DPP v Sim [2022] VCC 1295 (9 August 2022)

Last Updated: 18 August 2022

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT LATROBE VALLEY
CRIMINAL DIVISION

CR-21-01083

THE DIRECTOR OF PUBLIC PROSECUTIONS
v
STUART JAMES SIM

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 August 2022
CASE MAY BE CITED AS:	DPP v Sim
MEDIUM NEUTRAL CITATION:	[2022] VCC 1295

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

1 Stuart James Sim, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16, one charge of possession of child abuse material, and one charge involving a child and the production of child abuse material. Those crimes carry maximum penalties of 15 years, 10 years and 10 years respectively.
2 You are now 31 years of age. You pleaded guilty to what is, in effect, a settled indictment because of the nature of the criminal responsibility. Remorse is somewhat problematical, but I will give you the benefit of the doubt about that. You clearly must get the utilitarian benefit of that plea of guilty of saving the child involved the unfortunate experience of having to give evidence.
3 In these times you must also, of course, get a significant discount under the principles outlined in Worboyes. It is important in situations such as this that experienced counsel settle matters and, in my view, courts should honour those settlements by applying appropriate sentences and in at least assisting in the relief of what is a very, very significant backlog.
4 You have no prior convictions of a sexual nature and there are no difficulties in that regard. The charge of sexual penetration of a child under the age of 16 is a standard sentence offence, being six years. I am well aware of the decision of the Court of Appeal in Brown and also in the decision of McPherson. I apply those principles here and simply say that the objective aspects of this particular offending, in my view, place it at a low level and I will say no more than that. It is unfortunate that judges are called upon to grade sexual offending against children. It is unfortunate indeed
5 Because of the nature of the offending you will be placed on the
Sex Offenders Register and I advise you that the period of reporting is – life.
What I will do is I will sign that afterwards, Mr Anderson, and have it sent to Mr Sullivan.
6 MR ANDERSON: Yes, Your Honour.
7 HIS HONOUR: A summary of the offending is that at the time of the offending you were not working due to a back injury. As I understand it from the plea that you were suffering psychological difficulties at that point.
8 The complainant in the matter was 15 years of age at the time of the offending, indeed, was only about a month off her 16th birthday. She lived in Sale and was a full-time student. She had saved your phone number and, in any event, contact was made during late November of 2020 and you began communicating with each other. I sentence on the basis that you believed that she was over 16 and, as I have already pointed out, she was very close to it in any event, but that belief was not reasonable. As I understand it, that is the way the matter was accepted and I sentence on that basis. It is a very important aspect of this particular case in my view.
9 During the course of those conversations you requested intimate images of her and she sent them to you and you sent images to her. On
2 December 2020 it was arranged that you would meet up and you did. You purchased McDonald's apparently for her and a couple of her friends. They arrived at the address and from that point on you and the victim in the matter went to the bedroom.
10 It is a difficult situation. It is clear that the other two girls knew what was going on and, whilst consent never mitigates offending of this nature, it is clear to point out at this stage that there was no luring in my view. You were not in a position of trust so far as what occurred next. There were no threats, no inducements and no intimidation or force used at all. It is clear on the material that I have to sentence you, suspicious as I might be, that you were having sex with a girl you believed to be over 16 in those circumstances. In any event, the two of you went into the bedroom and you had vaginal sex with her and then you ejaculated into her vagina.
11 When interviewed by police you initially denied that penetration had taken place, but it clearly had and you clearly had enough sense to accept that proposition as the matter came on, initially at least, for trial. I do not think I need to go into any more detail than that, other than when you were arrested you were found to have a significant number of level 2 child pornography photographs on your equipment. I notice that there was level 2 only. As I say, whilst that causes me suspicions, they all being teenage girls, I can only sentence you on the basis of what I am satisfied of beyond reasonable doubt.
12 I have before me the victim impact statement of the victim's mother and she eloquently describes the psychological difficulties that it has caused her and caused her daughter and the ongoing problems that such offending causes. It is trite to say that there is a presumption of harm in matters such as this, even thought apparently, according to the law, that presumption of harm ceased about month later, but, as I say, I will be taking that aspect of it into account in a very significant way. I do take her mother's victim impact statement into account and it is very commonplace for guilt and the various feelings that mothers in those situations, and fathers as well, feel.
13 The offending has to be regarded as serious, but certainly at the lower end, in my view. Of course the application of general and in your situation, I have no doubt, specific deterrence, denunciation and appropriate punishment.
14 I then look at matters personal to you and succinct submissions from your counsel which have been of real assistance. You are now 31, you were 30 at the time, and he points out the matters already referred to, that the sexual activity occurred on only one occasion, and the other matter such as no relationship of trust and the like.
15 As far as your background is concerned, you were raised on a dairy farm in
Boisdale. Your mother worked at the Sale Hospital and you are the
third of four children. You were brought up on the farm and it appears that your father at times was in those days drinking and could be unpredictable, but I understand that he now no longer drinks and you are very close with your parents, visiting them frequently.
16 You went to Sale Secondary College and it appears as a young person you were treated for ADHD and you were given stimulant medication that was of little assistance. You left school partway through Year 12 and began a diesel mechanic apprenticeship and, to your credit, you completed that at around about the age of 21. You have worked as a diesel mechanic since and continue to do so. You have worked in a self-employed capacity and for
DNS Automotive, and a lot of your work is attending onsite at farms and managing heavy machinery.
17 In addition to that work you do have a strong history of engagement with the community. You have been umpiring Australian Rules Football for years and you have a 20-year service medal from the CFA. Apparently you joined them as a young child and have been a diligent attendee ever since.
18 You had a serious motor vehicle accident in September of 2019 and you have been able to, after getting back to work, continue to work and earn a good income. I do not think I need to go through the motor vehicle accident, other than it caused you significant injuries and a regional pain syndrome. There was use of alcohol during that time and that was all during the time of this offending. It does not necessarily reduce moral culpability, but it certainly puts it into a context as to how this unfortunate situation all came about. You have cut your drinking down significantly. You are still in pain, however, have been able to moderate the amount of medication that you take.
19 It is important I think here to note that the photographs that were taken have not been shared or distributed. They have been seized by the police and, accordingly, will not be distributed.
20 You now have a partner with whom you have a child. You are living in accommodation in Stratford. You are working and it seems to me in this situation that to now give you an active custodial sentence would serve no useful purpose. The Crown's submissions are that a custodial sentence is the appropriate disposition and in normal circumstances for offending such as this with such a significant age difference I would agree. However, the facts of the matter are here that many of the aggravating features which often accompany such offending are not present and I think it is very important to understand that had this occurred one month later it would not have been an offence at all.
21 In all those circumstances I am satisfied that a community corrections order is the appropriate disposition, albeit a lenient one, but it will be a
community corrections order of real significance to indicate the seriousness of such offending in itself. I had you assessed and you have been found to be suitable, and the Department of Justice have given me a report which I must say is of real assistance in this matter. It is clear from what they are saying that you will be doing the sex offenders program. That will involve you travelling to Melbourne on a regular basis and that is not an easy task. You will also be placed under supervision, and you will understand that if you breach this CCO in any way, shape or form by offending similar to this, I will be giving you on that breach an active and significant custodial sentence.
22 Accordingly, if you agree, you will be placed on a four-year community corrections order. It will be with conviction. There will be 400 hours of community work and the condition will be that you undergo programs to reduce the risk of reoffending. They have assessed you as a low risk of reoffending and I will sentence on that basis. Though, as I have indicated a couple of times, I do have my suspicions.
23 If you rehabilitate and behave sensibly there is no reason to think that you ultimately will not offend again and I am simply making it a long
community corrections order just to ensure that that actually occurs.
24 In that order will be that any hours spent on programs to reduce reoffending can be deducted from the 400 hours and that then becomes a matter for the Corrections people.
25 I am well aware that when one is living so far from Melbourne this is not an easy condition. If, as I say, you do breach it - I want to make this very, very clear - I am giving this disposition because I think it is the appropriate one and I feel compelled to, but I am doing it with a certain degree of reluctance and I am quite suspicious about you. It is up to you to prove that my suspicions are unfounded and you will clearly be aware of the consequences if you do not.
26 All right. You agree to that community corrections order? I think he might be muted, Mr Sullivan?
27 MR SULLIVAN: Sorry, Your Honour, he just said, yes, he did.
28 OFFENDER: Yes, I agree, Your Honour.
29 HIS HONOUR: All right. Well, that's taken orally. I will sign that and a copy will be sent to you, Mr Sullivan, and I will also send a copy of the SORA notice to you as well, Mr Sullivan. You can just explain to him he's reporting for
life - and I will get that sent off today or tomorrow.
30 MR MOORE: Disposal order, Your Honour.
31 MR SULLIVAN: Thank you.
32 HIS HONOUR: Apparently there's a disposal order. I will show him that - do you know what it's for? It just come up the other day. We assumed it was for the phone, didn't we?
33 MR MOORE: Yes, it will be the phone.
34 HIS HONOUR: It will be the phone. If it's the phone you don't oppose that,
Mr Anderson?
35 MR ANDERSON: No. I still haven't seen a copy of the order, but assuming it's the phone we don't have a problem, Your Honour.
36 HIS HONOUR: No, that's all right. I will sign it in chambers then rather than have to drag everybody back.
37 MR ANDERSON: Yes.
38 HIS HONOUR: Yes, all right. All right. I don't think there's any other orders I need to make, gents.
39 MR MOORE: No, Your Honour.
40 HIS HONOUR: Yes, thanks, Mr Anderson. Thanks, Mr Moore.
41 MR ANDERSON: Thank you, Your Honour.
42 MR MOORE: Sorry, to - according to my brief, Your Honour, the disposal order relates to his phone and to the underlay of the bed.
43 HIS HONOUR: Yes.
44 MR MOORE: They're my instructions, Your Honour.
45 HIS HONOUR: Do you want to dispute that?
46 MR SULLIVAN: It's not his sheet.
47 MR MOORE: It went away for testing, for DNA testing.
48 HIS HONOUR: It's not his. All right. I'll sign a disposal order of the sheet.
49 MR MOORE: Well, we've done the order. It's somewhere there.
50 HIS HONOUR: I'll sign the orders. I'll sign it in a minute. All right. Thanks, gentlemen.
51 MR ANDERSON: Thank you, Your Honour.
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