Treloar v The Queen
[2020] VSCA 6
•4 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0063
| BRYCE TRELOAR | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2019 |
| DATE OF JUDGMENT: | 4 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 6 |
| JUDGMENT APPEALED FROM: | [2018] VCC 2222 (Judge Trapnell) |
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (3 charges) – Sexual assault of child under 16 (2 charges) – Complainant aged 15 – Appellant aged 19, severe intellectual disability – Appellant and complainant in relationship prior to offending – Exceptional case – Sentence 3 year community correction order (‘CCO’), 300 hours unpaid community work – Whether manifestly excessive – Whether CCO and unpaid work hours longer than necessary – Whether judicial monitoring necessary – Serious offences – Knowing and persistent disobedience of law – Discretion to fashion punitive component of CCO – No error – Appeal dismissed – Clarkson v The Queen (2011) 32 VR 361 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms G F Connelly | Greg Thomas Barrister & Solicitor |
| For the Respondent | Ms D Piekusis QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
Summary
The appellant pleaded guilty to three charges of sexual penetration of a child under 16 and two charges of sexual assault of a child under 16. The complainant (‘AB’) was aged 15 at the time. The appellant was 19. He has an intellectual disability. His full-scale IQ was assessed in 2018 at 69.
The appellant and AB had been in a relationship for a year before the first sexual offence was committed. The appellant also pleaded guilty to two charges of persistent contravention of a family violence intervention order, which prohibited contact between him and AB, and to one charge of damaging property and one charge of possession of child abuse material.
Recognising that sexual offending against children is ordinarily regarded as extremely serious, the sentencing judge concluded that this was an exceptional case, such that a non-custodial sentence was appropriate. He imposed a 3-year community correction order (‘CCO’), with attached conditions directed at the appellant’s rehabilitation but also requiring him to perform 300 hours of unpaid community work and to appear at the County Court for judicial monitoring of his compliance with the order.
The appellant was granted leave to appeal on the single ground that the sentence is manifestly excessive. He advances three principal contentions, as follows:
(a) the duration of the CCO is ‘longer than is necessary to meet all purposes of punishment’;
(b) the condition imposing 300 hours of unpaid community work ‘goes beyond what is necessary adequately to punish’ the appellant; and
(c) it is not necessary for the Court to review his compliance, such that a judicial monitoring condition should not have been imposed.
For reasons which follow, we would dismiss the appeal. We do not accept the appellant’s submission that, because of the circumstances which persuaded the judge to take the exceptional course of imposing a non-custodial disposition, it was not open to his Honour to attach any conditions which would increase the punitive force of the CCO beyond its ‘inherently punitive’ effect.[1]
[1]See Boulton v The Queen (2014) 46 VR 308, 331 [90]–[92]; [2014] VSCA 342 (‘Boulton’).
This was, in our view, a particularly difficult sentencing exercise. Although the appellant’s moral culpability was reduced and the sexual offences were less grave than in the usual run of such cases, they remained serious offences. The judge was right to conclude that ‘proper punishment’ was required. The critical decision, therefore, was the decision that imprisonment was not necessary for that purpose.
The decisions which his Honour then had to make — about the duration of the CCO and about the nature of the conditions to be attached — were quintessentially matters falling within his Honour’s discretion. There will, of course, be cases where such decisions are so clearly outside the available range of sentencing options as to require appellate intervention.[2] But this was not such a case. His Honour approached the sentencing task with great care and sensitivity. No basis has been established for this Court to interfere with the judgments which he made.
[2]See, eg, Boulton (2014) 46 VR 308, 361–362 [243]–[244]; [2014] VSCA 342.
The circumstances of the offending
The relationship between the appellant and AB began in July 2016. AB was living with her father, who had raised her as a sole parent. At that time, AB was 14 and the appellant was 18. According to the agreed facts, AB’s father
told them straight up that [the appellant] was overage and [AB] was underage. I said that if they had sex, [the appellant] would go to gaol. I said that they were allowed to kiss, have a kiss and a cuddle, but they were not allowed to have sex.
The appellant stayed regularly at AB’s home. Between September 2016 and April 2017, there was sexual activity between them. On the first occasion, the appellant protested, saying that he ‘did not want to get in trouble because it was illegal’. In December 2016, AB approached him and asked him to have sex with her. He refused, again saying that it was illegal and that he could ‘get into a lot of trouble for it’.
Between January and September 2017, the appellant and AB continued to engage in sexual activity, which now involved both oral and vaginal penetration. These were uncharged acts, relied on by the prosecution as context and relationship evidence.
In August 2017, AB participated in a VARE interview with police, in which she described her relationship with the appellant. Police subsequently analysed both of their mobile phones, from which they obtained a number of videos showing acts of sexual penetration which had occurred in July 2017. That evidence was relied on to support two separate charges of sexual penetration of a child under 16, each being a rolled up count comprising two acts of penetration.
The police then arrested the appellant at AB’s home. He was interviewed and said that he had been in a sexual relationship with her. He said that he had performed oral sex on her between three and five times and that she had performed oral sex on him on 10 occasions. He said that AB had sent him some photos which he had ‘never got round to deleting’. These showed AB in various stages of undress and in different sexualised poses. The photos and the videos gave rise to a charge of possession of child abuse material.
On 17 August 2017, an interim family violence intervention order was issued against the appellant. AB was listed as the protected person. The appellant was present at court when the order was made and was served with a copy of the order then and there. The order had full exclusion conditions. The intervention order was made final a week later. Once again, the appellant was present at court and was served with a copy of the order. It included conditions prohibiting him from contacting AB, except for two hours each evening.
The appellant contravened the intervention order on five occasions in September 2017. Only one of these contacts involved sexual activity (charge 6: sexual assault of a child under 16). Those five breaches gave rise to one charge of persistent contravention of a family violence intervention order.
The intervention order was still in force when, at the end of September 2017, the appellant and AB arranged to stay at a motel where they engaged in sexual intercourse. That gave rise to a separate charge of sexual penetration of a child under 16 and a separate charge of contravention of the intervention order.
Around the same time, a video was filmed on AB’s mobile phone depicting the appellant touching her in the genital area. That evidence led to a rolled up charge of sexual assault of a child under 16.
On 7 October 2017, the appellant again met AB, further contravening the intervention order. He subsequently updated his profile picture on Facebook with a photo of himself and AB, and posted various messages declaring his love for her. Between August and October, he breached the intervention orders by contacting AB by telephone or text message on 537 occasions outside the permitted hours of 7:00–9:00 pm.
Once AB turned 16, the judge recorded, they resumed their relationship and — at the time of sentencing — they remained ‘partners in a caring and loving relationship’.
Assessing offence seriousness
Both on the plea and in this Court, the parties treated the question of sentence for the sexual offences as governed by the principles set out by this Court in Clarkson v The Queen.[3] In that case, the Court said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation.
…
Proof that the child consented is the beginning, rather than the end, of the sentencing court’s enquiry. In assessing the gravity of the offence and the offender’s culpability, the court’s attention will be directed not at consent as such but at the circumstances in which the consent came to be given.
Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases — for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner — the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater.
At the other end of the scale, there are exceptional cases — for example, in a relationship between a 15-year-old girl and an 18-year-old boy — where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity.[4]
[3](2011) 32 VR 361; [2011] VSCA 157 (‘Clarkson’).
[4]Ibid 364–365 [3]–[7] (emphasis added).
In his reasons, the judge set out the following extract from AB’s victim impact statement:
This is hard to write because I don’t see myself as a victim by [the appellant], I see myself as a victim from my parents and the system. I love [him] with all my heart and always will. He is my everything, my number one forever.[5]
[5]DPP v Treloar [2018] VCC 2222, [38] (Reasons).
Noting that evidence of a victim’s forgiveness should be approached with caution, his Honour said he would take into account in the appellant’s favour AB’s forgiveness of him and the fact that they were at that time living together as a couple in a caring and loving relationship. Importantly, his Honour accepted that
in this rather exceptional case … you have rebutted the presumption of harm in the sense used by the court in Clarkson.[6]
[6]Ibid [44].
As noted earlier, his Honour concluded that it was not necessary to impose a custodial sentence in order to satisfy the applicable sentencing purposes. It was, his Honour said, one of the ‘exceptional cases’ referred to in the passage from Clarkson ‘where I should view your offences as being less grave and your moral culpability as reduced’.[7]
[7]Ibid.
His Honour identified the following considerations as the basis for that conclusion:
·AB was 15 when the offending commenced;
·the difference in their ages was just under four years;
·they were in a consensual, romantic relationship for a year before the first offence was committed;
·that relationship commenced before the appellant knew AB was under the age of consent, although he was aware of her age before the sexual relationship commenced;
·uncharged sexual activity short of vaginal intercourse had occurred ‘in circumstances where … AB’s consent was, relatively speaking, freely given and a reflection of genuine affection’ between them;
·because of the behaviour of one of his older sisters, the appellant had grown up with the perception ‘that a sexual relationship commenced when a girl was aged 14 was not harmful’, and his own daughter had been conceived when he was just 14;
·it was AB who had first suggested that the sexual activity progress to vaginal intercourse, which the appellant had initially resisted on the basis that it would be unlawful;
·the appellant suffered from a ‘severe intellectual disability’, which affected his perception of the unlawfulness of his behaviour; and
·there was no power imbalance in their relationship, or breach of trust.[8]
[8]Ibid [44].
Other sentencing considerations
The appellant had no prior or subsequent convictions, and no outstanding matters. The judge said:
You are therefore a young offender who is a first offender. Accordingly, I must give significant weight to your prospects of rehabilitation, which I assess as being very good. Individualised rehabilitative treatment is to be preferred to sending you to adult prison or [youth justice centre].[9]
[9]Ibid [47].
As his Honour noted, he had been provided with a Statement of Intellectual Disability under the Disability Act 2006, which said that the appellant had both ‘significant sub-average general intellectual functioning’ and ‘significant deficits in adaptive behaviour’.[10] His Honour referred to expert evidence presented to the Court to the effect that, although the appellant’s intellectual disability would not have caused him to offend in the manner he did, it would have ‘negatively influenced’ his decision-making ability and his ability to consider the consequences of his actions.[11]
[10]Ibid [59].
[11]Ibid [65].
His Honour said:
I accept that your significant intellectual disability has the effect of reducing your moral culpability and diminishes the weight I need to give to general deterrence, denunciation and just punishment in your case. I also accept that a sentence involving imprisonment or detention in a youth justice centre would weigh more heavily on you than a prisoner or detainee of normal intellectual function.[12]
[12]Ibid [67].
His Honour concluded as follows:
Despite the serious nature of these offences, general deterrence, denunciation and just punishment must be moderated in your case. Moreover, I consider in light of the circumstances I have previously referred to, very little weight needs to be given to specific deterrence and protection of the community. I sentence you on the basis you have very good prospects of rehabilitation.
Ultimately, I have concluded that the only appropriate sentence which will achieve the purposes for which these sentences are imposed is a community correction order.[13]
[13]Ibid [72]–[73].
Manifest excess
As noted earlier, the first specific complaint was directed at the duration of the CCO. It was set out in the written submission in these terms:
Once his Honour found the offending was exceptional, that finding had to carry through to all features of the sentence imposed, not just whether or not a term of imprisonment was to be imposed. It did not follow from the conclusion that a term of confinement was not justified that a CCO of substantial duration was appropriate. This was not a grave example of the offences with which the [appellant] was charged. It is submitted a CCO of 3 years’ duration was longer than required adequately to punish the [appellant].
It was further submitted that there was no justification for extending the CCO beyond the 2-year limit of the ‘justice plan condition‘[14] which the judge imposed, requiring the appellant to participate in specified services to be provided by Disability Justice. Counsel pointed out that, by the time of the sentencing:
·the appellant had been on bail for more than a year and had been complying with strict bail conditions;
·he had undertaken the Court Integrated Services Program (CISP) and had accepted and utilised therapeutic referrals;
·he remained in a caring and loving relationship with AB;
·his risk of reoffending had been assessed as low; and
·he had very good prospects of rehabilitation.
[14]Sentencing Act 1991 s 80(4).
As counsel for the appellant accepted in the course of oral argument, her submission implicitly accepted that a CCO of 2 years’ duration was within range. She maintained, nevertheless, that a 3-year CCO was outside the range. She drew attention to what was said in Boulton, where the Court endorsed a submission from Victoria Legal Aid that there were ‘particular considerations which militate against the imposition of a lengthy CCO on a young offender’.[15] In particular, a longer order was likely to have a greater impact on a young offender than on an older offender and — as this Court noted in CNK v The Queen — there is research which highlights ‘the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely’.[16]
[15](2014) 46 VR 308, 349–350 [187]–[190]; [2014] VSCA 342.
[16](2011) 32 VR 641, 662 [77]; [2011] VSCA 228.
The second complaint concerned the requirement to perform 300 hours of unpaid community work. This was said to be beyond what was reasonably open to the judge, having regard to:
·the 29 days which the appellant had spent on remand, which was his first time in custody and was served in an adult gaol;
·the hardships which he had suffered during the delay in resolution of his case; and
·the inherently punitive effect of the other CCO conditions, including those requiring him to participate in assessment and treatment.
Finally, as to the judicial monitoring condition, the submission for the appellant was that this was likely to be counterproductive. Attention was drawn to the following part of the sentencing reasons:
Your continued involvement with the criminal justice system has led to a deterioration in your mental health. You have exhibited suicidal ideation and have made two attempts to end your life over the course of the current proceedings. It is evident that your anxiety is exacerbated around court hearings and appointments, which was compounded by your relocation from your home in East Gippsland.[17]
[17]Reasons [57].
Given that finding, it was submitted, the judge could not reasonably have concluded that judicial monitoring was ‘necessary’ in order to promote the appellant’s compliance with the order.[18]
[18]Sentencing Act 1991 s 48K.
Conclusion
Given the circumstances of the case, assessing the relative seriousness of the appellant’s sexual offending was peculiarly difficult, in our view. Plainly enough, because of the very features which persuaded his Honour to view the case as exceptional, these were less serious offences and the appellant’s culpability was lower than would have been the case if the age difference had been greater or AB had been younger than 15 or there had been an abuse of trust or authority.
But they remained serious offences nonetheless. As counsel for the appellant rightly conceded during argument in this Court, AB’s father was very concerned to ensure that she not have a sexual relationship with the appellant. He had told the couple bluntly that, if that occurred, the appellant would go to gaol. The risks associated with premature sexual activity are, of course, the basis of the absolute prohibition on sexual activity with a child under 16.[19] In this case, the judge accepted that the ‘presumption of harm’ had been rebutted, but the offending occurred in direct defiance of AB’s father and his express concern to protect her against those risks.
[19]Clarkson (2011) 32 VR 361, 371 [33]; [2011] VSCA 157.
Of particular concern, in our view, is the fact that the appellant was well aware that any penetrative activity with AB was illegal. As described earlier, he twice refused to participate in such activity for that very reason. The fact that AB apparently continued to press him to have sex with her does not alter the fact that the appellant proceeded to engage in what he knew — and AB herself knew — was illegal activity, carrying with it the risk of a prison term. As the Court said in Clarkson, even where a young person wishes to engage in sexual activity, the law casts a duty on the other person to refrain from acting on those wishes.[20]
[20]Ibid [37].
The direct consequence of the appellant’s failure to refrain was, as his counsel conceded on the plea, legal intervention to prohibit him having contact with AB. Defence counsel accepted that the judge could take into account as ‘a relevant harm’ the psychological impact on AB of that legal intervention and that this was relevant in considering the harm flowing from his having commenced the relationship in the first place. It was clear from AB’s victim impact statement that the forced separation had been devastating for her.
Finally, it was relevant that the appellant engaged in further penetrative sex with AB even after his arrest and after the making of the intervention order. In the circumstances, in our view, the judge was entitled to conclude — as he said to defence counsel on the plea — that the sentencing purpose of ‘just punishment’[21] required a greater degree of punishment than would be provided by the standard CCO conditions and attached rehabilitation conditions. Put another way, although the appellant’s moral culpability was substantially reduced, including on account of his intellectual disability, he was properly to be held responsible for his knowing and persistent disobedience of the law.
[21]Sentencing Act 1991 s 5(1)(a).
The critical decision as to the extent of punishment required was the decision that imprisonment was not required. No basis has been established for appellate intervention either as to the duration of the CCO or as to the imposition of a work condition. As we said earlier, those were quintessentially matters of discretionary judgment, the task of the judge being to fashion the CCO in a way which best met the needs of the particular case. In Boulton, the Court said:
When a CCO is proposed, counsel will need to make submissions directed at the formulation of an order which directly addresses those personal circumstances. Attention will need to be paid to the formulation of conditions which will address the offender’s particular needs, and the causes of the offending, and which will promote the necessary changes in the offender’s life to reduce the risk of re-offending.
This analysis also highlights the ‘quintessentially discretionary’ nature of the judgment made by the court in fashioning a CCO — both in length and in conditions attached — to suit an offender. As a corollary, there is likely to be a broader range within which opinions can reasonably differ about what was appropriate for the particular offence and the particular offender. It may, as a result, be more difficult to establish on appeal that a decision to impose a CCO was ‘not reasonably open’.[22]
[22]Boulton (2014) 46 VR 308, 333 [101]–[102]; [2014] VSCA 342.
Finally, as to the judicial monitoring condition, the point made by the appellant’s counsel is troubling, and requires the closest consideration. It is of obvious concern, as the judge himself recorded, that the appellant’s experience of attending court has had a serious negative impact on his mental health.
We have no doubt that the judge’s purpose in requiring the appellant’s attendance for judicial monitoring was directed at advancing his best interests and promoting his rehabilitation. What should be explored, in our view, is the possibility that the beneficial purpose of the monitoring could be achieved without the appellant being required to attend in person. The possibility explored in argument on the appeal was that the monitoring hearing might be conducted by video link, with the appellant at a remote location. For that purpose, we would assume, a representative from Disability Justice could be present to assist him.
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