DPP v Parr
[2024] VCC 173
•26 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-23-01110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAI PARR |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2023, 26 February 2024 | |
DATE OF SENTENCE: | 26 February 2024 | |
CASE MAY BE CITED AS: | DPP v Parr | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 173 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Sexual penetration of a child under 16. Complainant 14 at the time of offending, accused only 18. Young offender at time of sentence even after delay Self-reporting of offence to police, Doran discount, early plea of guilty, Verdins application, general and specific deterrence, standard sentencing, protection of the community, community corrections order and exemption from registration as a sex offender.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act1991 (Vic), Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Clarkson v R (2011) 32 VR 361, Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428, R v Mills [1998] 4 VR 235, Azzopardi v The Queen (2011) 35 VR 43, R v Doran [2005] VSCA 271, R v Phillips [2012] VSCA 140, Worboyes v The Queen [2021] VSCA 169, Bolton v The Queen (2014) VR 308.
Sentence: Conviction and 20 month CCO with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. McVean | Office of Public Prosecutions |
| For the Accused | Mr T. Clamart (plea) Mr A Cameron (further plea and sentence) | Angus Cameron Lawyers |
HIS HONOUR:
Introduction
1Kai Parr, you were born in June 2003, and you are currently still only 20 years of age. At the time of offending, you were just 18.
2The victim is Mary Jones[1], and that is a pseudonym, who is currently 16 but at the time of the offending was 14.
[1]A pseudonym.
3This is a very unusual case. You were a very young offender at the time of the offences, and you are still a young offender even after the passing of more than two years since then. Moreover, you have no prior convictions of any kind and no subsequent matters, which is remarkable once one comprehends the real and serious difficulties you have endured during your very recent adolescence and currently into your early adulthood.
4Your self-reporting of offences to police followed by the making of admissions and an early plea of guilty are also remarkable. The age disparity between you and the victim must be seen in light of the fact that you were still both teenagers at the time of the offending and it is conceded by the crown the offending was both aberrant and spontaneous.
5Usually, offending of this kind attracts a severe prison sentence and as an illustration of that fact the standard sentence for this offence is a term of imprisonment of six years.
6In the very unusual circumstances of this case though, it was submitted on your behalf, and very sensibly conceded by the crown, that a community corrections order (CCO) satisfies all sentencing considerations in this case. I had you assessed for a CCO, and you are suitable. I will impose such an order but my reasons for doing so need to be explained to you and those who have an interest in the case, and those reasons follow.
Circumstances of the Offending [2]
[2]Exhibit A (Plea): Summary of Prosecution Opening.
Background
7You met Mary in about 2020. She was in the company of friends who knew you and introduced you both.[3] You were 17 years of age, and she was 13. You ran into her again a few times at the bus stop and she invited you to a party at a friend’s house in about July 2020.[4]
[3]VARE Q27, see Depositions.
[4]Ibid.
8Towards the end of 2020, you had a conversation about your respective ages. Mary told you that she was only 13 years old and that she thought you were 16 or 17 years old. You told her you were 18.[5]
[5]Ibid Q39-45.
9You moved to New South Wales and remained in contact on and off through social media and messaging.
10You returned to Melbourne in around October 2021.
11On 19 November 2021, you contacted Mary by text. You indicated that you had nowhere to stay. Mary was hesitant but invited you to stay at her house without her mother’s knowledge, and you caught an Uber there.[6]
[6]Ibid Q25.
12With Mary’s help, you climbed through the front window into her bedroom.[7]
[7]Ibid Q17, Q63-64.
13You put your belongings down, took off your shoes and lay down on the bed beside her. You lay at the opposite end of the bed, played on your respective phones, and talked together for some time.
14You began play fighting, pretending to hit and choke each other, and then you began to touch her sexually. You put her legs over your shoulder and touched her inner thighs.[8] Mary had no objection and 'didn’t mind at first'.[9]
[8]Ibid Q100.
[9]Ibid Q64.
15You then participated in what is described in the crown opening as consensual penile/vaginal sex.[10] Of course Mary could not consent because of her age, and I take this as a reference to the absence of those truly coercive factors such as forcible penetration or penetration otherwise accompanied by actual threats, coercion and violence.
[10]Ibid.
16You did not use a condom and withdrew your penis from her vagina to ejaculate on the bedsheets.[11]
[11]Record of Interview Transcript Q414, see Depositions; Exhibit 8 (Depositions): Mobile Phone Report – Accused’s Mobile Phone at p.94.19-94.22.
17Afterwards, you said to her 'You’re 15 or 16, right?' and she said 'No, I’m 14. Like, remember I met you at 13. Like, why would I be 14 now?' You responded 'Oh, shit, just don’t tell anyone, don’t tell anybody, like, my age or your age and all of that.'[12]
[12]VARE Q76, see Depositions.
18The event I have just described is not a charged act, and I do not sentence you on the basis that you offended at this time by engaging in intercourse in that way.
19But if there was a doubt in your mind about her age before the episode I just described, there could be no such confusion when it comes to the incident I am about to come to, and that is Charge 1, sexual penetration of a child under 16.[13]
[13]Crimes Act 1958 (Vic) s 49B(1).
Charge 1: Sexual Penetration of a Child under 16
20After the conversation that I just recounted, you indicated to Mary you wanted to have sex again. You touched and rubbed her vagina.
21Mary told you that she did not want to 'go another round'.[14] She told you that she was not in the mood and that she was tired.[15] She suggested that you try going to sleep or go on your phone.[16]
[14]VARE Q79, see Depositions.
[15]Ibid Q25 & Q69.
[16]Ibid Q69.
22You kept trying to convince her to have sex and said, 'I’ll make you in the mood' before you took off her shorts.[17] She froze and did not know what to do.[18] You inserted your penis into her vagina and continued to penetrate her vagina until you withdrew. She states that 'he didn’t finish'.[19]
[17]Ibid Q64.
[18]Ibid.
[19]Ibid Q98.
23You continued to lie in bed until you heard Mary’s mother. You then hid under Mary’s bed. Eventually, you climbed out of the window and caught a bus home.[20] That constitutes the act of sexual penetration of a child under 16 of which carries a maximum penalty of 15 years' imprisonment.
[20]Ibid Q20.
Complaint
24Mary told a friend via text what had happened between you and her.[21]
[21]Ibid Q109.
25On 1 January 2022, you had a conversation via text message with Mary. She texted, 'I wish we didn’t fuck. I hate it man, like so much.' You responded, 'I didn’t mean for it to happen, I think we both didn’t, it just happened'.[22]
[22]Exhibit 7 (Depositions): Screen Shot - Complainant’s Phone at p.82.
26On 23 February 2022, Mary’s older sister went through text messages on Mary’s phone after Mary returned home from being out without her older sister’s knowledge or permission. She saw messages between Mary and a friend about you. Your sister texted you from Mary’s phone pretending to be Mary asking to meet up.
27You attended the IGA carpark at 3:00am as arranged. Mary’s sister and her sister’s friend got out of the car to confront you. They asked you what you had done to upset Mary. You responded that Mary had invited you over, and that you had snuck through the window and had had sex with her. You said that you regretted it.[23] They recorded this interaction on Mary’s mobile phone.
[23]Statement of Complainant’s sister, Depositions at p.42-45.
28By 4:24am, you called Triple 0 asking if anything had been reported to police against you. You then disclosed that you had sexual intercourse with Mary knowing that she was under the age of 16.[24]
[24]Appendix A (Depositions): Transcript - Triple Zero Call at p.101.
29At about 5:25am, you made a recording on your mobile phone detailing your recollections of your interactions with Mary since you first met.[25]
[25]Appendix C (Depositions): Transcript - Video Recording made by Accused at p.114-117.
30At about 11:58am, you wrote a note in your mobile phone detailing the history of your interactions with Mary.[26] The account in the note was similar to the content of the video.
[26]Exhibit 9 (Depositions): Note written by Accused at p.96-97.
Investigation and interview
31As a result of your Triple 0 call, First Constable Rachel Mazza telephoned you and took notes of the conversation.
32When First Constable Mazza was on the phone to you, Mary’s sister attended the police station. Mary’s sister reported that she had located messages between you and Mary on Mary’s phone, indicating underage sexual contact. Mary’s sister advised that she had met with you and confronted you about the offending and filmed that discussion. The video of the meeting and copies of the messages on Mary’s phone were provided to police.[27]
[27]Statement of First Constable Rachel Mazza, Depositions at p.49.
33On 24 February 2022, Detective Senior Constable Riebeling and Detective Senior Constable Paterson attended Mary’s home. Mary participated in a VARE that day. She provided police with her mobile phone which contained messages between you and her.
34On the following day, 25 February 2022, you attended the police station and participated in an interview.[28]
[28]ROI Transcript, see Depositions at p.119.
35While the versions of 19 November 2021, given by you in the record of interview on 25 February 2022 and in the self-recording and note of two days earlier, contain some admissions, they also contain some self-serving and offence-minimising statements which were not accepted by the prosecution, most notably asserting that it was the victim who initiated sexual activity on each occasion and that you were somehow laboring under the impression she was 16.[29]
[29]See VARE Q42, 51, 53 and 63 for instance.
36One might understand why you would be worried and keen to downplay what occurred in your interview given the concern you would no doubt have had about the situation that you were in, but a lot of time has passed since that interview, and I am afraid that your insight has not necessarily improved.
37The plea of guilty has been accepted on the account given by the complainant and not on any other factual basis.
Victim Impact
38There is no victim impact statement and nor does there need to be. I can readily infer that your victim was harmed.
39That the facts alleged involve an ostensibly consensual act is irrelevant in the assessment of the gravity of your offending. As the Court of Appeal explained in Clarkson v R:[30]
'…the presence of consent does not make itself the sexual offence of a child under 16… any less serious. Of itself, the child’s 'consent' is irrelevant to the criminality of the conduct. The presumption of harm is unaffected by consent. It follows that neither the gravity of the offence nor the culpability of the offender is altered in any way by the victim’s consent alone.'
[30](2011) 32 VR 361, 371 [36].
40The criminal law prohibits sexual offending based on an acceptance of harm inherent in such offending. Although there is no victim impact statement, the law operates on an assumption that premature sexual activity is harmful to the long-term psychological health and wellbeing of a child. This is the case, even though the harm might not emerge or be apparent at the time. The law recognises that the offending occurred before the victim had reached an age where she could give meaningful consent.
Case history
41The offending occurred back on 19 November 2021. You were interviewed on 25 February 2022. You were not charged until 15 February 2023, approximately a year later. After a filing hearing on 10 May 2023 and two committal mentions in May and June of that same year, the matter resolved to the plea indictment before me. I heard the plea initially on 15 November 2023 and adjourned to 26 February 2024 to allow a thorough per-sentence report to be prepared.
Mandatory sentencing provisions
42Sexual penetration of a child under 16 is a standard sentence offence under sections 5A and 5B of the Sentencing Act 1991 (Vic). The standard sentence, as I said, is six years. What is more, section 11A(4)(c) of the Sentencing Act requires the court to impose a non-parole period of not less than 60 per cent of the sentence imposed, unless the court considers it is not in the interests of justice to do so.
43This is a rare case of this type of offending where the prosecution and your counsel agree that something other than a term of imprisonment to serve immediately is open for you, and most notably that a CCO is within range. There are good reasons for this that I will come to in due course.
Matters Personal to the Accused [31]
[31]See Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023; Exhibit 3 (Plea): Report of Jeffrey Cummins dated 2 October 2023; Exhibit 4 (Plea): CCO Assessment Report dated 5 January 2024.
44You were a young offender and are still only 20 years of age more than two years after the offending.
45You have had various significant issues in your upbringing including bullying at school and serious conflict with your father. More than once in the materials there is reference to you having lost your way and to some extent being aimless and without goals. [32]
[32]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 7 [50]; Exhibit 3 (Plea): Report of Jeffrey Cummins dated 2 October 2023, 3 [18].
46The abuse committed by your uncle on you is recorded by Mr Cummins and the CCO assessor.[33] I take it into account.
[33]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 2 [14]; Exhibit 4 (Plea): CCO Assessment report dated 5 January 2024, 4.
47Despite a truly difficult childhood, you have never before offended, nor have you offended since.
48You have a poor relationship with your father and consequently cannot live with your parents. You had no stable employment in Victoria. You have a sister who lives here but she is unable to provide you with accommodation because she is already sharing housing.
49Your history of homelessness and transience was evident at the time of offending, which included staying with other family members and at youth hostels. This was remedied by the time of your plea as you had relocated to a place in Queensland in about July 2023 where you were able to secure a six-month lease.
50I was told this was the first time you had secured a tenancy and your first stable accommodation in nearly three years. You were unemployed at the time but there was cause for optimism in the future. You have a work history of note, having started at McDonalds before working in factories and at Coles.
51There are some troubling aspects to the way that you have spent your leisure time and your lack of deep connection to others. Notably, I add, you have a very limited circle of friends and few pro-social outlets.
52You have a history of illicit drug use, especially cannabis, which you claimed to have ceased about 10 months ago, and your struggles with very poor mental health are documented in the psychological reports of Mr. Cummins.[34]
[34]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 7 [50]; Exhibit 3 (Plea): Report of Jeffrey Cummins dated 2 October 2023, 3 [18].
53As noted in the report of Mr Cummins in October 2023, Mr Cummins referencing a report from a social worker outlines various medical and psychological admissions to hospital, citing diagnoses of 'major depression, PTSD, arrythmia, homelessness, psychosis, and previous overdoses of medication'.[35] The report further outlines your medication at the time, including Aripiprazole, Propronolol, Zopiclone and Paliperidone injections.[36]
[35]Exhibit 3 (Plea): Report of Jeffrey Cummins dated 2 October 2023, 3 [16].
[36]Ibid.
54You were asked about these diagnoses during your CCO assessment.[37] In response you classified those diagnoses as 'schizophreniform psychosis, generalilized (sic) anxiety disorder, PTSD, past substance use disorder, and troublesome personality changes classified at times as borderline personality disorder.'[38] You stated your current medication regime is comprised of a number of different medications. You confirm that you believe the medication is beneficial. But I make this comment which may seem obvious but is necessary to say: healthy young men are not subject to a range of such powerful antipsychotic and mental health medications.
[37]Exhibit 4 (Plea): CCO Assessment report dated 5 January 2024, 6.
[38]Ibid.
55Considering the complex nature of your trauma and mental health needs, you will need to ensure you engage with the relevant mental health services on a CCO in order to minimise the potential negative impacts your mental health could have on your successful completion of this order.
56You disclosed that you have been engaging with an organisation called Lutheran Services fortnightly to address your mental health problems when you are in Queensland and noted that you would re-engage with Orygen, a specialist service in Victoria, if you relocated here.[39]
[39]Ibid.
57Your connections with Orygen, Lutheran Services and the Community Collective in Queensland, all bode well for your prospects. With respect to the latter, Renee Humphries, operations manager of the Community Collective, indicated that since September 2023 you have been engaged with their service to better assist you look for, find and keep work.[40] To your credit, you were actively engaged and actively looking. This, combined with your engagement with other services and compliance with bail, suggests to me that you are very much amenable to supervision and treatment.
[40]Exhibit 5: (Plea): Letter from Ms Renee Humphreys dated 15 November 2023.
58When I first heard the plea in November 2023, there was real concern that bringing you back to Melbourne from Queensland to undertake a CCO would destabilase, rather than assist you.
59The investigations made by your diligent counsel as to the possibility of transferring a CCO to Queensland led to the conclusion that this was so impractical, and impracticable, as to be unworkable.[41]
[41]This was later confirmed in the CCO Assessment report dated 5 January 2024 at 7.
60Thankfully, your suitability for a CCO was vastly increased by you securing accommodation in Victoria as of 24 January 2024. I have a copy of the lease confirming this.[42] This ought to address the concern about responsivity factors in the report stemming from your previous itinerancy.
[42]Exhibit 6 (Plea): Residential Tenancy Lease dated 17 January 2024.
61I had you assessed for a CCO during the period between the first listing of the plea and now. The report dated 5 January 2024 is instructive. You were found suitable, but in the course of that assessment it was observed and says, and I will quote it verbatim:[43]
'Mr Parr’s presentation during this line of questioning' – this is about the offending – 'differed from the remainder of the interview in that he appeared to be reading from a prepared statement based on his word choice, cadence, and use of identical phrasing upon being asked to repeat certain details. He spoke significantly quicker during this part of the interview, requiring the assessor to request he slow down on multiple occasions.'
Mr. Parr recounted his history with the victim as part of his response. He explained he met the victim 'through a mutual friend.' He discussed an encounter with the victim previous to the one which is the subject of current proceedings in which he, the victim, and others were drinking at a residence and explained in detail all the way in which he rigorously and successfully repelled the victim’s aggressive sexual advances towards him prior to being driven home by the victim’s sister.
In reference to the night in question, Mr. Parr engaged in minimisation of his own actions, shifting the blame to the victim. For example, regarding his own actions he made several statements including 'I told [the victim] to stop and pushed her away … I said no and walked away … She got on top of me and I tried to pull back … [and] tried to kick her off.' He took particular issue with the prosecution’s account of the facts specifically in relation to the dispute as to the victim’s age, claiming he believed the victim to be 16 and claiming the victim told him she was 15. He did not, however, dispute that the sexual encounter had taken place.'
[43]Exhibit 4 (Plea): CCO Assessment report dated 5 January 2024, 2.
62None of that sits particularly well with what you told Mr Cummins in August 2023 about your own regret, stupidity and the crushing effect, the burden of what you had done had caused you.[44] You struggled to some extent even with Mr Cummins to fully grasp that your victim could not consent because of her age.[45]
[44]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 4 [26] see also 4 [30].
[45]Ibid 6 [46].
63You were assessed as generally being a medium risk of re-offending.[46] Your highest areas of need were evaluated as being family/marital, companions, and alcohol/drug problem.[47] But I note and want to emphasise; you were found to be a low risk, specifically when considering the risk of any sexual re-offending by Mr Cummins.[48]
[46]Exhibit 4 (Plea): CCO Assessment report dated 5 January 2024, 3.
[47]Ibid.
[48]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 6 [44].
64You do not present with any particular sexual deviance, with, as I said, the offending being more opportunistic and spontaneous. Your relationship history, as limited as it is, suggests that you prefer partners much closer to your age than the victim. You feel that you will be stigmatised by such an offence and at one point claimed you would prefer to go to prison than to be forced to endure a sex offender's treatment course in the community.[49] This, Mr Parr, is not realistic or productive.
[49]Ibid 4 [27].
65I identified the areas of your life that would benefit from assistance from the Office of Corrections but the minimisation of the offending and victim blaming will need particular focus through sex offence specific courses that the Office of Corrections provide for 18 months at least.
Matters of sentencing principle
Sexual offending against children
66Any sexual offending against a child is serious.[50] In this case, Mary was 14 at the time of the offending and you were 18. It is accepted that this is not such a great disparity in age. You were both teenagers at the time of the offending, however, there remains a difference of four years in maturity and experience. How mature you were, Mr Parr, as an 18-year-old though, is a matter of some debate.
[50]Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428.
67Once Mary's age was confirmed as 14, you must have known that continued sexual contact with her was wrong and that is evident by you swearing and telling her not to tell anyone about your respective ages.
68There is an element, to some degree, of coercion in the offending as you continued to persuade Mary to engage in sexual intercourse despite her indication that she was tired and was 'not in the mood'.[51] It is accepted by the crown the offending is opportunistic and not premeditated and does not, importantly, represent a breach of trust, and so much is confirmed by Mr Cummins.[52]
[51]VARE Q17, see Depositions
[52]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 5 [31].
69I note that there was no condom used, which increases the risk of the transmission potentially of any disease and adding to the risk of unwanted pregnancy.
Youth
70You are still only 20 and you are to be sentenced as a young offender. Your rehabilitation is a paramount sentencing factor and ought to be given more weight than specific deterrence.[53]
[53]R v Mills [1998] 4 VR 235.
71The delay that has occurred between the offending and disposition operates in your favour.
72As our Court of Appeal said in Azzopardi v The Queen,[54] three considerations underlie the primacy to be given to a youthful offender when sentencing:
(a) Young offenders being immature, 'are more prone to make ill-considered or rash choices'. They 'may lack the degree of insight, judgment and self‑control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'.
(b) The courts recognise the potential for young offenders to be redeemed and rehabilitated.
(c) Incarceration of a young person for an extended period of time in an adult prison may be counterproductive through the antisocial influences of fellow prisoners.
Admissions and Doran discount
[54](2011) 35 VR 43, 44.
73You were in the unusual position of presenting yourself to the police to tell them about your offending before it was otherwise known to them. It is not clear to me whether or not you were given an ultimatum by Mary’s sister before you did so, or if you felt burdened with such guilt that you felt compelled to confess. You note in the Triple 0 call that you knew you would be in trouble, and it was better for you to admit to something before dragging it on.[55] You said you felt horrible and guilty for it.
[55]Appendix A (Depositions): Transcript - Triple Zero Call at p.105.
74Be that as it may, you incriminated yourself in conversations with police before Mary’s sister informed them of the offending and you will be given due credit for that.[56] You admitted to sexual activity with Mary. The credit to be given in these circumstances is harder to assess than usual. Your confession to police is couched in terms about being under some doubt about Mary’s age, replicated in your note where you disavow a key aspect of the offending, that is, your knowledge of her age.
[56]R v Doran [2005] VSCA 271, 5 [15].
75The credit you get for the confession is somewhat undermined later by the shifting of blame and responsibility, both in the police interview and later in the Office of Corrections one.
76It was submitted I should afford you the discount in the way that term is understood in the case of R vDoran.[57] I consider your conduct worthy of a discount in the sentence I impose but it is hard to say it is a full admission to the offending when it is not a full admission at all.
[57][2005] VSCA 271.
77You were co-operative to a fairly high degree. You made admissions to conduct that would otherwise require the complainant to give a VARE. Ultimately, when she did give her VARE, it differed in material ways from your own account, and I note the crown case and your plea is based on that account.
78Beyond that, I cannot find the more substantial sentencing discount permitted for in Doran to be applied in this case.
Plea of guilty and remorse
79You entered a plea at the earliest opportunity as far as I am concerned.
80It was submitted, and I accept, that your plea of guilty ought to attract a substantial discount, but I hesitate to add that discount is not of the kind or magnitude as envisaged by Worboyes given the court was not labouring under quite the same constraints by the time you entered the plea as when Worboyes was decided.[58]
[58]R v Phillips [2012] VSCA 140; Worboyes v The Queen [2021] VSCA 169.
81At the very least, there is a real utilitarian benefit to your plea and the complainant was not required to give evidence.
82Remorse is a vexed question; you have pleaded guilty and intimated that at the same time somehow none of this really is your fault and to some extent you were the victim. I find a lack of full acceptance of what you did troubling but perhaps that is a function of your youth, your immaturity and your poor mental health.
Verdins
83The reports of Mr Cummins dated 7 August 2023 and 2 October 2023 indicate you suffer from a range of mental health disorders, including current diagnoses of major depression, PTSD and generalised anxiety.[59] You have had serious and ongoing mental disturbances requiring serious medication, hospitalisation and behaviors that are bordering on suicidality and delusional.
[59]Exhibit 2 (Plea): Report of Mr Jeffrey Cummins dated 7 August 2023, 7 [50]; Exhibit 3 (Plea): Report of Jeffrey Cummins dated 2 October 2023, 3 [18].
84Your Orygen youth health records run to more than 700 pages. You have been linked to that service since the age of 16.
85Mr Cummins notes that so much of your drug use is secondary to your very poor mental health and urges the court to place a degree of primacy on improving your mental state.
86There does not appear to be a nexus between these disorders and the offending such to reduce your moral culpability, but I do accept there is application in Verdins Limbs 5 and 6 – that is regarding how much you would suffer in a custodial environment. You are young, have no criminal pedigree and are laboring under serious mental health issues so severe that you require ongoing intense treatment to maintain stability.
General and specific deterrence
87It is conceded general and specific deterrence are relevant considerations in the context of this offending. Members of the community who seek to exploit children for their own gratification must be deterred and it is all the court can do to impose sentences of such magnitude that it serves this sentencing objective.
88It is submitted in this case that principles of specific and general deterrence must be moderated to some degree, even without Verdins.
Prospects for reform
89It is submitted the following are relevant:
(a) Your youth;
(b) Your lack of any prior sexual offences, or any offences at all for that matter;
(c) Your early plea of guilty;
(d) The lack of subsequent offending; and
(e) Your obvious amenability to seeking and retaining assistance from others.
Standard sentencing
90The standard sentence in this case is six years, and it is a numerical guidepost for the court when sentencing for specified offences. It is, I repeat, a guidepost, not unlike the maximum penalty.
91The period specified as the standard sentence is the sentence to be imposed for an offence that, taking into account only objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness.[60] I have to give reasons for imposing the sentence, any non-parole period fixed under the Act that is shorter than that specified in section 11A(4), and state how the sentence imposed relates to the standard sentence.[61] This requires me to identify the facts, matters and circumstances bearing upon my judgment as to the appropriate sentence.
[60]Sentencing Act 1991 (Vic) s 5A(3).
[61]Ibid s 5B(5).
92The principles bearing upon the application of the standard sentencing regime are authoritatively considered in Brown v The Queen and there at [4] the Court of Appeal says this:[62]
'For the most part the provisions are clear and the approach required is not in dispute. The key new requirement is that 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;
· does not affect the established 'instinctive synthesis' approach to sentencing;
· does not require or indeed permit 'two-stage sentencing'; and
· does not otherwise affect the matter which the court may, or must, take into account'.'
[62][2019] 59 VR 462, 464-5 [4].
93Further, at [55] and [57], the court said:[63]
'Judges sentencing for a standard sentence offence should continue to assess the seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s5B(2)(a) (to take the standard sentence into account) and by 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by 5(2)(a) to have regard to the maximum sentence. They are all 'legislative guideposts'.'
'Just as judges have always had in mind a notion of 'the worst possible case', so they must now have in mind a notion that an offence 'in the middle of the range of seriousness'. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. There are two reasons for this. The first is the narrowness of the definition of 'objective factors' which, as McCallum J pointed out in McLaren, is 'ignorant of' a range of matters which the judge will need to take into account when assessing the nature and gravity of the subject offending. The second is the inevitable imprecision of the notion of a hypothesised mid-range offence.'
[63]Ibid 479 [55], [57].
94I emphasise the standard sentence is one of many factors I am to consider in section 5(2) of the Sentencing Act, many of which pull in different directions. It does not represent a starting point for a sentence from which I add or subtract depending on various factors in mitigation or aggravation, as the case may be.
95As I said, I am not required to (nor will I) classify this offending on a scale of seriousness. My interpretation of the standard sentence regime is that I am to identify fully the facts, matters and circumstances which bear upon the judgment I have reached as to the appropriate sentence, and I have endeavoured to do so in these reasons.
Current sentencing practices and comparable cases
96The court must always have regard to current sentencing practices. However, they are but one factor to be taken into account in the instinctive synthesis and they are not a controlling factor.[64]
[64]Sentencing Act 1991 (Vic) s 5(2)(b); Director of Public Prosecutions v Dalgliesh (2017) 262 CLR 428, 434 [9].
97In sentencing an offender for a standard sentence offence, despite section 5(2)(b) of the Sentencing Act, I must have regard only to sentences previously imposed for the offence as a standard sentence offence. Sentences imposed prior to the commencement of those provisions are relevant only to the extent that they disclose relevant sentencing principles.
98I was taken to a number of cases said to be analogous to this one:
(a) DPP v Smith [2021] VCC 982;
(b) Rose v R [2022] VSCA 112;
(c) DPP v Youl [2023] VCC 635;
(d) DPP v Sekulic [2022] VCC 1669;
(e) DPP v Brode [2020] VCC 498;
(f) DPP v Calladine [2020] VCC 2014; and
(g) DPP v Yuen [2020] VCC 1527.
99In each of the cases, save for Rose, the accused fell to be sentenced for the offence of sexual penetration of a child under 16, which was a standard offence in each case, and each accused was sentenced to a CCO. Each case I have just referred to had unusual features, not unlike yours, that justified such a different approach being taken.
100I do not treat those cases as precedents per se but rather illustrative of what a broad discretion a sentencing judge has, even in standard sentencing cases, to impose a CCO where the circumstances warrant it.
Sentence
101In my view, having balanced and weighed the necessary considerations, I share the view of the parties as to what disposition is open to me to impose. A CCO provides a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together, expressed in this way in Bolton v The Queen:[65]
'This significantly diminishes the conflict between sentencing purposes,
particularly acute in relation to young offenders. No longer will the court be
placed in a position of having to give less weight to denunciation, or
specific and general deterrence, in order to promote the young offender’s
rehabilitation. Rather, the court will be able to fashion a CCO whichadequately achieves all these purposes.'[65](2014) VR 308, 349 [186].
102It appears to me, Mr Parr, that I can denounce your conduct, punish you, deter others as well as you, as well as foster conditions that will assist in your reform by imposing a CCO with rigorous conditions.
103It seems to me that you are slowly maturing, and you are on the cusp of consolidating some significant milestones in your young life, initially and importantly, being able to have stable accommodation and being offered the benefit of complete scaffolding in the form of a wide range of supports in a CCO.
104I have formed the view that the community is best protected by your reform. I have also come to the view that despite a truly difficult childhood and adolescence, you have proven to be determined, resilient and demonstrably capable of reform.
105I have not, however, acceded to your request made through Mr Cummins’ report and through your counsel to deal with this matter by way of non-conviction. In my view, the offending is too serious and the considerations under section 8 of the Sentencing Act do not compel or permit such a result.
Community Corrections Order
106Providing you consent, I intend to convict and place you on a community corrections order of 20 months.
107Every community corrections order, including this one, contains core conditions. They are as follows:
(a) You must not commit another offence punishable by imprisonment during the order.
(b) You must comply with any obligation or requirement prescribed by the regulation.
(c) You must report to, or receive visits from, the Secretary during the period of the order.
(d) You report to Geelong Community Correction Services within two working days of the commencement of the order.
(e) And notify the Secretary of any change of address or employment within two days after that change.
(f) You cannot leave the state of Victoria except with the permission of the Secretary.
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the CCO I have just imposed.
108They are the conditions that apply to each order.
109In addition to those mandatory ones, there are other conditions that I am going to impose that are helpfully set out in the recommendations of the CCO assessor:[66]
1) You be the subject to supervision by Office of Corrections.[67]
2) You complete 180 hours of unpaid community work over 18 months of the course of the order.[68]
3) In order to encourage you to do your best on those 180 hours, I will order that 60 hours of treatment and rehabilitation, that is one-third of hours that you do towards your own reform, will come off the total amount of community work hours – so that is one-third.
4) You are to undergo assessment and treatment, including testing, for drug abuse and dependency as directed.[69]
5) You undergo assessment and treatment, including testing, for alcohol abuse and dependency as required.[70]
6) You undergo mental health assessment and treatment as directed[71] - and I pause to note, I hope that is again through Orygen.
7) Finally, you must undergo any programs consistent with the purpose of treatment and rehabilitation, which might include but are not limited to, employment, for instance.[72]
[66]Exhibit 4 (Plea): CCO Assessment report dated 5 January 2024, 8.
[67]Supervision condition in accordance with s 48E of the Sentencing Act 1991 (Vic).
[68]Unpaid Community Work in accordance with s 48C of the Sentencing Act 1991 (Vic). Mr. Parr confirmed he has no physical injuries or other limitations that would prevent him from completing this condition. It is respectfully recommended Mr. Parr be permitted to receive treatment credits towards this condition pursuant to s 48CA of the Sentencing Act 1991 (Vic).
[69]Treatment and Rehabilitation – any assessment and treatment (including testing) for drug abuse or dependency in accordance with s 48D(3)(a) of the Sentencing Act 1991 (Vic).
[70]Treatment and Rehabilitation – any assessment and treatment (including testing) for alcohol abuse or dependency in accordance with s 48D(3)(b) of the Sentencing Act 1991 (Vic).
[71]Treatment and Rehabilitation – any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility in accordance with s.48D(3)(e) of the Sentencing Act 1991 (Vic).
[72]Treatment and Rehabilitation – any program that addresses factors related to his offending in accordance with s.48D(3)(f) of the Sentencing Act 1991 (Vic).
110I would like you to view the CCO that I have just imposed as an opportunity for you, as opposed to a burden, Mr Parr.
111I can only impose such an order if you agree to it. If you want some time with Mr Cameron you will have it but do you consent to such an order?
112OFFENDER: Yes, I consent.
113HIS HONOUR: Thank you. You need to understand that if you were to breach the order in any way, that is by committing another offence or not complying with it, this whole process commences again, and I would be able to re-sentence you for the original offences. What is worse is that the offence of breaching a community corrections order is a criminal offence that carries a penalty of three months' imprisonment. I would suggest to you that you do everything humanly possible to avoid seeing me again in that context.
Section 6AAA
114Under section 6AAA of the Sentencing Act, I am obliged to tell you what sentence I would have given you if you had pleaded not guilty but been found guilty. But for your plea of guilty, I would have had you detained in a Youth Justice Centre for two years. So, you can see the difference that your plea of guilty has made to the outcome in this case.
Sex Offenders Registration Act 2004 (Vic)
115The Sex Offenders Registration Act 2004 (Vic) (‘SORA’) provides for mandatory registration of offenders who have been sentenced by the court for an offence such as this.
116Sexual penetration of a child under 16 is a Class 1 offence under the SORA.
117Pursuant to section 34(1)(b)(i) of the SORA, upon conviction for a single Class 1 offence, the reporting period is usually 15 years.
118Pursuant to section 50 of the SORA, the court must ensure the offender is given written notice of his reporting obligations.
119There is a particular provision though that has application in a case like this. Pursuant to section 11A of the SORA, an offender who was 18 at the time of the commission of the offence may apply for an exemption order. The court may declare the applicant is not a registrable offender in respect of a specified offence if satisfied, on the balance of probabilities, that at all times during the commission of the offence the victim is of or over the age of 14 years, and that is the case here, and that having regard to a number of factors is satisfied that the applicant poses no or a low risk to the sexual safety of one or more persons in the community.[73]
[73]Sexual penetration of a child under 16 is a specified offence pursuant to Schedule 5, item 1(a); Sex Offenders Registration Act 2004 (Vic) s 11B.
120I have had regard to the totality of the materials relied upon and I have received written submissions today of the same.
121I want to make it perfectly clear that both the prosecution and the Chief Commissioner of Police, who are a party to these proceedings, do not oppose you being exempted from the making of such an order based on your age, your lack of prior convictions, your lack of subsequent convictions, the fact that the complainant was 14 and you were 18 and you were convicted of one, and only one, offence.
122In those circumstances, I decline to make an order placing you on the Sex Offenders Register. That is to say, the exception is made out and you will not be declared a registrable offender.
123Can I thank counsel for your considerable efforts and your patience in listening to what was not necessarily a fully written set of sentencing reasons, but for obvious reasons I wanted your client to know what the result was and for him not to have to come back.
124Probably tomorrow morning we will send something to you but is there anything that needs clarification about the order.
125MS McVEAN: Nothing further, Your Honour.
126MR CAMERON: No, Your Honour.
127HIS HONOUR: Ms McVean, can I thank you very much, and you too, Mr Cameron.
128Mr Parr, you understand what your obligations are, you will be asked to sign an order in a moment, go through that with Mr Cameron, if there are any difficulties with it let us know. The order goes for 20 months, you have 18 months to do 180 hours. To encourage you to seek the help that everyone agrees that you need, one-third of your community work hours will come off the treatment component. So do the treatment, it means that you don't have to do the community work. That's how fundamentally important your treatment is. Do you follow? All right.
129I can sign the order in chambers, presumably. Thanks again everyone.
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