DPP v Rose

2 A summary of prosecution opening for plea was tendered and marked exhibit P1. You do not dispute the matters contained in that summary. They form the basis on which you fall to be sentenced.

3 Between February and May 2017 when you were 18 years old, you had a sexual relationship with Ms Jacob, the victim, who was then a child aged 14.

4 You met Ms Jacob when you moved schools at the commencement of Year 12. The victim attended the same school and was in year 9 in 2017.

5 You and she began communicating through various social media platforms. She told you she was 14 years of age. After some period of online communications, you and the victim met at school. When it was time to return to your respective classes, you hugged the victim and held her waist and hands. You commented that she had a firm waist. Following that meeting you sent the victim a message saying, 'I can't wait to teach you how to kiss,' and that her lips looked soft. On an occasion when you met the victim outside of school hours, you kissed her on the lips. You also told her that your relationship was to be kept secret.

6 On another occasion, when you and the victim were sitting near a river, you and she began kissing and you touched her breast over her clothing. The victim pushed your hand away and you apologised. You continued kissing and you then grabbed her breast a second time. The two occasions of touching the victim's breast form the basis of Charge 1, a rolled-up charge. You acknowledged to the victim you should not have done what you did.

7 Throughout the relationship you would tell the victim she was 'cute', 'pretty', 'beautiful', 'sexy', and 'hot'. You also told her you got excited when you and she kissed.

8 On an occasion when the victim attended at your house, you asked her to remove her top and bra. She said 'no'. You then grabbed her wrists and pinned her arms down. The victim again said 'no', at which point you pulled up her top and bra, exposing her breasts. You said 'it looked good'. This conduct forms the basis of Charge 2.

9 During your relationship, you sent the victim nude images and videos of yourself masturbating via Snapchat. These images were deleted automatically after the victim viewed them. You also asked her to send nude images of herself. She mostly refused but did send some images. You asked to take sexualised or nude photographs of her when you were together, but she refused. You are not charged in relation to those matters. They are relevant to provide context to your offending.

10 On another occasion, while at your house, you and the victim were on your bed under the covers watching a movie. You pulled down your tracksuit pants and underwear, exposing your penis. You asked the victim to perform oral sex. The victim said she was not sure and was not comfortable with it, but you kept asking her to perform oral sex. You then asked her to kiss your penis, which she did. This conduct forms the basis of Charge 3.

11 On another occasion, you asked her to lick your penis which she also did. This conduct forms the basis of Charge 4.

12 Charge 5 is a charge of sexual penetration involving the victim performing oral sex on you while you were on your bed. It occurred in a wider context of two such incidents during the course of your relationship.

13 I was informed that because those incidents occurred on different dates, the Director of Public Prosecutions was of the view that they should be charged as a representative count. For the purposes of sentencing on a representative charge, I have had regard to what was said by the Court of Appeal in DPP v Jones[3].

14 Charge 6 relates to an occasion when you digitally penetrated the complainant's vagina causing her to bleed.

15 Your language towards the victim during the course of your relationship became more sexualised, including asking her if she liked your cock and to speak dirty to you.

16 Charge 7 is a rolled-up charge encompassing two occasions when you penetrated the victim's vagina with your penis. The incidents occurred at your house when you were talking to the victim about condoms. You told her you wanted to have sex with her. The victim agreed. She lay on her back, and you partially inserted your penis into her vagina. She asked you to stop because it was hurting, and you told her, 'you're probably not ready yet,' and that you and she could do other stuff until she was ready.

17 You and she continued kissing and you again inserted your penis into her vagina, again, causing her pain. She moved away, telling you to stop because it was hurting.

18 Approximately three weeks after the events forming Charge 7, you again asked the victim if you could have sex with her and she agreed. You penetrated her vagina with your penis for approximately two minutes. You did not wear a condom, saying it would be okay. When you stopped, you smiled and told her that she was officially not a virgin anymore. This conduct is the basis of Charge 8.

19 On another occasion, you were at your house in bed with the victim. You asked whether you could lick her vagina. She said she was unsure but eventually agreed. You then licked and penetrated her vagina with your tongue for between five and 10 minutes. This conduct is the basis of Charge 9.

20 On three occasions you told the victim that you were breaking off the relationship as you were scared the police would find out. You said you could resume a normal relationship when she was older. You broke up in May of 2017. In approximately November 2019, you contacted the victim and apologised for your behaviour in 2017. You and she engaged in a number of casual sexual encounters following that contact. She was, by that stage, 16 years of age.

21 In May 2020, the victim disclosed the offending to her boyfriend and her mother. The matter was reported to police on 29 May 2020. You were interviewed on 19 October 2020, and you made admissions. At question 28 of the interview you stated that your knowledge at the time was that if it was okay with the parents, it was something you could do. You added that you were not sure if that was the case or not.

22 At question 134, you said you felt bad doing the kind of stuff you were doing before she had reached 16 years of age, and that is why you ended it. You also stated that you had looked online to determine whether the age gap between you was legal. You said you did not think the age gap was illegal, but you were grappling with the morality of what you had done.

23 The offence of indecent act with a child under 16 years of age, contrary to s47 of the Crimes Act, carries a maximum penalty of 10 years' imprisonment. Sexual penetration of a child under 16 years of age contrary to s45 of the Crimes Act carries a maximum penalty of 10 years' imprisonment.

24 A victim impact statement of Sienna Jacob was tendered in evidence. Ms Jacob stated that as a result of what you did to her, she suffered depression and sought assistance of a therapist. She did not tell the therapist what was truly making her sad, because she was too ashamed of what you had done. Ms Jacob stated that she has been diagnosed with borderline personality disorder, depression, and anxiety. She said that she suffers panic attacks at night and has nightmares about you hurting her again.

25 She further stated she has had unstable relationships and friendships and tends to isolate herself from others. She also complained that her schooling suffered because she was unable to concentrate and had increased anxiety around others. Her anxiety, she said, has stopped her from pursuing art studies and obtaining a driver's licence. She feels guilty as a result of what you did.

26 While I accept that your behaviour towards Ms Jacob has adversely impacted upon her, as I mentioned during the plea hearing, without medical evidence it is difficult for me to know to what extent your conduct caused or contributed to each of the medical problems of which she complained. However, I do accept that your conduct caused or contributed to her feelings of anxiety and depression.

27 I turn now to your personal circumstances. You were born in Portland in June 1998. You are now 23 years of age. You were raised in a good and stable household. Your mother works as a nurse and your father works for an engineering business. You have an older sister aged 25. You have a good relationship with the members of your family. Your mother attended court for the plea hearing.

28 You suffered bullying in your early school years which included name calling and physical attacks upon you. You transferred schools in Grade 3 because of the bullying. You adjusted well to your new school and you did not have any further issues throughout your schooling. You moved to another secondary college after Year 11 and completed a Victorian Certificate of Applied Learning.

29 Since leaving school, you have had several hospitality jobs as well as work at summer camps in the United States of America in 2018 and 2019. You recently commenced working as an attendant at a service station. Before being charged with these offences, you were considering tertiary education with an interest in pursuing a Bachelor of Psychology course.

30 I was told that you have in the past struggled with your own mental health issues and you were previously linked in with Headspace where you received psychological counselling. You were also prescribed Zoloft by your general practitioner for a time. You were living independently in Geelong before being charged, however you have now returned to live with your family. You are currently in a relationship, and you hope to relocate to Adelaide once this matter is finalised.

31 As a result of being charged and people finding out about the allegations, you have been subjected to some verbal abuse and property damage. This has caused you to become more socially withdrawn, and you have not participated in your normal hobbies and pastimes, including photography. Out of concern for your wellbeing, your mother arranged for you to see a private psychologist, Samantha Jolly. As at the date of the plea hearing, you attended on Ms Jolly on two occasions.

32 Tendered on your behalf is a report from Samantha Jolly dated 12 October 2021. She confirms that she saw you on 3 September and 20 September of this year. The nature of the issues addressed were anxiety management and the exploration of identity in the context of your early adulthood development.

33 A report of Pamela Matthews, psychologist, and Daria Sizenko, provisional psychologist, dated 3 August 2021, was also tendered on your behalf. You were assessed by them on 29 June 2021. You told Ms Matthews and Ms Sizenko that you ended your relationship with the victim after a few months as you wanted to pursue a relationship with another person. I note that this is at apparent odds with what you have said elsewhere.

34 You also said you attempted to reconcile with Ms Jacob in early 2020 and apologised to her for ending the relationship in 2017. You reported that at the time of your relationship with Ms Jacob, you had no understanding about the legality surrounding the age of consent, following what your peers were doing, rather than researching it yourself.

35 Ms Matthews and Ms Sizenko consider that at the time of your offending and currently, you are likely to be struggling with adjusting to changes in your hormone levels and libido, risk taking, friendships, exploring and understanding your sexuality and experimenting with sex. They consider that your offending behaviour represented developmental function of adolescence, rather than deviancy. They do not consider that you represent any generalised or specific sexual or other risks to an individual or the community, and that the risk of you reoffending in a similar manner is minimal.

36 Ms Matthews and Ms Sizenko were of the view that you possess significant insight into your behaviour in previous relationships, including that with the victim. They state you currently meet DSM-V criteria for major depressive disorder based on your reported history and presentation at interview. You also demonstrated some symptoms of social and general anxiety disorders, although you do not meet the criteria for an anxiety disorder. They recommend that you continue with regular psychological support for your depressive and anxiety symptoms.

37 As I have already stated, at the time you committed these offences, you were aged 18. I have regard to the principles relating to the sentencing of youthful offenders set out in such cases as The Queen v Mills and Azzopardi v The Queen. Your rehabilitation is an important consideration in the determination of an appropriate sentence. Your young age at the time you committed the offences is also relevant to the question of your moral culpability.

38 I consider, particularly having regard to your conduct and the matters contained in the psychological report, that you were at the time a relatively immature 18 year old. As stated, Ms Matthews and Ms Sizenko were of the view that your behaviour represented a developmental function of adolescence rather than deviancy. I also have regard to the fact that you and the victim were in a relationship as lessening somewhat your moral culpability.

39 However, the victim was just 14 years of age at the time you offended. I have some difficulty, as I mentioned to your counsel, accepting that you were not aware that your conduct was illegal. You sought to keep your relationship with her secret, and you told her you wanted to end the relationship as you were scared about the police finding out. However it is not clear whether you became concerned about police finding out before or after your sexual relationship with the victim ended. Your counsel submitted that you researched the issue of legality towards the end of your relationship. In the circumstances, I am not able to make a finding whether or not you knew your conduct was illegal.

40 Although the victim may have given her ostensible consent to the acts that form the basis of Charges 3, 4, 5, 6, 7, 8 and 9, the prosecution summary shows reluctance on her part before the occurrence of the act constituting Charge 3. You also took advantage of the situation when following the first incident of penile-vaginal penetration (the subject of Charge 7) you again quickly penetrated the victim despite her request that you stop as the intercourse was painful. There can be no question of consent to the acts forming Charges 1 and 2.

The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity. That is, activity before the age when a child can give meaningful consent. It is for this reason, that a child's consent is more accurately referred to as apparent or ostensible consent.[4]

We have concluded that a child's consent can never of it itself be a mitigating factor. That is, proof that the child consented will not of itself differentiate the case for sentencing purposes form one where the child's consent cannot be established. Proof that the child consented is the beginning rather than the end of the sentencing court's enquiry. In assessing the gravity of the offence and the offender's culpability, the court's attention will be directed not at consent as such, but at the circumstances in which the consent came to be given.[5]

43 The age difference between you and the victim was not significant in chronological terms. However, whilst you were not in a position of trust with respect to the victim, there was a not insignificant power imbalance between you. You gave the victim gifts at school. You commented on her appearance, saying that she was 'sexy' and 'hot'. You sent her explicit images and videos of yourself. Your language towards her became more sexualised and included you wanting her to talk dirty and to have sex with you.

44 The victim was at a point where, just before the first penile-vaginal penetration, she felt you would not like her if she said 'no'. Your behaviour towards the victim was manipulative and placed pressure on her to engage in sexual activity with you. The charged sexual activity was always initiated by you. As stated in Clarkson, there is a presumption of harm to a child arising from premature sexual activity. In your case, having regard to Ms Jacob's impact statement, harm did, in fact, result from your conduct.

45 In determining the seriousness of your offending, I must also have regard to the maximum penalties that may be imposed; the fact that your offending was not an isolated incident of offending but occurred over a four-month period; that Charges 1 and 7 are rolled up charges; and Charge 5 is a representative charge. Charge 8 is aggravated by reason of the fact you did not use a condom.

46 For the foregoing reasons, I am unable to agree with your lawyer's submission that all of your offending falls at the lower end of the scale of seriousness. This is notwithstanding the fact that you were in a relationship with the victim at the time you offended. In my opinion, whilst your conduct on Charges 1 and 2 fall towards the lower end of the scale of seriousness, the remaining charges are objectively more serious and fall towards the mid-range level.

47 Your pleas of guilty were entered at the earliest reasonable opportunity. They have high utilitarian value having spared the victim and other witnesses from having to give evidence at trial. You have also spared the court and the community the time and expense of a trial. This is particularly significant in this time of the COVID-19 pandemic and its impact upon the court's lists. As was stated in Worboyes v The Queen, a sentencing judge must ensure that the plea of guilty results in a perceptible amelioration of sentence.[6]

48 Your pleas of guilty are also indicative of remorse, and an acceptance by you of responsibility for your conduct. I also have regard to the fact that you made admissions to the police when interviewed. I accept that you are genuinely remorseful for your behaviour. You contacted the victim in November 2019 and apologised for your earlier behaviour towards her. You and she then resumed a relationship for a short time, which included a number of sexual encounters, although by this time, the victim was over 16 years of age.

49 In late May 2020, the victim reported your offending to the police. I take into account that you have not been in any further trouble with the law, and that you are otherwise of good character. I have regard to the fact that the offending occurred in early 2017, you have not been in any trouble since that time, and by reason of the delay in the matter being reported to police, you have lost the opportunity of being sentenced to a youth justice centre disposition. Having regard to all these circumstances, I consider this to have been a real possibility and not one that was remote.

50 I consider that you have good to very good prospects for rehabilitation. I have regard in particular, to your lack of prior and subsequent offending, your youthful age, the conclusions of Ms Matthews and Ms Sizenko that the risks of you reoffending are minimal, and the strong support you have from a good family. Accordingly, in my opinion, less weight needs to be attached to considerations of specific deterrence and protection of the community.

51 I have also taken into account the references tendered on your behalf. Your mother speaks eloquently of your struggles since being charged by police in 2020. This included your admission to the mental health unit at the Geelong Hospital and referral to Headspace. Your mother fairly acknowledges the impact your conduct has had on Ms Jacob and speaks of your genuine remorse for the harm you have caused.

52 Your sister speaks of your family's life being forever changed when the call was received from the Geelong Hospital Emergency Department that you were there with suicidal thoughts. This followed police attendance upon you in relation to Ms Jacob's allegations. Your sister also speaks of your remorse.

53 Brendan Paul[7] provided a reference which speaks very highly of you, particularly your caring and thoughtful nature. She is a close friend and has never felt uncomfortable or pressured by you. Chris Douglass[8] has known you for over 14 years. He has seen you in relationships and speaks of the compassion and sensitivity you have shown towards your partners. He has never heard any remark from any of your former partners that has raised any concern.

54 Notwithstanding your youthful age and the importance of rehabilitation, I must also have regard to sentencing considerations of general deterrence, denunciation of your conduct and just punishment. They remain important considerations. Others who are minded to engage in similar conduct must understand that if they do they risk stern punishment. I must also have regard to the harm caused to the victim in this matter.

55 Your counsel submitted that a community correction order should be imposed. Mr Grant, on the other hand, submitted that a term of imprisonment with a non-parole period was warranted.

56 I am required to have regard to current sentencing practising practice as one of a number of factors in determining an appropriate sentence. In DPP v Zhuang, the court described the proper role of comparable cases in sentencing as follows:

Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in forming the instinctive synthesis, particularly insofar such an overview may provide a general guide to current sentencing practices.[9]

57 I have had regard to a number of sentencing decisions for similar offending, including those relied on by the learned prosecutor, and have also considered the many case summaries in the Judicial College of Victoria's Sentencing Manual. In my opinion, having regard to all of the circumstances of this case, a community correction order is outside the range of sentences that may be imposed.

58 I am mindful of the fact that imprisonment is a sentence of last resort and that you have never before been in trouble with the law. But your offending is too serious for such a disposition. Although your counsel relied on the Sentencing Advisory Council's Sentencing Statistics which show that some offenders received non-custodial dispositions for the offence of sexual penetration of a child under the age of 16, the statistics reflect sentencing covering a broad range of offending and offenders. I must sentence in respect of five charges of sexual penetration of a child under the age of 16, and four charges of committing an indecent act with a child under the age of 16, occurring over a period of four months in circumstances I have already described.

59 In determining an appropriate sentence, I also have regard to the fact that you will serve your sentence at a time when the burden of imprisonment is rendered more onerous because of COVID-19 restrictions.

60 Your sentence will also be rendered more onerous by reason of your young age and your major depressive disorder. I have taken those factors into account. I have also taken into account that you have also been subjected to extra curial punishment in your local community.

61 Mr Rose would you please now stand. On each of the charges you are convicted. On Charge 1 you are sentenced to one month imprisonment. On Charge 2 you are sentenced to two months' imprisonment. On Charge 3 you are sentenced to four months' imprisonment. On Charge 4 you are sentenced to six months' imprisonment. On Charge 5 you are sentenced to 14 months' imprisonment. On Charge 6 you are sentenced to 12 months' imprisonment. On Charge 7 you are sentenced to 18 months' imprisonment. On Charge 8 you are sentenced to 14 months' imprisonment, and on Charge 9, you are sentenced to 12 months' imprisonment.

62 Charge 7 is the base sentence. Having regard to the principal of totality, I direct that one month of the sentence on Charge 4, three months of the sentence on Charge 5, two months of the sentence on Charge 6, three months of the sentence on Charge 8 and three months of the sentence on Charge 9 are to be served cumulatively on the base sentence and on each other. This makes a total effective sentence of 30 months imprisonment.

63 Having regard to your young age, the fact that you have not been in any other trouble and your prospects of rehabilitation, I set a non-parole period of 15 months. In my opinion, this is the minimum period that justice requires you to serve. But for your pleas of guilty, the sentence I would otherwise have imposed is one of three years and six months with a non-parole period of 26 months.

64 Pursuant to the provisions of the Sex Offenders Registration Act I find that you are a registerable offender, and your reporting period is for the remainder of your life. Mr Rose, you will be handed some documents shortly that set out your responsibilities under the Sex Offender Registration Act.

65 Your solicitor will no doubt explain to you your obligations under the Sex Offender Registration Act and the penalties that may be imposed if you fail to comply with those obligations. The document I am about to hand to you sets out what are those obligations. I will ask that you sign and acknowledge receipt of those documents, Mr Rose.

66 MR GRANT: Your Honour I am sorry to interrupt during a sentence. Just in terms of the order for cumulation, my maths would suggest that the cumulative period is 13 months. So 18 plus 13 would be 31, and I do not know if I have misheard Your Honour.

67 HIS HONOUR: No I think you are right. I think I meant to cumulate two months on Charge 9. Let me just double check. Would that bring it back to 30 months?

69 HIS HONOUR: Yes. All right. Let me be clear. Two months of the sentence on Charge 9 is to be served cumulatively on the base sentence and the other sentences.

71 HIS HONOUR: Mr Pitkin, you may approach your client with those documents and ensure that he understands his obligations.

73 HIS HONOUR: Mr Pitkin, you informed me on the last occasion that you would be making an application in relation to registration. I have not received any such application.

74 MR PITKIN: No, Your Honour. My understanding of the act is the application can be made within six months after the commencement of the order.

76 MR PITKIN: We will revisit that issue in due course, thank you Your Honour.

77 HIS HONOUR: Mr Pitkin, are there any custody management issues?

78 HIS HONOUR: Just Mr Rose's medication and mental health issues that have been raised in the plea. Nothing further to add.

79 HIS HONOUR: I will direct that those issues be recorded on the order.

81 MR GRANT: Your Honour I am sorry to rise to my feet again. I think I misled Your Honour. And it is probably my maths that were at error. So just to make it clear, Your Honour's order 18 months on Charge 7 as the base sentence.

83 MR GRANT: In terms of cumulations, Charge 4 you had - Your Honour ordered one month cumulative, Charge 5 three months, Charge 6 two months, Charge 8 three months, and Your Honour originally order three months on Charge 9. I misled Your Honour because it adds up - those figures add up to 12. When Your Honour reduces Charge 9 to two months, that makes it 11. So I apologise for that Your Honour.

84 HIS HONOUR: Well look, what I have intended is a total effective sentence of 30 months.

86 HIS HONOUR: I will make the calculations again. I deferred to what I thought was your greater experience of mathematics ‑ ‑ ‑

89 MR GRANT: I do not know where I was going, Your Honour. But if Your Honour - the original declaration Your Honour made would result in a 30-month head sentence and a non-parole ‑ ‑ ‑

90 HIS HONOUR: So three months on Charge 9 is cumulative.

92 HIS HONOUR: That is all right. Mr Pitkin have you done the mathematics on this?

93 MR PITKIN: Yes Your Honour. I had the same calculation Mr Grant had the first time, but I just revisited it and agree that it is the 12-months cumulation on top of the 18. So 30 in total.

[3] [2013] VSCA 330; [2013] 40 VR 267

[4] Clarkson v The Queen 32 VR 361 at 3