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[2019] VCC 1504
General information, not legal advice.
County Court of Victoria
2019-09-17
Ms J, Mr J
Original judgment source is linked above.
Sentence: Effective global sentence: 4 years and 9 months, non-parole period 2 years 6 months.
1 Matthew Blake Jenkins, you have pleaded guilty to one charge of using a carriage service to transmit indecent communications to a person under the age of 16, a charge under Commonwealth legislation. You have also pleaded guilty to three State charges of sexual penetration of a child aged under 16.
2 They are all very serious charges attracting gaol sentences of seven years for Charge 1, and 15 years for each of the others. Charge 4 is a standard sentence charge because it occurred on or about 22 September 2018 following an amendment to the Crimes Act 1958, which became operational on 1 February 2018. The amended legislation provides for standard sentences in respect of certain offences occurring after that date. Charges 2 and 3 occurred before that date so the provisions do not apply to them. I shall return to the issue of standard sentences later in these remarks.
3 The prosecution summary sets out in some detail the circumstances of the offending and it will be appended to these remarks. I will set out the circumstances briefly as follows.
4 You were aged 22 at the time of the offending from 17 January 2017 to
5 October 2018 when you used Facebook and Messenger applications to communicate with and send indecent communications to a girl aged between 13 and 14.
5 Police equipped with a search warrant went to your home on
11 October and located two laptops, a computer, a mobile phone and some other items including a sex toy which linked you to offending with one of the victims.
6 You were interviewed by the police and you made full admissions as to the offending. You said you had sent messages using a Facebook account in your name to "Victim 1" as she is referred to throughout the prosecution summary. It is convenient to adopt that means of identifying her. Those communications sent over a period of almost nine months are the subject of Charge 1 on the indictment.
7 When you were interviewed you told police that knowing she was aged 13 you met her in person, and at a second meeting with her you engaged in sexual activity, followed by other sexual acts with her on four other occasions. She turned 14 on 10 March 2018. The first four occasions involved Victim 1 performing oral sex on you and on a fifth occasion not long before your arrest, she again performed oral sex on you and used a vibrator on herself which you had provided. Those five occasions give rise to Charge 2 which is a representative charge.
8 On that occasion you also had sexual intercourse whereby you placed your penis in her vagina, and that is Charge 4.
9 Each time you met with her she was accompanied by a friend whom she regarded to be acting as her chaperone. This was usually another 13 year old girl, described as Victim 2 who turned 14 on 20 February 2018. She was also involved in the offending on the first occasion, performing oral sex on you at the same time as Victim 1. That is Charge 3.
10 You told police that you knew what you were doing was wrong but you justified it to yourself in that you were not forcing the victims to do anything, and in relation to Victim 1, the activity made her happy. In some of the Facebook or Messenger conversations, you believed you were playing along with her sexual fantasies. Eventually Facebook closed down your account because of the content of the messages and you then created a new account in a false name and continued to communicate with both victims. Later you created a further Facebook account in your own name, and you used various devices to communicate with Victim 1 depending on your whereabouts.
11 Victim 1 made a VARE at the request of police and provided information which accorded with what you had told police. She said she had instigated all of the sexual activity and had been a willing participant. Neither she nor Victim 2 have provided a Victim Impact Statement.
12 It is necessary to set out the legislative provisions which determine the manner in which a sentence is imposed when an offence attracts a standard sentence.
The offence which is the subject of Charge 4 on the indictment is set out in s.49B(1) of the Crimes Act and specifies a period of six years as the standard sentence.
Section 5A(1) of the Sentencing Act 1991 provides that if an offence specifies a period as the standard sentence for the offence, then
" (b) the period specified as the standard sentence for the offence is the sentence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness".
13 Section 5A(3) provides that objective factors affecting the relative seriousness of the offence are to be determined -
"(a) without reference to matters personal to a particular offender or class of offenders and
(b) wholly by reference to the nature of the offending."
14 Section 5B provides that the standard sentence must be taken into account as one of the factors relevant to sentencing and does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence. Further, the standard sentence is not intended to affect the approach to sentencing known as 'instinctive synthesis'.
15 The next consideration in the application of a standard sentence is the fixing of a non-parole period. Section 11A(4) relevantly provides:
'Unless the court considers that it is in the interests of justice to do so, a court must fix a non-parole period of at least',
(c) '60 per cent of the relevant term if that term is a term of less than 20 years.'
16 For this purpose the relevant term is defined as being the total effective sentence which is imposed.
17 The standard sentence of six years is applicable as a nominal sentence for an offence which is in the mid-range of seriousness. Therefore I must determine the gravity of the offence.
18 The objective gravity is to be assessed by the nature of the offending without reference to matters personal to the offender as noted previously. All the offences in this case are serious, being sexual offences against children which all carry lengthy prison terms, as I said earlier. Charge 4 is a charge of sexual penetration of a child under 16, and so by definition its objective seriousness is high and is only reduced somewhat by your chronological age.
19 More generally you took advantage of vulnerable girls who were barely into their teenage years and who were too young to make decisions about such behaviour. The offending in relation to Charge 1 and the offences involving Victim 1, including Charge 4, were over a protracted period of time.
20 On the other hand certain aggravating factors which are often features of similar offending are absent in this case. As your counsel, Mr Gullaci submitted, there was no force or violence used, there were no inducements and there were no circumstances relevant to breach of trust. The age gap of about eight years was modest in comparison with other cases. In relation to Victim 1 there was no pressure to perform certain acts, and in relation to Victim 2, your interaction with her was limited. These and other observations as to the circumstances are not part of the objective gravity of the offence in Charge 4, but apply overall as sentencing factors to be taken into account as part of the intuitive synthesis applied in determining an appropriate sentence.
21 As noted already, Victim 1 was a willing participant; Victim 2 was less so but her participation was encouraged by Victim 1. That is not of course a mitigating factor, but it is part of the context of what occurred on that occasion, and I mention it only as a point of contrast between the behaviour of the two victims.
22 Mr Gullaci submitted that the objective gravity of Charge 4 places it below the mid range, indeed towards the lower end of the range, and this was conceded by the prosecution.
23 As to which other factors can be considered to contribute to objective gravity, I was referred to the decisions in R v AA[1], R v Brown [2] v. DPP v Moulden[3]. In the R v AA, the age of the offender at the time of the offence was held to be relevant to an explanation of the context in which the offending occurred, and Mr Gullaci submitted that that should be followed in this case. The prosecution position in this regard was that your chronological age is indeed an objective factor but the personal characteristics of your immaturity and naivety are not.
24 In the case of Brown, Champion J. stated that certain fundamental characterisations of an offender such as mental illness, the motivation for the offending, and aspects of duress can be relevant to the assessment of the objective seriousness of the offence.[4]'
25 In the case of Moulden, the sentencing judge determined that the offending was, 'below but somewhat approaching the middle of the range of seriousness.' The offending in that case would seem to have been of a more serious type than that which you committed. The decision is also useful in contrasting the extent of the admissions you made, which were not only complete admissions, but you added information without which the police could not have known about all five events in relation to Charge 2. That factor is relevant to the discount to which you are entitled and I shall return to that matter later.
26 Having regard only to the nature of the offending in Charge 4, and the factor of your youth, I am satisfied that the objective gravity of the offence is at the lower end of the range of seriousness.
27 As a young man now aged 24, you come before the court with no criminal history at all, having achieved a tertiary education and demonstrated a good work ethic. You are very well regarded by family and friends, many of whom in the letters they sent to the court, described your shyness and a tendency to social isolation with an underlying lack of self esteem. One writer identified your reliance on social media as a basis for friendship or intimacy having taken the place of close face to face personal friendships. Otherwise those letters disclose the generally held view of you as a kind, trustworthy and compassionate person, a good son, brother and friend. All those who wrote about you expressed their shock at hearing of the charges and their confidence in your ability to lead a constructive and productive life in the years ahead.
28 It has emerged that although you were bullied at school and made unhappy by failing to excel at sport, you never exhibited any behavioural problems. After completing school you studied at Monash University and during your course you experienced depression and anxiety problems causing you to seek counselling treatment. You received advice to consider deferring your course but your parents encouraged you to complete it which you did. However you then found it impossible to obtain full time employment in your field and had to take on temporary work whenever it was available. As the son of professional parents, you had felt pressure to succeed, and finding employment hard to secure you felt you had not met those expectations.
29 Those observations bring me to the professional reports that were tendered on your behalf. Not long after your arrest in October 2018 you spoke with your parents about death and one day you were found on a ledge in your apartment building four stories from the ground. You were referred to a psychiatrist,
Dr David Smith, whose report described you as highly intelligent and accepting of your wrongdoing and that you struggle to reconcile your offending behaviour with your perception of yourself as a responsible and conscientious person whose morals and values were aligned with community standards[5].
30 Dr Smith diagnosed a Major Depressive Disorder with high anxiety, likely to have been present before the offending. He stated that you engaged well with therapy, had developed a better relationship with your parents, and had lost 23 kilograms in weight. However he considered that you are at significant risk of experiencing recurrent depressive episodes and incarceration will cause greater stress and will not add meaningfully to your rehabilitation process.
Dr Smith said he had no doubt that you are genuinely remorseful.
31 Early this year you saw another psychiatrist Dr Julian Hughes whose diagnosis was similar to that of Dr Smith. Dr Hughes outlined a more recent history of your mental state, with the deterioration in your mood likely to be connected with the approaching court case and the likelihood of imprisonment. Dr Hughes increased your antidepressant medication.
32 A report from Mr Geoffrey Burrows, a forensic counsellor dated 19 August, states that you commenced a sex offender treatment program voluntarily and at your own expense in May this year, attending seven sessions, maybe eight by the time of the plea hearing. His succinct report provided details of your therapeutic engagement with him, and the benefits you gained towards an understanding of your behaviour and the harmful effects of sexual abuse of children. Mr Burrows said you expressed remorse initially but without insight and it was later in the therapy that you understood that you had exploited the victims and had been a destructive influence in their lives.
33 Dr Mathew Barth, a psychologist, saw you for an assessment on 12 August when you were still seeing Mr Burrows, and Dr Barth had extensive discussions with Mr Burrows about your case. Dr Barth noted that for you, acting out sexual fantasies with underage girls was less threatening to your fragile self-esteem than age-appropriate sexual behaviour. This combined with your lack of understanding of the sexual immaturity of young people contributed to your offending behaviour. It led you to justify your actions by believing that you were making them happy by doing what you did, as you put it.
34 Dr Barth made a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and attributes part of the symptoms to the continued shame you feel for the offending. Dr Barth's overview of your situation is that through your treatment with Dr Smith and Mr Burrows, you have begun to address your poor self-esteem and to improve your ability to develop healthy intimate relationships. However he considers that a lengthy therapeutic process is necessary, indeed a comprehensive sex offender program, which you are willing to undertake. Having subjected you to two tests for sexual offence recidivism, Dr Barth concluded that you come within the moderate risk category for reoffending and that this will likely reduce after further treatment and with the added protective factor of sexual offender registration.
35 Although your offending was serious and warrants a sentence of imprisonment there are several mitigating factors, some of which I have already mentioned in the context of my remarks about the standard sentencing regime of the legislation. Not only did you plead guilty at an early stage, but you made full admissions to the police when you were interviewed. There was some attempt by you to minimise the offending but this was in the context of your distorted understanding of boundaries of sexual behaviour as explained by the treating professionals. Importantly your plea spared the victims and other witnesses from having to give evidence and the case has made relatively quick progress through the system. This means you are entitled to a discount on your sentence.
36 Your plea is also accepted as an indication of remorse, which you have expressed elsewhere as well, and you have accepted responsibility for what you did. That is an important indication of good prospects for rehabilitation. Those prospects are enhanced by your intelligence, education, and family support. Your willingness to engage in treatment and the progress you have demonstrated so far, together with only a moderate risk of recidivism all go to your credit and indicate that you are likely to avoid further offending.
37 Other mitigating factors are your youth, the fact that you have no prior convictions and there are no charges pending. Prospects for rehabilitation are considered to be of great importance in a young person, even though at 22 the age when you offended, you were older than people young enough to be detained in a youth justice centre rather than adult prison. Your immaturity is also a relevant factor for the purposes of arriving at an appropriate overall sentence because it casts some light on the degree of your moral culpability and reduces its heinousness somewhat. Your emotional immaturity is also relevant to the length of the prison sentence to be imposed because Dr Barth concluded that it would make you relatively vulnerable in prison. Because you will therefore find imprisonment more onerous than would others of greater maturity and resilience, that factor enlivens part of the decision in the case of Verdins requiring a reduction in the sentence, and I take that into account.
38 The need for general deterrence and denunciation by the court is of primary importance in this case and others like it because of the serious nature of the charges and the contempt of the community for those who offend in this way against children. The legislature has recognised the need for the protection of children from sexual offending by the provision of lengthy maximum sentences. The court must denounce such offending through the imposition of an appropriately harsh sentence to deter others from such offending and to express the stern view of the court.
39 The need for specific deterrence in your case is less clear because of the appropriate measures you have taken to address the reasons for offending and the feelings of remorse and shame you have expressed.
40 Your offending was too serious for me to consider the imposition of a combination prison sentence and Community Correction Order and that was conceded by your counsel. I heard submissions as to whether the sentences for the individual charges should be served concurrently or partly in cumulation, in particular whether cumulation or concurrency should be applied to the sentence for Charge 1. Taking into account the mitigating circumstances balanced against the gravity of the offending, I have determined that a limited degree of cumulation should be applied in respect of Charges 2 and 3 upon the sentence for Charge 4 as the base sentence. The Charge 1 offence occurred over an extended period of time and led to actual meetings with the victims and the offending which followed. Taking into account totality and the other sentencing factors, a small degree of cumulation is required to achieve an appropriate sentence.
41 **[6]I sentence you to the following terms of imprisonment, dealing with the State sentences first.
44 The sentence for Charge 4 is imposed as a standard sentence and is the base sentence for purposes of cumulation in relation to the State sentences. I order that 12 months of the sentence for Charge 2, and six months for the sentence for Charge 3 be served in cumulation upon the base sentence. This results in a total effective State sentence of four years and six months.
45 Because Charge 4 is a standard sentence offence, s.11 of the Sentencing Act, as I said before, requires me to fix a non-parole period of at least 60 per cent of the head sentence imposed upon you unless it is not in the interests of justice to do so. Taking into account the material placed before me and the submissions of counsel, I have formed the view that the interests of justice do not warrant the fixing of a non-parole period of at least 60 per cent of the head sentence.
46 *I order that you serve two years and three months of the State sentences beginning today before being eligible for parole. However you will then begin serving the cumulated part of the sentence for Charge 1.
47 *Turning now to that charge, I sentence you to 12 months' imprisonment. In order to build in cumulation of three months, I direct that the sentence will commence nine months before the completion of the non-parole period for the State sentences. That commencement date will be 17 March 2021. It will be completed three months after the completion of the State non-parole period which will be 17 March 2022.
48 *The 14 days you have already served will be deducted and so the result is that you will be eligible for parole from 3 March 2022. By then you will have served two years and six months. The period of parole is designed to provide the opportunity to resume the treatment you have commenced while still under supervision.
49 The combined State and Commonwealth sentences result in an effective global sentence of four years and nine months. As referred to earlier, I make the formal declaration that you have spent 14 days in pre-sentence detention not including today, which is to be reckoned as already served and that shall be noted on the court record.
50 Because you are being imprisoned for Charges 2 and 3, you are sentenced as a serious sexual offender for Charge 4, but the prosecution does not seek a disproportionate sentence in order to protect the community.
51 It is mandatory that under the Sex Offenders Registration Act you provide your details to the police each year for the rest of your life after your release. You will be given a form to sign in a moment.
52 The prosecution seeks an order for the disposal of a schedule of items including laptops, computer and phone. An order for a forensic sample of saliva to be taken from you is also sought, and through your counsel you have consented to those applications. I make those orders and must advise you that the police have the power to use reasonable force to obtain the forensic sample but I trust that will not be necessary.
53 If you had pleaded not guilty I would have sentenced you to five years and six months' imprisonment with a non-parole period of three years and six months.
HER HONOUR: Are there any other matters first of all Ms Finnigan?
HER HONOUR: All right. Mr Freeman, my associate has the sex offender registration form, if you would like to accompany her to the dock.
HER HONOUR: Thank you, that completes everything. Officer, thank you, you may take Mr Jenkins.
AFTER COURT THE SENTENCE CONSTRUCTION WAS AMENDED TO ACCURATELY REFLECT THE JUDGE'S INTENTION:
Charge 1 convicted and sentenced to 12 months imprisonment.
Total effective sentence is 1 year's imprisonment.
The State sentences on charges 2, 3 and 4 to commence on 17/12/2019
Direct that the minimum term to be served before being eligible for parole on the State sentences is 2 years 3 months imprisonment.
CHARGE 1- Use a carriage service to transmit indecent communication to a person under 16 years of age contrary to section 474.27A(1) of the Criminal Code Act 1995 (Cth)
The Offender sending messages to the female, including:
The Offender sending messages to the female, including:
CHARGE 2- Sexual penetration of a child under 16 years contrary to s49 B (1) of the Crimes Act 1958 (Vic) (Victim 1).
This charge is a representative charge relating to 5 incidents of oral penetration.
We have this huge abandoned school and it still has all of the shit in it.
Let's just meet up and keep this shit "friends" for the first time we meet.
Can all over my face and I'll lick it off for daddy.
Does daddy want to put me on a leash when I give him a bj?
The Victim then got on top of the Offender who was lying on the blanket and inserted his penis into her vagina. This was the first time that she had had sexual intercourse and she reported to her friend shortly afterwards that she was "Not a virgin anymore". The accused did not use a condom on this occasion and did not ejaculate inside her vagina. CHARGE 4 - Sexual penetration of a child under 16 years contrary to s49 B (1) of the Crimes Act 1958 (Vic) (Victim-1)
[5] Report of Dr David Smith dated 18/8/19 [8]
[6] ** See amended Sentence construction at end of sentence remarks. Duration of sentence is unchanged.
[7] Pg 72 - 145, Transcript of record of interview with Matthew Jenkins
[8] Pg 19 - 23, Statement of Stewart SPEEDIE
DPP
Jenkins [2019] VCC 1504