just lay back and relax. He then inserted his penis into her vagina and they had sexual intercourse in this for about three minutes. He then changed his position to what complainant RC refers to as 'doggy style' by inserting his penis into her vagina from behind.
LA / TS: After Second Partner Swap
19.LA then recommenced sexual intercourse with complainant TS by inserting his penis into her vagina until he ejaculated into her vagina. The accused told complainant TS that he would not get her pregnant due to having previously had health issues.
LA / TS
20.LA and AW then left and went to [a regional town in country Victoria] before returning to the complaint’s house at [redacted] with McDonalds for TS and RC.
21.LA then cuddled and kissed complainant TS and again inserted his penis into her vagina and had sexual intercourse with her.
22.AW also had sexual intercourse again with TS involving penile and digital penetration and receiving oral sex.
23.AW and LA left the next day.
24.In the interim the four parties formed a group chat on Facebook called ‘Netflix and Chill’ where they spoke about the night and tried to organise further catchups of the same nature.
Incident 3: LA and TS
25.The accused LA and complainant TS lay down on the mattress in front of the co- accused and started to kiss and cuddle. The kissing led to the accused LA inserting his finger and penis into complainant TS' vagina. They had sexual intercourse until he ejaculated into her vagina.
26.A short time after this TS' brother, DJ, arrived at the house and told everyone but
TS to leave. RC arrived as this was occurring and also left.
Subsequent Events
27.DJ called his father and told him what he had seen. Both complainants subsequently told their parents they had engaged in sexual activity with the two accused. TS subsequently made a disclosure to the nurse at her school. This lead to police and the DHHS being notified. TS made her VARE on 9 September 2015 and RC on 10 September 2015. LA and AW were both interviewed on 27 October 2015.
Interview LA
28.The accused, LA, was arrested and interviewed on 27 October 2015 at [a Police Station in regional Victoria]. The accused made the following admissions in relation to having sex with complainant TS and complainant RC:
First incident:
• That he met TS for the first time at DM’s 17th birthday party in [a regional country town in Victoria] in 2015;
• That TS was drinking, hanging around with older people and had piercings which gave him the impression that she was older;
• That the accused had been drinking and had nowhere to sleep which was when TS offered him to sleep in the spare room in the house with her, where she initiated sex with him;
•That TS told the accused she was in school but did not tell him what year;
•That the accused inserted his penis into complainant TS' vagina and mouth on this occasion;
•That the accused and complainant became Facebook friends after the party
and the complainant invited the accused over to her house on a later occasion in August 2015 to watch movies.
Second Incident:
•That the accused and a friend named 'HH' separately attended TS' house in [a country town in Victoria];
•That TS told the accused that RC was 17 years old;
•That the accused had sex with both TS and RC on this night;
•That in relation to TS, in the lounge room of the house, he inserted his penis into her vagina and mouth and finished by ejaculating;
•That HH arrived shortly after this;
•That the accused had sex with RC, who told him she was 17 years of age, in
TS' bedroom whilst HH was having sex with TS;
•That HH had said he knew both TS and RC as he went to school with them both;
•That the term 'tag team' was used by both the accused and HH as a term of swapping partners;
•That he and HH left the house to go into [a regional country town in Victoria] that night and later returned to complainant TS' house;
•That on the return the accused did have sex again with TS, however, he could not remember details because he’d had a few alcoholic drinks during the night.
Third Incident:
•That the accused and HH stopped in to TS’ house again prior to going out that night;
•That the accused had sex with TS by inserting his penis into her vagina. Also on this occasion he inserted his fingers into her vagina;
•That whilst this was occurring HH was sitting on the couch in the lounge room whilst the sex was occurring on the lounge room floor;
•That after the sex, TS' brother arrived at the house and asked he and HH to leave; RC arrived as they were being told to leave;
•That on this occasion the accused did know that TS was 15 years old;
•He was not able to remember when she had told him she was 15 but it was prior to this last incident.
Interview AW
29.The accused, AW, was also arrested and interviewed on the 27 October 2015 at [a Police Station in regional Victoria]. He made the following admissions in relation to having sex with complainant TS and complainant RC:
• That he knew both girls as they went to high school with him and believed they were in year 10 when he was in year 12;
• That he had sex with RC ‘missionary’ style by putting his penis and fingers
into her vagina as well as receiving oral sex from her;
• That he knew TS had a crush on him from high school so he offered her a chance to have sex with him that night;
• That he had ‘missionary’ style sex with complainant TS by putting his
penis into her vagina and also receiving oral sex from her where he ejaculated in her mouth;
• That he and LA swapped partners around 3 times before going to [a country town in regional Victoria];
• That on return from [a country town in regional Victoria] he had sex with both TS and RC again in the same positions;
• That they didn’t take the girls clubbing because they knew they were underage, under 18;
• That he knew the girls were underage but he didn’t know they were 15 or what their ages were. He later said he thought 18 was the legal age to have sex.
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