R v D K
[2013] VCC 806
•14 May 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| D K |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 14 May 2013 | |
DATE OF SENTENCE: | 14 May 2013 | |
CASE MAY BE CITED AS: | R v. D K | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 806 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Sexual penetration of a child under the age of 16 – young offender – no prior criminal convictions
Legislation Cited: s.45(1) of the Crimes Act 1958 – s.37 of the Sentencing Act 1991
Sentence: Convicted and ordered to serve a Community Corrections Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.R.M. Jones | Ms J. McLeod (Office of Public Prosecutions) |
| For the Accused | Mr B. Cameron | Petersen Westbrook Cameron Lawyers |
HIS HONOUR:
1 In this matter, Mr D K has pleaded guilty under Indictment C13440599 to two charges of breach of s.45(1) of the Crimes Act 1958. The first of those involved a circumstance of digital penetration, the second involved a circumstance of sexual intercourse.
2 Both, because of the protective nature of the provisions, bring with them a maximum penalty prescribed by Parliament of ten years. As such, it is quite clear that in the view of Parliament this is a very serious offence. This is one of the many protective offences of a sexual nature put into the Crimes Act 1958 to protect those who are young, innocent and easily manipulated.
3 I point out in the circumstances of this case that Mr D K at the time was nineteen, having just turned twenty this month, but nineteen at the time of the offences, such offences occurring on 1 December 2012, and at the time the victim, so described, was fifteen and a half.
4 The prosecution opening is set out at Exhibit A, and sets out the details of both of these offences. They, albeit by way of the circumstances set out in the charges relating to a period, relate in fact, pursuant to the prosecution opening agreed to by Mr Cameron, to one occasion only, and it is on this occasion that both of these penetrations took place.
5 Exhibit B is the victim impact statement. The circumstances as detailed in that victim impact statement perhaps only bring to light some of the concerns that I had in regard to the VARE undertaken in this case. It, of course, should never be forgotten that even at fifteen and a half you are still dealing with a young, inexperienced girl. However, when one looks at Question 32 of the VARE she had come to see the police because she had to explain, in her words, something. The very next question spoke about her wanting - it seemed to me a disconnect in reality.
6 As to how these offences were actually reported is a question of some speculation. From a full reading of the depositions, it seems that it has come about from the complainant coming to school and sporting what is known as hickies. They are the results of a kissing and sucking process, that younger persons seem to be enamoured with, and these hickies were apparently very obvious to her student friends. As a result of that, to quote one of the students, she said that she felt that was going too far, and reported such to the teachers. Thereafter, either Community Services and/or the father became involved.
7 The father had in fact become involved when picking the victim up from where Mr D K was living, it seems to me, probably on this occasion. He was, albeit that he did not see Mr D K on this day when he picked his daughter up, who had phoned him because she could not get home, suspicious that Mr D K was there, and thereafter they had quite a serious argument. As a result of that argument, for one, the father drove his car over the mobile phone for which he had been communicating with Mr D K by way of Facebook. As I understand the position, thereafter the child then was placed in community protection or community housing because of this situation with the family, and in particular, with her father.
8 I note as Exhibit C, the victim impact statement filed by the father. As often is the case, from the material before me and the medical material, it would appear that his understanding as to his daughter's circumstances, might not necessarily be comprehensive.
9 Insofar as the plea conducted by Mr Cameron, he spoke of Mr D K’s difficulties at home. I think, as I remarked, Mr D K certainly looks much younger than his given age and apparently, as Mr Cameron put, he is also immature for his age.
10 Mr Cameron said that his client has been cooperative in the sense that he has pleaded guilty, that it is a valuable plea, it is utilitarian, and of course it is an expression of remorse. Mr D K was quite honest in his record of interview, at question 107 he said there was no real excuse for what he had done. At question 284 when asked why he committed these offences with this young girl he said it was because there was temptation and "it", whatever it means, was there.
11 In talking about the relative maturity, and I do not say this with any disrespect to the young girl, but at question 179 he remarked that it certainly was not her first time, she knew what she was doing by way of sexual activity, despite what she said in her VARE tape, according to Mr D K anyway, she was very much on top, if I might use that phrase, and she, according to Mr D K, indulged in the placing of the condom on his penis.
12
None of that provides any basis of any excuse. Mr D K has been quite open in saying there is no excuse. However, it is quite clear from all of the records that there was no issue about consent as such. I note in particular, in
Exhibit B, that the concerns that the victim now has are probably summarised by her saying, "I wish I was stronger and did not let him have sex with me. I wish I told him no, because he wouldn't be in trouble".
13 However, she goes on to say, and perhaps this is the very naiveté that Parliament is concerned about, "I just want to be friends and because he was older than me he should have known better", of which he admits. The stress of these offences has had, apparently, a dramatic impact upon her capacity to play golf.
14 Coming back to Mr D K himself, he left school at a young age, indeed at fourteen, which has a lot to do with the circumstances of his own family, and unfortunately, because of that has under achieved academically. However, Mr D K has been a hard worker and Exhibit 1 from his current employer speaks to his hard work and his capacity for hard work, and Mr Cameron took me through his history.
15 Mr D K obviously is going through a difficult time at the moment and has had problems of a self harm nature, and Mr Cameron told me about issues I think as to insulin, indeed, this week, and one would hope that there is help at hand for him in these matters.
16 What Mr Cameron stressed was that his client certainly has no priors whatsoever. He is, as was put, a very young man. He is a hard worker and earns good income and it was put to me that perhaps a financial penalty would be the appropriate circumstance.
17 Despite the obvious serious nature of these crimes and the imposition by Parliament of a high maximum potential penalty, when asked as to the proposition put by Mr Cameron, the learned prosecutor sought to make no comment.
18 I must say that I have, and do have, some particular concerns and it seems to me that what Mr D K needs is effective help. He is somewhat rudderless in the sense of having someone to help him, and it was for that purpose that I sought a Community Corrections report or report on the basis of a potential Community Corrections Order. Mr Pringle was kind enough to do that report and that has been a positive report, and will be tendered as Exhibit D.
19 On thing that concerned me about it was the suggestion that the standard Community Correctional Services policy would apply. I do not necessarily think that Mr D K needs a sex offenders program and, indeed, it was my intent to order specifically that it not be done. The secretary, under the Act, can make his own determinations but a Judge can specifically order that such not be appropriate. I, for example, do not intend to make a forensic sample order, because he does not fit into that category of sex offender, given his age and his relationship. However, given Mr D K’s statements in his record of interview that he well knew her age, that there was no excuse and that he gave way to temptation because it was there, it may well be that it would be in his long term interest to undergo that program. So I will leave that recommendation.
20 It is my view, pursuant to the provisions and the considerations in s.37 of the Sentencing Act 1991, that a Community Corrections Order is appropriate in these circumstances, and I intend to make an order accordingly. I am also going to attach a fine as well of $1000.
21 Mr D K, what that means is that you have to consent to undergoing this order, and you have been advised what that involves. Primarily, that involves no more offences and I am convinced that you will not offend again, all right. The other thing is this. It seems to me you need a bit of assistance and I am going to ask in one of the provisions, as to rehabilitation, that some personal development programs be prepared for you. I do not know whether you need counselling or something as to assist you in maturing and handling your difficulties in life, because you have obviously got some, and it seems to me that a Community Corrections Order would be of much assistance, Mr Pringle, in this case. It seems to me he needs a rock, he needs someone to help him, as he is not getting much help at home.
22 However, because you did, as you admit, fall for temptation when you knew you should not be doing this, and these are, after all, very serious offences and designed by Parliament to protect young persons despite them consenting, it seems to me that you should do some voluntary community work, which I am going to set as one hundred and fifty hours over two years. So it should not be too much of a strain, despite your hard work.
23 Also, I am going to ask you to pay a fine of $1000 but I will give you six months to pay that, all right. If you need any more you can apply for that but I would suggest if you do apply that you should have paid some before you seek an extension.
Sentence
24 So formally, therefore, you are convicted on both charges, of breach of s.45(1) of the Crimes Act 1958. For both offences I impose a Community Corrections Order.
25 I accept the recommendations of Mr Pringle in the pre-sentence report filed, and in particular that the term firstly be for a period of two years, that a condition under s.48C be imposed of one hundred and fifty community hours, and that a condition under s.48D(f) be imposed of treatment and rehabilitation.
26 Apparently the department has a mandatory provision that you would undertake the sex offender program. I do not necessarily think you need that, given the circumstances of this case, but given that you knew what you were doing, you knew that a girl of that age was protected and you went ahead, I have decided finally that I will not say it cannot be done.
27 What I am more interested, Mr Pringle, is to help him get through this crisis that he is in at the moment and give him a bit of assistance, which he is obviously not getting at home, some sort of self development program. I am not sure, you would know more about it than me, but I just cannot specify it, but that is what I am really after. Perhaps it is just someone to talk to under the supervision provision, and I will also add the supervision provision as well, as has been recommended under s.48E.
28 I think they are all the matters that I need to mention. We will ask you to sit down there, Mr D K, and your counsel can have a chat to you to make sure you fully understand the order before signing.
29 As this is an order under Part 3A and not under Part 3, I do not have to make a statement pursuant to s.6AAA of the Sentencing Act 1991.
30 Mr D K, it goes without saying, no more giving way to temptation. It can land you in very difficult waters, all right. You have no priors so you do not want to get into trouble again, okay. All right, I thank both counsel and, Mr Cameron, you will point out to your client the importance of making sure that he does not mess up over that period of two years.
31 MR CAMERON: Yes, Your Honour.
32 HIS HONOUR: I want to see him just continue with his hard work. Thanks for your assistance, Mr Pringle. Yes.
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