Jenkins v The Queen [2021] VSCA 65

1 An indictment filed in the County Court charged the applicant with the Commonwealth offence of using a carriage service to transmit indecent communications to a person aged under 16[1] (charge 1), and three State offences of sexual penetration with a child under 16[2] (charges 2, 3 and 4). There were two complainants, 'DJ'[3] (charges 1, 2 and 4) and 'CP'[4] (charge 3), both of whom declined to make victim impact statements.

2 DJ was aged 13 or 14 years when the events founding charge 1 occurred, and was 14 when the activities founding charges 3 and 4 occurred. For the purposes of charge 3, CP was aged 14. The applicant[5] was aged 22.

3 On 3 September 2019, the applicant pleaded guilty to the four charges. Following a plea in mitigation, the judge sentenced the applicant on 17 September 2019 to a total effective sentence of four years and nine months' imprisonment, with a non-parole period of two years and three months, in accordance with the following table:

Using a carriage service to transmit indecent communications to a person aged under 16

5 years and 6 months' imprisonment with 3 years and 6 months non-parole

Forensic sample; forfeiture; life registration pursuant to s 34 of the Sex Offenders Registration Act 2004

4 The applicant seeks leave to appeal against his sentence on the following ground:

The individual sentences imposed on charge 3 & 4, the orders for cumulation concerning the State offending, the total effective state sentence and the non-parole period are manifestly excessive.

Particulars:

Insufficient weight was given to:

(a) Disparity in the offending covered by each of the State charges;

(b) The overlap between some of the charges;

(c) Where the offending fell, concerning charge 4, in the hierarchy of seriousness for the offence of sexual penetration of a child under the age of 16;

(d) The age of the applicant at the time of the offending and the age gap between him and the victims;

(e) The personal circumstances of the applicant and the matters in mitigation;

(f) The principal of totality.

5 For the reasons that follow, we would refuse leave.

6 It is necessary to summarise the applicant's offending.

7 DJ initially sent the applicant a Facebook 'friend' request which he accepted. He then made contact with her on 17 January 2018. On 23 January 2018, DJ told the applicant she was aged 14. Charge 1 related to all sexualised conversation between 17 January and 5 October 2018. Before she turned 14, the applicant sent messages to DJ including:

'I wanna blow my load down ur throat';

'I cannot believe ur so youg' [young];

'Wanna do it tonight?' and 'I have the money';

'Thankyou for giving me your first bj'; and

'You've got such a hot little mouth'.

8 After she turned 14, the applicant's messages to her included:

'Heh tbh I'd prefer to nut in your mouth, but I won't mind him giving you some help ;)';

'I'm sure you'll do fine - he can see how it's done when you suck mine ;p';

'Besides it's your job to find willing cock and get paid'; and

'Might be good - where would we go where you can use your toy?'

9 Charge 2, which alleged an act of sexual penetration on 26 January 2018, was a representative charge of five incidents of penile penetration of DJ's mouth; charge 3 related to an incident of penile penetration of CP's mouth; and charge 4 related to penile penetration of DJ's vagina.

10 Australian Federal Police received information on 20 September 2018 that a person had been using Facebook and Messenger between 23 January and 13 August 2018 to send indecent communications to a 13 to 14 year old girl. Through the Internet Protocol address the applicant was identified as that person. As a result, members of the Joint Anti-Child Exploitation Team executed a search warrant at the applicant's address. During the execution of the warrant, the applicant made a number of admissions:

• he used the Facebook account 'Matt Jenkins' to send messages to DJ;

• he was aware of her age prior to engaging in sexual activity;

• he met DJ for the purpose of sexual activity on four or five occasions but could not identify exact dates;

• the first four occasions involved DJ performing oral sex on him, whereby he placed his penis in her mouth, resulting in him ejaculating into it;

• the most recent meeting with DJ was about one to two weeks ago, during which she used a vibrator on herself that he provided; performed oral sex on him; and they then engaged in penile-vaginal intercourse, culminating in him ejaculating on her stomach;

• after he had ejaculated on DJ's stomach, he used his mobile phone to take several photographs, showing her naked body and his semen on her stomach;

• every time he met with DJ, she had a friend about the same age as her (usually CP), acting as a 'chaperone';

• he would generally meet with DJ and chaperone at Box Hill and would then engage in sexual activity at a nearby disused school or parkland;

• on the first occasion, 26 January 2018, CP also performed oral sex on him at the same time as DJ;

• he believed DJ is highly sexualised and a 'nymphomaniac'; that the sexual activity was driven by her; and that he was doing what she wanted to do;

• on one occasion, prior to receiving oral sex, at her instigation he put a collar on DJ and walked her like a dog;

• conversations involving money for sex, pimping and similar were part of DJ's sexual fantasies which he played along with, but only during messaging;

• he was aware that it is illegal to have sex with a girl of 13 or 14 years of age, but he justified it to himself in that he was not forcing her and that the activity made her happy;

• he used his Facebook account 'Matt Jenkins' to communicate with DJ until it was closed down by Facebook;

• he subsequently created a Facebook account in the name of 'Michael Casey' to communicate with DJ and CP; and

• he used his mobile phone, laptop and desktop computer to communicate with DJ, depending on his location at the time.

11 In VARE[8] statements to police made on 12 and 16 October 2018, DJ told police:

• all her communications with the applicant were on 'Messenger';

• on 26 January 2018, she and CP met the applicant at a disused school, where the applicant supplied them with alcohol and that they both performed oral sex on him, resulting in him ejaculating in her mouth;

• about September 2018, she and a friend, 'RD', met the applicant and he drove them to an old school ground where she performed oral sex on him, resulting in him ejaculating in her mouth; he inserted his fingers and a sex toy into her vagina while she masturbated; and they engaged in penile-vaginal intercourse while RD was in the vicinity;

• on a date around AFL Grand Final day, 29 September 2018, she and CP met the applicant; he drove them to the old school ground where she inserted a remote control vibrator provided by the applicant into her vagina; she then performed oral sex on him; and he drove them to a walking track in the Dandenong Ranges where she performed oral sex on him, resulting in him ejaculating in her mouth;

• there were other occasions where she had met and performed oral sex on the applicant but she could not remember the dates or locations;

• all sexual activity with the applicant was consensual and at her instigation; and

• she had sent pictures and videos of herself naked or partially undressed on Messenger to the applicant.

12 In her sentencing remarks, when discussing the gravity of the offending, the judge noted that the applicant 'took advantage of vulnerable girls who were barely into their teenage years and who were too young to make decisions about such behaviour', and observed that the offences involving DJ 'were over a protracted period of time'. On the other hand, a number of aggravating features often found in this type of offending were absent. Hence, 'there was no force or violence used, there were no inducements and there were no circumstances relevant to breach of trust'; the gap in ages 'was modest in comparison with other cases'; in relation to DJ, 'there was no pressure to perform certain acts', she being 'a willing participant'; and in relation to CP, the applicant's 'interaction with her was limited'.

13 Charge 4 was a standard sentence offence. Hence, the judge discussed the relevant provisions of the Sentencing Act 1991,[9] and, significantly, expressed satisfaction that 'the objective gravity of the offence is at the lower end of the range of seriousness'.

14 The judge noted that the applicant, then aged 24, came 'before the court with no criminal history at all, having achieved a tertiary education and demonstrated a good work ethic'. Various references described the applicant as 'a kind, trustworthy and compassionate person', and as 'a good son, brother and friend'.

15 A psychiatrist, Dr David Smith, diagnosed 'a Major Depressive Disorder with high anxiety, likely to have been present before the offending'. He had no doubt that the applicant was genuinely remorseful. Another treating psychiatrist, Dr Julian Hughes, expressed similar views.

16 The judge noted that Mr Geoffrey Burrows, a forensic counsellor, had reported that the applicant had commenced a sex offender treatment program voluntarily and at his own expense. Mr Burrows had said that the applicant 'expressed remorse initially but without insight', but that later in therapy the applicant understood that he 'had exploited the victims and had been a destructive influence in their lives'.

17 Dr Mathew Barth, a psychologist, diagnosed the applicant with an 'Adjustment Disorder with Mixed Anxiety and Depressed Mood', and attributed part of the symptoms to the continued shame the applicant feels for the offending. The judge noted that Dr Barth was of the opinion that 'acting out sexual fantasies with underage girls was less threatening to [the applicant's] fragile self-esteem than age-appropriate sexual behaviour'. The judge said that Dr Barth

considers that a lengthy therapeutic process is necessary, indeed a comprehensive sex offender program, which [the applicant is] willing to undertake. Having subjected [the applicant] to two tests for sexual offence recidivism, Dr Barth concluded that [he comes] 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.

18 The judge noted that the applicant had made full admissions to police and pleaded guilty at an early stage - an indication of remorse - entitling him to a 'discount' on sentence. There are good prospects of rehabilitation, and the applicant's 'willingness to engage in treatment and the progress [he had] demonstrated so far, together with only a moderate risk of recidivism all go to [his] credit and indicate that [he is] likely to avoid further offending'. The applicant's youth was important, as was his 'emotional immaturity' as so described by Dr Barth, which would make him 'relatively vulnerable in prison'. Since the applicant will 'find imprisonment more onerous than would others of greater maturity and resilience', Verdins[10] considerations - requiring a reduction in sentence - were enlivened.

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.

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.

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. ...

20 Counsel for the applicant made no complaint about the individual sentence imposed on charge 1 (or about the extent to which the Commonwealth sentence on that charge was cumulated upon the State sentences).

21 Nor did counsel for the applicant complain about the individual sentence of three years' imprisonment imposed on charge 2, which, it will be remembered, was a representative charge - that is, a single instance of penile-oral penetration which occurred in the wider context of there having been five instances of penile-oral penetration.[11]

22 Counsel for the applicant did, however, contend that the individual sentences on charges 3 and 4 were manifestly excessive, as were the orders for cumulation (resulting in a total effective sentence and non-parole period that were manifestly excessive). A sentence of two years' imprisonment on charge 3, for a single act of oral penetration which overlaps to an extent with charge 2, counsel submitted, ought be viewed as manifestly excessive. Counsel also submitted that the sentence of three years' imprisonment imposed on charge 4 - for a single act of penile-vaginal penetration committed by a youthful offender who had no prior criminal history - should also be viewed as being outside the available range.

23 With respect to charge 4, counsel submitted that the applicant's offending 'ought be viewed at the lower end of the scale for the offence of sexual penetration of a child under 16'. So much was conceded by the prosecution and accepted by the judge.[12] Counsel pointed to the applicant's emotional immaturity and the absence of aggravating features frequently encountered in cases of this kind.

24 As to the sentence on charge 2, counsel drew attention to the fact that its foundational activity occurred at the same time as that on charge 3, so that there was overlap. Whilst charge 2 was representative, it was alleged specifically that fellatio occurred on 26 January 2018 - on the same day, and on the same occasion, that CP also fellated the applicant. Counsel submitted that, after imposing three years' imprisonment on charge 2, the sentence of two years' imprisonment on charge 3 was manifestly excessive, given that charge 3 embraced a single act of oral penetration, which 'occurred at the same time as part of the conduct relied on for charge 2'.

25 Further, counsel for the applicant submitted that, if the appeal succeeded, the 'structure' of the sentence would need to be changed. Given that the sentence on charge 2 was not challenged, if the application for leave and the appeal succeeded, the sentence on charge 2 'would likely become the base sentence'. Therefore, counsel submitted, any cumulation between the sentences on charges 2 and 4 'would need to be re-cast', in all likelihood as part of the sentence on charge 4 being cumulated upon that on charge 2.

26 Finally, counsel contended that the sentence indicates that the judge could not have given sufficient weight to a number of factors, including the applicant's -

• full and frank admissions (including admissions without which the police could not have known about all five instances of which charge 2 was representative);

• remorse (the judge having found that the applicant's acceptance of responsibility was an important indication of his good prospects for rehabilitation);

• genuine and onerous attempts to commence rehabilitation (including voluntarily and at his own expense commencing a Sex Offender Treatment Program); and

27 Pragmatically, the applicant's counsel did not seek to challenge the sentence imposed on charge 2. Indeed, all other things being equal, it could not sensibly have been contended that a sentence of three years' imprisonment for the penile-oral penetration of a 14 year old girl - in circumstances where that conduct is representative of a broader course of similar conduct extending over months - was manifestly excessive.

28 That aside, the submissions advanced by the applicant's counsel in support of the sole ground of appeal - including that the individual sentences on charges 3 and 4, the total effective sentence and non-parole period are manifestly excessive - cannot be accepted.

29 As Dinsdale makes plain, manifest excess is a conclusion which does not admit of much elaboration (save to state the excess has resulted from the wrong kind of sentence being imposed, or because the sentence imposed is manifestly too long). Excess is, or is not, plainly apparent; and a sentence is, or is not, unreasonable or plainly unjust.[13] When assessing a claim that a sentence is manifestly excessive, the members of the appellate court will themselves intuitively synthesise all relevant factors bearing on the exercise of the sentencing discretion, those factors frequently pulling in different, conflicting and contradictory directions.[14] Intervention by the appellate court on the ground of manifest excess is not warranted, however, unless the court is 'driven to conclude that there must have been some misapplication of principle'.[15]

30 Turning to the sentence on charge 4, we are unable to conclude that, in the circumstances of this case - including all of the matters urged in mitigation - the sentence of three years' imprisonment imposed on the relatively youthful, emotionally immature applicant, for the penile-vaginal penetration of a 14 year old girl, is manifestly excessive.

31 The sexual activity founding charge 4 was the culmination of a protracted period of illicit sexual activity engaged in by the applicant with DJ, whom he knew was unable lawfully to participate in such activity, regardless of her attitude. Notwithstanding his emotional immaturity, the applicant is far from unintelligent. He had ample opportunity to refrain, but instead actively and enthusiastically continued with his offending. Bearing in mind both the maximum and standard sentence,[16] and having regard to all factors relevant to the exercise of the sentencing discretion - including the aggravating and mitigating factors, and the circumstances of the applicant and those of the offending - the applicant has failed to persuade us that the sentence on charge 4 falls outside the range of those sentences open in the proper exercise of the sentencing discretion.

32 As to the sentence of two years' imprisonment on charge 3, once more we are unable to see that it is manifestly excessive. Even acknowledging that DJ was also performing fellatio on the applicant at the same time that CP fellated him, so that there was some 'overlap' with charge 2 - which was representative of five instances of penile-oral penetration - the individual sentence imposed on charge 3 needed to recognise CP as a distinct victim of the applicant's predations.

33 Moreover, we consider that the order cumulating six months of the sentence on charge 3 upon the 'base' sentence is unimpeachable. The judge needed to heed the dictates of the principle of totality, but at the same time had to ensure that CP's distinct status as a victim of the applicant's unlawful activity was acknowledged by an adequate measure of cumulation. We consider that the order for cumulation met both of those needs, and, in the circumstances of this case, was quite moderate.

34 Finally, we consider that the period of cumulation ordered of the sentence on charge 2 upon the base sentence - 12 months - is far from manifestly excessive. Indeed, in the circumstances of this case we consider it to be modest, paying due heed to the needs of totality.

35 Given that the head sentence produced by the individual sentences, and orders effecting cumulation between them, is not open to legitimate criticism, it could not realistically be contended that the non-parole period imposed is other than entirely orthodox.

36 For these reasons, the application for leave to appeal against sentence must be refused.

[1] Criminal Code (Cth), s 474.27A(1). The maximum penalty is seven years' imprisonment.

[2] Crimes Act 1958, s 49B(1). The maximum penalty is 15 years' imprisonment. Given that the standard sentence scheme took effect on 1 February 2018, the standard sentence on charge 4 was six years' imprisonment.