R v JED
[2007] VSC 348
•21 September 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BENDIGO
CRIMINAL DIVISION
No. 1446 of 2007
| THE QUEEN | Plaintiff |
| v | |
| “JED” | Defendant |
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JUDGE: | KELLAM J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 April 2007, 9 August 2007 | |
DATE OF JUDGMENT: | 21 September 2007 | |
CASE MAY BE CITED AS: | R v JED | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 348 | |
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CRIMINAL LAW – Sentencing – Rape - Intentionally causing serious injury – Threats to kill – Elderly victim - Youthful offender – Whether principles referred to in R v Verdins applicable – Prospects of rehabilitation – Sentence 13 years’ imprisonment with non-parole period of 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Williams SC | Office of Public Prosecutions |
| For the Defendant | Mr G Mullaly | Legal Aid Victoria |
HIS HONOUR:
You, JED have pleaded guilty before me to two counts of rape, one count of intentionally causing serious injury, one count of threat to kill, one count of indecent assault and one count of common law assault.
The crime of rape carries a maximum penalty of 25 years’ imprisonment. The crime of intentionally causing serious injury carries a maximum penalty of 20 years’ imprisonment. The crimes of threat to kill and indecent assault each carry a maximum penalty of 10 years’ imprisonment. The maximum penalty for the crime of common assault is five years’ imprisonment.
These offences took place in Bendigo on 23 August 2006. At the time you were 15 and a half years of age, having been born on 29 January 1991. At the time, and for reasons which I will later explain, you were living with carers in Bendigo. You were at the time under the supervision of the Department of Human Services.
On the afternoon of 23 August 2006 you met a friend and both of you rode your bicycles to the home of one Colin Harrison in Bendigo. Harrison was then aged 35 years. You and Harrison then went to a Safeway store where 20 cans of bourbon and coke were purchased. Surveillance footage records that you went to Safeway at 2.51 pm. You both then returned to Harrison’s home. It is clear that thereafter you consumed a quantity of the alcohol purchased, although the persons with whom you were drinking provided differing statements as to the effect of your consumption of alcohol upon you. Harrison who was not drinking alcohol described you as “legless”. Others did not notice any significant effect upon you. You later told police that you had consumed four to five cans of alcohol and that you were drunk by the time that you left Harrison’s home at between approximately 4.30 and 4.45 pm. Whatever your state of sobriety you were able to ride your bike along a bike path in Kangaroo Flat.
At about the same time your victim, a lady who was then 83 years of age, commenced her usual daily walk along the bike path which is adjacent to the Bendigo Creek. She commenced her walk in the company of one of her adult daughters and her daughter’s two dogs, but in the course of the walk she told her daughter to go on ahead of her.
As she continued along the path alone, you rode your BMX bike up to her. You alighted from your bike and placed the bike across the path thus blocking her way. You said “Lady I need you to help me”. She said “I don’t have any money”. She then attempted to walk around your bike. As she did this you moved your bike in front of her so that she could not get around and you said “I think you can help me”. Your victim again tried to sidestep you but you grabbed her body. You placed both your hands around her back pinning her arms to her sides. You then kissed her on the mouth. Your victim pulled away from you but you grabbed her and kissed her on the mouth more aggressively. You then commenced to drag your victim towards the bank of the adjacent Bendigo Creek. You did this by keeping your arms around her and pulling her. As will become apparent later in these sentencing remarks your victim is a deeply religious person. She said “Help, Lord Jesus, help me. Lord God help me”. She said that as loudly as she could. She resisted your endeavours to pull her down the bank of the creek by grabbing hold of a tree and putting her feet against it. You were too strong for her. You dragged her down the embankment and she lost her footing. As you dragged her down the embankment you continually punched her in the head. Your victim continued to say “Lord Jesus, help me” to which you responded with words similar to “Well we’ll see about your Lord Jesus later, but you can help me now”. You continued to pull your victim down the bank. There was not much water in the creek at the time, the creek consisting of slush and mud. You pulled your victim into the slush and pushed her down on to her back. She was yelling “Help, help me, help”. At this time you said “I’m going to fuck you till you die”. You ripped her jacket open and at the same time you pulled down her tracksuit pants and underwear. You lay on top of her. She endeavoured to knee you in your testicles with her right knee. You said “If you knee me in the balls again I’m going to kill you”. This together with your earlier threat forms the factual basis of count 4. You then lay back on your victim and put two fingers inside her vagina. That is the factual basis of Count 2. You then put your flaccid penis in her vagina. You were not wearing a condom and you did not ejaculate. That is the factual basis of Count 3. You then put your hand around your victim’s throat and tried to strangle her. She fought back by struggling and tried to remove your hand from her throat. You continued to punch her to the face throughout the entire time. You then dug your fingers in her left eye. As you did this you called her a “cunt”. She pushed you away but you continued to gouge at her left eye. Then you inserted four fingers of your right hand in her throat so far that she could not breathe. You told police that you did that for “about 2 minutes”. Believing she was going to die your victim said a prayer to herself, “Lord God into your hands I commend my spirit”. About this time you grabbed the exposed left breast of your victim, stretched it out as far as you could and then bit it. When asked by police what you expected to achieve by doing this you said “ I don’t know. Blood to pour out. Something like that.” That is the factual basis of Count 5. You continued to punch her to the head as you had done throughout the whole attack. You told police that your final punch was the hardest of all the punches to her.
Count 1 relates to the totality of the injuries suffered by your victim and caused by all of the your assaults upon her throughout her ordeal, except those covered by Counts 2, 3 and 5.
Your victim then heard her daughter Elizabeth’s voice. Your victim called out “Help me, help me”. You put your hand back down her throat. The daughter of your victim who was at this stage walking along the bike track heard cries for help. She pushed her way through the bushes and stood at the edge of the four foot drop down to the creek where she could see you lying down in the muddy creek. She asked “What is going on?” with which you told her to “Piss off”. The victim’s daughter did not know that her mother was in the creek bed. She looked along the track to see if there was anyone to help and she saw a man riding his bike towards her along the track. The victim’s daughter called to him to come and help her. That man, Mr Leersen, went to help. He was half way down the embankment when you got up from your victim pulling up your pants as you did so. You said to Mr Leersen “It’s not your problem go away”. You then attacked Mr Leersen, grabbing him around the chest area and pushing him into the creek. These matters form the factual basis of Count 6, the count of common assault. At this point Mr Leersen observed your victim lying on her back naked and partially covered by water and mud. At the same time the victim’s daughter was yelling out to get the police. You threatened Mr Leersen. You told him if he rang the police you would kill him. He nevertheless ran up the embankment and rang the police. The depositions reveal that Mr Leersen is a middle aged man who suffered serious head injuries some years before this. His courage is to be commended. You then fled.
The victim’s daughter then went down to the creek bed where she observed a female lying with her pants and underwear pulled down to her ankles and her breasts exposed. The victim was covered in mud and her face was so swollen that her daughter was unable to recognise that it was her mother until she spoke. Police and ambulance officers arrived at the scene soon thereafter and your victim was conveyed by ambulance to Bendigo Hospital.
Upon examination at hospital the following injuries were observed. The victim’s face was distorted by bleeding, swelling and purple bruising. She could not open her left eye. She had swelling of her nose, right upper eyelid and lower lip. She had three lacerations to her face requiring stitching, a curved gaping laceration over her left lower jaw, an actively bleeding laceration below her right eye and a laceration with a jagged edge above her right eye. She had soft tissue swelling to her scalp with redness and scratch abrasions to the inside of her mouth and throat. There were areas of purple bruising on her left shoulder and upper left chest. There were lacerations and skin loss to her left breast. There was bruising to her upper right eye. Redness was observed at her vaginal opening. Photographs taken of your elderly victim in hospital are a deeply disturbing testament to the level of violence imposed upon her by you. Furthermore she developed significant cardiac problems warranting treatment and ongoing close supervision, in circumstances where she had not suffered any heart problems previously. She was discharged from hospital on 1 September 2006 although she has continued to be treated for her cardiac problems. The attack upon her has interfered substantially with her quality of life.
Both your victim and her daughter have filed victim impact statements with the Court. The victim impact statement made by your victim is a most moving document. As stated previously, your victim is a deeply religious woman. At the time of your attack upon her she was conducting two classes of scripture per week with primary school children. She had prepared lessons for the two classes to be given the day after you attacked her. Those lessons were never given, nor has she taught a class since that time. Since then she has lost the pleasure of walking on the bike track as she had done previously every day. She is now fearful of walking alone. Before your attack on her she was an independent person who would drive into town to attend appointments and was involved in her church, undertaking bible study and teaching Sunday School classes. She now relies upon her daughter to drive her into town and to attend appointments. Although she has returned to bible studies she has not resumed teaching Sunday School classes. As a tangible demonstration of her faith and her charity, your victim has reported to a psychologist that she has empathy for you and that although she has come to the understanding that she cannot do anything for you, she will help you by praying for you. The final paragraph of her victim impact statement is as follows:
“This is distasteful to me and I trust I can now leave this matter with God and forget about the whole incident, except not in ceasing to pray for this lad who is in great need of mental, moral and spiritual help which I have been assured he will receive. Unless he is able to understand the seriousness of what he has done and what a menace his attitude is to society wherever he goes he needs to be kept under constant surveillance. It is distasteful for me to have to write these things and to dredge up old events which I would prefer to forget and just concentrate my prayers on seeking that this lad might be given the chance to be the good person God gave him life to be or to be kept in confinement until he can be taught the true value of all human life. I do not know his name nor his circumstances, but thus I will pray for him.”
In addition the daughter of the principal victim, has filed a victim impact statement. She has suffered considerable trauma in consequence of the attack upon her mother. It is not difficult to understand the trauma that she felt when she found that her mother was the person lying bleeding and injured in the mud of the Bendigo Creek. She has found it hard to be motivated to go back to work since this incident. Not surprisingly she is wary when going out walking and feels vulnerable herself. Living next door as she does to her mother she has had to carry the brunt of the responsibility of looking after her mother who was, prior to your attack upon her, a fiercely independent person. A psychologist’s report attached to her victim impact statement contains the opinion that she experiences anxiety and depressive symptoms as the result of the traumatic event of witnessing her mother being assaulted. In addition a grand-daughter of your principal victim has filed a victim impact statement. Your attack upon her grandmother has had a traumatic emotional consequence for her.
The offences to which you have pleaded guilty are serious offences indeed. The violence with which you attacked your elderly and vulnerable victim is simply beyond the comprehension of any decent person. Not only did you sexually assault your victim in the most degrading and humiliating circumstances, and with a profound contempt for her dignity as a human being, but you punched her to such an extent that her daughter could not recognise her immediately afterwards. You caused a serious injury to her left breast with your teeth. That can only have been calculated to cause her pain and humiliation. You told police that you punched and gouged her in the eyes so that she would not be able to see you. The attack on your victim was callous in the extreme.
Notwithstanding the seriousness of your crimes there are a number of matters of mitigation which I must take into account. First, your plea of guilty to the offences with which you are charged is a matter of significance. Of importance is the fact that your plea has saved the victim the trauma and humiliation of giving evidence against you. The cost and inconvenience of a defended trial has been avoided. Your plea of guilty was entered at the earliest opportunity. You were interviewed by police on 25 August 2006 in the course of which you confessed to being the person who had attacked your victim. Later, in a formal record of interview you admitted to punching your victim about 12 times in the face, gouging her left eye, raping her, putting your hands down her throat and biting her on the breast.
However, and accepting that your plea of guilty and the fact that your acknowledgment of your crimes to police are substantial matters in your favour and which I must as a matter of law take into account in your favour, the question of whether or not you are genuinely remorseful is complex. Your counsel has directed me to statements made by you to police in your interview with them. You said that you felt “really bad” about what had happened in answer to question 1039 although in your next answer you put that in the context of being scared as to where you “will be”. No expression of remorse was made to Dr Deakin, the psychiatrist, who examined you in November 2006 and March 2007. The pre-sentence report dated 26 June 2007 and obtained pursuant to my order reveals that you said you wished the offences “had not happened”, but provide no evidence upon which I can say that you are truly remorseful or have any comprehension of the magnitude of your offending, or of the serious harm you caused your principal victim.
The pre-sentence report dated 20 June 2007 and prepared by psychologist, Carla Lopez, contains a concerning self-report of the circumstances of the offence to which I will refer in more detail later. Apart from a statement made to her that you “felt really bad afterwards”, no expression of frank remorse was made by you. Likewise your interview with those preparing the pre-sentence report dated 26 June 2007 led them to express serious concern about your apparent lack of remorse. It may be that you are simply unable to face the enormity of what you have done and I accept the possibility that that factor together with your immaturity may make any fulsome expression of remorse very difficult for you. However, you have been interviewed by skilled professionals and those interviews have resulted in little evidence of real remorse, or empathy for your victim.
As stated above, you were 15 and a half years of age at the time you committed the offences. It is necessary to set out something of your personal circumstances and background. You were one of nine children born to your mother. The older six of those children were fathered by a different man than your father. Your father is the father of your mother’s three youngest children of which you are the eldest. Your parents are separated. It is clear that your early upbringing was dysfunctional. You did not attend primary school regularly and it would appear that your last year in school for any period of time was when you were in grade 6. There is not much information before me about your early life, at least partly because you have shown reluctance to discuss your circumstances with others and in particular with the professionals who have sought to assist you. This may be because of the Attention Deficit Syndrome of which you have been diagnosed or because of other deep seated psychological issues. Your counsel, Mr Mullaly, has informed me that you did not have the benefit of a stable functioning home life. You did not have the benefit of growing up in a family where rules and boundaries were set and enforced. Your counsel, who has said all that could be said for you before me, has said that your childhood was characterised by “insufficient or ill considered supervision or tolerance of inconsistent behaviour”. You have had no responsible mature male model and as your counsel argues it is apparent that you lack mature impulse control.
It is clear, notwithstanding the paucity of information about your early life before me, that your behavioural problems, at least during recent years, have been considerable. You have admitted to appearing before the Children’s Court on seven occasions. The first such occasion was on 31 January 2002, a matter of days after your eleventh birthday. That appearance related to property damage and the discharge of a missile to cause injury or damage. During your twelfth year you appeared before the Children’s Court on two occasions on charges related to property damage and theft. Of particular concern is the fact that at age 13 you appeared in the Children’s Court on 4 March 2004 and were sentenced to be released on a Youth Supervision Order in respect of four charges of rape and one charge of attempted sexual penetration of a child under 16 years of age. I shall return to this matter in more detail later. Subsequently, in August 2004 and May and September of 2005 you had further appearances before the Children’s Court on charges of burglary, theft, arson and property damage.
Those appearances before the Children’s Court bespeak a troubled adolescence. However by reason of them a considerable number of psychological and other reports have come into existence. These provide some information about you during this period. I propose to turn to those reports in some detail.
As stated above, you appeared at the Children’s Court on 4 March 2004 on four charges of rape and one charge of attempted sexual penetration of a child under 16 years of age. That matter related to three victims. The first victim was a four year old female relative of your family who was digitally raped by you on two occasions. The attempted penile sexual penetration by you was upon a four year old female friend of your family and two counts of rape related to the digital penetration of a nine year old female friend of your family. The charges were representative counts in that the digital rapes were accepted as having occurred on a number of occasions. The crimes were alleged to have taken place between 22 January 2003 and 1 October 2003. Accordingly you were 12 years old at the time of the commission of these offences.
By reason thereof you were referred to the Adolescent Forensic Health Service for assessment. Clinical psychologist, Mr Darren Eger, conducted a detailed assessment of you on 25 February 2004. Your description of your behaviour to Mr Egar was said by Mr Egar to be reasonably consistent with the facts alleged by the evidence of the prosecution in the matters before the Children’s Court. Indeed it would appear that you were candid with him about your offending in a number of ways. First, you reported offending against the nine year old relative over a 12 month period commencing in October 2002. If this is so you were 11 years of age when that offending commenced. You also reported having offended on more occasions than were suggested by the charges which had been laid against you at that time. You acknowledged a significant interest in pornography including that depicted in magazines, videos and the internet. At the time you were residing with carers. You stated that you disliked those carers. Mr Egar reached the following conclusion:
“[The subject] is a young man with a clearly identified pattern of sexually abusive behaviour that has developed over a two year period. He has demonstrated both planned and opportunistic offending against three very young female victims … [the subject’s] offending suggests a pervasiveness and commitment to sexual assault that is in contrast to his age and presentation. As such, his behaviours are considered to be very serious and require specialist intervention over a period of time. [The subject] is considered to represent a significant risk of re-offence.”
The report notes that you had been diagnosed some time earlier as suffering from Attention Deficit Disorder. A report from Dr Stuart Anderson, a consultant paediatrician, and dated 1 September 2004 has been tendered before me. Dr Anderson saw you first in September 2000. You were then nine years of age. You presented before him with signs of poor concentration, over-activity, poor school progress and generally difficult behaviour. You were medicated on Dexamphetamine tablets and Dr Anderson reports that your symptoms improved considerably in consequence thereof. Dr Anderson referred you to another paediatrician in October of 2004. That paediatrician, Dr Peter Wearne, saw you on five occasions between 6 October 2004 and 30 May 2006. Dr Wearne noted that you had been placed in the residential care of St Luke’s Residential Services pursuant to a “custody to the Secretary order” on 26 June 2004.
In October 2004 Dr Wearne reported:
“[The subject] is no longer attending school and the focus through St Luke’s and DHS seems to be trying to equip him with some practical life skills. He claims not to be too far behind academically but there is no clear picture as to just where he stands in this regard. He did say however that he didn’t think the Dexamphetamine made much difference and he doesn’t believe it has any effect on his behaviour or performance now that he is not actually going to school. He, himself, requested that he go off the medication.”
On 9 December 2004 Dr Wearne reported to your general practitioner as follows:
“Given such a disturbed background it has been hard to know how much ADHD he actually suffers from. There has been no adverse response to my reducing his Dexamphetamine from 20 to 15 milligram a day and I reduced it further to 10 milligram a day.”
In February 2005 Dr Wearne reported that he had further reduced the Dexamphetamine down to 5 milligrams which he stated was “a very modest dose for a young man of his age and size”. On 27 September 2005 Dr Wearne again reported to your general practitioner:
“[The subject] has no medical problems and his general health seems to be excellent. He has absolutely no interest in any sort of physical education. However, he probably keeps fairly fit because he walks a lot and he also rides a bicycle. He is up to date in his immunisations. He has recently had dental and optometrist examinations and everything was satisfactory. I am not privy to much detail about [the subject’s] past educational, emotional and social history. However, problems go back for at least five years with a variety of challenging behaviours, features of attention deficit disorder, involvement with CAMHS, the police and the Juvenile Justice System. There have been reports of “inappropriate sexual behaviours” and it seems that he has long been estranged from his family.
ADHD was previously diagnosed by another paediatrician, Dr Stuart Anderson, in September 2000. At one stage he was on 20 milligrams of Dexamphetamine a day. I have now got him down to 5 milligrams a day and over the next 12 months I might be able to stop the drug altogether.”
Dr Wearne’s final report of 31 May 2006 states as follows:
“He remains under the supervision of the Department of Human Services but for practical purposes he is in the full time care of St Luke’s … this means he is living in a normal [read not dysfunctional] household learning useful living skills. He is less successful with his schooling. For reasons which I am sure are due to his dysfunctional background plus elements of ADD, he feels he cannot cope at a normal school. He is doing a modified school program in a small group teaching centre supervised by St Luke’s but loosely connected with the Golden Square Secondary College.”
He concluded by saying:
“Even though [the subject] is off all his medications, he … would still like me to be involved with him. Despite so much improvement this young man is not out of the woods yet. He will remain emotionally vulnerable and, being easily led, he could slip into criminal activity. I would like to continue to see him every three to six months.”
The extent to which Attention Deficit Disorder affected you is accordingly far from clear. It is clear however that both paediatricians considered you to have come from a disturbed and dysfunctional background.
You were seen by psychologist Ms Shona Innes during 2004. In addition Ms Innes has seen you since the commission of the offences which bring you before this Court and gave evidence before me upon your plea. Ms Innes first saw you on a number of occasions during 2004 at the referral of Mr Egar. At that time you were aged 13 years. You were then facing a number of charges in relation to a fire at a bowling club and a theft from a motor car. Throughout 2004 you refused to attend any school. Ms Innes noted that between April of 2004 when she first commenced to see you and August of 2004 there had been a significant shift in your attitude to sessions with her. At first you were reluctant to speak directly to her, answering only some of the questions put to you. You preferred to engage in other tasks such as playing with the blinds in the room, drawing a picture, or fiddling with the doll’s house whilst speaking. You provided little eye contact and engaged in little or no spontaneous conversation. However, after a number of sessions you became reluctant to engage directly and grew more defiant. You refused to do work sheets which were given to you by Ms Innes. She stated that you had demonstrated an awareness of your attempts to distract. During one session, time was spent by you exhibiting all the behaviours that you used for the purpose of distraction. Finally the sessions with Ms Innes were terminated due to your lack of engagement and your escalation of distracting and defiant behaviours.
Ms Innes provided a further report in December of 2004. At that time she noted that there had been some progress in your treatment but a significant need remained for further work on increasing responsibility, empathy and actively acquiring skills which you were learning.
A further report dated 25 February 2007 was prepared by Ms Innes in respect of intellectual assessment undertaken by her. At that time you were being held on remand in the Melbourne Juvenile Justice Centre in consequence of the offences which are now before the Court. Testing revealed a full scale IQ score in the range of low average intelligence. Your full scale IQ was assessed at 80 with your verbal IQ being assessed at 84 and your performance IQ being assessed at 80. The profile of your abilities was consistent across the various facets of intelligence and indicated low average cognitive abilities, yet abilities “significantly above the range considered for intellectual disabilities”. Ms Innes noted that your scores on testing may well have been affected by a lack of regular school attendance over recent years or by a tendency to not persist at tasks you do not really like undertaking. I conclude from this evidence that you are not an unintelligent young man.
Ms Innes provided a further report dated 11 June 2007 in relation to her examination of you at the Melbourne Youth Justice Centre on 1 May 2007. Ms Innes noted in the course of that discussion that your presentation was marked by impulsivity. She said:
“He did not greet the writer or offer any salutations. Instead, he pulled out a chair, sat down and asked if I had cut my finger? I had a ‘bandaid’ on one of my fingers. Before waiting for an answer he asked if the file I had brought with me was his file. He spotted some newspaper in the file, asked if he could read it and reached for it before being given an answer.”
Ms Innes enquired of you how you felt about your victim. You said “Very bad. If I could turn back time I wouldn’t have done this. Have you heard that song?” You agreed that you were referring to a song by Cher called “If I could turn back time”. Ms Innes’ report gave consideration to factors affecting your offending behaviour. Ms Innes observed that your family has a history of abuse and that you have spent significant time sharing accommodation with troubled peers. She concluded that you did not fear discipline from your parents. She observed that you had little social or academic success at school. In relation to your friendships she stated that you have had no identifiable stable relationships over the time span that you have been known to her. Your relationships have focussed on those people who are around you or sharing accommodation services with you. You have had a limited range of recreational interests. She concluded that you have an over-simplistic view of interpersonal and family relationships and little insight into relationships, let alone psycho-sexual behaviour or abuse. Your lack of interpersonal skills and understanding of reciprocity in relationships and your egocentricity may have made it difficult for you to have successful and meaningful relationships with others. Ms Innes concluded that in her opinion there are a number of factors that may have influenced your offending behaviour: “Marked impulsivity and disinhibition, his lack of responsibility for the crime [ie ‘it just happened’] and some limited expressed concern for his victim, a larger emphasis on the consequences for himself”. In addition she said that your history indicates a family history of victimisation in relation to abuse, no stable prosocial friendship group, much exposure to anti-social peers, poor school history, a significant history of quite extreme offending from a very early age, early exposure to pornography and “therapy interfering behaviours”. There was evidence of distorted thinking patterns about yourself, others and getting your needs met along with poor interpersonal relationship skills and lack of psychosexual insight. She considered that possible contributing factors which were more immediate to the offence may have included the ending of your relationship with your then girlfriend and your consumption of alcohol.
In giving evidence before me Ms Innes stated that you were “technically too young to be given a personality disorder diagnosis, personality disorder being a concept that means that there was a long term style of coping within an individual and a child’s life is not deemed long enough for that diagnosis to fit.” She said that it was difficult to say whether there were factors that made it likely that you have a personality disorder.
She said:
“The issues that concern me most in relation to that are in relation to his ability to have meaningful relationships with other people and emotional relationships with other people and be comfortable just being with other people without feeling like that they are out to get him or need to serve some other purpose for him other than just a meaningful exchange.”
She said that at the moment there is a high risk that you will re-offend. She said that you require significant treatment and monitoring, and that you require treatment that is overseen by experienced professional practitioners in a secure environment. Treatment of your needs to target your cognitive distortions, and to further explore your fantasies as well as improving your capacity for healthier interpersonal relationships is required. She observed that given your age you were approaching the cusp for the age range for youth and adult justice systems. She noted that both systems have treatment services for those convicted of sexual offences and it was important that the systems work together to ensure that your treatment has a smooth transition.
Subsequent to your arrest on the charges which bring you before this Court you were examined on two occasions by a consultant psychiatrist, Dr Adam Deakin. On the first occasion that Dr Deakin saw you on 15 November 2006 you were unco-operative and did not provide sufficient history to permit Dr Deakin to provide a thorough psychiatric report. Dr Deakin saw you again in March of 2007. You emphasised to him your consumption of alcohol and stated that you consumed six cans of alcohol in half an hour prior to the commission of the offence and also stated that you had smoked marijuana prior to the offence. However you refused to discuss details of any prior behaviour and you refused to discuss details of the offence. For the majority of the half hour assessment with Dr Deakin you chose to remain standing, peering outside through venetian blinds. Eye contact with Dr Deakin was maintained only briefly. He did not consider you to be overtly depressed nor could he observe any formal thought disorder nor did you express any psychotic symptoms. Dr Deakin said that your presentation was such that an adequate psychiatric assessment was not possible but that there did not appear to be any clear evidence of a major mental illness such as a psychotic or mood disorder.
You pleaded guilty before me on Friday 20 April 2007. In particular because of the difficulty Dr Deakin had experienced in obtaining an appropriate history from you, I considered it necessary to adjourn the further hearing of the plea in order to obtain a pre-sentence report pursuant to s 96(1) of the Sentencing Act 1991. In consequence of the making of those orders two reports were provided to the parties and to the Court prior to the further hearing of your plea on 9 August 2007. The first of those reports was a pre-sentence report prepared by the team leader of the Court Services Unit. Mrs Antolini, the team leader, expressed the view that you are at a high risk of re-offending. This, as I have said, was also the view of Ms Innes in giving evidence before me. Mrs Antolini expressed the opinion that it was of concern that you had had access to counselling after your prior sexual offending and yet your current sexual offending had escalated in that significant physical injury had been caused to your victim.
The interview conducted with you by Mrs Antolini in the presence of the manager of Carlton Corrections Centre was similar to other interviews. You fidgeted, stared out of the window periodically, changed positions and kept touching and interfering constantly with the furniture in the interview room and avoided making eye contact with her. When she asked questions about the offending you answered with “I can’t remember”. She asked you if you were responding in that way because you really could not remember or whether you would rather not think about it or discuss it. You did not respond. The manager of Carlton Corrections Centre, Mr Brown, who was present throughout the interview with you conducted by Mrs Antolini stated that you appeared to lack empathy for the victim. He said:
“[The subject] impressed as reluctant to take responsibility for his action and identified his use of alcohol and illicit drugs as justification for his offending. When questioned by the writer as to types of support or assistance that would benefit him to prevent further offending [the subject] identified a combination of group and individual counselling for his sexual offending.”
He said further:
“Given his limited insight and lack of willingness to accept responsibility for his offending behaviour there are some doubts as to the level of [the subject’s] commitment to engage in rehabilitative treatment.”
The second report obtained pursuant to my order of 20 April 2007 was a report prepared by the deputy manager of the Sex Offender Program of Corrections Victoria, psychologist Ms Lopez. With Ms Lopez you were co-operative at the beginning of the interview. She stated that you became increasingly restless throughout the interview but did not appear disinterested. She stated that you seemed willing to consider all questions put to you and responded in an apparently candid manner although some questions were met with answers of “I don’t know” or “I don’t want to talk about it”. However she said that further prompts resulted in your giving due consideration to your answers. You did not report any psychiatric symptomatology nor was any detected by her at interview. You described the offences committed by you in a manner “mostly consistent with official records”. Ms Lopez noted that you did not make attempts to deny, justify or rationalise your behaviour. You stated that you “knew it was wrong” and that you “felt really bad afterwards”. You were unable to give any reason as to why you had committed the offences and you told her you could not remember what your thinking had been prior to or during the commission of the offences. Ms Lopez said that, nevertheless, discussions with you revealed a number of “problematic attitudes and behaviours which are likely to have contributed to their commission”. She observed that you lacked an appreciation of the level of harm caused to your victim as a result of the offences. Indeed you told her that you thought “she may enjoy it” although you acknowledged this was not your motivation and you denied any sexual attraction towards your victim. You told her that you did not think the sexual assault would “hurt her”. You described sexual relationships that you had had around the time of offending. These appeared quite superficial to Ms Lopez. You told her that you had a girlfriend at the time of the commission of the offences but that you also had sex regularly with another female of similar age. Ms Lopez considered that your attitudes about sex had been influenced significantly by pornography, your having been first exposed to adult pornography at the age of approximately 10 to 12 years. Ms Lopez noted that you have a history of inconsistent relationships with your family as well as with your peers and that you have struggled to establish friendships throughout your childhood and school years. Your pattern of conflict resolution appeared to her to be impulsive and likely to involve aggression. She formed the opinion that you fall into the high risk category of recidivism. That conclusion appears to me to be entirely justified.
I turn now to the principles which I must consider in determining the appropriate sentence to be imposed upon you. You are a child within the meaning of the definition of that word as appearing in s 3 of the Children Youth and Families Act 2005. Your young age is a most relevant matter and the law requires me to take that matter into account. The law recognises that youth and immaturity impact upon both judgement and culpability. Furthermore the law makes it clear that the community has an interest in the possible rehabilitation of a young offender. In R v Mills[1] Batt JA expressed his approval of the proposition that the youth of an offender should be a primary consideration for a sentencing court and that usually rehabilitation is far more important than is general deterrence. His Honour pointed out, however, that that was particularly so in circumstances where a youthful offender is a first offender, which is not the case with you. Furthermore, in R v Bell[2] Batt JA said:
“ … the general propositions accepted in R v Mills are just that – general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstance, including, it is to be noted the circumstances of the offence as well as those of the offender”.
[1][1998] 4 VR 235, 241.
[2][1999] VSCA 223, [14].
As is stated in DPP v SJK and GAS[3]:
“When youth is raised for sentencing considerations, the focus is usually placed upon the offender’s prospects of rehabilitation, but this is by no means the only basis upon which it assumes relevance. For at least a century, the attribution of criminal responsibility and the response in terms of the dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent, the law incorporates an acknowledgement of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and full consequence of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.”
[3][2002] VSCA 131, [61].
The Court stated further[4]:
“These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasise that these factors constitute only some in a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.”
[4]At [65].
In this case given the seriousness of the offences and of the offending and the lack of any real insight into the harm you have caused or significant remorse on your part, there is little evidence to show that you have a reasonable prospect of rehabilitation in the near future. It is clear that your rehabilitation has not yet commenced. It is to be hoped that the intensive treatment and counselling proposed, and stated to be necessary, by Ms Innes is provided to you and has some positive outcome. Nevertheless at the time of sentencing I have no basis for confidence that your rehabilitation will take place either quickly or in the relatively near future.
Nevertheless the sentence I am required to impose on you must provide some opportunity for your rehabilitation. On the other hand, of course, it must be recognised that all of the evidence before me leads to the conclusion that you are at a high risk of engaging in recidivist sexual offending.
In addition to your youth, counsel submits that your circumstances are such that in sentencing you I should moderate the principle of general deterrence significantly by reason of what he describes as your diminished mental capacity. In that regard he relies upon the evidence that you are immature and that you have difficulty with impulse control. He submits that the principles set out in R v Verdins[5] are applicable in your circumstances. In that case it was held that where an offender suffers from impaired mental functioning by reason of a psychiatric, psychological or intellectual disability it may be appropriate to moderate the need for general and/or specific deterrence. In my view the argument that you suffer from a mental impairment of the type considered in that case is not compelling. The evidence before me as to whether you suffer from Attention Deficit Disorder, and if you do the extent of that disorder, is far from convincing. Certainly there is no evidence before me to conclude that there is any causal or other connection between that condition and your commission of the offences. In my view the evidence that you are immature and impulsive does not amount to your having impaired mental functioning within the meaning of Verdins. Of course that is not to say that it should not be taken into account as being a relevant factor in consideration of your youth and in consideration of the prospects of your rehabilitation. Indeed those matters require me to impose a sentence that is considerably less than would have been imposed if you were an adult.
[5][2007] VSCA 102.
Nevertheless, and making full allowance for your youth as I must do and taking into account the clear necessity for the encouragement of your rehabilitation, I conclude that the level of your culpability must be regarded as extremely high. Although I accept that your attack on your principal victim was not pre-planned, the fact is that you had every opportunity to withdraw from the situation which you had created. She resisted your attempts to pull her into the creek and she continued to resist you throughout your attack upon her. She was praying loudly as you commenced what can only be described as a ferocious physical assault upon her. The culpability of this assault was compounded by the nature of the sexual assault and the final indignity you imposed upon her by savagely biting her left breast. A reading of the record of your interview with police makes it clear that you knew the wrongfulness of what you were doing and that you made calculated decisions such as attempting to cause injury to your victim’s eyes so that she could not see you. You said you punched her to keep her quiet.
The principle of general deterrence and the need for the Court to express denunciation of your crimes remain matters of significance for sentencing purposes. Furthermore, you have sexually offended in the past. Whilst it is true that you were very young at the time of that offending, you were provided with intensive individual treatment and counselling during and after the time of your 12 month probation order. You attended upon Ms Innes weekly throughout that order and thereafter fortnightly. In July 2005 you commenced treatment with the Male Adolescent Program for Positive Sexuality conducted by the Adolescent Forensic Health Service. You completed the program conducted by that organisation in February 2006. The case closure summary dated 2 February 2006 provided the following statement of what was described as your current risk of re-offending at that date:
“At the time of closure [the subject] is estimated to present a medium risk. The focus of his risk has likely shifted from children to peers and women up to the age of 30. His risk remains elevated due to the significant degree of external support he continues to require in order to manage his risk. His risk will decrease as he is able to better monitor and manage his risk factors.”
The offences with which I am concerned were committed within seven months of that report. In my view the principle of specific deterrence remains a matter of significance in your case as does the matter of the protection of the community. As the case law makes clear, the imprisonment of a youthful offender, in general, should occur in only the most grave circumstances. However in the circumstances of this case I see no alternative other than the imposition of substantial sentences of imprisonment. Indeed, but for your youth, the sentences imposed would have been significantly more substantial
On count 1, a count of intentionally causing serious injury, I sentence you to 7 years’ imprisonment. On count 2, a count of rape, I sentence you to 7 years’ imprisonment. On count 3, a count of rape, I sentence you to 7 years’ imprisonment. On count 4, a count of threat to kill, I sentence you to 18 months’ imprisonment. On count 5, a count of indecent assault, I sentence you to two years’ imprisonment. On count 6, a count of common law assault, I sentence you to one month imprisonment.
Whilst it is true as your counsel submits that all of these offences took place in the course of a single episode, the individual counts reflect distinct offending acts which call for partial accumulation. I propose to direct that two years of the term of imprisonment imposed on count 2 and two years of the term of imprisonment imposed on count 3 and one year of the term of imprisonment imposed on count 4, together with one year of the term of imprisonment imposed on count 5 be served cumulatively upon the sentence imposed on count 1, and upon each other. That amounts to a total effective sentence of 13 years’ imprisonment.
I turn now to the question of the fixing of a non-parole period. A considerable amount of time was spent upon your plea in examining the question of your possible rehabilitation. There can be little doubt, that in all of the circumstances of this case, unless serious endeavours are made by the authorities to assist you in your rehabilitation you will remain a risk to the community. The fact of your youth encourages the opinion that your rehabilitation remains a prospect, notwithstanding the seriousness of the matters now before the Court. There is an evidentiary basis for stating that your immaturity is a significant factor in your offending. Your ability to benefit fully from treatment programs may improve over time. On the material before me I am far from satisfied that this will necessarily be so, but it is important that in somebody as young as you are every endeavour should be made to ensure that you have an opportunity to be rehabilitated.
As your principal victim so wisely said you will need assistance and the community will not be safe from you until such time as you are able to understand the seriousness of what you have done. There is no certainty that your rehabilitation will occur but I must do all that I can, in accordance with proper sentencing principles, to promote your rehabilitation. In those circumstances I accept the submission of your counsel, which was not opposed by the prosecution, that the non-parole period I fix should be shorter than might otherwise be the case. It must be understood that the minimum period to be served before being eligible for parole is the minimum which is necessary to achieve a just sentence in all the circumstances. However the fact that a minimum term has been fixed does not mean that you will necessarily be released at the end of such period. It will be a matter for the Adult Parole Board to consider the progress, if any, that you have made throughout your non-parole period. If the Adult Parole Board considers that your rehabilitation has progressed to a point where it is safe for you to be released into the community under appropriate supervision, it may do so. However it is entirely a matter for it to consider when, if at all, you are released into the community after the expiry of the non-parole period. Clearly by the time you are released you will be no longer a youth. As I have said you are not an unintelligent person. If you use the opportunity to rehabilitate yourself you are still capable of making a life for yourself that is of value to you and to the community.
I order that you serve a minimum of 8 years’ imprisonment before becoming eligible for parole.
You have been in custody since 25 August 2006. Accordingly, I declare pursuant to s 18 of the Sentencing Act 1991 that a period of 392 days be reckoned as a period of detention having been served already under this sentence and I direct that the fact that this declaration was made and its details be noted in the records of the Court.
I turn now to the application made by the prosecution for an order that you comply with the reporting obligations of the Sex Offenders Registration Act 2004 (“the Registration Act”). The prosecution contends that I have power to exercise a discretion to make such an order. Your counsel, Mr Mullaly, submits that I have no such power.
The broad scheme of the Registration Act is to provide for a register of offenders in respect of persons who are found guilty of certain specified sexual offences. A person who is sentenced for a Class 1 or Class 2 offence is, by reason of such sentence, a registered offender. In general, Class 1 or Class 2 offences may be said to be sexual offences against or associated with children as victims. The Registration Act mandates that persons who are sentenced for such offences are to be subject to the Act.
However there are exceptions spelt out in the Act in relation to offences committed by children. By s 3, the Registration Act defines a child as “any person who is under the age of eighteen years”.
The Registration Act by s 6(3)(a) provides that a person is not registrable, even if sentenced for a Class 1 or Class 2 offence, if that person “as a child” committed such an offence. Thus there is no mandatory registration for persons who commit offences as children, as there are for adults who have committed a Class 1 or Class 2 offence.
However, in addition to the mandatory registration of an adult offender who commits a Class 1 or Class 2 offence, the Registration Act provides a discretion to the Court to order compliance with the reporting obligations of the Act. Section 11(1) provides the discretion to the Court to order compliance with the Act by persons who have committed offences other than Class 1 or Class 2 offences, including a Class 3 or Class 4 offence.
The offence of rape is defined by the Registration Act as a Class 3 offence and the offence of indecent assault is a Class 4 offence. The prosecution contends that s 11(1) of the Act gives me a discretion to order compliance with the reporting obligations of the Act in your case, notwithstanding the fact that you are a child within the meaning of the Act, by reason of the fact that you have committed offences which are defined as Class 3 and Class 4 offences.
It should be observed that s 11(2) of the Registration Act is directed specifically at persons who “committed as a child” a Class 1 or Class 2 offence. It provides a discretion to the Court to order compliance with the Act where it is sentencing in such circumstances.
The prosecution submits that s 11(1) is framed broadly and that the word “person” is used in its ordinary meaning to include adults and children. It is submitted that the use of the word “child” in s 11(2) is referable specifically to and confined to Class 1 or Class 2 offences but that s 11(1) of the Act extends the exercise of the discretion referred to in s 11 (2) to offences other than Class 1 or Class 2 offences.
On the other hand your counsel, Mr Mullaly, submits that s 11(1) deals distinctly with adults so as to “broaden the net of offences” to include any offence, including Class 3 and Class 4 offences which may be the subject of the exercise of discretion. He argues that Section 11(2) creates a net potentially to capture persons who have committed Class 1 or Class 2 offences as a child. He submits that if Parliament intended that children be registrable for any offence, including a Class 3 or Class 4 offence, it would have said so explicitly in s 11(2) simply by adopting the words used in s 11(1), or alternatively by including in s 11(1) the term “used regularly in the Act to supplement and contrast” to the term “person” the term “a person who committed any offence as a child”.
In my view the submission made by Mr Mullaly is correct. Parliament’s intention was to ensure that adult offenders who committed Class 1 or Class 2 offences were to be the subject of mandatory application of the Registration Act. It intended that other adult offenders can be made subject to the Act by the exercise of a discretion under s 11 (1). In my view it is clear that s 11(2) of the Act is limited to Class 1 and Class 2 offences because Parliament intended the Courts to have power to impose serious restrictive and long-term orders only on children, or persons who commit offences as children, in the limited circumstances of Class 1 or Class 2 offences. If I am incorrect in that view it is nevertheless clear that any ambiguity in relation to my power to make an order of such a restrictive nature should be resolved in your favour. However, I conclude that I do not have power to make the order sought by the prosecution.
Finally, I direct that all reports tendered before me, together with a transcript of the plea and a transcript of these sentencing remarks be provided as soon as possible to the Adult Parole Board so as to enable it to obtain a report from the Secretary of the Department of Justice. This will enable the Adult Parole Board to give consideration pursuant to s.471 of the Children, Youth and Families Act 2005 as to whether or not you should be transferred from an adult prison to be detained in a Youth Justice Centre. That decision is a decision for the Adult Parole Board as an arm of the executive government. However, wherever you are retained it is clearly imperative in the community interest, as well as in your interest, that the corrections authorities ensure that appropriate programs, counselling, psychological assessment and education be provided to you.
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