DPP v Kinnaird [2013] VCC 2137 (8 November 2013)

Last Updated: 26 February 2014

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-01752

DIRECTOR OF PUBLIC PROSECUTIONS
v
ALEX KINNAIRD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2013
DATE OF SENTENCE:	8 November 2013
CASE MAY BE CITED AS:	DPP v Kinnaird
MEDIUM NEUTRAL CITATION:	[2013] VCC 2137

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For The Queen	Mr S. Ballek
For the Offender	Mr P. Tiwana

1. HIS HONOUR: You pleaded guilty to an indictment which charges you with Charge 1; indecent act with a child under 16, Charge 2; indecent act with a child under, Charge 3; sexual penetration of a child under 16, Charge 4; using a carriage service to groom a person under the age of 16 years, and Charge 5, of using a carriage service to engage in sexual activity with a person under the age of 16 years. The last two charges are charges under Commonwealth legislation. You have no prior convictions. The maximum term of imprisonment for the offences to which you have pleaded guilty are in relation to indecent act with a child under the age of 16, ten years imprisonment, sexual penetration of a child under 16, ten years imprisonment, use of a carriage service to groom a person under 16, 12 years imprisonment, and using a carriage service to engage in sexual activity with a person under 16, 15 years imprisonment.
2. You will appreciate now and perhaps you did not during the period of the offending conduct, that these are serious offences. Parliament has imposed significant maximum terms of imprisonment to ensure the courts appreciate that they are to be regarded as serious offences, and to provide a sufficient range of sentence. It is of course important that one looks at where the particular offending conduct falls within the spectrum of behaviour that is captured by these criminal offence provisions.
3. One of the relevant factors is the age of the victim, another is the age of the offender at the various times at which the offences occurred. The relationship between the offender and the victim. The circumstances in which the various offences occurred. The fact that the material that I have been provided with and in particular the summary of prosecution opening Exhibit A indicates that some of the offences occurred in circumstances where the victim may appear to have been a willing participant in the events is nothing to the point.
4. It would have been aggravating feature if she had not been but these offences are there to protect young persons from themselves amongst other things. Amongst the other things that I consider in determining an appropriate sentence, are the effects that it has had on the victims. That is the particular victim of the offence and the parents of those victims. It is plain from the victim impact statement that your conduct has had a profound effect. It is almost inevitable that when people of the age of this particular victim are subjected to sexual activity involving an older person that they will be an emotional impact, not intended perhaps, and not fully appreciated at the time the events occurred.
5. But nevertheless it is highly relevant for me to take into account the effect this has had upon the particular victim and indeed her parents. The whole family. The fact that her father read part of the victim impact statement this morning will no doubt have impressed you and I hope that it leaves a lasting impression upon you. It should. I think that if it does, then there is little prospect of you offending again. I accept that this was situational behaviour on your part. Opportunistic. Not predatory. The initial offending occurred when you were at a very young age, and that that early conduct formed the context in which the subsequent offences occurred. All of which I think, despite the significant impact that this has had upon the victim and her parents, but the victim in particular emotionally, reduces your moral culpability and places the offending conduct towards the low end of the scale in terms of seriousness, despite, as I say, the very significant impact that it has had.
6. I am not going to read out again the summary of prosecution opening, it was read this morning. It was Exhibit A, and that document will be incorporated into these reasons for sentence in its entirely. I am not going to make any further reference to the content of the victim impact statement. I think that they have been sufficiently aired before this court. On your behalf, I was very helpfully provided by your Counsel with a document headed plea submissions on behalf of the accused, which summarise the matters that he placed before me, and in the plea in mitigation. And also, in particular, the report of Mr Jeffrey Cummins dated 10 September of this year.
7. Mr Cummins helpfully sets out a deal about your background. I think that I can deal with your background adequately by saying that you had some difficulties in your schooling with being bullied. You were a bit of an odd man out, it would seem. A bit of a loner, something of an isolated individual. Perhaps that also has contributed to the offending conduct.
8. He opines that you presented to him as being immature and naïve. That too may be a factor that has contributed to or forms a background to your offending conduct.
9. You are still living with your parents who are both here. They have provided references on your behalf. I have no doubt that you will enjoy their continuing support. They have properly expressed their views about your offending conduct and of course they and you will have to continue to suffer from the knowledge that you have destroyed friendships between your respective families, and to some extent I think brought a feeling of shame not only on yourself but your parents. You will have to live with that and do your best to overcome it.
10. Hopefully it will be a long-term reminder to you that if you ever found yourself in a similar situation being tempted to engage in similar activity with a young person again, that you would be able to resist that temptation. There does not seem to be any reason in Mr Cummins' opinion to think that you are at risk of committing further offences of this kind. You have no other convictions for this before or since. I think your prospects of rehabilitation are good.
11. Despite the matters to which I have just referred, in many instances a judge would be required to impose a term of imprisonment, even on a person who is now still only 20 years of age. The prosecution has submitted that that is an appropriate punishment. I am inclined to agree with them. However, parliament has provided for an alternative, in the form of a community corrections order, which is available even in cases which would otherwise require a term of imprisonment. What is going in your favour is that these offences were committed when you were still a young offender. You are still only 20 years of age, and rehabilitation is to be regarded as a very significant sentencing consideration. And one which I think in the end persuades me in your case that a community corrections order is appropriate as an alternative to the term of imprisonment that would otherwise be richly deserved for your offending conduct.
12. I think you are particularly culpable in relation to the latter offending, even though that might have been a period during which the relationship had developed and certainly the victim was older. But you too were older and should have known better. That was a point in time when you ought to have acted with the restraint that is expected of an 18, 19 year old and you failed to do so.
13. You have pleaded guilty, and you cooperated with police right from the word "go". I think you are entitled to full credit for the saving to the community of a trial and in particular saving the victim having to give evidence in a court case against you, which would itself have been a traumatic experience and added to the trauma that she has already suffered as a result of this all coming to light and participating in the events with you.
14. She feels very let down by you, it is very clear. There is to some extent, I think in her mind, a feeling of a breach of trust. That I think has added to her trauma. I accept that your plea of guilty is also consistent with the remorse that you have expressed and I accept that your remorse is genuine.
15. I am required to express the denunciation of this court for conduct of this kind. I have already indicated that I think individual deterrence in your case is probably less significant than the need to impose a sentence that has some general deterrent effect. I guess general deterrence is generally best served by a term of imprisonment, but I am required also to balance the factors in favour of the term of imprisonment against the need for your rehabilitation. And given your age I think it is that need that trumps the other considerations.
16. I can only impose two community corrections orders because I understand that the law requires me to impose a separate community corrections order in relation to the Commonwealth offences from the order referrable to the state offences. Those orders would be running concurrently, so it would be a mere technicality in the sense there would really be one effective series of conditions with which you would have to comply.
17. I can only impose orders of that kind with your consent, your counsel has indicated that you do or will consent. Do I understand that you consent?
18. PRISONER: Yes.
19. HIS HONOUR: You will realise no doubt that the imposition of a community corrections order imposes some fairly stringent core conditions as well as those which I propose to add to the order. The core conditions are these. Listen carefully please; you must attend the Berwick Community Corrections Services at 12 Wheeler Street, Berwick within two clear working days after the commencement of this order. And this order will commence today. So I think Tuesday afternoon is the deadline. No doubt you will get there in good time and make sure that you comply with that. You must not commit another offence for which you could be imprisoned during the time the order is enforced. It will be two years from today. If you do commit an offence punishable by imprisonment, you are liable to be sentenced to three months for that offence alone, the breach, plus of course you could be resentenced for these matters and it would almost inevitably be a term of imprisonment. And for of course any offence that you commit which puts you in a breach.
20. You must comply with any obligation prescribed by the Regulation 17 of the sentencing regulations. The regulations will be explained to you in detail. You must report to and receive visits from the secretary of the Department of Corrections or his or her delegate. You must report to Community corrections centre within two clear working days, as I have already indicated. You must let the Community Corrections Officer know within two clear working days of any change of address or job. You must not leave Victoria without first getting permission of the secretary or his or her delegate to do so. You must all lawful instructions from and directions of the secretary or his or her delegate.
21. The other conditions that I attach to the order are that you will be required to perform 200 hours of unpaid community work during the period of two years, and that will be as directed by the regional manager of the Community corrections centre to which you report. You must be under the supervision of a community corrections officer for the period of the order, two years. And you must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, or cultural and personal development programs as directed by the regional manager, in particular the sex offenders' program.
22. I am going to give you the opportunity of looking at the draft order with your counsel. And Mr Travis, there will be two orders, both of which will commence today and one relates to the Commonwealth offences and one relates to the state offences. They will run concurrently. I think before I ask you to sign the order, I need also to order that you undergo a forensic procedure for the taking of a scraping from your mouth or a blood sample. That is for the purposes of adding to the DNA bank, and when you are, you will be required to report to the officer in charge at the Dandenong police station for that purpose. And for all intents and purposes, the period should be in the next month or two or three, but I would suggest that you should do that within the next four weeks. Anyway, the terms are set out in the order.
23. I have to inform you that if you fail to provide a scraping from the inside of your mouth when requested to do so, then the officer will be authorised to obtain a blood sample and may use reasonable force to do so. I am sure you will not put them to that trouble.
24. I will make that order in due course. I also have to inform you that you will be subject to the reporting requirements under the Sex Offenders' Registration Act for life as a result of your conviction on these offences. You will be convicted in relation to each of the offences on the indictment.
25. HIS HONOUR I will ask you now if you would to go through the draft community corrections orders and if you are satisfied with the terms of them, to sign them. All right, would you - Mr Tiwana, if you'd like to accompany Mr Travers - - -
26. MR TIWANA: Yes, sure.
27. HIS HONOUR: - - - to ensure your client fully understands the orders.
28. The orders having been signed by the offender and counter-signed by myself, those orders are now in place and I formally pronounce those orders. Are there any other orders that I need to make? You do need to I think be supplied by a form identifying your reporting obligations under the Sex Offenders' Registration Act.
29. MR TIWANA: Yes, Your Honour. I think he needs to sign a form for that as well.
30. HIS HONOUR: I need to sign that form, I don't know whether he does. Does he?
31. MR TIWANA: I think there is a separate form acknowledging receipt.
32. HIS HONOUR: A separate form, there is indeed. All right, I'll get him to sign that also. If you wish to approach as well g
33. MR TIWANA: Yes, Your Honour.
34. HIS HONOUR: - - - to make sure that he's signing the right document.
35. And there's one other indication I have to give and that is but for your plea of guilty I would have sentenced you to a term of imprisonment of two years and six months, with a non-parole period of 18 months. Any other orders that I need to make, gentlemen?
36. COUNSEL: No, Your Honour.
37. HIS HONOUR: All right, thank you. You may leave the dock now. Monday morning at ten o'clock.

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