Prosecution Disputes Sentencing of 9 months for Sexual Penetration of Minor as Manifestly Inadequate
DPP v Smith [2022] VSCA 4 (28 January 2022)
The respondent was charged with sexual penetration of child under 16, assault and resistance of emergency worker on duty. He was sentenced with 18 months of imprisonment and a non-parole period of 9 months. The parties are in dispute about whether the sentence is manifestly inadequate.
Facts:
The respondent was convicted by plea of guilty on 31 March 2021.
The Director of Public Prosecutions has appealed the respondent’s sentence on two grounds:
- That the sentencing judge erred in finding that the complainant was a ‘willing participant’ in the offending and improperly gave this finding weight in the sentencing synthesis (ground 1); and
- That the sentence imposed is manifestly inadequate (ground 2).
The offending was constituted by or related to an incident that occurred on the night of 17 September 2020, when the respondent and the complainant went for a walk together, sat down on an oval and the respondent kissed and then sexually penetrated the complainant a number of times. At the time of the offending, the respondent was 20 and the complainant was 15.
Prior to the offending, in March 2020, the complainant’s mother and the police advised the respondent that the complainant was under 16 and that to have a sexual relationship with her would be illegal. In June 2020, the Department of Health and Human Services (‘DHHS’) sent a letter to the respondent repeating the warning.
Still, on the evening of 17 September 2020, the complainant travelled by train to Sale to meet the respondent and proceed with the charged acts ((the respondent removed the complainant’s underwear and inserted one finger and then a second finger, into her vagina (charge 2 — rolled-up, occasion 1). The respondent then pulled down his pants and penetrated the complainant’s vagina with his penis (charge 1 — rolled-up, occasion 1)). On 23 September 2020, three police officers attended the respondent’s home to execute a search warrant and arrest him.
The respondent became agitated when police went to seize his marijuana. When one of the police officers tried to handcuff him, the respondent struck the police officer to the right side of his head with a closed fist, causing moderate pain and swelling (charge 3). The respondent then resisted the other two police officers, throwing his arms around and saying he did not want to be touched. The respondent was wrestled to the ground and handcuffed (charge 4).
The respondent participated in a police interview (in the absence of a lawyer) in which he made admissions to the sexual offending and acknowledged that he knew the complainant was 15.
He told police he did not hear the complainant say ‘stop’ because she did not speak loudly enough. Upon hearing, the sentencing judge set out the maximum penalties for the offences and acknowledged the plea of guilty, recognising that it had additional utilitarian benefit by reason of the restrictions caused by COVID-19.
Issues:
I. Whether or not the sentencing judge erred in finding that the complainant was a ‘willing participant’ in the offending.
II. Whether or not the sentences are manifestly inadequate.
Applicable law:
Director of Public Prosecutions v Smith [2021] VCC 1101 (‘Reasons’) - where the circumstances of the offending are set out in the Summary of Prosecution Opening dated 29 January 2021 and in the judge’s Reasons for Sentence.
Treloar v The Queen [2020] VSCA 6 - relied upon in holding that while there was no significant power imbalance or breach of trust as might be found between an older offender and a victim, this was not one of the exceptional cases where there was an existing relationship between the respondent and the victim, and consent was freely given and a reflection of genuine affection between the two.
R v G [2008] EWHC 546 - relied upon in submitting that the offence of sexual penetration of a child under 16, and the absolute prohibition of sexual activity with a child, is founded on a presumption of harm, that harm being recognised as ‘long term and serious harm, both physical and psychological’.
Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43 - provides that youth is a powerful factor in mitigation, even in cases where the offending is serious and reliance on it is reduced.
DPP v DJK [2003] VSCA 109 - provides that it is well established that the commission of sexual offences against children is regarded as amongst the most serious crimes.
R v O’Brien [1997] 2 VR 714 - held that the respondent is not to be punished again for his earlier offending.
Analysis:
In 2017, the respondent was dealt with in the Children’s Court on a charge of rape. The victim was nine years old.
In 2018, the respondent was again dealt with in the Children’s Court, this time for accessing child pornography.
In relation to the rape, the respondent was placed on probation and ordered to undergo assessment and treatment; in relation to accessing child pornography, the respondent was placed on a Youth Supervision Order and again ordered to undergo assessment and treatment.
Carla Lechner, a clinical psychologist, set out the respondent’s difficult personal circumstances, describing his early history as characterised by Complex Developmental Trauma as a result of exposure to abuse and neglect. Although he had largely been raised in the secure environment provided by his adoptive mother, the respondent continued to exhibit chronic and unremitting symptoms of Post-Traumatic Stress Disorder and early Attachment Disorder that manifested in emotional and behavioural dysregulation, including inappropriate and unlawful sexual behaviour.
The respondent was abandoned by his biological mother at a childcare centre when he was three and did not experience any domestic stability until he was adopted at around the age of five. The respondent reported that he was the victim of sexual abuse at the age of about four or five years at the hands of an older teenage boy.
It was open to the sentencing judge to take into account the context in which the offending took place and the particular circumstances of the offending, including that the complainant was willingly spending time with the respondent and had travelled from Moe to meet with him, and the absence of coercion, threats or any relationship of trust, when assessing the gravity of the respondent’s offending.
This is not inconsistent with the presumption of harm to the complainant or with the irrelevance of consent to the assessment of the gravity of the offending.
The sentencing judge acknowledged that the type of offending engaged in by the respondent (both the sexual offending and the attack on the police officers) was inherently serious. However, he found that the actual offending was less serious than many other instances of offending of the same type.
It is clear from the Reasons that the sentencing judge appreciated the seriousness of the sexual offending, in particular, and that he well understood and took into account the harm inflicted on the complainant by the respondent’s conduct.
The respondent has relevant prior offences and has been the subject of earlier interventions aimed at addressing his special needs. These interventions did not, it appears, resolve his difficulties. This may be considered unsurprising, given the extent of the problems identified. It is no reason to abandon commitment to the respondent’s rehabilitation.
Conclusion:
The Court held that the individual sentences on each of charges 1–4, the orders for cumulation, and the total effective sentence and non-parole period are adequate.
The sentencing judge did not err in finding that the complainant was a ‘willing participant’ in the offending and improperly gave this finding weight in the sentencing synthesis. The appeal must be dismissed.
