Sims v The Queen
[2022] VSCA 114
•15 June 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0070 |
| JASON SIMS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 May 2022 |
| DATE OF JUDGMENT: | 15 June 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 114 |
| JUDGMENT APPEALED FROM: | [2022] VCC 571 (Judge Hannebery) |
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CRIMINAL LAW – Appeal – Sentence – Standard sentence offences – Engaging in sexual activity in presence of a child – Sexual penetration of child (rolled up charge), supplying drug of dependence to a child, producing child abuse material – TES of 5 years and 6 months, with NPP of 3 years and 6 months – Whether sentence manifestly excessive – Vulnerable victim – Significant age difference – Moral culpability very high – Sentences well open – Leave to appeal refused.
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| Counsel | |||
| Applicants: | Dr M Fitzgerald | ||
| Respondent/s: | Ms M Mahady | ||
Solicitors | |||
| Applicants: | Doogue + George Defence Lawyers | ||
| Respondent/s: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MAXWELL P
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of engaging in sexual activity in the presence of a child,[1] one rolled-up charge of sexual penetration of a child,[2] one charge of supplying a drug of dependence to a child,[3] one rolled-up charge of producing child abuse material[4] and one charge of possessing a drug of dependence.[5]
[1]Contrary to s 49F(1) of the Crimes Act 1958 (‘Crimes Act’).
[2]Contrary to s 49B(1) of the Crimes Act.
[3]Contrary to s 71B(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 51C(1) of the Crimes Act.
[5]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
On 11 May 2021, the applicant was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1
Engaging in sexual activity in the presence of a child under 16
10 years
2 years and 6 months
6 months
2
Sexual penetration of a child under 16
15 years
5 years
Base
3
Supplying a drug of dependence to a child
15 years
9 months
Nil
4
Producing child abuse material
10 years
12 months
Nil
5
Possessing a drug of dependence
1 year and/or 30 penalty units[6]
$500
N/A
Total Effective Sentence:
5 years and 6 months
Non-Parole Period:
3 years and 6 months
Pre-sentence Detention:
45 days
Section 6AAA Statement:
6 years and 3 months, with a non-parole period of 4 years and 6 months
[6]Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 provides for this maximum penalty, where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking.
The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that the ‘sentences on charges 1 and 2, as well as the total sentence and non-parole period, are manifestly excessive’.
For reasons which follow, we would refuse leave to appeal.
Circumstances of offending
At the time of the offending, the applicant was 47. The victim (‘L’)[7] was a 15-year-old girl. She was at the time under the care of the Department of Health and Human Services and residing in a residential care unit.
[7]To ensure there is no possibility of identification of the victim of the sexual offending, the letter ‘L’ has been used throughout the judgment.
Both the applicant and L were registered on an adult dating app, the use of which was meant to be restricted to people over the age of 18. Initially, the applicant contacted L through the dating app, and asked her to send him a picture of herself. She responded with a picture, and told the applicant that she lived in Dandenong.
On 9 May 2020, the applicant told L that he was getting a motel room in Dandenong and asked her to join him. She told him that she was 15 years old, that they would have to keep their activities secret, and that age was ‘just a number’ to her. His message in response said, ‘Sorry, age might be a number to you but I am not a paedophile and have a son that age. Keep the fuck away from older guys and harder drugs for fuck’s sake.’
Despite knowing that L was under age, the applicant continued to communicate with her. During the course of these communications, she told him that she was in government care, saying that she was in ‘Resi’.
The applicant gave L directions on how to get to the motel that he had booked. She arrived at about 11:30 pm on the evening of 9 May 2020. She did not return to her residential unit until 10:00 am the following morning. During the night, they smoked methylamphetamine through a pipe. The applicant used his mobile phone to film himself blowing smoke on L’s exposed breasts. He also took photographs of her exposing her breasts (charge 1, engaging in sexual activity in the presence of a child).
Over the next seven days, the applicant exchanged numerous explicit messages with L. He encouraged her to bring lingerie to their next meeting and expressed in graphic terms the sexual acts he wished to engage in with her. Other messages were about drug use.
On 17 May 2020, the applicant organised an Uber to pick up L from her residential unit and bring her to his home. Upon her arrival at his home, he supplied her with methylamphetamine and showed her how to ‘hot rail’ so as to ‘get a better hit from the meth’ (charge 3, supplying a drug of dependence to a child).
The victim stayed at the applicant’s home over 17 and 18 May 2020. During this period, the applicant engaged in sexual activity with her. The applicant variously penetrated the victim’s vagina with his penis, fingers, tongue and a sex toy (charge 2, sexual penetration of a child — a rolled-up charge comprising the four separate acts of penetration of the victim).
The victim stayed at the applicant’s home while he went to work on 19 and 20 May 2020. She then arranged to be picked up. She messaged him to let him know this. The applicant told the victim to make sure that she cleaned her phone of incriminating material.
Charge 4 was a rolled-up charge relating to the production of child abuse material between 10 and 18 May 2020. The sexual activity during that period was filmed on their phones. Charge 4 was, however, limited to images of the activities the subject of charges 1 and 2.
The applicant’s offending was discovered when L’s phone was left in the office of her residential care unit. An employee opened her phone and discovered the videos of her engaging in explicit sex acts with the applicant, and smoking an illicit drug. The employee also found a receipt for a transport ride that revealed that L had been dropped off at the applicant’s home. The matter was reported and the applicant was sent a notice prohibiting him from having any contact with L. He then messaged L and told her that police had visited him. He told L to dump her phone and get a ‘burner’ phone.
On 9 June 2020, police executed a search warrant at the applicant’s home. They located and seized methylamphetamine and GHB (charge 5, possessing a drug of dependence).
The applicant was interviewed by police on 24 June 2020. During the interview, he told police that he met L on the dating app; through her profile on that app, she stated that she was 21; he arranged an Uber for her to come to his home; upon her arrival, he realised she was obviously not 21; she told him she was 16; she asked to stay; he agreed, and she stayed with him for two to three nights.
Police put to the applicant that they had found a message on L’s phone in which she told him that she was 15. He responded by saying that he could not remember that message. He also claimed that he could not remember staying in a motel in Dandenong in May. When police told him they had videos of L also being in the motel, and of him blowing smoke over her exposed breasts, he told police that he could not remember her being in the motel with him. When police informed him that they had videos showing him sexually penetrating L, he claimed to have no memory of those events. He also claimed to have no memory of sending her sexually explicit messages, nor of messages relating to the use of illicit drugs.
Sentencing reasons
As the judge noted, charge 1 was a standard sentence offence, with the standard sentence being 4 years’ imprisonment. Charge 2 was also a standard sentence offence — the standard sentence for that offence being 6 years’ imprisonment. In fixing a non-parole period for a standard sentence offence, s 11A(4)(c) of the Sentencing Act 1991 requires the court, where a term of imprisonment of less than 20 years was imposed, to fix a non-parole period of at least 60 per cent.[8]
[8]DPP v Sims [2021] VCC 571, [1]–[4] (‘Reasons’).
The judge noted that, because L had not provided a victim impact statement, he could make no specific finding about the impact of the offending on her.[9] But he went on to say:
I can in assessing the general gravity of the offence have regard for the fact that sexual offending against children is now well understood to have the capacity to cause enormous harm to those subjected to it. The legislative scheme means that a child under 16 cannot consent to sexual penetration. This prohibition has the dual purposes of protecting the child from harm that can come from premature sexual activity and deterring adults who would contemplate having sex with someone under the age of 16. This prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent. There is nothing that has been put before the court in this case to suggest that presumption ought not apply in the current circumstances. As such, even without any specific material from the victim in this case I intend to sentence you in accordance with this presumption of harm.[10]
[9]Ibid [25].
[10]Ibid [26].
The judge observed that sexual offences involving children were inherently serious and that, whatever sentence was imposed, the Court was required to have regard for the protection of children from sexual exploitation.[11] He accepted that, in making initial contact with L, the applicant had been seeking contact with an adult. He noted, however, that the applicant was informed prior to meeting L that she was 15.[12]
[11]Ibid [27].
[12]Ibid [29].
The judge said that the age difference between the applicant and the victim ‘was significant’, namely 32 years.[13] And he knew — at least prior to the second occasion of offending — that L was in government care. This meant, his Honour said, that, in addition to being a child, L had ‘some additional vulnerability as a child under the protection of the Department of Health and Human Services who had been identified as being at risk of exploitation’.[14]
[13]Ibid [30].
[14]Ibid [31].
His Honour noted that charge 2 covered separate acts of sexual penetration which had been charged as a single offence.[15] His Honour said that the physical acts the subject of charge 2 were also committed in the context of the applicant using drugs with a 15-year-old girl and the filming of the sexual acts. These were all matters that aggravated the offence.[16]
[15]Ibid [33].
[16]Ibid [34].
The judge said that, despite warning L to keep away from ‘older guys and harder drugs’, the applicant ‘chose to pursue a sexual encounter with a child’.[17] He ‘persisted in arranging to meet [L] for sexual activity and supplied her with drugs’. He had had ‘time to consider the wisdom and morality’ of his actions, but chose to pursue them anyway. This made his moral culpability ‘very high indeed’.[18]
[17]Ibid [29].
[18]Ibid [35].
In assessing the gravity of the charge of supplying a drug of dependence to a child, the judge noted that it was a crime to supply drugs to someone under the age of 18. It followed that ‘the victim in this case as a 15-year-old could not be said to be at the higher end of the age range’.[19] The judge described charge 3 as a ‘serious example of the offence’.[20]
[19]Ibid [40].
[20]Ibid [41].
With respect to charge 4, the judge noted that there was no suggestion that the child abuse material the applicant produced was intended for further dissemination or for commercial gain. His Honour also noted that it involved a single victim. He said that, as such, charge 4 was ‘a moderate example of an inherently serious offence’.[21]
[21]Ibid [42].
Having assessed the gravity of the offending and the interrelationship between the various charges, the judge said that, in structuring the total effective sentence, he needed to be conscious not to impose a penalty that would result in the applicant being punished twice for the same conduct.[22]
[22]Ibid [43].
The judge then turned to matters in mitigation. He described the applicant’s personal circumstances: educated to the end of year 10 before commencing an apprenticeship and remaining in continuous employment until 2020; forming a relationship, having a child, and subsequently becoming separated; volunteering at local rugby and football clubs; and being introduced to methylamphetamine in 2019, and becoming dependent upon that drug.[23] The judge observed that, while the applicant’s drug use had not been put as a matter excusing his conduct, it was put as something that had reduced the applicant’s inhibitions and had been a contributing factor to the applicant — as a person with no prior criminal history — ‘committing acts that seem incongruous with the life [he] had previously led’.[24]
[23]Ibid [44]–[46].
[24]Ibid [46].
The judge noted that, after being released on bail in respect of the present charges, the applicant had completed a three month course of inpatient rehabilitation at the Dayhab Addiction Treatment Centre.[25]
[25]Ibid [47].
With respect to the applicant’s mental health and risk of sexual reoffending, the judge referred to a report tendered on the applicant’s behalf on the plea from a psychologist, Dr Matthew Barth. His Honour described the report as providing ‘valuable insight about [the applicant’s] circumstances’, although it was not contended that the applicant had any mental impairment that enlivened any of the principles set out in R v Verdins.[26] The judge noted Dr Barth’s opinion that the applicant was at moderate risk of sexual reoffending for reasons including his history of substance abuse, some limited insight at the time of the offending, and the applicant’s difficulties coping with stress and intimate relationships.[27]
[26](2007) 16 VR 269.
[27]Reasons, [48].
The judge noted that the applicant’s plea of guilty was entered at the earliest available opportunity. His Honour said that while the plea of guilty was made in the context of a prosecution case that appeared irrefutable, the applicant was still entitled to a discount on sentence for the utilitarian benefit of his plea — especially in the context of the pressures placed on court lists as a result of pandemic restrictions.[28]
[28]Ibid [49].
When considering the applicant’s level of remorse, the judge said that a most important consideration was that the applicant had already engaged in substantial efforts at rehabilitation.[29] Against that, however, the judge noted that a number of matters stated in the applicant’s record of interview were plainly untrue; and that the applicant’s conduct in seeking to have the victim dump her phone, remove incriminating evidence and ‘get a burner phone’ was inconsistent with remorse.[30] Ultimately, the judge said that he would give ‘some weight to the fact that [the applicant had] substantial if not a complete level of remorse for [his] actions’.[31]
[29]Ibid [50].
[30]Ibid [51].
[31]Ibid.
The judge described the applicant’s efforts at rehabilitation as substantial. He said that it was ‘difficult to imagine what more [the applicant] could have done to address the issues that have been identified’.[32] He then said that the applicant had a good work history; had ongoing family support; had an ongoing motivation to continue to support his son; had undertaken a sex offender treatment program; had returned clean drug tests; and had completed an intense treatment program.[33]
[32]Ibid [53].
[33]Ibid [53]–[54].
Against those matters, the judge said that he ‘must have some level of caution simply because this is serious offending that has been committed relatively recently’. Furthermore, the offending had apparently only ceased as a result of its detection.[34] The judge said that the applicant’s efforts at rehabilitation were still at a ‘relatively early stage’.[35] He said that, balancing these matters, he would sentence the applicant on the basis that he presently had good prospects of rehabilitation.[36]
[34]Ibid [55].
[35]Ibid.
[36]Ibid [56].
The judge took into account the restrictions in custody, due to the pandemic, during the period the applicant was on remand. He also took into account the fact that pandemic restrictions would remain in place following sentencing.[37] Additionally, the judge gave ‘some limited weight’ to the fact that the applicant was bailed on the condition that he reside as an inpatient at a rehabilitation centre. His Honour accepted that the applicant’s participation as an inpatient at that centre justified some weight being placed on that fact in accordance with this Court’s decision in Akoka v The Queen.[38]
[37]Ibid [57].
[38][2017] VSCA 214 (‘Akoka’).
The judge said that he would place some weight on the need to specifically deter the applicant from future offending. The importance of specific deterrence as a sentencing consideration was, however, reduced in this case by the efforts the applicant had made at rehabilitation in the months leading up to sentencing.[39]
[39]Reasons, [59].
The judge said that the applicant would be sentenced on charge 4 as a ‘serious offender’ pursuant to s 6E of the Sentencing Act 1991.[40] Accordingly, in sentencing on that charge 4, protection of the community had to be regarded as the principal sentencing purpose and that, unless otherwise ordered, any sentence of imprisonment imposed on charge 4 must be served cumulatively upon the sentences imposed on charges 1 and 2.[41]
[40]Ibid [61].
[41]Ibid.
The judge concluded his reasons for sentence by saying:
For the reasons I have already outlined, however, I intend to order that the period of imprisonment imposed on Charge 4 be served concurrently with that imposed on all other sentences.
The sentences I impose are lower than the standard sentences for the offence of sexual activity in the presence of a child under 16 and sexual penetration of a child under 16. Having identified and considered what I consider to be the relevant factors in assessing the sentence on Charge 1, including my assessment that the offending is somewhat below the higher end of the scale, when weighed against the significant matters in mitigation I regard the imposition of a sentence below the standard sentence to be appropriate.
In relation to Charge 2, when what I regard to be the serious nature of that offending is weighed against the matters in mitigation, I similarly regard the imposition of a sentence below the standard sentence for that charge to be appropriate.[42]
[42]Ibid [62]–[64].
Applicant’s submissions
The applicant submitted that, ‘in the unusual circumstances of this case’, the total effective sentence of 5 years and 6 months was wholly outside the permissible range. While he conceded that there were aggravating features associated with his offending, and observed that charge 2 was a rolled-up charge involving multiple forms of penetration, he submitted that a proper assessment of the gravity of his conduct showed that ‘it was not at the upper end of the range for sexual offending against children’.
In particular, he relied upon the facts that the victim was aged 15 years and more than 11 months at the relevant time, and was on ‘the cusp of the age of consent’; and that the conduct occurred ‘in the context of consensual interactions, of a kind which the victim had knowingly and willingly sought out with adult males’. He contrasted the sentence of 5 years imposed on charge 2 with the sentence of 3 years and 6 months imposed for the same offence in Bouris v The Queen.[43]
[43][2021] VSCA 245 (‘Bouris’).
In relation to charge 1, he contended that the conduct in question was ‘at the low end of the range of gravity for the offence’. He contrasted the sentence of 2 years and 6 months which the judge imposed with the sentence of 9 months imposed for the same offence in Director of Public Prosecutions v Spottiswood.[44]
[44][2021] VSCA 146 (‘Spottiswood’).
He again relied upon the matters relied upon in the plea in mitigation: namely, his plea of guilty; his previous good character, and lack of prior or subsequent criminal history; his admission as an inpatient at a rehabilitation centre as part of his bail conditions;[45] his remorse; his efforts towards, and good prospects of, rehabilitation; and the impact of the pandemic on the serving of any custodial sentence.
[45]Akoka [2017] VSCA 214.
Was the sentence manifestly excessive?
The applicant’s submission that his conduct ‘was not at the upper end of the range for sexual offending against children’ is not of great utility. The applicant was not sentenced on that basis. He was sentenced on the basis that charges 1, 2 and 3 were serious examples of serious offences, and charge 4 was a moderate example of an inherently serious offence.
On the plea, counsel for the applicant (who also appeared in this Court) made a number of — entirely appropriate — concessions, namely, that charge 2 was ‘a relatively serious example’ of the offence of sexual penetration of a child under 16; that L was ‘unusually vulnerable’ and at risk of exploitation; that the applicant was aware of her circumstances and ‘knew that she was engaging in risk-taking behaviour’; and that the applicant had committed the penetration offence after having had ‘the opportunity to reflect on the wrongfulness of his sexual interaction with [L]’.
We reject the submission advanced in this Court that the seriousness of the applicant’s conduct was moderated because it occurred ‘in the context of consensual interactions, of a kind which the victim had knowingly and willingly sought out with adult males’. As the judge pointed out to counsel on the plea, this is ‘an offence about protecting children … who might not be making the best decisions for themselves’. That is why, as has been repeatedly said by this Court, a child’s consent to sexual activity can never, of itself, be a mitigating factor[46] — albeit that a proven lack of consent will significantly increase the seriousness of such offending.[47]
[46]Clarkson v The Queen (2011) 32 VR 361, 364 [3]–[5] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) (‘Clarkson’); Adamson v The Queen (2015) 47 VR 268, 284–5 [29] (Warren CJ, Redlich and Weinberg JJA).
[47]Clarkson (2011) 32 VR 361, 364 [4].
Similarly, the fact that the victim was 15 years and 11 months of age at the time of the applicant’s offending was not a mitigating factor. All other things being equal, it may be accepted that the younger the age of the victim of offending of this kind, the more serious the offending becomes. It is not, however, a matter in mitigation that a particular child was of an age at the upper end of the range within which offending of this kind may be committed.
The applicant was well aware that sexual activity with L was prohibited. He went ahead knowing that he was breaking the law and that he was exploiting L’s vulnerability. As the judge found, he ‘appreciated the potential danger [L] was subjecting herself to’.[48] For his own gratification, he engaged her in ‘risk-taking behaviour’ of a very serious kind.
[48]Reasons, [35].
Unsurprisingly, there was no challenge to the judge’s finding that the applicant’s moral culpability was ‘very high indeed’.[49] That was a very significant finding in this context and it applied, of course, to all four charges.
[49]Ibid.
Charge 2 was the most serious of the charges. As noted earlier, it involved multiple acts of sexual penetrations committed (at unknown times) over the two day period 17–18 May. As the prosecutor informed the judge, it was a rolled-up charge. On the plea, the phrase ‘composite charge’ was also used but it is not a term of art and its use should be avoided.[50] The terms ‘rolled-up charge’ and ‘representative charge’ cover the relevant field.
[50]Holland (a pseudonym) v The Queen [2018] VSCA 241, [6] (Beach, Weinberg JJA and Champion AJA); Schembri v The Queen [2020] VSCA 217, [57]–[59] (Maxwell P and Niall JA).
What matters for present purposes is that, in sentencing the applicant on charge 2, the judge had to take into account the criminality involved in all four penetration offences covered by the charge. Other things being equal, a rolled-up charge is more serious than a charge for a single offence. Taking into account the aggravating factors and the applicant’s very high moral culpability, there can be no complaint about the 5 year sentence imposed on charge 2. It was only a third of the maximum available, and 1 year less than the standard sentence applicable for that offence.
Similarly, the sentence of 2 years and 6 months on charge 1 was only 25 per cent of the maximum, and 18 months less than the standard sentence applicable for that offence. It is then to be observed that only 6 months of the sentence on charge 1 was ordered to be served cumulatively, and no part of the sentences imposed on charges 3 and 4 was cumulated on the sentences imposed on charges 1 and 2.
Nor can the applicant derive much assistance from the comparable cases relied on, given the significant differences from the present case. Notably, neither Bouris nor Spottiswood involved the aggravating factor expressly acknowledged in the applicant’s plea submission — that ‘the sexual acts occurred in the context of mutual substance use, the taking of images and making of video-recordings.’
Further, the offending in Bouris was quite different. The judge accepted that it was ‘neither premeditated nor protracted’ and that the two acts of sexual penetration were ‘separated by only moments’.[51] In the present case, by contrast, the sexual penetration offences involved both planning and prolonged sexual activity, and represented a deliberate decision by the applicant to persist after the first occasion.
[51][2021] VSCA 245, [30] (Kyrou and Kennedy JJA).
As to Spottiswood, the offender there was 25, much younger than the applicant; he did not exploit an ‘unusually vulnerable’ victim; and the sexual activity was very brief. We should also note that Spottiswood was a Crown appeal, which the Court dismissed ‘after anxious consideration and not without some hesitation’. The Court added, ‘Had we been sentencing this young man at first instance we might not have imposed a sentence as lenient as that imposed by the judge’.[52]
[52]Spottiswood [2021] VSCA 146, [57] (Priest, Beach and T Forrest JJA).
The judge’s reasons show that his Honour carefully considered all of the relevant circumstances of the applicant’s offending, together with the applicant’s personal circumstances. The matters relied upon in mitigation in this Court were the subject of detailed and appropriate consideration by his Honour in his reasons for sentence. In our view there is no basis for contending that any of the sentences (including the total effective sentence) or the non-parole period were manifestly excessive. Indeed, having regard to the circumstances of the offending and the offender, we think that the sentences and orders made by the judge were all well open.
Conclusion
Leave to appeal will be refused.
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