procedural. Community Correction Order for 12 months with 125 hours unpaid community work; no conviction recorded.
Key principles
A child under 16 cannot consent to sexual penetration; apparent consent does not negate criminality and the prohibition is founded on a presumption of likely long-term harm and...
Offending committed while the accused was a child or immature (17 years) and subject to a significant delay in prosecution may justify mitigation of sentence where the offender...
An early plea of guilty has significant utilitarian value, including sparing the victim from giving evidence, and attracts a substantial sentencing discount consistent with...
A sentencing court may impose a penalty without recording a conviction (here a Community Correction Order with unpaid work) where proportionality, parsimony and the future impact...
Issues before the court
What is the appropriate sentence for sexual penetration of a child under 16 where the offender was 17 at the time and the offence occurred many...
How should delay between offending and prosecution affect sentencing?
Plain English Summary
Healey pleaded guilty to sexual penetration of a child (offence in 2009 when he was 17 and the victim was 13). The County Court accepted the offence was serious but mitigated by Healey's youth at the time, long delay before prosecution, demonstrated rehabilitation, early plea, remorse and psychological assessment indicating low risk of re‑offending. Judge Blair imposed a 12‑month Community Correction Order with 125 hours unpaid work and did not record a conviction.
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Deep Dive
1,873 words · generated 10/07/2026
What happened
The accused, Joshua Healey, pleaded guilty on 25 October 2023 to one count of sexual penetration of a child under 16 (indictment P10328629) in the County Court of Victoria before Judge Blair [1]. The offending occurred on 20 December 2009 when Healey was 17 and the victim, given the pseudonym Mary O'Neill, was 13 [2]. The relationship between them was a teenage familial relationship of approximately three years, known to both families; Healey had (according to the factual material) promised the victim's grandmother he would wait until she turned 16 [Circumstances of offending, paras 3–6]. The sexual penetration took place at the grandparents' home while they briefly left the area; Healey described planning to avoid detection and pressured the victim to have sex [Circumstances of offending, paras 7–10].
What weight should be given to an early plea of guilty in sentencing sexual offences against children?
When is it appropriate to sentence without recording a conviction?
Cited legislation
No linked legislation citations have been extracted yet.
The victim later disclosed what occurred. She told others in 2013, confronted Healey in 2020, reported the matter to police in March 2022 and completed a statement in May 2022; Healey was arrested and interviewed in October 2022 [Circumstances, paras 11–15]. On plea and sentencing, the Court received a psychological report from Jacqui Louder and numerous character references from the accused’s community and family; the victim provided a victim impact statement describing long-term psychological harm, nightmares and relationship difficulties [Victim impact statement; Personal circumstances].
For sentencing, the Court balanced the objective seriousness of the offence against a number of mitigating factors: Healey’s age at the time (17), the significant delay (~14 years) between the offending and prosecution, demonstrable rehabilitation (steady employment, therapy, character references), an early plea of guilty, and psychological evidence that he was unlikely to reoffend [Nature and gravity; Delay; Plea of guilty; Sentencing principles]. The Court imposed a Community Correction Order (CCO) for 12 months with 125 hours of unpaid community work and declined to record a conviction [Sentencing principles, para 7].
Why the court decided this way
The Court's reasoning proceeded from a number of legal and factual premises.
Legal foundation: the Court emphasised the statutory and common‑law principle that a child under 16 cannot consent to sexual penetration. The purpose of the prohibition is both protective (to prevent harm from premature sexual activity) and deterrent (to dissuade adults from engaging in sexual activity with under‑16s) (Nature and gravity, para 1). The Court referenced Clarkson v The Queen for this point [Nature and gravity, para 1].
Objective seriousness: the offending was accepted as serious. Factors aggravating seriousness included the victim's young age (13), the offender's planning and pressure, and that the act occurred within the family home, a place where the victim ought to have been safe (Nature and gravity, paras 2, 4). The maximum penalty of 10 years' imprisonment was noted as an objective yardstick (Nature and gravity, para 1).
Mitigating factors linked to youth and delay: the Court applied established sentencing principles governing offences committed by those who were children or immature at the time. The Court cited Boland and the authorities it summarised (R v Nutter, R v Better) for the proposition that offences committed while an offender is a child and prosecuted long after the event may warrant mitigation, especially where there is demonstrable rehabilitation and no further offending (Nature and gravity, para 4). Her Honour observed that common sense and fairness require assessment of moral culpability with regard to the offender's immaturity at the time.
Delay and rehabilitation: the Court treated delay as having two mitigating consequences: fairness and evidence of rehabilitation. The offending occurred approximately 14 years earlier; since then Healey had been law‑abiding and had engaged in therapy and community life. The Court accepted the psychologist's opinion that he was unlikely to reoffend and that his sexual behaviour at 17 was not beyond that of a normal adolescent male (Delay; Plea of guilty, psychological report extracts).
Plea, remorse and utilitarian value: an early plea of guilty attracted significant discount. The Court stressed the value of the plea in sparing the victim from giving evidence and conserving court resources, and noted that it reflected genuine remorse (Plea of guilty, paras 1–3).
Proportionality and parsimony: balancing all factors, the Court concluded the offending was an aberration in an otherwise decent life and that recording a conviction would have a marked adverse impact on future prospects. Applying the principles of proportionality and parsimony, Her Honour decided to impose a sentence without recording a conviction, a CCO for 12 months with 125 hours community work (Sentencing principles, paras 6–7).
In short, the Court accepted the seriousness of the offence but found that the combination of youth at the time, long delay, demonstrable rehabilitation, early plea and remorse made a non‑custodial order without conviction the appropriate, proportionate outcome.
Before and after state of the law
Before this decision, the established sentencing approach in Victoria and Australian appellate decisions was clear that:
Children under 16 cannot legally consent to sexual penetration; the prohibition functions both as protective and deterrent (Clarkson).
Offences committed by young offenders may attract mitigation because of immaturity; where significant delay occurs, and the offender has rehabilitated, sentencing courts may temper punishment (Boland; R v Nutter; R v Better).
An early guilty plea and demonstrable remorse are mitigatory and invite a substantial discount (Worboyes and other plea‑discount principles).
Courts retain discretion to impose sentences without recording a conviction in appropriate cases that satisfy proportionality and parsimony.
Healey does not change these legal principles. Rather, the decision is a clear application of those pre‑existing doctrines to particular facts: it reinforces that a combination of youth at the time, long delay, early plea and strong evidence of rehabilitation can justify a non‑custodial sentence and the withholding of a conviction in a sexual‑offence case. The decision exemplifies how the sentencing discretions and mitigating doctrines operate in practice.
Key passages with plain-English translation
"A child under 16 cannot consent to sexual penetration. This prohibition both protects the child ... and deters adults ..." (Nature and gravity). Plain English: The law treats sex with anyone under 16 as wrongful, even if the younger person agreed, because that age is considered incapable of legally consenting and the law aims to protect them and discourage adults from such behaviour.
Quoted passage from Boland: "common sense and fairness dictate that ... assessment ... take into account that what was done was done as a child ..." Plain English: When someone committed an offence as a minor, courts should measure blameworthiness according to the offender's youth and immaturity at the time, not as if they were fully mature adults.
"Your plea of guilty ... has significant utilitarian value ... I propose to allow a significant sentencing discount." Plain English: Because Healey pleaded guilty early, he saved the victim from testifying and saved court resources; the court will reduce his sentence substantially for that reason.
"I have come to the view that this offending was an aberration ... committed when you were immature ... because a conviction is likely to have a marked impact on your future prospects I have decided to impose penalty without conviction." Plain English: The judge concluded the offence was out of character, happened when Healey was immature, and that recording a conviction would seriously harm his prospects, so she imposed a sentence but did not formally convict him.
What fact patterns trigger this precedent
This decision will be particularly instructive where the following combination of facts appears:
Offence is sexual penetration of a person under 16 committed by an offender who was himself under 18 at the time (especially late adolescent 16–17).
The offending involved an ongoing relationship and occurred some years earlier, with a substantial delay (a decade or more) before reporting/prosecution.
The offender has a clean subsequent record and demonstrable rehabilitation: steady employment, stable relationships, psychological engagement, and strong community references.
The offender enters a timely plea of guilty, shows genuine remorse, and psychological assessment indicates low risk of reoffending.
Recording a conviction would have a material, disproportionate effect on the offender's future prospects (employment, family life, etc).
Where those elements align, Healey illustrates the path to a non‑custodial sentence and penalty without recording a conviction. Conversely, if the offender had subsequent offending, lacked evidence of rehabilitation, or the offending was more aggravated (repeated penetrations, multiple victims, violence, abuse of position of trust), Healey would be distinguishable.
How later courts have treated it
As this is a recent County Court decision (27 October 2023), the judgment itself relies on higher authority (Clarkson; Boland; Worboyes) rather than establishing novel appellate precedent. It sits as a persuasive instance of sentencing exercise at County Court level demonstrating the application of established principles. Future courts will likely treat it as an example of mitigation where youth, delay and rehabilitation are present, but its persuasive weight will be limited compared with appellate decisions. If an appellate court is presented with materially similar facts, Healey may be cited as an example of the sentencing margin available to trial judges when exercising discretion to avoid recording a conviction.
Still-open questions
Limits to mitigation for youth: The judgment applies established principles mitigating for immaturity. The precise boundary between immaturity‑based mitigation and the need to mark societal denunciation for sexual offending against young victims will remain contested in cases with more serious aggravating features. Healey demonstrates mitigation in relatively limited factual scope; a question remains how far such mitigation extends when there is planning, pressure, or other aggravation.
Weight of delay vis‑à‑vis victim harm: The Court gave significant weight to delay and rehabilitation. Future cases may probe the balance when the victim's ongoing harm is substantial; whether delay can ever outweigh the gravity of harm to the complainant will depend on facts and appellate guidance.
Recording convictions in sexual offending: Healey shows the discretion to avoid recording a conviction in a sexual‑offence context where consequences for the offender are severe. Appellate courts may be called to refine criteria and the evidential threshold required before exercising that discretion in cases involving sexual offending against children.
Plea discounts and utilitarian calculus: While early pleas remain highly valuable, how courts accord discount in sexual‑offence cases with serious public interest elements will continue to raise questions. Healey suggests a generous discount where victim trauma is avoided and offender rehabilitated, but future tight cases may test the robustness of the approach.
Interplay with registration obligations: Although not addressed in detail in the reasons, practitioners must consider how avoidance of a recorded conviction interacts with sex‑offender registration schemes and other statutory consequences; the circumstances in which non‑recording affects registration requirements merit careful attention.
Conclusion
DPP v Healey is a focused sentencing decision applying established Victorian and appellate principles. It illustrates how a sentencing court balances the inherent seriousness of sexual offences against children with significant mitigating features: the offender's youth at the time, long delay, evident rehabilitation, an early guilty plea and the likely disproportionate consequences of recording a conviction. For practitioners, Healey is a practical example of the pathway to a Community Correction Order and penalty without conviction in the right factual matrix; however, its application is fact‑sensitive and will be less persuasive where aggravating features or subsequent offending are present.
Catchwords
Sexual penetration of a child under 16 - plea of guilty - offender under 18 - significant delay - rehabilitation
Judgment (16 paragraphs)
[1]
Sentence: Community Correction Order for a period of 12 months
[2]
Joshua Healey on 25 October 2023 you pleaded guilty on indictment P10328629 to one charge of sexual penetration of a child under 16.
[3]
The circumstances of your offending were set out in the prosecution opening and this document was tendered on the plea.
In short, your offending occurred on one date, 20 December 2009, which is almost 14 years ago. Mary O'Neill[1], the victim of your offending, was a distant relative with whom you had had a teenage relationship for approximately three years. Ms O'Neill lived with her grandparents in Frankston at the time.
In December 2009 you met Ms O'Neill at a family function in Albury.
Your relationship commenced soon after and ended sometime in 2013. Both families were aware of the relationship and employed an open-door policy in the bedroom at the family home. Additionally, there were conversations about the victim's age.
You promised the victim's grandma that you would be respectful and that nothing would happen until the victim turned 16.
You visited the victim at her grandparent's house almost every Sunday, where you would have lunch with the family, before being driven home. Those visits stopped when you turned 18 and got your driver's licence.
In the lead up to the offence you put pressure on Ms O'Neill to have sex. You planned how to have sex without getting caught and told Ms O'Neill to wear a dress or a skirt to make it easier.
Between 20 December 2009 and 31 January 2010, you visited Ms O'Neill at her parents' home. You went to her bedroom and sat on her bed together, the door remained open.
Ms O'Neill's grandparents went outside for a cigarette. You told the victim to lie down. You lifted her skirt, pulled down her underwear, you climbed on top of her and put your penis inside her vagina and had sex with her. Ms O'Neill started to cry and you said the pain would go away soon.
Her grandparents came back inside and you stopped. Ms O'Neill went to the toilet. You both went back into the dining area as if nothing had happened. You were 17 years of age at the time of the offence and Ms O'Neill was 13.
In 2013 Ms O'Neill started working at John Paul College as a youth minister and became aware of the age of consent. She told her friend and her boss what had happened. She also told her grandmother, who became angry that you had lied.
On 16 April 2020 Ms O'Neill confronted you via Facebook. You tried to contact her in response but she did not answer your call.
On 25 March 2022 Ms O'Neill reported the matter to police and completed her statement on 2 May 2022.
On 24 April 2022 Ms O'Neill made a pretext call to you. You did not deny the allegation. You said how much you adored her, how you loved each other, and that you did not mean to hurt her.
On 17 October 2022 you were arrested and interviewed at the Frankston police station, and you made a no comment record of interview.
[4]
Now Ms O'Neill read her victim impact statement to the court. She spoke of ongoing nightmares, feeling unsafe in relationships and struggling to put herself first in setting boundaries. Further, Ms O'Neill described that what occurred has led to years of relationship breakdowns due to a range of mental health issues, including a debilitating eating disorder.
The deep impact of what you did has caused Ms O'Neill to engage in continuous therapy. Ms O'Neill also mentioned that she will not allow the offending to define her, and that she refuses to blame herself anymore.
So I hope that going forward through the court process - and this is to you, Ms O'Neill - enables you to move forward in your healing and will give you some closure. You have been vindicated and your abuser has accepted his wrongdoing. Ms O'Neill, your voice has been heard by the court and there will certainly be accountability and consequences for the person who has caused you harm.
[5]
In terms of nature and gravity of the offending, in Clarkson v The Queen, the Court of Appeal held that under the legislative scheme a child under 16 cannot consent to sexual penetration. This prohibition both protects the child from harm that can come from premature sexual activity and deters adults who would contemplate having sex with someone under the age of 16.
The prohibition is founded on a presumption that premature sexual activity will cause long-term physical and psychological harm and is unaffected by the presence of apparent consent.
The factors must be balanced with the fact that at the time of your offending you were only a child yourself, being 17 years of age.
The proper approach to sentencing in cases such as yours has been discussed by the Court of Appeal on many occasions. In the case of Boland the Court said:
[6]
'Decisions of this Court in R v Nutter and R v Better recognise that where offences recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.'
[7]
So further, I have considered these principles in light of the opinion of Ms Louder, the psychologist who assessed you and provided a report to the court. Ms Louder was of the opinion that:
[8]
'Whilst Mr Healey fully acknowledges upon reflection this relationship according to the law was not appropriate, and displays remorse for any harm caused, his sexual actions were not beyond those of a normal 17-year-old male, coming into a time in their life when sexual desires and hormones increase dramatically.'
[9]
So Mr Healey, to be clear, your offending is serious as was appropriately conceded by your counsel. The maximum penalty applicable to your offending is an important yardstick when considering the objective seriousness. In this regard the maximum penalty for your offending is 10 years' imprisonment.
Further, in assessing the nature and gravity of your offending, I take into account that at the time of your offending the victim was 13 years of age and you were 17. You were in a loving relationship with Ms O'Neill and you had promised that you would be respectful of her. Instead, on this one occasion, you pressured her to have sex. Your offending is aggravated by the fact that it occurred within the family home, a place where she should have been safe and protected.
[10]
In general, delay can be an important mitigatory factor in sentencing. There are two potential effects of delay: first, there may be considerations of fairness; and second, there may be considerations of rehabilitation. In my view, both limbs have application in your case.
First, in terms of rehabilitation, your offending occurred in the order of 14 years ago. So since that time, you have been a law-abiding citizen. Further, it is clear from the numerous character references provided by your counsel, that you have become a well-respected and hardworking man. These character references also identify the numerous protective factors you have around you and will continue to have.
In addition, you have used this time meaningfully, engaging with a psychologist to discuss the impact of your offending on your victim. You have displayed rehabilitation.
Second, given that you were confronted by the victim in April 2020 and arrested in October 2022, this matter has been hanging over your head for some time. No doubt it has caused a considerable amount of stress and anxiety. A further aspect to the delay in this case is that it is apparent how much Ms O'Neill has suffered over the years.
[11]
I accept that you entered your plea of guilty at the earliest opportunity. This is a mitigating factor in your favour, in that it shows you have accepted responsibility for your offending.
Most importantly you have spared the need for Ms O'Neill to relive the traumatic event by giving evidence. Your plea has significant utilitarian value as it has spared the court the time and expense of what would have been an emotional and difficult trial.
Further, I take into account the benefits of this plea in the context of the court backlog, which though now easing, was still a relevant issue when your matters entered the court process. Consistent with the principles enunciated in the case of Worboyes, your plea will attract a greater amelioration of sentence. Accordingly, I propose to allow a significant sentencing discount.
Your plea of guilty also highlights the remorse you have shown towards your victim. There is other evidence of remorse in your case. Importantly, Ms Louder stated:
[12]
'It is my professional opinion that Mr Healey is a law‑abiding man with a healthy view on life and strong moral and community values. I have absolutely no concerns on any level that he will re-offend and believe his levels of shame and stress surrounding this case further ensure he will not re-offend.'
[13]
Your partner, , stated that you were feeling contrite towards Mary and your actions all those years ago.
However, the most powerful evidence of remorse is your letter of apology, which I accept is heartfelt and genuine.
[14]
As to your personal circumstances, you were born in Halifax in the United Kingdom and migrated to Australia with your family when you were 18 months' old. You have one younger sister.
Upon arrival in Australia your family settled in Preston, where your parents purchased a property. Your mother worked at a glass leadlight shop. Your father was a bricklayer.
There was a breakdown in the relationship between your parents which led to separation. You recall witnessing some family violence being your father assaulting your mother. You moved into your maternal grandparents' home before moving to Ferntree Gully with your mother and sister, and this was to ensure you were closer to extended family.
As a child, you would spend time with your father every weekend. Your father would pick you and your sister up from Ferntree Gully and you would spend the weekend together. Due to attending social functions on weekend, the time spent with your father lessened as you became a teenager.
Your mother remarried when you were in Year 7 and you had some difficulty adjusting to life with your stepfather. It would appear, given the contents of the testimonial from your stepfather, that you now have a strong bond and relationship.
In the early years your family suffered from financial difficulties, these were compounded by the fact that your biological father resented paying child support.
Whilst at school you were the victim of bullying, both verbal and physical, which was predominantly as a result of bullies targeting your English accent.
You ultimately finished Year 12 and have engaged in other studies but completed no further degrees or certificates.
Since finishing school, you have been gainfully employed. You started employment with Tasty Trucks food delivery service, and you are currently employed as a process technician with Dulux.
You commenced an electrical apprenticeship at another organisation but lost this job at the commencement of the COVID pandemic.
You have been in a successful relationship with Ms Marchese for the last seven years and during this time you and Ms Marchese have purchased a home together, and are committed to a continued life together, and are hopeful of one day starting a family.
[15]
The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
Given the circumstances of your particular case, that is you were a child at the time of the offending, I consider that general deterrence should be significantly moderated. I consider specific deterrence has little role to play in the sentencing exercise due to your lack of prior convictions, your genuine remorse and the rehabilitation you have demonstrated since this offending occurred. You have no prior or subsequent criminal history and have been a law-abiding citizen.
Ordinarily, the sentencing exercise requires consideration of the prospective rehabilitation of an offender. However, due to the unique circumstances of your case, I have before me the rehabilitative process in which you have engaged. You are now seeing a psychologist, which, I note, is partially to help you deal with issues surrounding your mental health. However, an important aspect of your engagement with the psychologist is that you have used the sessions to engage in discussions about how your offending has impacted and indeed continues to impact your victim.
I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[2] where relevant to your case. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. The principles of proportionality and parsimony are also very important considerations here. They require me to do more than is necessary to appropriately punish you for your offending in the particular circumstances of your case.
In sentencing you I have had regard to current sentencing practices and the sentencing landscape for the sentencing of cases such as yours. I have weighed the nature and circumstances of your offending, the impact of your offending upon Ms O'Neill, your personal circumstances, the written testimonials tendered and the psychological report of Jacqui Louder.
Community Correction Order for 12 months with 125 hours unpaid community work; no conviction recorded.
I have come to the view that this offending was an aberration of an otherwise decent, honest hardworking young man that was committed when you were immature and still a child in the eyes of the law. For these reasons and also because a conviction is likely to have a marked impact on your future prospects I have decided to impose penalty without conviction.
Mr Healey if you could please stand. In relation to the charge of sexual penetration of a child under 16 without conviction you are placed on a Community Correction Order for a period of 12 months. The only special condition of this order is that you perform 125 hours of unpaid community work. Given this is the only condition once you complete the hours the order will expire.
In addition, to that condition, there are standard conditions that you must comply with. The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 12 months. You need to report within two working days of your release from custody to your nearest Corrections office, which I understand will be Ringwood CCS.
You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.
Mr Healey if you reoffend you will breach the Correction Order, if you do not comply with the conditions, you will breach the Correction Order, and if you do that you will come back before me, and you may be resentenced in relation to the original charge.
I can only place you on a correction order if you agree, so do you understand what is involved in such an order?
OFFENDER: I agree, Your Honour.
HER HONOUR: All right. And you agree to - or you consent?
OFFENDER: I agree, yes. Yes, I do, Your Honour.
HER HONOUR: So, Ms O'Neill, I wanted to say thank you for your participation in the process. I hope that you understand the process and ‑ ‑ ‑
COMPLAINANT: Absolutely, yes.
HER HONOUR: I am pretty confident that Ms Malobabic and Mr Rattray would have talked you through, yes, what to expect it's good that you've been involved in the process, it's good for me to be able to see, the impact that it's had on you and to take that into account. So I wish you all the best in the future. I hope that you can move forward and that this is you know, a chapter that you can close off and I hope that you feel that you've been vindicated, you know that there's been an acceptance that wrongdoing has occurred to you. So hopefully that's important to you.
COMPLAINANT: Thank you so much. Look, Judge Blair, I really appreciate your time. I appreciate the fact that the court has listened to me. I think that's probably the most important thing for me and yeah, for sure, it's a chapter closed, I can put it behind me and move forward with my partner and my dogs and the kids, so yeah, for sure. Thank you so much and yeah very, very grateful, thank you.
HER HONOUR: Thanks, Ms O'Neill, that's great. Okay and to you, Mr Healey, I wish you all the best. I'm quite confident you will be able to do the order, given your work ethic.