DPP v Stewart (a pseudonym) [2016] VCC 1884 (25 November 2016)

Last Updated: 13 December 2016

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IN THE COUNTY COURT OF VICTORIA

AT SHEPPARTON

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS Prosecution

v

RICHARD STEWART (A PSEUDONYM)^[1] Defendant

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JUDGE: HIS HONOUR JUDGE MURPHY

WHERE HELD: Shepparton

DATE OF HEARING: 25 November 2016

DATE OF SENTENCE: 25 November 2016

CASE MAY BE CITED AS: DPP v Stewart (a pseudonym)

MEDIUM NEUTRAL CITATION: [2016] VCC 1884

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – guilty plea – three counts of sexual penetration of a child under 16 – victims were the cousins of the offender – young offender – no significant remorse – delay – 88 days of pre-sentence detention – no further imprisonment – community corrections order appropriate disposition

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: Boulton v The Queen [2014] VSCA 342

Sentence: 88 days imprisonment (pre-sentence detention) and a 2 year community corrections order

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APPEARANCES: Counsel Solicitors

For the Crown Mr K Doyle Office of Public Prosecutions

For the Defendant Mr P Smallwood Luke Slater Lawyers

HIS HONOUR:

1. Richard Stewart,^[2] you have pleaded guilty to three counts of sexual penetration of a child under the age of 16. The maximum penalty for each of those offences is ten years' imprisonment.

2. The complainants in the matter were your cousins Bethany Stewart^[3] and Jacinta Stewart.^[4] Bethany, the younger of the two cousins, was aged 14 at the time of the charged events. Two of the three counts of sexual penetration that occurred between 26 December 2016 and 1 January 2013 occurred with Bethany.^[5] Charge 3 involved a different cousin of yours, Jacinta, who was aged three weeks shy of her 16^th birthday. Charge 3 is one charge of penile penetration that occurred on 1 January 2013.

3. The circumstances of the offending were set out in the Crown opening which was read in open court this morning. It is not necessary to repeat it. In essence, this was opportunistic offending where you had only recently, in the previous few months, become acquainted with your cousins. You were living in the same town and you met them on a couple of occasions. Charge 3, the more serious charge, arises from when you and both the complainants had been drinking, you and Jacinta ended up in a motel room together where you had been living. You proceeded to have intercourse with her.

4. The first complainant, Bethany, did not raise the matter with the police, however, the second complainant, Jacinta, did. The first complainant was not interested, and did not, make a VARE statement. You were interviewed about these events and it was your admissions to the police in the record of interview that brought the two digital penetration charges involving the first complainant, Bethany, to light.

5. Your counsel, in a comprehensive plea, put that this is a very important matter in relation to dealing with you, because but for your admissions of the offending, the information relating to the first complainant may not have come to light.

6. As far as Jacinta is concerned, the second complainant, she was observed to have a flat demeanour a day or two after 1 January 2013. It was at this point she admitted that she had been engaging in sexual intercourse with you. She subsequently made a VARE about the matter.

7. Neither of the complainants have given victim impact statements. Whether or not the prosecution have been unable to track them down was not made clear, but assessing the seriousness of the offending, all underage sexual activity is serious. The offending that involved Bethany is at a lower level and, as I said, it only emerged as a result of your record of interview. You are also to be given a significant benefit for that.

8. In relation to the offending involving her older sister, Jacinta, this was serious offending. It was full, unprotected, intercourse. For a young girl who was under 16, it has obviously had an impact on her even though there is no victim impact statement as to whether there is longstanding impact on her. It is also aggravated by some extent that she says in her VARE statement that she was resisting you. On the other hand, you maintain that she was agreeable to it. So there might have been a subjective view by you that she was consenting.

9. Clearly under the age of 16 where there is more than a two year age gap are not in a position to consent to sexual activity. The relatively narrow age gap between you and each of the complainant’s does, however, put your offending at a lower level than this type of offending, which is seen in these courts regularly. I accept your counsel's submission, contrary to the prosecution's submission, that there was no breach of trust involved in the offending in these particular matters.

10. Here we have a situation with an 18 year old charged with sexual penetration of a 14 and 15 year old – this offence carries a maximum of 10 years’ imprisonment. The Court of Appeal has said there is a presumption of harm with these types of offences involving underage sex. I regard the first two charges on a lower level than charge 3. Charge 3 is not at the bottom of the scale of offending having regard to its seriousness.

11. Your plea of guilty was not at the first opportunity. When the matter first came on for a committal, you did not appear and there was significant delay before you were finally arrested after a period of about two years. When the matter was brought on for a committal mention, you pleaded guilty. You are entitled to the benefit of a plea of guilty as it has obviated the need for each of the complainants to give evidence in the matter. You facilitated the course of justice and taken responsibility for your actions. I give you credit for that.

12. I do not find there is any significant remorse, but you are obviously of the view that they were consenting to the activity. In terms of mitigation and in sentencing you, there two are significant matters here. Firstly, you were just over 18 years of age at the time of this offending. Secondly, there was a delay of about 12 months before the charges were actually laid. Had the matter proceeded expeditiously and you had cooperated with the criminal justice process, you might have been dealt with when you were about 18 and a half or 19. At that stage, you would have been able to be dealt with by way of a Youth Attendance Centre Order and you would have been able to go on with your life.

13. There was a delay of about 12 months in originally charging you. There was a further 2 year delay after you made yourself scarce. You are now 22 years old, so there has been a lot of water under the bridge. You are responsible for two years of that delay. You do not get the benefit of that, but the fact of the delay is a significant factor that I do take into account, because it has also meant that you are two years older. Your counsel put that there is no further sexual offending or other offending, except perhaps failing to appear on bail, and there was no criminal record alleged against you at the time of the offending. So you were a first offender, now 22 years old being dealt with in an adult court.

14. The fact that you have not reoffended indicates that you are on the way to your rehabilitation. Due to your own conduct, you have been in remand at the Hopkins Correctional Facility for the last 88 days. As I said in the course of the plea, this is likely to have been quite an onerous experience for you being in prison for the first time on remand and probably would be worth almost double had you received a custodial Youth Attendance Centre Order when you were aged 18 or 19.

Personal Circumstances

15. Your counsel described you as something of a lost soul, brought up essentially by your father and your step-mother in both Queensland and in Victoria, having lived at approximately 30 different addresses. You have only had limited schooling. You did have a period of nearly a year as a diesel mechanic and you indicated in your instructions to the forensic psychologist that you had a period of working when you were in Sydney. But it is obvious that you have not got a very good work record and it is obviously in the community's interests that you get into the workforce.

Sentencing Considerations

16. Your counsel submitted that an appropriate disposition in this matter would be a community corrections order and that I should emphasise in my disposition your rehabilitation into the community. He put a number of matters in submission in relation to the assessment of your culpability, the fact that you have accepted responsibility for this and you have pleaded guilty. Mr Smallwood argued that it is an important factor in sentencing young offenders that they are rehabilitated into the community and that this is a very significant factor. I accept those submissions and I do give priority in dealing with you to your rehabilitation. He also emphasised that you are only to be sentenced for the charged acts and no other offending.

17. In sentencing you, the purpose for which I must sentence are punishment, deterrence, both specific and general, denunciation, rehabilitation and protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are reintegrated and rehabilitated in to the community.

Sentence

18. I propose to impose community corrections order. I do not accede to the submission by the learned Crown prosecutor that there should be a further period of imprisonment for you. The case of Bolton indicates that for young offenders, a community corrections order that can combine rehabilitation with punishment, is often an appropriate disposition.^[6] In your case, you have had the punishment of 88 days in custody which as I say for a first offender who has not even been the subject of a sentence, it would be very salutary to say the least.

19. The delay, as I said, operates to your benefit, although you are responsible for part of it but it does indicate that you have not fallen into the criminal justice system committing further crime or other crime, or committing further sexual offences. So the case of Bolton does emphasise that a community corrections order can provide both punishment and rehabilitation and that it is in the community’s interest, particularly for young offenders, to be reintegrated into society.

20. The report from Mr Simmons indicates that he regards you as having a relatively low risk or lower risk than usual of reoffending. He does indicate that effectively you are somewhat of a lost soul and you have got psychological problems. You have had suicidal attempts in the past, although it does appear that you have not actually had any proper psychiatric treatment. So a community corrections order does give you the opportunity in a coercive manner for you to be put into appropriate streams in order to see whether you can get back into the workforce and get your psychological state under some form of proper control.

21. I have had you assessed for a community corrections order and they indicate that you would be suitable for one. I propose to impose a community corrections order on you. The sentence I am going to impose, after I hand the draft copy of the community corrections to your counsel for your consideration, is a two year community corrections order on each of charges 1 and 2 to be served concurrently. I further intend to impose, on charge 3, a sentence of 88 days' imprisonment and a two year community corrections order with 200 hours of community work attached to that third community corrections order.

22. There is going to be conditions that you undertake 200 hours of community work over the course of the two year community corrections order and the usual conditions that you be the subject of supervision by the office of corrections. Now you have got to report to Bendigo. I understand you are going to be living in Echuca but I am sure they will have a sub-office in Echuca once you actually are inducted into the system in Bendigo.

23. So you are under the supervision of the Office of Corrections for the next two years. You have also got to undertake treatment for drug abuse or dependency as directed, alcohol use or dependency, mental health assessment and a sex offender program as directed. With all those programs, your rehabilitation back into the community will be facilitated. Community work will impose some discipline on you and all the while if you do commit an offence carrying a term of imprisonment, then you will be brought back before me and resentenced for these three offences.

24. So I have prepared the draft order and I ask counsel to discuss it and explain it and arrange for his signature.

25. MR SMALLWOOD: Yes, Your Honour.

26. HIS HONOUR: On top of that I accede to the prosecution request that you provide a forensic sample which is a mouth swab which you will have to go to a police station within the next 28 days and provide it. As a consequence of the convictions, but not as a sentence, you are also on the Sex Offenders Register for life and the relevant paperwork will be handed to you. That means that for the remainder of your life, you are required to advise a Registrar as to any changes of address, tattoos, mobile phones and licence, et cetera.

27. Pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed an aggregate sentence of 18 months’ imprisonment with a non-parole period of 12 months’.

28. I declare that you have served 88 days of pre-sentence detention, and that this be entered into the Records of the Court.

29. MR SMALLWOOD: As the court pleases.

30. MR DOYLE: As Your Honour pleases.

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^[1] To ensure that there is no possibility of identification of the complainant of the sexual offending, the reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the defendant and other relevant persons.

^[2] A pseudonym.

^[3] A pseudonym.

^[4] A pseudonym.

^[5] Charges 1 and 2 on the indictment.

^[6] Boulton v The Queen [2014] VSCA 342.