DPP v Youl

[2023] VCC 635

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01798

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROOKLYN YOUL

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2023
DATE OF SENTENCE:	27 April 2023
CASE MAY BE CITED AS:	DPP v Youl
MEDIUM NEUTRAL CITATION:	[2023] VCC 635

REASONS FOR SENTENCE
---

Subject:Criminal law – Sentence  

Catchwords:              Guilty plea – ten charges of sexual penetration of a child under 16 years – one charge of possession of child abuse material – offending occurred over a period of approximately four months when the complainant was between the ages of 13 -14 and the offender was between 19-20 years of age – rolled up charges – presumption of harm to the victim –– early plea – youthful and immature offender – Doran discount applicable where most instances of offending disclosed by accused during record of interview – Clarkson v The Queen (2011) VR 361, considered – very good prospects of rehabilitation – low risk to community.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Verdins v. R (2007) 16 VR 269; Clarkson v. R (2011) 32 VR 361; Azzopardi v. The Queen [2011] VSCA 372; Buckley v. The Queen [2022] VSCA 138; R v. Doran [2005] VSCA 271; Latina v. The Queen [2015] VSCA 102; Rose (a pseudonym) v. The Queen [2022] VSCA 112; Brown v. The Queen [2019] VSCA 286; The Queen v. Boulton [2014] VSCA 342

Sentence:                  Community Correction Order made for three years

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B.D. Nibbs	Office of Public Prosecutions
Victoria
For the Accused	Mr G. Cooper	Victoria Legal Aid

HER HONOUR:

1Brooklyn Youl, you have pleaded guilty to ten charges of sexual penetration of a child under 16 contrary to s49B of the Crimes Act 1958 (the Act), the maximum penalty for which is 15 years' imprisonment and one charge of possessing child abuse material contrary to s51G of the Act, the maximum penalty for which is 10 years' imprisonment.

2You were born in May 2002 and were between 19 and 20 years of age at the time of this offending and were employed. You have no prior criminal history.

Circumstances of offending

3The circumstances of your offending are detailed in an Amended Summary of Prosecution Opening dated 23 March 2023 which is the agreed basis upon which you are to be sentenced.

4These charges arise from the various occasions you engaged in sexual intercourse with the victim, a child under the age of 16, between 1 February 2022 and 21 June 2022.

5The victim of your offending was born in April 2008. She was 13 years old at the time of the first incident of offending. The offending continued after she turned 14 in April 2022, with the remaining nine incidents occurring after that date up until 21 Jun 2022. Throughout this period, the victim slept in a bedroom in a detached bungalow at the rear of the family home. Her mother resided in the main house with her partner and other children and only became aware of what was happening when she entered the bungalow on the morning of 21 June 2022.

6You first became acquainted with the victim in around August or September 2021 when you communicated for a brief period via Snapchat. You then ceased contact for a while. In November 2021, you again communicated with one another and in February 2022, you agreed to meet in person. Over the course of these communications, and before you met, the victim had told you her age and was aware of your age.

7The charges of sexual penetration of a child under 16 relate to the 10 occasions you attended the bungalow where you and the victim cuddled and kissed, before you engaged in unprotected sexual intercourse with her. The 10 charges of sexual penetration are rolled-up charges, comprising the following acts of sexual penetration:

(a)   Charge 1 relates to an occasion between 1 February and 28 February 2022, when you sexually penetrated the victim's vagina with your fingers and then penetrated her vagina with your penis, without using a condom;

(b)   Charge 2 relates to the occasion you attended the bungalow on 9 April 2022, after the victim had turned 14, and sexually penetrated her vagina with your tongue and fingers before sexually penetrating her vagina with your penis without using a condom. You also penetrated the victim's mouth with your penis on this occasion;

(c)   Charge 4 relates to the occasion you attended the bungalow on 15 April 2022, where after cuddling and kissing, you penetrated the victim's vagina with your fingers before sexually penetrating her vagina with your penis, without using a condom. You also penetrated the victim's mouth with your penis. On this occasion you also attempted to penetrate the victim's anus with your penis, but later told police investigators that it 'did not work'. This attempted penetration is the not the subject of the charge, but forms part of the context to your offending;

(d)   Charge 5 relates to the occasion you attended the bungalow on 13 May 2022 and penetrated the victim's vagina with your fingers before sexually penetrating her vagina with your penis without using a condom;

(e)   Charge 6 relates to the occasion on 28 May 2022 where, in the victim's room in the bungalow, you sexually penetrated her vagina with your penis without using a condom, and penetrated her vagina with your fingers;

(f)    Charge 7 relates to the occasion on 29 May 2022 where you sexually penetrated the victim's vagina with your penis without using a condom and penetrated her vagina with your fingers;

(g)   Charge 8 relates to the occasion on 2 June 2022 where you penetrated the victim's vagina with your penis without using a condom and penetrated her vagina with your fingers;

(h)   Charge 9 relates to the occasion on 8 June 2022 where you penetrated the victim's vagina with your penis without using a condom and penetrated her vagina with your fingers;

(i)    Charge 10 relates to an occasion between 17 and 18 June 2022 when you attended the bungalow and sexually penetrated the victim’s vagina with your penis without a condom and penetrated her vagina with your fingers.

8The last incident of offending occurred at approximately 11.11 pm on 20 June 2022, when you attended the victim's bungalow and waited in your car at the front of the house as the lights were on in the main house. You then entered the bungalow shortly after, around 11.52 pm.

9In the early hours of 21 June 2022, you and the victim cuddled and kissed, before you sexually penetrated her vagina with your penis without using a condom, in addition to sexually penetrating her vagina with your tongue and fingers. You also penetrated the victim's anus with your penis and she performed oral sex when you penetrated her mouth with your penis. This conduct gives rise to Charge 11.

10At 6.30 am on 21 June 2022, the victim's mother came into her daughter's room in the bungalow and saw you in her bed. The victim's mother had never met you previously and began screaming and told her daughter to get her stepfather. The victim's mother immediately called Triple 0.

11At approximately 8.30 am, the police arrived at the house and spoke to you and to the victim. The victim told police that you had engaged in sexual intercourse and you were aware of her age. After speaking with police, the victim was taken to the Bendigo Hospital to undergo a forensic medical examination.

12You were arrested and taken to the Swan Hill Police Station where your mobile phone was seized by police and subsequently analysed. The photo history available on Snapchat confirmed the dates you had been together with the victim. In addition, a photograph and three videos of the victim, showing her naked breasts, were located on your mobile phone and had been in your possession between 9 April 2022 and 15 June 2022. These images constitute child abuse material and give rise to Charge 3 – the charge of possession of child abuse material.

Investigation

13On 28 June 2022, the victim was interviewed by the police in the form of an audio and visual recording of evidence (VARE), but made no disclosures regarding the offending.

14On 5 July 2022, the victim participated in a further VARE during which she disclosed the offending in only general terms. On this occasion, she communicated with police by sometimes answering questions and by writing some of her answers. She stated she had a sexual relationship with you, and that 'things' happened in her mouth, on her breasts and vagina. She said you penetrated her mouth with your penis once or twice in her room and that your tongue entered her vagina. The victim said you sexually penetrated her vagina with your penis on the occasion her mother walked into her room in the bungalow, and on the other occasions you came over.

15You were interviewed by police on 21 June 2022. This occurred prior to the victim making any statement to police regarding your conduct.

16During that interview, you made fulsome admissions to the sexual offending and admitted you were aware of the victim's age at that time. In the interview, you told police:

·        That the pair of you ended up 'being in like a little relationship'.  You said there were 'love' messages shared;

·        That you took the victim's virginity and did not use protection other than the one occasion when the victim asked you to wear a condom. You said you used the condom for two minutes before it was removed by the victim;

·        That you had sex with the victim approximately 20 times, because there were times you would both “smash three, four times a night”;

·        You said you sexually penetrated the complainant no more than 25 times but on at least 15 occasions;

·        That you believed age is just a number, but the younger you are the more mature you need to be; and

·        That the victim looked and acted older than 14 years of age. You said she treated you like 'no other 14 year old' and 'that’s why [you] are so sad because when this ends [you] don’t want to stop talking to her'.

17You pleaded guilty to these charges at the earliest available opportunity. In doing so you saved the victim, her mother and other witnesses from having to give evidence regarding these events in court. I will return to the significance of your guilty plea later in my reasons.

Nature and gravity of the offending

18I now turn to make some comments about the nature and gravity of your offending.

19The objective seriousness of the offence of sexual penetration of a child under 16 is gauged by the maximum penalty of 15 years' imprisonment imposed by Parliament. In this case, the victim was only 13 years old when the offending commenced and had just turned 14 as the offending continued. You were aware of her age at all times. You were 19-20 at the time of this offending, and whilst this may not be a great difference in purely chronological terms, for a 13-14 year old it is significant. She was a school-aged child, whereas you had finished school, had a job and drove a car. There was a power imbalance in your relationship by virtue of this age disparity.

20Moreover, you engaged in repeated acts of penile-vaginal penetration over the course of four months, without the use of a condom.  I accept that the only occasion the victim asked you to use a condom, you did so before she removed it. However, the fact your conduct placed the young victim at risk of pregnancy, or a sexually transmitted disease, is a significant aggravating feature of your offending.

21Further, you took the opportunity that presented from the fact she lived in the bungalow away from the family house to keep the relationship a secret. You admitted in the record of interview that you waited for the lights of the family home to go out before sneaking into her bedroom. You must have been aware that what you were doing was illegal or wrong, but continued nonetheless.

22Your counsel properly accepts that his offending does not fall clearly within the description of 'exceptional cases' identified in Clarkson – 'for example, in a relationship between a 15 year old girl and an 18 year old boy - where consent is, relatively speaking, freely given and genuine and a reflection of a genuine affection between the two'.

23From the agreed summary, it appears your relationship with the victim was primarily, but not purely, a sexual one. However, there is no evidence that you used any force or violence, or otherwise manipulated the victim to engage in any of the sexual acts with you. To the contrary, there are indications you were genuinely fond of the victim, that you believed you had found someone you could talk to. In your words, you ended up 'being in like a little relationship' with love messages shared between the two of you. Although it could not be characterised as squarely falling within the type of relationship the Court of Appeal was describing as exceptional in Clarkson, I accept it has some features of such a relationship. This is not a case where there was a breach of a relationship of trust or where you exercised any power or authority over the victim.

24The fact these charges involved apparently consensual sex is irrelevant to my assessment of the gravity of your offending. As the Court of Appeal explained in Clarkson:[1]

‘…the presence of consent does not of itself make the offence of sexual penetration of a child under 16… any the 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.[2]

[1]Clarkson v R (2011) 32 VR 361 (‘Clarkson’)

[2]        Clarkson, ibid at [36].

25The criminal law prohibits sexual offending based on an acceptance of the harm inherent in such offending. Although there is no victim impact statement from the victim in this case, 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 may 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.

26It is also relevant to my assessment of the gravity of this offence that each of the 10 charges of sexual penetration of a child under 16 is a rolled-up charge reflecting multiple instances of sexual penetration. The most serious of these is Charge 11 – which involves five separate acts of sexual penetration, including unprotected penile-vaginal penetration, oral penetration and anal penetration. Although the one maximum penalty applies to each of these charges, the sentence must reflect the fact that each charge reflects more than one act of penetration. It is relevant however, that each act of penetration occurs in the course of a single event or on the one night.

27Regarding the offence of possessing child abuse material, I accept that neither the nature nor quality of the material possessed by you elevates this above a low level example of this type of offence.

28Over the course of the four months, you had many opportunities to reflect on the wrongfulness of this sexual relationship and to desist, but you did not. The offending occurred repeatedly over that period, and only ended after the victim's mother found you in her daughter's bungalow.

29In her victim impact statement, the victim's mother speaks of feelings of guilt, anger, shame, embarrassment and helplessness arising from your offending. Although she bears no responsibility for your conduct, she blames herself for what occurred in her home, without her knowledge. She now describes isolating herself from others due to feeling overwhelmed by these emotions. The victim impact statement also recounts the emotional and financial toll of the victim having to undergoing medical checks and being driven long distances to source counselling. Understandably, she now worries for her daughter's future and the impact your offending may have on her ability to engage in meaningful, safe and respectful relationships with peers her own age into the future.

30You bear a level of moral culpability for your conduct, however this is also informed by your personal circumstances to which I now turn.

Personal circumstances

31You are now 20 years old. You were born in Bendigo and grew up with your parents and a younger sister in two suburbs of Bendigo,

32You enjoyed a stable childhood. Your mother works in administration at Bendigo Health. In 2022 she ceased work due to health problems and has only recently resumed her employment. Your father works as a chef, and has also a background in furniture making and other manual work. You have a good relationship with your younger sister. Your immediate and extended family are extensively involved in harness racing as trainers and drivers. This is not an interest that you share, which you report made you feel less connected to your family. You have told your parents something of your offending, and they remain supportive of you, as do other family friends.

33You completed primary school and then attended Bendigo Senior Secondary College up until Year 12. You report being bullied in your early years of secondary school but responded by getting into fights, leading to a period where you were suspended from school. Although you had no difficulty managing the academic aspect of school, you began to struggle with the move to online learning during the pandemic, and left school before completing Year 12. For the remainder of 2020 you were heavily involved in online gaming.

34Since leaving school, you have been supported by your parents to find work, including employment in a number of hospitality positions, the most significant of which was work as a kitchen hand at a local hotel where you worked 25 hours per week for a period of 13 months.

35You have aspirations to obtain an apprenticeship and become a chef.

36Prior to this offending you had one significant relationship when you were 17 years old that lasted approximately 8 months. Your partner was also 17. You have had a number of other short-term relationships that were also age appropriate.

37You were assessed for the purposes of the plea by clinical psychologist, Ms Carla Lechner on 22 November 2022. In her report dated 31 December 2022, Ms Lechner says you present as 'socially and emotionally immature youth' and notes your history of being bullied at school. In response, she assesses you as having 'adopted a "pseudo" mature, somewhat arrogant persona that masks [your] chronically low self-esteem and poor self-image'.

38You have no history of alcohol or drug abuse, and prior to this offending you had no history of mental illness, such as anxiety or depression. No reliance was placed on the authority of Verdins to argue there was any reduction in your moral culpability for your offending or the application of the sentencing principles of general deterrence and denunciation. There is no evidentiary basis for such a finding.

39Ms Lechner does conclude that you met a diagnosis of an Adjustment Disorder with Depressed Mood arising, in part, as a result of your anxiety over these charges.  She states:[3]

'At interview Brooklyn was clearly anxious and his mood was low with extremely flat affect. He is currently reporting symptoms of a “moderate” level of psychological distress and "mild” depression, mostly reactive to his pending Court hearing but also reflective of long-standing issues of limited self-confidence that he tries to mask with a "don’t care" attitude. Brooklyn impressed as emotionally and socially immature; whilst able to identify triggers to his negative feelings, he is less well able to manage them adaptively, tending to deny/avoid or minimise the extent of his internal distress.'

[3]Exhibit 1 – Psychological report of Ms Carla Lechner dated 31 December 2022, p.6

Sentencing Submissions

40On your behalf, Mr Cooper provided detailed and helpful written submissions which he expanded upon at the hearing of your plea, highlighting a number of significant matters that operate in mitigation of your sentence.

41First and foremost, you pleaded guilty to the offences at an early stage. As stated, your guilty plea saved the victim the trauma often associated with giving evidence.  Given her age and the nature of the offending, this is significant. Your plea also saves the court and the community the cost and time associated with a jury trial. At a time when there is a backlog of trials in the wake of the pandemic, the utility of your guilty plea is heightened. You are entitled to and will receive a significant sentencing discount in light of your guilty plea.

42You have expressed some remorse for your conduct. In your discussions with Ms Lechner, you say you now regret your actions but 'do not regret your feelings'.

43In addition to the benefit of your early guilty plea, you are also to be sentenced as a young offender.

44Your age is relevant in a number of ways. The authorities, such as Mills and Azzopardi, recognise that young offenders, being more immature, are more 'prone to ill-considered or rash decisions'. Indeed, Ms Lechner assesses that you are 'emotionally and socially immature'. The law recognises that young offenders may 'lack the degree of insight, judgment and self-control' that is possessed by an adult. They may not fully appreciate the nature, seriousness and  consequences of their criminal conduct.[4] The prominence to be given to general deterrence is reduced in light of your age, however the nature of your offending means that deterring others (including other young men) from sexual offending involving minors, remains a sentencing consideration of some weight.

[4]Azzopardi v The Queen [2011] VSCA 372 at [34]

45On your behalf, your counsel also relied on the opinion expressed by Ms Lechner that 'It would appear that he and the complainant were matched in terms of their psychosocial age'.[5] As I raised with counsel on your plea, in circumstances where Ms Lechner has not met or assessed the victim, I do not consider she is able to express any opinion as to your relative maturity based only on the report given by you. Accordingly, I give this opinion no weight. To be clear however, this does not detract from my ability to act on Ms Lechner's assessment that you present as socially and emotionally immature for your age.

[5]Exhibit 1 – Psychological report of Ms Carla Lechner dated 31 December 2022, p 2.

46The submissions made on your behalf also referred me to the recent decision of Buckley v The Queen, where the Court of Appeal emphasised the potential negative impact of an adult gaol on young offenders, which may operate to 'entrench' or 'exacerbate' anti-social tendencies, thereby 'defeating the very purpose for which punishment was imposed'.[6]

[6]Buckley v The Queen [2022] VSCA 138 at [49]

47As a young offender, your rehabilitation is a matter of great importance. At the age of 20 you have much of your life to live. The community benefits where young people are supported in their rehabilitation to live productive lives into the future.

48In this regard, I note that you lost a number of jobs in the local area after your offending became known. You had been employed as an apprentice chef at the time of this offending, but you were invited to resign when your employer became aware of the current charges. You then managed to secure two further jobs in hospitality, both of which were short-lived; your employment was terminated after you disclosed the offending. Ms Lechner reports you feel bleak about your future prospects. I accept the submission of Mr Cooper that the impact on your employment has already been a form of punishment beyond the court process, and take this into account in moderation of your sentence.

49Perhaps of greatest significance in moderating your sentence, is the nature and extent to which you made admissions to your offending conduct when interviewed by police. Indeed, many (but not all) of the charges, including the various acts of penetration that make up the rolled-up charges, are based solely on the admissions made by you. The victim made no disclosures in her initial interview with police. In her second VARE, the victim disclosed the fact you had been in a sexual relationship with her, and broadly outlined various acts of sexual penetration that occurred during the course of that relationship, but she did not do so with the specificity of your full and frank admissions.

50Without your admissions, the prosecution would not have had an evidentiary basis to establish the extent of your offending. In these circumstances, your admissions are a further indication of your remorse and lessens the need for the sentence I impose to specifically deter you from future offending.

51The reason an offender is entitled to a sentencing discount in circumstances where they have made such extensive admissions was explained by the Court of Appeal in the case of R v Doran,[7]  where Buchanan JA stated:

'… In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it  important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.'

[7]R v Doran [2005] VSCA 271 at [14]

52A Doran type discount also applies where, as here, an offender makes admissions to offending that is more serious than would otherwise have been proved. As stated by the Court of Appeal in Latina v The Queen:[8]

'… the principle has been applied where an offender, responding to complaints as to the commission of an offence, makes admissions which disclose the commission of further offences…it is entirely consistent with the policy underlying the principle that it may have application even though investigators may be able to establish that an offender has committed a specific offence. If admissions are made as to facts concerning the commission of that offence that are unknown by the  investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.'

[8]Latina v The Queen [2015] VSCA 102 at [17]

53Here, you are entitled to a sentencing discount – and one that is demonstrable - having regard to the fact that the specific nature and extent of your offending against the victim was disclosed by your voluntary admissions; admissions that went beyond the offending known to investigators through other evidence, including the VARE statement of the victim.

54I turn now to your prospects of rehabilitation.

55At the age of 20, you have no prior criminal history.  You have worked consistently since leaving school, other than for periods where your work was impacted by COVID-19. You have enjoyed a stable upbringing and have no underlying mental health conditions or issues with drug or alcohol abuse. You continue to enjoy the support of your parents and family friends.

56However, whilst you have expressed remorse for your offending, in your discussions with Ms Lechner you continue to rationalise your conduct to some extent, and demonstrate some limited insight into the nature of your offending. When you were assessed by Ms Lechner, you told her that when you met the victim over Snapchat you found her easy to talk to and that 'it didn’t occur to me that she was 15 years' or less'. You said it was the victim's idea to get together and that you just 'accepted it'. You agreed that you kept your contact secret in the knowledge your relationship with the victim was 'risky business'.

57You told Ms Lechner that the victim 'neither looked or acted 14 years old', and added you 'didn't hurt her or abuse her… it was all consensual, but her age has "fucked me up" permanently'. In your discussions with Ms Lechner, you later agreed you knew the victim was 13, and said she 'didn’t show her age'. In light of these comments, Ms Lechner expressed the following opinion:[9]

'On account of his own immaturity, he had a limited understanding of the potential psychological impact of their relationship on the complainant. He was also quick to rationalize and justify his actions on account of his belief that it was "consensual"'.

[9]Exhibit 1 – Psychological report of Ms Carla Lechner dated 31 December 2022, p.5

58Ms Lechner recommends that you engage in psychotherapy to assist in managing your moods and to improve your self-esteem and communication skills. Addressing these issues will, in Ms Lechner's opinion, improve your ability to interact with age-appropriate women. She also recommends you engage in offence specific counselling to further your understanding of the need to respect age boundaries and the likely harm caused by having a sexual relationship with a person who is so much younger.

59Significantly, Ms Lechner states you do not present with symptoms of psychosexual disorder or deviance. She ultimately concludes you are a low risk of further offending.

60In my view, your lack of any prior criminal history, stable family background and parental support combined with your steady work history point to your positive prospects of rehabilitation. You have had relationships in the past that have been age-appropriate, without incident. You have no subsequent or pending matters. Notwithstanding the setbacks you have experienced with past employers, you have persisted in seeking employment and have recently secured another full time casual job working night shift at a fresh produce supply company in Bendigo.

61I agree with the assessment of Ms Lechner that you would benefit from offence specific counselling but I have no reason to doubt you would engage in such treatment if required. You would also benefit from treatment to manage your diagnosed depression. Notwithstanding my view that you are yet to fully appreciate the seriousness of your conduct, subject to engaging meaningfully in counselling in this regard, I assess you have very good prospects of rehabilitation.

62I also accept the evidence of Ms Lechner establishes that you would struggle in a custodial setting due to your level of maturity and the risk that it would exacerbate your diagnosed depressive condition. Ms Lechner reports that you have suffered from suicidal thoughts given the prospect of imprisonment, which she assesses as likely to become more prominent if you were sentenced to detention. These findings enliven limb 5 of the authority in Verdins.

Other sentencing considerations

63I now turn to discuss other relevant sentencing considerations.

64I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act 1991.  In a case such as this, the most significant sentencing considerations are those of general deterrence, just punishment and denunciation.  However as I stated, these are moderated by reason of your youth. In sentencing you, I must deter others from engaging in sexual activity with those who are underage given the harm implicit in such conduct.

65The offence of sexual penetration of a child under 16 is a 'standard sentence offence'.  As the offence was committed after 1 February 2018, the standard sentence scheme applies to the sentence I am to impose on this charge.  The applicable standard sentence is 6 years' imprisonment.

66The scheme is set out in s5A and s5B of the Sentencing Act 1991.  The scheme requires me to take the standard sentence into account as one of the factors relevant to sentencing.  However, as stated by the Court of Appeal in Brown v The Queen,[10] the standard sentence is a legislative guidepost only, and does not affect the established 'instinctive synthesis' approach to sentencing.

[10][2019] VSCA 286 at [4].

67The only previous sentences to which I may have regard when considering current sentencing practices are those that have been imposed under the standard sentence scheme for the offence of sexual penetration of a child under 16.[11] 

[11]Section 5B(2)(b) of the Sentencing Act 1991.

68Defence counsel provided me with references to five cases, including the decision of the Court of Appeal in DPP v Rose.[12] In that case, the Court of Appeal upheld an appeal against a custodial sentence imposed for five charges of sexual penetration of a child under 16 and four charges of committing an indecent act with a child under 16, including acts where the offender put pressure on the complainant to engage in the sexual acts. I note there is no such suggestion here. In that case the offender was 18 and the complainant was 14 and the offending also occurred over the course of four months. The Court of Appeal held that a community correction order was well within the range of sentencing options available given the offender's youth, good prospects of rehabilitation, his plea, significant admissions and demonstrated remorse.

[12]Rose (a pseudonym) v. The Queen [2022] VSCA 11

69I note however, that the case of Rose was not a case decided under the standard sentencing scheme.

70Two other comparable cases to which I was referred are both decisions of this Court where a community correction order was imposed for broadly comparable offending. Both were imposed after the introduction of the standard sentencing scheme. In the case of DPP vYuen [2020] VCC 1527, a community correction order was imposed in respect of a representative charge of sexual penetration of a child under 16, where the child was 15 and the offender was 18. In Yuen, the offender also received a significant sentencing discount for the fact he disclosed the offending to police, when the victim had not.

71In the case of DPP vCalladine [2020] VCC 2014, a community correction order was imposed for charges of sexual penetration of a child under 16 and production and possession of child abuse material where the offender had no prior convictions, was youthful and whose cognitive deficits would have made him vulnerable in custody. In that case the offending occurred over five months, when the offender was 18 and the victim was 14.

72I recognise that there are aspects of your case that make this more serious than those two cases, including the fact you are to be sentenced on 10 charges – all of which are rolled up charges – to which the standard sentence applies.

73Notwithstanding the serious nature of these charges, on your behalf Mr Cooper submitted that an onerous community correction order was the appropriate sentence, having regard to a 'powerful combination of mitigatory factors', including your youth, lack of prior convictions, low risk of reoffending and extensive admissions.

74Mr Nibbs, appearing for the prosecution, submitted that even acknowledging the weight that attaches to the matters in mitigation, a sentence of youth detention was warranted to reflect the relevant sentencing considerations, notably general deterrence and denunciation.

Consideration

75I have given anxious consideration to the competing submissions.

76In order to inform my decision, I had you assessed for both a community correction order and for a youth justice centre order.

77You were assessed as suitable for a youth justice centre order, during the course of which you expressed remorse for your conduct and displayed insight into the harm you have caused. Although you were assessed as suitable for such an order, Youth Justice recommended that consideration be given to a community-based disposition given your motivation to engage in offence specific treatment and to address the other mental health concerns identified by Ms Lechner.

78You were assessed as suitable for a community correction order with a recommendation you engage in a sex offender program. You were assessed as a low risk of offending generally, and acknowledged the seriousness of your offending, and the harmful impact it has had on the victim and her family during your assessment.

79I accept that the nature and extent of your offending means that the sentence I impose must operate as a deterrent to others, and clearly denounce your conduct. However, in the circumstances of this case, these considerations do not diminish the weight I attach to your youth and the prominence to be given to your rehabilitation, particularly as a first-time offender.

80In the guideline decision of The Queen v Boulton[13], the Court of Appeal confirmed that a community correction order can operate as a punitive and rehabilitative order simultaneously, and emphasised the application of the principles in Mills with respect to youthful offenders, stating:

'This significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders. No longer will the court be placed in the position of having to give less weight to denunciation, or specific or general deterrence, in order to promote the young offender’s rehabilitation. Rather, the court will be able to fashion a CCO which adequately achieves all of those purposes.'

[13][2014] VSCA 342 at [186]

81I have also had regard to the legislative prohibition in s5(4C) of the Sentencing Act 1991 on imposing a sentence of confinement, unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved through a community correction order.

82In my view, there are powerful reasons not to impose a custodial term or a sentence of detention in this case. You have been assessed as a low risk of future offending. I do not consider you pose a risk to the community. You are a youthful offender with strong prospects of rehabilitation. You come from a supportive and stable family and are able to live in stable accommodation in the community. You have recently secured employment, notwithstanding recent challenges in this regard. You entered a plea at the earliest opportunity to these charges, and this is a matter of significance particularly given it ameliorates delays in the justice system that continue in the wake of the pandemic.

83Most significantly, the fact you made such significant admissions to police means that the full extent of your offending became known, when it otherwise would not have been apparent to investigators. The law requires the sentencing discount available in such cases be 'demonstrable', If it were not, it would fail to achieve the policy principles that sit behind a Doran discount, which is to encourage others to make like admissions. Moreover, your admissions alone demonstrate your remorse, and enhance your prospects of rehabilitation.

84For all these reasons, I have determined to impose a sentence that falls below the standard sentence.  Mr Youl, if you could stand please.

Sentence

85On all charges, you are convicted and sentenced to a community correction order of three years' duration.

86It is a condition of the community correction order that you undertake 250 hours of unpaid community work and undertake and complete any offence specific programs that are recommended. It is a further condition of the order that you be supervised by community corrections for its duration.

87I direct that 80 hours of any treatment undertaken by you may be off-set against any unpaid community work in order to preference your engagement in rehabilitative programs.

88Although it was not recommended by community corrections, in light of Ms Lechner's recommendations and those of Youth Justice, it is also a condition of the community correction order that you engage in mental health treatment.

89In addition to the conditions I have imposed, there are standard conditions.  First and foremost, you must not commit any other offences punishable by imprisonment during the three-year order.  You must report within two working days to the Bendigo community correction office.  You are required to advise your supervising corrections officer of any change of address where you are living or working and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising corrections officer.

90You should be aware that the community correction order can be breached if you do not comply with either the conditions of the order or if you further offend while it is in place.  If you do, you would return before me for breaching the order I have imposed this day.  I may have to resentence you on the charges before me and I may have to sentence you for breaching the order.

91Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to these offences I would otherwise have imposed a sentence of two years, six months youth detention. Of course there is an artificiality to this declaration particularly given the weight I have accorded to your extensive admissions.

92I make the disposal order sought by the prosecution, noting it is not opposed.

93Finally, your offending attracts the provisions of the Sex Offenders Registration Act 2004 and you are required to comply with the reporting obligations under that Act for life. You will receive a document at the conclusion of this hearing which details your obligations under that Act and which you will be required to sign.

94Mr Cooper, I ask that you make a time to meet with your client to discuss the obligations under that Sex Offender Registration order and also to further reiterate the obligations under the community correction order.

95Thank you, Mr Youl, you consent to that order being made?

96OFFENDER:  I do.

97HER HONOUR:  Thank you.  Please have a seat.  Do either counsel require any clarification in relation to the order made?

98MR NIBBS:  No thank you, Your Honour.

99MR COOPER:  No, Your Honour, thank you.

- - -