LS v CDirector of Public Prosecutions
[2020] VSC 484
•10 August 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0080
| LS (a pseudonym)[1] | Appellant |
| v | |
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
[1]To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2020 |
DATE OF SENTENCE: | 10 August 2020 |
CASE MAY BE CITED AS: | LS v CDPP |
MEDIUM NEUTRAL CITATION: | [2020] VSC 484 |
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CRIMINAL LAW — Appeal from decisions of President of the Children’s Court — Appeal against conviction on 2 charges and sentence on all charges — State and federal sexual offences committed against appellant’s baby daughter — Whether general deterrence relevant to sentencing a child for federal offences — Appellant convicted and sentenced to 12 months’ detention in a Youth Justice Centre — Crimes Act 1958 (Vic) ss 49A, 49D, 49F — Criminal Code (Cth) s 474.20(1)(a)(ii), s 474.19(1)(a)(ii) — Crimes Act 1914 (Cth) ss 16A, 20C — Children, Youth and Families Act 2005 (Vic) s 362 — CNK v R (2011) 32 VR 641 — DPP v Hutchinson (a pseudonym) [2018] VSCA 153.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Waters | Claudia Grimberg Lawyers |
| For the Respondent | Mr K Armstrong | Commonwealth Solicitor for Public Prosecutions |
HIS HONOUR:
LS, you appealed from the Children’s Court against conviction and sentence in respect of two charges and against sentence in respect of 14 charges.
On 11 May 2020, I found you guilty of the two sexual penetration charges that you were contesting. In respect of all charges, I deferred sentence and released you on bail on strict conditions.
Unfortunately, you breached your bail and, on 22 June 2020, I remanded you in custody.
Today, I will sentence you in respect of all 16 charges, namely:
(a) two charges of sexual activity in the presence of a child under 16 years;[2]
[2]Contrary to s 49F of the Crimes Act 1958 (Vic) (charges 6 and 19). The maximum penalty for that offence is 10 years’ imprisonment.
(b) two charges of sexual assault of a child under the age of 16 years;[3]
[3]Contrary to s 49D of the Crimes Act 1958 (Vic) (charges 1 and 15). The maximum penalty for that offence is 10 years’ imprisonment.
(c) two charges of sexual penetration of a child under the age of 12 years;[4]
(d) five charges of producing child pornography;[5] and
(e) five charges of transmitting child pornography using a carriage service.[6]
[4]Contrary to s 49A of the Crimes Act 1958 (Vic) (charges 20 and 21). The maximum penalty for that offence is 25 years’ imprisonment.
[5]Contrary to s 474.20(1)(a)(ii) of the Criminal Code 1995 (Cth) (charges 3, 7, 8, 9 and 10). The maximum penalty for that offence is 15 years’ imprisonment.
[6]Contrary to s 474.19(1)(a)(ii) of the Criminal Code 1995 (Cth) (charges 2, 11, 12, 13 and 14). The maximum penalty for that offence is 15 years’ imprisonment.
Circumstances of offending
The circumstances of your offending were summarised by the President of the Children’s Court, her Honour Judge Chambers, in her sentencing reasons. I adopt her summary, which reads as follows:
6. The victim of these offences is your daughter ... The offences were committed by you between the dates of 19 November and 2 December 2018 when your daughter was aged between 4–5 months of age. Between those dates you made a series of six videos where you engaged in sexual activity either with or in the presence of your daughter. You then transmitted these videos on-line to an adult male offender in the UK.
…
8. In summary, the circumstances of your offending are captured in the following videos…:
(a) … [a] video [that] runs for 42 seconds and depicts you topless and with your breasts exposed, standing over your baby who is awake and lying on her back on a bed, naked except for a bib. The video commences with your head between her open legs. Your arm is against her left leg, keeping it in place. You lower your head between her legs and lick her vagina and anus. As you perform this act, you look in the direction of the recording device. Your daughter can be heard crying however you continue to lick her vagina;
(b) …a video … that runs for 2 minutes and 1 second depicting you caress[ing], fondl[ing] and rub[bing] your breasts, vaginal and anal areas. You are wearing a singlet style dress which you pull up to under your chest exposing a G-string. At one point you place your hands on each buttock, spreading them apart. The recording depicts a bedroom, in which there is a white baby cot. Although the baby cannot be seen, she is present in the room and can be heard making gurgling noises;
(c) … a … video lasting 7 seconds depicting you naked and seated near a cot holding the baby who is awake, also naked and in the crook of your arm. The video commences with you saying, “I’m a dirty mummy pedo for you daddy”. You then place your left hand on your daughter’s vagina;
(d) … a … video lasting 17 seconds depicting you digitally penetrating and masturbating your own vagina while holding the baby in the crook of your left arm. She is awake, naked and her vagina can be seen;
(e) a … video lasting 38 seconds depicting you naked leaning over the baby who is awake, naked from the waist down and lying on her back on a bed. You can be seen licking the baby’s vagina for an extended period glancing up at the recording device whilst doing so; and;
(f) … a … video lasting 55 seconds depicting you naked with your breasts exposed leaning over the baby who is awake, naked and lying on her back on top of the bed. You repeatedly lick the baby’s vagina. The video depicts you spitting saliva onto her vagina and then continuing to lick her. At one point, you raise your head to look in the direction of the recording device and smile. The baby can be heard making a noise while you lick her vagina.
…
10. Your offending came to the attention of authorities when the UK offender was interviewed by the National Crime Authority in March 2019. In that interview, the UK male admitted he had been engaged online with females mostly aged between 17-19 years, some younger. According to the prosecution summary, the UK offender had “coerced them into filming themselves engaged in progressively degrading sexual acts, with the inference that if they refused, he would send the videos to their family and friends.”
11. An examination of the UK male’s electronic devices led the police to you. When the Australian Federal Police forensically examined your mobile phone, they found a series of “WhatsApp” chats between you and the UK offender. In an online exchange on 19 November 2019, the UK male offers you £2800 for “10 videos and a bunch of pics I’ll ask you for”. You agree to this proposal, stating “So tell me what videos you want so we can get this started”. You then sent him 62 images and videos which show you performing sexual acts, that are not subject to any charge.
12. Following these exchanges, the UK offender become aware of the existence of your daughter and encouraged you to involve her in the offending, in circumstances set out in the following online exchange on 19–20 November 2018:
LS: Idk if I can do tomorrow morning I have a daughter
UK male: Her age?
LS: 6 months
UK male: In your room
LS: Yes correct
UK male: A selfy with her please
UK male: I’d have given you easier tasks
LS: I don’t really tell anyone
UK male: A live one next to her
…
UK male: And again, with your tits showing.
UK male: Do you get any child support
LS: Ok an[d] no this is why I do this
….
LS: Good morning x
UK male: Tell me when you’re able to poop
LS: Can I do something else instead?
UK male: Its either that or you be a naughty mummy for me?
LS: Like what?
UK male: Naughty mummy x
UK male: Being naked around her and stuff
LS: Doing?
UK male: Playful stuff etc. Or my poop x
LS: Look I can’t do these I’m sorry
UK male: Please
LS: And I’ll never bring my daughter into this stuff
UK male: So it’s poop then x
LS: She’s innocent. As I can’t do that either
UK male: Pick one. So I can pay you.
LS: I can’t
UK male: Please think about it
LS: Can’t you pay me less
UK male: No
LS: Okay
13. The UK offender continued to direct and encourage you in the offending behaviour, captured, for instance, by the following exchange:
UK male: Are you going to be a naughty mummy for me? Properly x. Doing as I ask, so I can pay you today
LS: Ok
UK male: Tell me when you are with her and you’re both naked. And I’ll tell you some quick things to do now.
LS: Ok I am
UK male: Take a quick pic with your tits and face showing first stick your tongue out please next to her. Then a pic of her naked x and you naked faces down. Show her pussy too.
LS: No I can’t
UK male: You can, no-one else will see. X. All my girls do this for me.
LS: Okay and what else do you want, Just tell me please.
UK male: Show her naked next to you Pussy too. And your own.
...
UK male: And again, have your hand on her pussy x. Then again show your pussy x. A few more pics naked with her with your faces shown. Will you be comfortable filming her.
LS: Filming what? Please don’t ever show anyone this stuff. And don’t send these as examples to other girls. OK what do you want me to film.
14. At the end of the WhatsApp chat on 20 November 2018 the following exchange occurred:
UK male: I need your name
LS: Why? Tell my why. I need to know. My name is (insert name) Hello
LS: So when we finish this off. Are you really gunna pay me
...
UK male: Make a 5 minute sex video with her filmed portrait. Do anything and everything. Both of you naked. Do your best.
LS: idk what you mean. Like what.
UK male: Be a pedo mummy
LS: Like play with myself and everything with her in it
UK male: Playing with her too both you naked
I note in respect of the last two mentioned videos, where you are shown licking your daughter’s vagina repeatedly and vigorously, sometimes using the tip of your tongue, I found that on each occasion you intentionally penetrated her vagina, which is defined in s 35 of the Crimes Act 1958 (Vic) to include the external genitalia.
There are a number of aggravating circumstances to your offending:
·Your victim was only four to five months old, totally dependent and vulnerable;
·She was your daughter. Your offending constituted a gross breach of trust;
·Your initial reluctance to involve your daughter indicates you were aware of the wrongfulness of your actions;[7]
·Your offending against your daughter was not a one-off incident. It occurred on a number of occasions;
·You were 17 when you offended, still a child, but not far off adulthood.
[7]But I note the opinion of Dr Adam Deacon in his report dated 21 May 2019 at [16] that you ‘demonstrated a lack of understanding that [your] offending behaviour could have a significant impact on [your daughter’s] well-being.’
I consider your offences to be upper range examples of the offences in question, mainly because of the gross breach of trust in you involving or, more precisely, exploiting your baby daughter.
Procedural history
It is appropriate to say something about the procedural history of this matter.
On 20 March 2019, you were arrested and charged.
On 22 March 2019,[8] you were granted bail subject to strict conditions including supervision by Youth Justice.
[8]Youth Justice Supervised Bail Report dated 7 June 2019, 2.
On 15 November 2019 at Melbourne Children’s Court, the prosecution applied unsuccessfully to uplift your case to the adult jurisdiction because of the seriousness of your offending.
On 17 December 2019, you pleaded guilty to all but two charges. Those two counts of sexual penetration were the subject of a contested hearing before Judge Chambers who found them proven. Judge Chambers placed you on a deferral of sentence until 31 January 2020 and your bail was extended. A pre-sentence report was requested.
On 31 January 2020, Judge Chambers rejected the recommendation in the Pre-Sentence Report (PSR) dated 30 January 2020 that you be placed on a Youth Supervision Order. She ordered a PSR regarding your suitability for a Youth Attendance Order and further deferred sentencing until 24 March 2020, on which day you were not able to attend court.
On 22 April 2020, Judge Chambers rejected Youth Justice’s recommendation of a Youth Attendance Order. Instead you were sentenced to 12 months’ detention in a Youth Justice Centre. You appealed and were released on appeal bail the same day.
On 11 May 2020, I heard your appeal against conviction on the sexual penetration charges and found the charges proven. There was a plea hearing in respect of all charges. I was troubled by alleged breaches of bail by you since Judge Chambers granted you appeal bail on 22 April 2020. However, at the conclusion of the plea hearing, I adjourned your matter until 22 June 2020 for a further plea hearing and extended your appeal bail. I wanted to see how you would fare if given another chance in the community. I stressed the importance of you complying with your bail conditions during the deferral.
On 22 June 2020, the prosecution alleged you had again breached several conditions of appeal bail, including using illicit drugs, failing to undergo urine drug screens, not being contactable on your mobile and repeatedly breaching curfew.[9] You did not dispute the alleged breaches of bail. Indeed, through your counsel, you expressly admitted illicit drug use. I remanded you in custody for sentencing on 10 August 2020.
[9]Curfew breaches were alleged to have occurred on 30 March, 3 to 11 April, 4 June, 16 June, 17 June 2020.
It can be seen from this procedural history that, regrettably, you have not made the most of the opportunities offered to you by the courts.
Circumstances of offender
Let me turn to your personal history.
In that regard, I have had the benefit of numerous reports about you.[10]
[10]Psychiatrist Dr Adam Deacon’s report dated 21 May 2019; Psychiatrist Dr Anne Buist’s report dated 22 May 2019; Psychologist Dr Sophie Reeves’ report dated 29 January 2020; Psychologist Rachel Chan’s report dated 17 June 2020; Youth Justice Supervised Bail Reports dated 4 June 2019, 17 July 2019, 14 August 2019, 21 October 2019, 6 November 2019, 16 December 2019, 25 February 2019, 15 April 2019; Youth Justice Pre-Sentence Reports dated 30 January 2020, 19 March 2020, 18 June 2020; Youth Justice Chronology of Attendances dated 19 June 2020; AFP bail chronology for 11 March 2020 to 17 June 2020.
You were born in 2001. At the time of the offending, you were 17 years old. You are now 19 years old.
Your parents separated when you were six years old,[11] but they have lived together at various times in the ensuing years. Indeed, when you were bailed in March 2019 you were living at your mother’s home where your father was also residing.
[11]PSR dated 18 June 2020, 5.
You have two brothers and a sister. You also have a half-brother and a half-sister. You seem to have been closest to your older sister.
Both of your parents have had longstanding substance abuse issues: in your mother’s case, alcohol and drugs and in your father’s case, drugs (methamphetamine). Your father has experienced periods of homelessness because of his drug addiction.
In the various reports, you speak very negatively of your mother but positively of your father. You claim to have been a victim of domestic violence perpetrated by your mother. You also claim that she has falsely accused your father of perpetrating domestic violence against her.[12] The psychologist Dr Sophie Reeves, Director of the Children’s Court Clinic, described your relationship with your mother as ‘tumultuous’.[13]
[12]Reeves at 7 [19].
[13]Reeves at 6 [16].
You have limited education, leaving your high school during first term of Year 8. You were not provided the supports necessary to help you engage with your schooling.[14]
[14]PSR dated 30 January 2020, 6.
You have worked in a number of cafes since you were 13. To your credit, you worked at two cafes for two years each.[15]
[15]PSR dated 30 January 2020, 7.
Between 2011 and 2017, Child Protection received 10 notifications about you, but there was no legal involvement by that agency.[16]
[16]PSR dated 30 January 2020, 4.
I note the opinion of psychiatrist Dr Buist:[17]
[S]he has essentially had fifteen years of no reasonable parenting model (and both the school system and Protective system let her down) and has survived by supressing emotions and taking on role as [a] worker.
[17]Buist at 5.
On 22 May 2019, Dr Buist diagnosed you with chronic post-traumatic stress disorder due to severe neglect and childhood abuse as well as borderline personality disorder with poor sense of self, fear of being alone, self-harm anxiety and transient dissociative symptoms.[18]
[18]Youth Justice Supervised Bail Report dated 17 July 2019, 3.
In January 2020, psychologist Dr Reeves also opined that you have borderline personality disorder and complex post-traumatic stress disorder. As regards the causes of those disorders, she wrote this in her report:
[LS]’s history suggests that her personality difficulties and trauma symptoms have developed in a context where she has endured a combination of sexual, emotional and physical abuse and has grown up in a largely dysfunctional family environment characterised by inconsistent parenting, parental drug use and family violence. It also appears that she struggled socially and academically at school, prompting her to leave education at a young age, as well as being forced into a parenting role of her younger sibling when her mother left the family home for periods of time. [LS] also displays a pattern of sexual, risk-taking behaviours beginning at a young age, coupled with few positive adult role models in her life who it seems were equipped to provide consistent nurturance and guidance.[19]
[19]Buist at 22 [73].
As regards you having been sexually abused, the information is limited.
You have made such claims to psychologist Rachel Chan, who has been your treating psychologist since April 2019, and to Dr Reeves.
You told Dr Reeves that you were sexually abused by a male cousin at a wedding when you were six. The details of this alleged abuse are not given.
Dr Reeves also understood you to allege that, when you were 13, you were raped by a male known to you. In relation to the latter claim, Dr Reeves commented:
Her account was difficult to follow and she was evasive when I probed further about the nature of the incident.[20]
[20]Reeves at 12 [36].
But I note that according to a PSR dated 30 January 2020, that when you were approximately 13, Child Protection found there was evidence of ‘explicit sexual exploitation’[21] of you (though the PSR does not refer to rape).
[21]PSR dated 30 January 2020, 4.
You also told Dr Reeves that when you were 14, a male, without your consent, video- taped you being indecently touched by another male.
You commenced a sexual relationship with your daughter’s father when you were 14 or 15 and he was in his mid-20s. You told Dr Reeves that you lied to him that you were 16. The two of you lived together for two and a half years.[22]
[22]Reeves at 12.
You have sometimes worked as a prostitute, finding clients online and meeting them at their homes.[23]
[23]PSR dated 30 January 2020, 6.
Your daughter was born when you were 17 years old.
Your pregnancy was unplanned. The father wanted you to have an abortion.[24] You courageously decided to have the baby.
[24]PSR dated 30 January 2020, 4.
Your daughter was removed from your care after you were arrested and charged. She is currently in her father’s custody pursuant to an Interim Accommodation Order.[25] You have supervised access with her from time to time.
[25]PSR dated 18 June 2020.
On your own admission, you were 13 years old when you began using illicit drugs (cannabis and MDMA).[26]
[26]PSR dated 18 June 2020, 7.
Prior to being sentenced by Judge Chambers you admitted to Youth Justice that you were using Valium, cocaine and methamphetamine.[27]
[27]Youth Justice Bail Supervision report dated 25 February 2020, 4; Youth Justice Bail Supervision report dated 15 April 2020, 4.
I was provided with seven drug screen results from samples collected between 11 March 2020 and 18 June 2020, six of which were positive for Amphetamine-type substances (x3) or Sympathomimetic Amines (x3).[28] The results contradicted what appears in the most recent PSR, namely, ‘[LS] reported that she is not currently engaging in substance use’.[29]
[28]11 March 2020 — Amphetamine-type substances detected.
17 March 2020 — Amphetamine-type substances detected.
24 April 2020 — Amphetamine-type substances detected.
14 May 2020 — Sympathomimetic Amines detected (ie ice, speed or ecstasy).
25 May 2020 — Sympathomimetic Amines detected.
5 June 2020 — Sympathomimetic Amines detected.
18 June 2020 — No drugs detected.
[29]PSR dated 18 June 2020, 7.
Let me summarise what I consider to be the mitigating circumstances in your case.
Far from enjoying the family supports that many in our community take for granted, your childhood has been marked by neglect and abuse and, it seems to me, a failure by Protective Services to appropriately intervene.
You suffer from complex PTSD and borderline personality disorder.[30]
[30]Buist at 3.
The deprivation you have experienced, and the disorders spawned by it, explain in large measure your resort to illicit drugs.
Whilst you offended to make money, I accept that you wanted the money to provide for your daughter, not yourself.[31]
[31]PSR dated 30 January 2020, 2.
You were manipulated by an older offender.
You have no criminal antecedents.
You pleaded guilty to all but two of the charges.
You are remorseful for your offending against your daughter.
You had to endure the stress of the CDPP uplift application.
You have lost custody of your daughter. Your access with her is supervised and very limited.
Since your release in March 2019 on strict supervised bail, you have attended most of your numerous supervised bail appointments.
Relevant sentencing principles
In working out an appropriate sentence, I have had regard, amongst other things, to the mandatory considerations referred to in s 362(1) of the Children Youth and Families Act 2005 (Vic)[32] (the ‘CYF Act’).
[32]Section 362(1) of the CYF Act states:
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b)the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)the need to protect the community, or any person, from the violent or other wrongful acts of the child—
(i)in all cases where the sentence is for a Category A serious youth offence or a Category B serious youth offence; or
(ii) in any other case—if it is appropriate to do so; and
(h)if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.
In CNK v R,[33] the Court of Appeal decided that s 362(1) excludes general deterrence when sentencing a child under the CYF Act for a state offence.
[33](2011) 32 VR 641.
However, in these proceedings, the CDPP submitted that general deterrence is relevant when sentencing a child for federal offences such as producing and transmitting child pornography. The CDPP relied on the fact that general deterrence is one of the mandatory sentencing considerations mentioned in s 16A of the Crimes Act 1914 (Cth), which regulates the sentencing of federal offenders.[34] The CDPP submitted, effectively, that to the extent that s 16A is inconsistent with s 362(1) of the CYF Act, s 16A takes precedence.
[34]16A Matters to which court to have regard when passing sentence etc. — federal offences
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Note:Minimum penalties apply for certain offences—see sections 16AAA, 16AAB and 16AAC.
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a)the nature and circumstances of the offence;
(b)other offences (if any) that are required or permitted to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(ea)if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
(f)the degree to which the person has shown contrition for the offence:
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)in any other manner;
(fa)the extent to which the person has failed to comply with:
(i)any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii)any obligation under a law of the Commonwealth; or
(iii)any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
(j)the deterrent effect that any sentence or order under consideration may have on the person;
(ja)the deterrent effect that any sentence or order under consideration may have on other persons;
(k)the need to ensure that the person is adequately punished for the offence;
(m)the character, antecedents, age, means and physical or mental condition of the person;
(n)the prospect of rehabilitation of the person;
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
Section 20C of the Crime Act 1914 (Cth ) ‘picks up’ provisions of the CYF Act which deal with the sentencing of children under the CYF Act and makes those provisions ‘surrogate federal law’.[35]
[35] Solomons v District Court (NSW) (2002) 211 CLR 119 at [20].
Section 20C of the Crimes Act 1914 (Cth) provides:
A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory (emphasis added).
The CDPP submitted that there was nothing in the terms of s 20C which compelled a court sentencing a child under the CYF Act to disregard general deterrence, as it must when sentencing a child for a state offence. This contention was central to the CDPP submissions.
But on a natural reading of s 20C, if general deterrence is taken into account when sentencing a child for a federal offence under the CYF Act, it is difficult to see how it can be accurately claimed that the child was ‘punished or otherwise dealt with as if the offence were an offence against the law of [Victoria]’.
Further, s 20C makes specific provision for child federal offenders. In my view, s 16A — a general provision regarding federal offenders — must yield to the specific provision that is s 20C.
I am fortified in this interpretation of s 20C by what the Court of Appeal said in DPP v Hutchinson.[36] In that case, the court was dealing with an appeal by both the Victorian DPP and the CDPP[37] against the adequacy of the sentences imposed by a County Court judge for four state offences and one federal offence. The offender was a child at the time of most of the offending (aged 16 years)[38] but not at the time he was charged (aged 19 years).[39] The sentencing judge placed him, without conviction, on two Community Correction Orders in relation to the State offences and a s 19B bond in relation to the federal offence. The Court of Appeal, in dismissing the Crown appeal, said this at [56]:
…If the respondent’s offending had been detected at or about the time of its commission, he would have fallen to be sentenced under the provisions of the Children, Youth and Families Act 2005, where general deterrence would have played no part in the sentencing process.
[36][2018] VSCA 153.
[37]The CDPP wrongly stated at [14] of its written submissions on general deterrence dated 19 June 2020
that the CDPP was not a party to the appeal in Hutchinson (cf Hutchinson at [8]). The CDPP was a party and, contrary to her position in this case, the CDPP made submissions, as did the Victorian DPP, that general deterrence is not a relevant consideration when sentencing a child under the CYF Act for a federal offence. The Court of Appeal said this [42]:
Counsel for the appellants also submitted that, while general deterrence would not have been a relevant consideration if the respondent had been dealt with in the Children’s Court under the provisions of the Children, Youth and Families Act 2005, the circumstances of the respondent’s offending and the different form of ‘grooming’ present in this case required general deterrence to be given a level of real significance in the sentencing process.
[38]He was 19 at the time of the last offence, which was a state offence.
[39]The definition of ‘child’ in s 3 of CYF Act is relevantly:
(a)in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court.
Based on a natural reading of s 20C and the Court of Appeal’s dicta in Hutchinson, I reject the submission of the CDPP that I must take general deterrence into account in sentencing you on the federal offences.
Sentence
Finally, I come to the actual sentence to be imposed.
I am mindful of the fact that a sentence of detention is a sentence of last resort but the objective seriousness of your offending justifies such a sentence.
Your breaches of appeal bail conditions robs me of any confidence in your capacity (currently) to successfully undertake a Youth Attendance Order.
Even though you have no antecedents, I consider that a substantial sentence of detention is required to impress on you the need to take responsibility for your offending, to deter you from further offending and to promote your rehabilitation.
I sentence you to an aggregate sentence of 12 months’ detention in a Youth Justice Centre.
But for your plea of guilty to 14 of the 16 charges, I would have sentenced you to 16 months’ detention.
Ancillary orders
I declare that you have served 52 days by way of pre-sentence detention.
I reject the CDPP’s application under s 11 of the Sex Offenders Registration Act 2004 (Vic) to place you on the register of sexual offenders. Having regard especially to your lack of criminal antecedents and the report of Dr Reeves, who stated that there ‘is no evidence to suggest that [your] offences were driven by sexual interest in children or sexual arousal [or], were predatory in nature’, I am not satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community.
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