Three charges, of sexual penetration of a child under the age of 16.
Source
Original judgment source is linked above.
Catchwords
Three charges, of sexual penetration of a child under the age of 16.
Judgment (11 paragraphs)
[1]
Raymond Stevens, you have pleaded guilty to three charges of sexual penetration of a child under the age of 16. The offending occurred in the year 2000. The applicable maximum penalty is therefore 10 years' imprisonment. You pleaded guilty after I gave a sentence indication that I would be likely to impose a community correction order or a suspended sentence, or a combination of both.
At the time of the offending in this case, you were 19 years old. The victim, Virginia Marshall[1], was 14 years old.
She was placed in permanent foster care when she was 12 years old, in Year 7 at school, and remained in care until she was 16. She was variously placed with her grandmother and other families. She met you when she stayed with your family.
At that time, your mother, Jennifer Mead, worked for the Department of Health and Human Services. She was asked by child protection to take Ms Marshall because they could not find any other family to take her at that time. This was to be an emergency or short-term arrangement. However, Ms Marshall remained with your family for between one and three months.
Charge 1 occurred on an occasion soon after Ms Marshall came to live with your family. She was home alone in the house. You had gone to work at around 8.00 am. You usually returned home between 10.00 am and 10.30 am in the morning. Ms Marshall had a shower in the main bathroom which was upstairs. When she got into the shower, no one was home.
When she left the bathroom, you came out of your bedroom, across the hall from the bathroom. You took hold of her and started kissing her. You guided her by her shoulders to your bedroom. You removed her pants and underwear. You got a condom out of a drawer, and you put it on your penis. You then inserted your penis into her vagina. This caused her pain. You had sex with her for a few minutes until you ejaculated.
Subsequently, you were outside having a cigarette and Ms Marshall joined you. Your father returned home. He went inside and you followed him. You then grabbed your keys and left.
Charge 2 is a rolled-up charge incorporating an incident of digital penetration and another incident of penile penetration. On this occasion, you came into Ms Marshall's bedroom. She was in bed. You touched her vagina under her clothing. You knelt beside the bed, or you sat on it. You reached under the doona and started rubbing her vagina. You then penetrated her vagina with your fingers. The two of you kissed. Ms Marshall believes she consented to that. Then, you asked her to get out of the bed and lie on the floor. You removed her pants. She lay down next to the bed on the carpet. You put your penis inside her vagina and had sex with her for about five minutes before ejaculating inside her. You told her to be quiet while you were having sex. You then pulled up your shorts and walked out of the room. You told her not to tell anyone.
Charge 3. On this third occasion, Ms Marshall was home from school, and it was daylight outside. You came home early from wherever you had been, and you were aware that she was home that day. She was sitting out of the back having a cigarette. You invited her into the house. You walked ahead of her into the bedroom. Ms Marshall pushed down her pants and her underwear and lay on the carpet on her back. You knelt between her legs and removed her pants. You had a condom with you, but you had already put your penis into her vagina before opening the condom wrapper. You continued having sex with her until pulling your penis out of her vagina and placing the condom on your penis. You recommenced having sex with her until you ejaculated.
From time to time, you picked Ms Marshall up from school when your mother was not able to collect her. On one occasion you asked her whether she had told anyone, and she said she had not. You said you had told a person at work you were sleeping with someone, but you had not told them who it was.
Ms Marshall contacted the Bairnsdale police station on 25 March 2022, and on 28 March 2022 she attended Bairnsdale police station to discuss reporting your offending. On 12 April 2022, she made a statement to police. On 24 November 2022, she made a further statement.
On that day, she made a pretext call to you. On the call you said you remembered her. She said to you that she had been doing some counselling about how she was back then, and 'the sex and everything like that we used to have'. You responded, 'A long time ago, yes'. You effectively said you remembered having sex with her, and you said everything was mutual, and you asked her if she was alright. She told you she felt used for sex and you said that you hoped not, and that you would 'pin it down to we were young'. You confirmed that sexual intercourse took place on several occasions. You said you had never forgotten. You said, 'I just put it down to ... we were young kids and, yeah, a long, long time ago'.
You were interviewed by police on 29 December 2022. You denied sexual penetration, but you remembered that Ms Marshall stayed at your house. There was a contested committal in this case which narrowed the period in which these offences occurred, and that was important to the ultimate resolution as a plea of guilty. However, the cross-examination at committal went further and at that stage other aspects of the case were disputed.
Your plea of guilty came after my sentence indication in this matter.
I accept your plea of guilty indicates some remorse, but it is difficult to gauge the depth of your remorse given you denied the offending in the record of interview and ran a contested committal. However, it seems to me what you said in the pretext conversation does reflect some insight into the circumstances of the offending in this case.
Your guilty plea has substantial utilitarian value. You have spared the Court, the prosecution, and the police the use of the resources required for a contested trial. Most importantly, you have spared the victim the experience of again having to re‑live these matters. I accept your plea indicates a willingness to facilitate the course of justice.
Ms Marshall made a Victim Impact Statement which was read by the prosecutor, Ms Suhren. In that statement she described the substantial and enduring impact of the offending on her. Firstly, she described her difficult family circumstances, involving physical and emotional abuse, that led to her being placed in care.
Your offending has caused her issues in subsequent relationships. She has found it difficult to trust and she has experienced panic attacks. This has been a source of anxiety for her. She has experienced frustration and depression related to sexual activity which has put a strain on her relationships.
She has suffered from depression which has impeded her ability to sustain friendships.
After the offending, she had nightmares and has endured recurrent thoughts reliving the abuse.
She has been prescribed medication to address her mental health issues.
She says the court process has caused her stress and trauma and affected her mental health.
She says, 'overall this crime committed against me has had a huge impact on my life in many ways, but not only me this affects my children in many ways as well'. Obviously, the impact on the victim in this case has been substantial and it is a factor that informs the need for just punishment in this case.
As stated in Clarkson v The Queen[2] , the prohibition on sexual activity with a child is founded on a presumption of harm. It is presumed that enduring harm is caused by premature sexual activity before a child can give meaningful consent. The victim impact statement bears out that the anticipated effects of such offending have come to fruition in this case.
Consent is not a relevant consideration in assessing the gravity of the offences. In some cases, where the age gap is minimal and the offending occurs in the context of a boyfriend/girlfriend relationship, moral culpability can properly be regarded as low. This is not a case in that category. This was not an ongoing relationship of mutual affection. The five-year age gap between you and the victim is not insignificant but is much less than is often seen in the circumstances of these types of offences.
Charge 2 involved an unprotected act of sexual penetration and ejaculation and therefore you exposed the victim to pregnancy and disease, an aggravating factor in offending of this type. Charge 3 involved some unprotected penetration but not ejaculation.
You were 19 years old at the time of this offending, and although there was a power imbalance between you and the victim, you were still a teenager living at home with your parents Had you been sentenced at a time close to the offending, you would have been a young offender within the definition of that term in the Sentencing Act and the sentencing principles relating to young offenders and the need to emphasise rehabilitation would have had full application.
That said, the victim was a vulnerable 14-year-old, away from her family and placed with yours because of her difficult family circumstances and you took advantage of her for your sexual gratification. The offending was serious and the impact on the victim has been substantial.
Your personal history is set out in the psychological report of Luke Armstrong, and it is also referred to in the letter of support of your wife, Rebecca. You grew up in Bairnsdale. Your mother and father separated when you were three and your mother re-partnered within a few years. It seems your early life was unstable to a degree. You played cricket and football as a teenager and played cricket on an exchange in England when you were 18 years old. You completed Year 12 according to the psychological report, but you did not pass.
You had a girlfriend when you 15-16 but this was not a sexual relationship. You described some subsequent short term sexual encounters.
You are now 44 years old. In the 25 years since the offending in this case took place, you have not committed any further offences. You have been a valuable contributing member of the community throughout your adult life. You have been employed throughout this time, often in the disability sector, and you are married with three children between the ages of six and 13 years old. In 2015, you and your wife lost your son at 36 weeks' gestation.
A week after your arrest in this matter, you attempted suicide over the 6-7 January 2023. You took multiple paracetamol tablets and some Endone with half a litre of rum. After this, you drove to a secluded bush location and connected a pipe to a generator and then fed the pipe into the car to introduce gas into the vehicle. Your wife found a suicide note from you in the shed and notified police who subsequently found you in the vehicle.
A chronology of your mental health issues is contained in the psychiatric report of Professor Andrew Carroll. You spent seven days in hospital after the suicide attempt. Your medical records thereafter show ongoing mental health issues and a need for medication. It was in this context you formed your concerns about your wife's infidelity. You attended a clinic in Bairnsdale and had follow up with your general practitioner. You also saw a psychiatrist. Your primary clinician was an occupational therapist. Your concerns about your wife became well established in the ensuing months. By the end of 2023, you had moved out of home, and you were living with your mother; this is where you are living now. In May 2024, you were referred to a psychologist.
Psychologist, Luke Armstrong, assessed you and provided a report dated 20 January 2025. He diagnosed you as probably suffering from a psychotic disorder and felt a further report should be obtained from a psychiatrist and that is why the report from Professor Carroll was organised. After your suicide attempt, you developed various psychological problems which resulted in you being hospitalised on several occasions. Your relationship with your wife broke down. As I said earlier, you believed she was engaging in sexual relationships with other men. Mr Armstrong was of the view that his was a feature of your mental illness. He was concerned that the end of your marriage could trigger another suicide attempt.
Professor Carroll ultimately diagnosed you as suffering from a Delusional Disorder Jealous Type with a differential diagnosis of Psychotic Disorder with delusions, with hypoxic brain damage. He said the suicide attempt appeared to have left you with a degree of minor brain damage which caused cognitive impairments over several months, but those impairments were no longer at a level of clinical significance.
You are living separately now from your wife. You still live in Bairnsdale, as she does, and you have amicable arrangements in relation to your contact with your children, who you see on a regular basis. Your feelings of jealously have abated. Your wife supports you. She attended the plea hearing via a video link. She provided a letter of support which I have found to be helpful.
Your sister, Krista Kenyon, also provided a letter of support.
Your wife, in her letter, refers to your relationship of 23 years and to your three children.
She refers to your work in the community, particularly in relation to coaching sporting teams, and says you are respected within the community. She refers to your work history firstly with the Department of Human Services working with people with intellectual disabilities. You then worked for East Gippsland Tree Services as a groundsman and tree climber but continued to work for the DHS casually. Later, you worked for Bairnsdale Road Services before returning to the arborist industry with a company called Tree Limits. You eventually started your own tree/garden care business which you operated for around three years.
In 2015, you became a supervisor with an organisation called Ace Total Maintenance, a not-for-profit organisation offering employment to people with disabilities in the gardening/mowing industry. In recent times, you and your wife have been operating a company providing NDIS supports.
Your wife describes the past two years as causing more stress, heartache, and destruction to your family than anything she could have imagined. She describes your anxiety after the police interview. She describes in detail the circumstances of your attempted suicide.
She describes that after the suicide attempt, you were functioning with a limited capacity. This had a significant impact on the business you ran with her. You were not able to drive for quite some time and you needed assistance to attend appointments.
She says the impact of all this on the family has been devastating. She describes you as 'not the man he once was'. She says that you have lost all confidence. These events have been life altering for your children and your marriage. She says your lives will never be the same again.
Your sister, Krista, echoes these sentiments in her reference. She says you are not the same man; you are no longer outgoing, and you can barely look people in the eye. You have become very quiet, and you are barely active in the community anymore. She describes you as a broken man.
Your future working in the disability sector may be at risk due to the findings of guilt in this matter.
Your counsel, Mr Johnston, relied on the following mitigating matters:
[2]
(a) your plea of guilty;
(b) your age at the time of the offending;
(c) the delay of 25 years and the absence of any further offending in that time;
(d) your prospects of rehabilitation;
(e) the application of Verdins'[3] Limbs 5 and 6, based on the findings of Mr Armstrong and Professor Carroll, which I accept; and
(f) extra-curial punishment, namely the adverse consequences on your mental health and family life.
[3]
This offending occurred 25 years ago. The maximum penalties which applied are different to the maximum penalties which now apply for similar conduct. The sentences must reflect the maximum penalties which applied at that time. Furthermore, no standard sentences apply given when the offending took place.
The law is that current sentencing practices refers to sentencing practices in effect at the time of sentencing, not those which existed at the time the offence was committed, but current sentencing practices must be considered alongside an awareness of the maximum penalty that applied at the time of the offending. Equal justice may require me to consider historical sentencing practices as far as they can be established.
Of course, current sentencing practices are just one of the many matters to which I must have regard in deciding the appropriate sentence. They are a guide, but not a controlling factor.
Mr Johnston submitted that perusing some sentences in respect of offences such as yours indicate a community correction order is in the range for this type of offending, and he submitted that the mitigating factors are such that a community correction order is appropriate.
The prosecution submitted that a combination order involving a period of imprisonment, and a community correction order was within the range of appropriate sentences, but that a period of immediate imprisonment is required.
In sentencing you I must have regard to the decision in the well-known and often quoted case of Boulton[4] and assess whether there is any aspect of the offending or you as the offender which requires a period of immediate imprisonment to give effect to relevant sentencing principles.
In the end, balancing the nature and gravity of the offences in this case and the impact on the victim against the significant mitigating factors is no easy task, but as I have previously indicated I have decided not to impose an immediate period of custody. Your age at the time of the offending is a substantial and important mitigating factor. You would have been eligible for youth justice if sentenced close to the time of the offending and as I said earlier, the young offender principles emphasising rehabilitation would have applied. The demonstrated rehabilitation you have achieved since 2000 is also very significant. I accept also that your mental health issues, the suicide attempt and the breakdown of your marriage constitute extra curial punishment, and I have taken that into account.
If you could stand up, please, Mr Stevens.
You are convicted and sentenced to a community corrections order for a period of two years.
The special conditions are as follows.
[4]
a) Supervision
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> b) 300 hours of community work
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> c) You are to attend any programs for your mental health as directed by Corrections.
[5]
Do you understand? All right.
Every community corrections order has core conditions.
[6]
a) You are required to report to Corrections within 48 hours of this order.
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> b) If you change your address at any time during the period of the corrections order, you are required to tell Corrections.
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> c) You cannot leave Victoria without having permission from Corrections to do so.
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> d) You have to obey all lawful directions from your Community Corrections officer.
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> e) You have to report and attend visits as required.
[7]
They are the basic core conditions of a corrections order, and I am sure Mr Johnston has been through these with you and will further go through these with you. In addition, there are the special conditions which are supervision; 300 hours of community work; and to attend on any programs for your mental health, as directed. Do you understand all those conditions?
OFFENDER: Yes.
HIS HONOUR: Do you consent to an order in those terms?
OFFENDER: Yes.
HIS HONOUR: All right. We will print that order out. Mr Johnston, you can take it back to your client and get him to sign it, thanks. Just before you do so, I should say this. If you commit any offence punishable by imprisonment whilst this order is in force, you would be in breach of the order. If you do not comply with the conditions of this order, you would also be in breach of the order. What happens then is you are charged with an offence of contravening a community correction order, you are brought back before me; you are then in a position where one of the options for me is to re-sentence. If this correction order failed because you reoffended or you did not comply with the conditions, I may well be in a position where I have to re-sentence you. At that point I would have little option but to impose a sentence of imprisonment. All right.