The Queen v Cone (a pseudonym)
[2019] VCC 2241
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| THE QUEEN |
| v |
| OSCAR CONE (A PSEUDONYM) |
---
| JUDGE: | HER HONOUR JUDGE FOX |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 September 2019; 13 December 2019 |
| DATE OF SENTENCE: | 20 December 2019 |
| CASE MAY BE CITED AS: | The Queen v Cone (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2241 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited: Disability Act (Vic) 2006; Crimes Act (Cth) 1914;
Sentencing Act (Vic) 1991Cases Cited: Verdins; Atanackovic; Kelly v Saadat-Talab; Putland v Q
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr A. Buckland | Ms L Monagle |
| For the Accused | Mr A. Pyne | Ms A Cameron Fitzroy Legal |
HER HONOUR:
1Oscar Cone[1], you have pleaded guilty to two charges: one charge of solicit child pornography material and one charge of using a carriage service to groom a person under the age of 16 years. The maximum penalty for using a carriage service to solicit child pornography material is 15 years' imprisonment. The maximum penalty for using a carriage service to groom a person under the age of 16 years is 12 years' imprisonment.
[1] A pseudonym.
2A summary of prosecution opening was tendered on the plea and read to the Court. You were aged 18 at the time of the offending.
3In May 2016, you were living in Broadford and became friends with Brodie[2], the victim’s brother. You stayed with Mia’s[3] family for a weekend and in June 2016, you came back and stayed for a week. Prior to returning to stay for the week, you had asked Brodie for permission to be in a relationship with Mia, who was 12 years old. Brodie told police that when you asked him if you could go out with his sister, he was having his own problems and stressing out and stuff, so he just said, “Yes”. During the week that you stayed, you slept on a mattress in the bungalow. You and Brodie spent the week playing PlayStation games.
[2] A pseudonym.
[3] A pseudonym.
4On 15 June, Mia’s mother entered the bungalow and saw you and her lying together on a mattress. The next day she again entered the bungalow and saw you and the victim lying together on a mattress. She called Mia into the house and told her she should sit on a chair when in the bungalow.
5On 18 June, Mia’s mother entered the bungalow at about 1 am and saw you and her lying together on a mattress. She became upset and took her daughter back to the house and demanded to see her phone. Upon examination, she observed that you had sent Mia a number of messages, telling her you loved her. Mia told her mother that you and she were going out together and her mother responded, “No, you are not, you are only 12”. She then confronted you and Brodie. You left the next morning and the Wangaratta police arranged temporary accommodation for you, as you were homeless at the time.
6On 23 June 2016, Mia told police that she exchanged about 1,000 messages with you. On 1 June 2016, you sent the complainant a text message requesting that she send you a picture of her breasts. This is Charge 1.
7She responded, “But I don't send nudes, I don't do it for anybody, I'm sorry.” She never sent you a picture.
8Between 10 June and 17 June, you and the victim engaged in constant communication via text messages. These included you telling Mia that you wanted to kiss her, and asking if she wanted to kiss or cuddle or something. On 11 June, you texted, “Coz I really want one off you and I like you” and she replied, “I like you, but I'm not really ready, can we have hugs?”
9On 15 June, you sent a message saying, “I just want to cuddle you and let Brodie go online. How long till you come out?” Mia responded, “Like half an hour, maybe less if I rush my homework.” Also on 15 June you told the complainant, “I love you” and she responded, “I love you too”. It is the text messages sent between 10 and 17 June that constitute Charge 2.
10You were arrested in relation to these matters on 29 November 2017. You participated in a record of interview in the presence of an independent third person, due to your cognitive impairment. You denied the offending and denied any recollection of the victim. You pleaded guilty to this matter at a committal mention on 13 June 2019.
11I accept the reason for the delay between being charged and the entry of your plea of guilty was that a defence of mental impairment was being explored, given you suffer with a mild to moderate severe intellectual disability. The complainant was spoken to in June 2016 and it took nearly 18 months before you were interviewed and charged. This delay is not of your making.
Personal circumstances
12I turn now to your personal circumstances. Your early childhood was marked by significant disadvantage and trauma, and you never had a father figure or male adult role model. There were multiple notifications to DHHS, due to exposure to domestic violence. Your mother died in a fire when you were seven years old and available information suggests she was the victim of a homicide perpetrated by a male offender. Your father attempted to care for you, but you were removed from his care when you were eight years old. There were reports he assaulted you, and your father was later gaoled for sexual offending.
13You are one of apparently 12 siblings or half-siblings in your family, of which you are in the middle. Apparently you do not see any of your siblings and your relationship with them has deteriorated.
14Your intellectual disability was first identified in Prep. You attended specialist schools and had great difficulty learning, but I am told you remained in school until the end of Year 12. You have never had paid employment, but would like to work and did some work experience in Swan Hill in carpentry and landscaping, which ended when you moved to Melbourne.
15During your childhood and adolescence, documents show you had at least 50 different places of accommodation and your only constant in life during much of this time was your child protection worker. At the time of the plea in Wangaratta, you were living in a rooming house in St Kilda and receiving support from Sacred Heart Mission and Jesuit Social Services. Workers would take you to appointments, as well as helping you with shopping, meals and budgeting. Apparently you enjoyed living at that accommodation and generally got on well with other residents, although there had been at least one altercation.
16On the return date, I was told you have moved out of the rooming house and are now in a hotel in Preston. You continue to be supported by Jesuit Social Services and they are trying to assist you to find accommodation. You feel well supported by your workers and you appreciate their help. You are on the disability support pension and a participant in the NDIS. Your finances are managed by the State Trustees and you receive personal payments twice a week.
17You are not on any current medication, although have previously been medicated for ADHD, which you found beneficial.
18A report of forensic psychiatrist, Dr Ong, was tendered on the plea. Dr Ong had assessed you previously. In his opinion, you have a mild to moderate severe intellectual disability, with a previous diagnosis of ADHD and detachment disorder.
19You have seen counsellors and psychologists in the past. Indeed, at the time of the offending, it appears you were undertaking counselling with a psychologist, Mr Dunn. According to Dr Ong, Mr Dunn was of the opinion that your intellectual disability meant you are unable to make “balanced judgments” when, “he has an idea fixed in his mind”. Dr Ong agreed with this opinion. Mr Dunn gave pursuit of relationships as an example of this. With respect to the complainant, you pursued a relationship, even though you knew it was wrong. You did admit the offending to Dr Ong and provided some details, although you were initially evasive.
20When this matter first came before me in Wangaratta in September this year,
I adjourned the matter so you could be assessed for a Community Correction Order (“CCO”) and a Justice Plan. I have received a CCO extended pre-sentence report, a Client Overview report, a Justice Plan and a Statement of Intellectual Disability, confirming you do have an intellectual disability within the meaning of the Disability Act 2006. You were assessed as suitable for a CCO and a recommended condition was that you comply with the Justice Plan which should attach to the CCO.
Verdins
21I turn now to Verdins. Your counsel, relying on the report of Dr Ong, argued Verdins Principles 1, 2, 3, 5 and 6 are all enlivened here. He argues your intellectual disability puts you at great disadvantage compared to most members of the community, and existed both at the time of your offending and now. It is a life-long disability.
22Dr Ong was of the opinion that your intellectual disability impacts on your ability to make rational choices. In essence, you understand the wrongfulness of your actions, but continue to make poorly informed and impulsive decisions, often not thinking of consequences. The Statement of Intellectual Disability states you suffer, “significant sub-average general intellectual functioning”.
23In Dr Ong's opinion, you would be a vulnerable individual in gaol because of your intellectual disability. You would also find a term of imprisonment more difficult than a person who does not suffer your disability, and your mental state would be adversely affected by a custodial sentence. I accept this opinion enlivens Limb 5 of Verdins, but falls short of enlivening Limb 6. There is no evidence of a serious risk of imprisonment having a significant adverse effect on your mental state.
24I accept that your disability impacted your ability to think clearly at the time of this offending and make calm and rational choices, and that your intellectual disability has some bearing on the type of sentence to be imposed. I also accept that general deterrence should be moderated here. A person suffering a mild to moderate severe intellectual disability and who suffers significant
sub-average intellectual functioning is not a suitable vehicle for deterring others.Other matters
25In sentencing you, I must take into account the matters in s.16A of the Crimes Act (Cth) as far as they are relevant and known to the court. I have already dealt with some of these matters.
26You have pleaded guilty at the earliest reasonable opportunity.
27You are a very young man and were 18 at the time of the offending. You are now 22 years old. Rehabilitation is a significant sentencing consideration when dealing with young offenders, as it is in the interests of the community, as well as the offender, if they can be rehabilitated and go on to lead a lawful and productive life.
28You were dealt with in the Children’s Court on two charges of sexual penetration of a child under 16 and were found not guilty by reason of mental impairment and placed on a six month supervision order. Whilst this is not a prior conviction, it is relevant to the need for specific deterrence and your prospects of rehabilitation. Further, you have been assessed as a medium risk of general re-offending and there are a number of aspects of your life highlighted in the pre-sentence report that increase your risk level. Specific deterrence is a relevant sentencing consideration.
29These are serious offences, but fall toward the lower end of the scale for offending of this type. In relation to Charge 1, there is a single request for a single image, which was refused. In my view, this falls at the low end of the scale for offences of this type.
30The victim was very young and there is a presumption of harm when offending occurs against young children. Children are not mature enough to appreciate the consequences of their behaviour and their decisions, which is why the law protects all children under the age of 16.
31I accept the age disparity was not vast, but you were an adult, being 18, and
12 years old is very young. You were not in any position of trust or authority. You did have power over the complainant by virtue of being older, but the power disparity was not great. I do accept there is an immaturity about this offending and a great number of the texts were not sexual in nature. I also accept that you were not really living an adult life at this point. You turned up at Brodie’s house dishevelled, with no clothes or toiletries, and the complainant's mother took pity on you.32This is not a case where you used the internet to locate and access children for the purpose of procuring them to engage in sexual activity. Rather, you met the victim through her brother and you and she considered yourselves in love and in a relationship.
33In my view, Charge 2 also falls toward the lower end of the scale for offending of this nature. The sexual contact sought by the text messages was cuddling or kissing or “something”. The victim knew you, and it is not a case where the victim was deceived online into thinking she was communicating with a different or younger person.
34Ordinarily general deterrence is the primary sentencing consideration, however, here that consideration is moderated, given your intellectual disability. Adequate punishment in all the circumstances must be imposed.
35The prosecution submitted a term of imprisonment should be imposed. Your counsel submitted you can be dealt with by way of a CCO with appropriate conditions, including a Justice Plan.
Community Correction Order and Justice Plans for Commonwealth offending
36The Commonwealth submitted that for a Commonwealth offence, a Justice Plan cannot attach to a CCO. There is no authority directly on point. Pursuant to s.20AB(1) of the Crimes Act (Cth) 1914 (Crimes Act), I may “pass such a sentence or make such an order” in respect of a person convicted of a federal offence if sub-section 1AA applies to the order. Sub-section 1AA states:
“This subsection applies to a sentence or order that is:
(a) known as any of the following:
…
(iii) a community correction order;”
37Section 20AB(3) states the laws of a State or Territory picked up by sub-section (1) shall apply “so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth.”
38Pursuant to the Sentencing Act (Vic) 1991 (Sentencing Act), a court may attach conditions to a CCO. Pursuant to s 47(2)(b), a court that is making a Community Correction Order may attach a condition under Division 2 of Part 3BA. Division 2 of Part 3BA deals with intellectually disabled offenders. Pursuant to s 80(1)(a), a court that is considering a Community Correction Order may attach a condition to the order directing that the offender participate in specified services pursuant to a plan prepared under s 80(3)(c). This is known as the “Justice Plan condition”. In my view whilst s 80 sets out what a Court may do if it is considering making a CCO, the actual power to attach a Justice Plan condition to a CCO is found in s 47(2)(b).
39The Crown argument does not raise any question of inconsistency under s.109 of the Australian Constitution, as the relevant section of the Sentencing Act, namely s.47(2)(b), can only apply if it is picked up by s.20AB of the Crimes Act and not excluded by virtue of s.20AB(3).
40Previously, Regulation 6 of the Crimes Regulations Commonwealth 1990 dealt with State and Territory prescribed orders that were available for Commonwealth offences. Relevantly, a CCO was prescribed and the applicable law was stated as Part 3A of the Sentencing Act. That Regulation has now been repealed and the only reference to a CCO as a sentencing option is found in s.20AB of the Crimes Act.
41Section 20AB(1) and (1AA) in their current form commenced 27 November 2015.[4] According to the Explanatory Memorandum, s 20AB(1) will provide a “general updated list of the types of orders, as alternatives to imprisonment, that should be available to sentencing courts in relation to federal offenders. The purpose of section 20AB is to clarify the court’s power to pass a sentence or make an order that is similar to any of the named types of orders.”[5]
[4]Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Act No 153 of 2015), s 46 which repealed then s 20AB(1) and substituted s 20AB(1) and (1AA)
[5] Replacement Explanatory Memorandum, undated
42The Commonwealth argued that ss 20BS – 20BY of Division 9 of Part 1B of the Crimes Act, “sets out a separate regime of federal dispositions for persons suffering from mental illness or intellectual disability”.[6] The prosecution argued these provisions were intended to be an exhaustive statement when dealing with those with mental illness or intellectual disability and thus the State law, insofar as it concerns sentencing for intellectually disabled offenders, is not picked up by s.20AB.
[6] Crown Submissions on the Availability of a Justice Plan dated 12 December 2019 at [11]
43Division 9 of Part 1B of the Crimes Act is headed, ‘Sentencing alternatives for persons suffering from mental illness or intellectual disability'. Section 20BY, which is located in Division 9, provides for a single option. Pursuant to s 20BY, if a person is convicted, and if the three conditions set out in s 20BY(1)(a)-(c) are met, then a court may, without passing sentence on the person, order the person be released on the condition they undertake certain programs. This is described as a program probation order. It is not a form of diversion, as it requires a person to be convicted.
44In oral argument, the Crown identified the subject matter over which the Commonwealth has created a complete scheme as “disposition on conviction of intellectually impaired persons.” The question to be answered here can be posed in two related ways: Would picking up the State law derogate from and effectively repeal all or any part of the Commonwealth law, or is the Crimes Act Division 9 complete upon its face, leaving no room for the State law to be picked up?[7]
[7]Kelly v Saadat-Talab (2008) 72 NSWLR 305 at [10] per Allsop CJ
45As the Crown conceded, a Court dealing with an intellectually disabled offender convicted of a Commonwealth offence is not limited to convicting the offender and imposing a program probation order. A court may impose any of the sentencing options that flow from conviction, including a s.20 bond, a fine, State or Territory orders picked up by s.20AB, including a CCO, or imprisonment, including a recognizance release order. None of these options are found in Division 9. Indeed, in this case, the Crown argues Mr Cone should be sentenced to a term of imprisonment. It is difficult therefore to logically reconcile the argument that Division 9 is exclusive or complete when it comes to “disposition on conviction of intellectually impaired persons”, with the Crown position that on conviction of an intellectually impaired person, a Court has the option under s.20BY as well as a number of other options, including imprisonment.
46The position of the Commonwealth is also, however, that a court is not prohibited from making “some aspects” of a Justice Plan as a condition of Commonwealth recognizance. The Crown conceded this submission fits “awkwardly” with the submission that Division 9 of the Crimes Act impliedly excludes the operation of State laws relating to the sentencing of persons suffering from an intellectual disability.
47In Atanackovic v R[8], the Court of Appeal considered the distinction between sentence and sentencing disposition. The Court stated that an available analysis is there is a distinction between “sentence” as the formal judicial act of punishing a convicted person, and the form that punishment takes, that is, the sentencing disposition. Here, the Crown identify six general sentencing options available to Victorian Courts sentencing Commonwealth offenders.[9] These include a s 20 bond with conviction and a CCO. Section 20AB(1) commences, “A court may pass a sentence, or make an order…”. Section 20BY uses the expression “without passing sentence”, and Section 20(1)(a) also uses the expression “without passing sentence”. Thus the Crown accept that there are other sentencing options available for an intellectually disabled offender that, using the language of the Crimes Act, may be imposed “without passing sentence” and involve placing the offender on conditional release or an order. On the Crown argument, I could place an intellectually disabled offender on a s 20 bond, or a CCO, but what I cannot do is attach a Justice Plan condition to a CCO.
[8] (2015) 45 VR 179 at 206
[9] Crown Submissions on the Availability of a Justice Plan dated 12 December 2019 at [9]
48Section 20BY(1) uses the word, “may”, indicating this is an available option, but not the only option. Section 20BY(1)(b) requires the court to be satisfied that “the disability contributed to the commission of the offence by the person.” A Victorian Court dealing with an intellectually disabled offender may not be so satisfied, but nonetheless, consider a treatment-based order is the appropriate disposition. In those circumstances, on the Crown argument, an intellectually disabled offender could be placed on a CCO but not with a Justice Plan attached, even though they do not fall within the s.20BY criteria and thus that sentencing option is not available. This illustrates the difficulty with the argument that the Justice Plan regime is “so close” to the regime in Division 9, in particular s.20BY, that it can be said to “cover the field”.[10]
[10] Crown Submissions on the Availability of a Justice Plan dated 12 December 2019 at [36]
49The prosecution also argued that the Justice Plan regime is located in Part 3BA of the Sentencing Act and this part is not prescribed for the purposes of s.20AB of the Crimes Act (Cth). However, s.20AB of the Crimes Act does not prescribe a part of the Sentencing Act, it is not expressed in those terms. Rather, that section states that it applies to an order known as a Community Correction Order.
50Contrary to the Crown submission, a Justice Plan is not “a kind of disposition in itself”. A Justice Plan is not a separate sentencing disposition. A Justice Plan can only ever be a condition of another sentencing disposition, either a CCO or a bond (at State level).
51In my view, Division 9 does not expressly or by implication make exhaustive provision for the sentencing of intellectually disabled offenders, nor does it create a Commonwealth legislative scheme relating to the sentencing of intellectually disabled offenders which is “complete upon its face” and which may be “seen to have left no room” for the operation of s.47(2)(b) of the Sentencing Act.[11] Division 9 of the Crimes Act provides one additional option for this Court, which is to convict the offender and impose a program probation order.[12] It cannot reasonably be implied that by enacting Division 9, including s.20BY, the Commonwealth was intending to express exclusively what shall be the law governing the sentencing of intellectually disabled offenders.
[11]Putland v R (2004) 218 CLR 174 at 179-180 per Gleeson CJ
[12] Section 20BQ provides other options in the case of a court of summary jurisdiction
52In my view, the Court is empowered to make a Community Correction Order attaching a Justice Plan condition. There is nothing in s.20AB to suggest that only certain or particular conditions can attach to a CCO for a Commonwealth offence. Once the power to make an order known as a CCO is given, then the powers set out in Part 3A of the Sentencing Act as they relate to CCOs are picked up. Those powers include the power to attach a Justice Plan condition to a CCO pursuant to s.47(2)(b).
53Attaching a Justice Plan condition to a CCO is not “inconsistent with the laws of the Commonwealth” as s.20BY does not “cover the field” when it comes to sentencing intellectually disabled offenders. The State law supplements the Commonwealth law, but does not contradict or intrude upon the Commonwealth law.
54If the Commonwealth intended that Victorian Courts could impose CCOs for Commonwealth offences, and impose a wide range of tailored conditions - drug treatment, mental health treatment, alcohol treatment - but not impose a condition on an intellectually disabled offender that they comply with a Justice Plan and thus get the specialised treatment and support they require, then the Commonwealth should expressly state this. I find it unlikely that the Commonwealth would intend that intellectually disabled offenders be treated this way.
55In my view, in all the circumstances, the appropriate sentence in this case is to place Mr Cone on a Community Correction Order, including attaching a Justice Plan condition.
56Mr Cone, would you please stand up.
57Mr Cone, in all the circumstances, the appropriate sentence in this case is to place you on a Community Correction Order, with a number of conditions, including that you comply with the Justice Plan which will attach to the order.
58The order will be for a period of two years.
59You will be subject to the supervision of Corrections.
60I order that you perform 125 hours of unpaid community work. And I further order that pursuant to s.48C(a) that all hours satisfactorily undertaken by way of treatment can be credited as unpaid work hours.
61You must comply with the attached Justice Plan condition for the period of two years.
62I will attach a condition that you participate in offending behaviour programs, as directed. I indicate, I had some reservation about this condition, given your intellectual disability and in my view, you cannot be expected to just participate in something such as a regular SOATS program. Given you are on a Justice Plan, I would expect this will be accommodated.
63I am also going to order that you be subject to judicial monitoring and your first judicial monitoring will be before me on 14 August next year. What that means, Mr Cone, is, you have to come to court at 9.30 in the morning on that day.
I will have reports from Corrections and those monitoring you and they can tell me how you are going.64In relation to the Sex Offender's Register, you are, as a result of these charges, subject to the Sex Offenders Registration Act. What that means, is because both these charges are called Class 2 offences and there are two of them, you are subject to mandatory or compulsory registration under the Sex Offenders Registration Act and the period of reporting is 15 years. This is automatic upon your conviction. I do not have discretion about this.
65Finally I declare, pursuant to s.6AAA, but for your pleas of guilty, I would have imposed a period of imprisonment.
66MR BUCKLAND: If Your Honour pleases.
67MR PYNE: If the court pleases.
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