IN THE COUNTY COURT OF VICTORIA 
AT LATROBE VALLEY
CRIMINAL JURISDICTION	Revised
Not Restricted
Suitable for Publication	

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
PAUL DAMIAN (a Pseudonym)		

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JUDGE:	HIS HONOUR JUDGE DOYLE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	25 January 2023	
DATE OF SENTENCE:	25 January 2023	
CASE MAY BE CITED AS:	DPP v Damian (a Pseudonym)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 64	

REASONS FOR SENTENCE
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Subject:					Criminal Law - Sentence
Catchwords:	Guilty plea -	Two rolled-up charges of sexual penetration of a child under the age of 16 – Where offender sentenced as an adult but offending committed as a child – No criminal history – delay of 15 years – Extra-curial punishment
Legislation Cited:		Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000; Sentencing Act 1991; 
Cases Cited:		Clarkson v The Queen (2011) 32 VR 361; DPP v JK 		(Sentence) [2020] VSC 510; Worboyes v The Queen [2021] 		VSCA 169
Sentence:			Convicted and placed on a community correction order for a 			period of 15 months with 160 hours of unpaid community work
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms D. Guesdon	Solicitor for the Office of Public Prosecutions	
			
For the Accused	Mr H. Moodie	A J Vogrig Pty Ltd	

HIS HONOUR:
1	Paul Damian, you have pleaded guilty to two rolled-up charges of sexual penetration of a child under the age of 16, for which the maximum penalty is 
10 years' imprisonment.
2	You were born in September 1990, and you were therefore 17 years of age at the time of the offending.  You were living at an address in Warragul with your parents.  You were in Year 11.
3	The victim in the matter was born in August 1993.  She was 14 years old during the offending period.  She was living with her mother, initially in Shady Creek, but then, towards the end of the offending period, at Nilma.  She was in Year 8 at the same secondary school as you.
4	The background and circumstances of the offending were outlined in the Crown opening, which was tendered as an exhibit on the plea.  I will provide a summary of the Crown opening, but I have taken into account all of the material contained within it.
Circumstances of the offending
5	At the time the offending started you were living in a bungalow at the back of your parents' property.  Later, you moved into a caravan at the front.  You met the victim through mutual friends.  At the time you met her she was in some sort of relationship, described in the Crown opening as 'dating with another student'.  You approached that student and expressed an interest in dating the victim yourself.  Sometime later you spoke to her and then a relationship commenced with her.
6	You were in Year 11, and she was in Year 8.  You were supportive and friendly to the victim at the outset of the relationship.  She felt that you were the first person in her life who really cared for her.  You communicated with her using SMS messages and the two of you discussed that you were not allowed to be in a legal sexual relationship because of the age gap between you and the victim of more than two years.  Nonetheless, you commenced to engage in sexual activity with her about one month into the relationship.  The two of you began spending a great deal of your time outside school together and often you stayed with each other overnight.  The victim's mother was reluctant to allow her to stay away from home overnight, so you would usually stay at the victim's home.  You would sleep on the couch, because the victim's mother would not allow you to sleep in the victim's bedroom; however, the victim often left the room without her mother's knowledge and joined you in the lounge room.
7	On an occasion in October 2007 the victim was with you in the bungalow at the back of your parents' property.  You were kissing and grinding on each other's bodies until eventually the victim said to you, 'Let's have sex'.  You obtained a condom and you put it on and got on top of the victim.  You put your penis in her vagina, and this continued for about a minute before you said, 'I'm done' and withdrew your penis.  This is the first instance of sexual penetration covered by Charge 1; the rolled-up charge of sexual penetration involving penile vaginal penetration.
8	On another occasion between October and November 2007, not long after the first incident, again in the bungalow, you sexually penetrated the complainant using a condom.  This is the second occasion covered by the charge.
9	Between October and December 2007, you and the victim went to Noojee.  It was a hot day and you both went for a swim in the river.  In the river you began to engage in sexual activity, and you put your penis in the victim's vagina.  As you did so, an older man walked past, and you withdrew your penis before you ejaculated.  This was the third occasion of sexual penetration.
10	On another occasion between 1 November 2007 and 31 December 2007 you began touching the victim and she responded by telling you she was 'not in the mood'.  You continued to touch her and then eventually introduced your finger into her vagina.  This is one of two occasions of digital vaginal penetration relating to the rolled-up offence in Charge 2.  You then said to the victim, 'Oh, please?  Don't you love me?  I have needs'.  The victim agreed to have sex and allowed you to remove her pants.  You placed a condom onto your penis and penetrated her vagina until ejaculation.  This is the fourth incident of sexual penetration as part of Charge 1.
11	During the period between January and February 2008 the sexual relationship continued.  The victim described occasions when you would attempt to initiate sex, but she was not in the mood, and that you would say to her, 'Well, but I am', and persist in your advances until she agreed.  This material is uncharged material, or contextual material, to reflect the full nature of the relationship between you and the victim.  You are not to be punished for the uncharged incidents.
12	On another occasion between 1 November 2007 and 31 January 2008 you and the victim visited her father at his farm in Warragul.  When you were alone with her you started to touch her sexually.  She was not interested, and she ran away.  You chased her through the paddocks and around the farm.  She encountered her two half-brothers as she was running and told them to hide from you, pretending it was a game, because she did not want them to know she was trying to get away from you.  You eventually caught up with her and put her on the ground.  You put your hands into her pants and put your fingers into her vagina.  This is the second occasion covered in the rolled-up Charge 2.
13	The victim took your hand out of her pants.  She said she did not feel comfortable engaging in sexual activity at her father's place.  She continued to try to get away from you, but you kept following her and putting your hands inside her pants.  After some time, she lay on the ground, and you removed her pants.  You got on top of her and you put your penis into her vagina.  You did not use a condom on that occasion, as asserted in the Crown opening, although the Crown opening also says she was unsure whether you used a condom.  This is the fifth occasion of sexual penetration, part of Charge 1.
14	On another occasion between 1 November 2007 and 31 January 2008 you went to the victim's place in Shady Creek.  You were spooning on the couch, watching television.  You put your hands down the victim's pants.  She told you she did not want to have sex with you.  You removed your hands, but after some time you put them back inside her pants.  She then let you have sex with her.  You wore a condom on that occasion.  You penetrated her vagina until you ejaculated.
15	On another occasion between November 2007 and January 2008, again, you visited her mother's home in Shady Creek.  Her mother was not home.  You told her that you were interested in trying anal sex.  You both spoke about it and agreed to have anal sex.  She lay on her side in the lounge room, on the lounge room floor, as you tried to insert your penis into her anus.  She experienced pain and cried out.  You stopped and moved away.  This is uncharged material in the Crown opening put as contextual.
16	Between December 2007 and February 2008, the victim was again at your bungalow in Warragul.  You put your penis in her vagina.  She started to experience discomfort and said, 'Please, you're hurting me'.  You said, 'Oh, come on baby.  I'm really close, just let me have three more pumps'.  She agreed, and you continued to have sex until you ejaculated.
17	The Crown opening then refers to other uncharged acts which took place after the victim’s mother moved to Nilma.  On one occasion you and the victim were in a shed on the property, and you asked the victim to perform oral sex on you, and she agreed.  You were sitting on a couch, opposite the shed door, and the victim performed oral sex on you.  The victim's mother went out to the shed to check on you and when she entered, she saw you sitting on the couch with the victim kneeling down with her head between your legs.  She quickly left the shed.  The two of you came back into the house, embarrassed, and the victim avoided her mother's questions and they never discussed what her mother had seen in the shed.  This is also an uncharged act.
18	On another occasion between January and March 2008, when you were at the victim's home in Nilma and her mother was not home, you entered the bathroom and approached the victim.  She told you she did not feel like having sex.  You lifted her onto a bench in the bathroom and pleaded with her to have sex.  The victim then let you have sex with her and you had penile vaginal sex with her without a condom.
19	Again, later at Nilma, between 1 January 2008 and 31 March 2008, you were in the victim's bed.  Her mother was not home.  You put your hands down her pants and undid her pants.  She recalls she was in the mood, and she did want to have sex.  After removing her pants, you put your penis in her vagina and penetrated her until you ejaculated.  You were not wearing a condom.  That is the final occasion comprising the rolled-up count of Charge 1.
20	The relationship between you and the victim ended following an occasion which had taken place between 1 and 31 March 2008, when you and the victim were at her home in Nilma.  Her mother had left to collect some belongings from a previous residence.  The victim’s baby sister was at home.  You were in the lounge room, and you pushed the victim against the wall.  She said 'No, no' and tried to get away.  You forced her to the ground, and you put your weight on top of her.  She screamed 'get off me' and she was trying to push you off.  You kissed her on the neck then her sister started screaming and she told you she needed to go to her sister.  Eventually you said, 'Oh, okay'.
21	Whilst the victim was looking after her sister, you called her mother and told her the baby was screaming and she should come home.  When her mother returned you and the victim went outside and she said to you, 'That wasn't okay. What the fuck?', and you apologised.  Her mother then drove you home.  In the following days the victim broke up with you and no further sexual activity took place.
Investigation and interview
22	This matter was not reported to the police until 24 October 2019, when the victim was speaking to a Senior Constable Jack Bosnjak at the Footscray police station, who was investigating an unrelated matter.  During that phone call the victim told Senior Constable Bosnjak about the sexual relationship that she had had with you.  He contacted police members from the Central Gippsland SOCIT and told them what the victim had disclosed to him.  Subsequently, she made a statement in December 2019 in which she fully described the offences.  She made two later statements adding to that initial statement.  You were interviewed in January 2020; you made a no comment record of interview.  
Victim impact
23	The effect of the offending on the victim is a matter I must take into account in sentencing you.  No victim impact statement has been provided but it is obvious from the victim's statements, and from her decision to take police action in 2019, that the sexual relationship with you has had a significant and enduring adverse impact on her life.  She says in her first statement that her self-worth has been adversely affected and she now struggles to be intimate and feels desensitised.  It is clear from what she says in her statements that the impact of your offending has been significant.  The law presumes harm from premature sexual activity and in this case the presumption is not rebutted.
Gravity
24	The offending here comprises two rolled-up charges.  Charge 1 covers nine occasions of penile vaginal penetration and Charge 2 comprises two occasions of digital vaginal penetration.  In sentencing for a rolled-up charge I must take into account the criminality involved in all the instances of penetration covered by the charges.  Other things being equal, a rolled-up charge is more serious than a charge for a single offence.
25	In this case the offending took place over a six-month period, on multiple occasions, occurring in the context of an ongoing intimate relationship.  However, as the relationship wore on, some of the incidents captured by the charges involved a level of, as Mr Moodie put it, 'excessive persistence', or as the prosecutor put it, 'some element of coercion'.
26	Another serious feature of the offending is that when the offending commenced in this case the victim had only recently turned 14, so she was a young teenager.  She was also vulnerable in that her family life was unstable, and in that context, she felt supported by the attention that you lavished on her at the beginning of the relationship.  However, you were only 17 years old, a child at law yourself at the time of the offences.  Had the matters been reported immediately you would have been dealt with in the Children's Court.  The age difference between you and the victim of three years is not a significant gap in the context of offending such as this and there was no breach of trust such as there would be if there had been a family relationship or a position of authority.
27	The sexual activity occurred in the context of what was a boyfriend girlfriend relationship of mutual affection, at least initially.  Mr Moodie relied on the following passage from the decision in Clarkson v The Queen (2011) 32 VR 361 (“Clarkson”), where the court observed in contrasting different factual scenarios of such offending:
'At the other end of the scale, there are exceptional cases - for example, in a relationship between a 15-year-old girl and an 18-year-old boy - where the consent is, relatively speaking, freely given and genuine, and a reflection of genuine affection between the two.  In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender's culpability as reduced'.
28	These principles have some application to the circumstances in this case.  As I have said, the initial relationship and the sexual activity that followed – and some of the subsequent sexual activity – fell into the category described in Clarkson but based on the Crown opening the character of the relationship between you and the victim changed as it went on, and I have already referred to that.
29	Mr Moodie submitted that because you were a child at the time of the offences, I should very substantially reduce the weight to be given to general deterrence and denunciation and I should impose a sentence that is primarily directed towards your rehabilitation.  The prosecution submitted that the weight to be given to considerations of general deterrence and denunciation should be substantially moderated, given your age at the time of the offending.  Ordinarily, general deterrence and denunciation would be the most important sentencing purposes for offending such as this, but I agree with the submissions of both counsel that those principles must be substantially moderated, given that you were a child at law at the time of the offending.
30	It seems to me that the quote relied on by Mr Moodie in the case of DPP v JK (Sentence) [2020] VSC 510 of Justice Hollingworth is relevant.  Her Honour said in that case the following:
'Very different sentencing principles apply to children and very different sentences are imposed on children, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the consequences of their actions.  The Court of Appeal has acknowledged that these considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older individuals'.
31	Justice Hollingworth went on to deal with the principles of sentencing set out in Section 362 of the Children, Youth and Families Act 2005.  I make it clear that you are to be sentenced as an adult, but for offending you committed as a child.  I sentence you in accordance with the principles in the Sentencing Act 1991 but your immaturity and your age at the time of the offending do dictate that substantially less weight should be given to general deterrence and denunciation than would otherwise be the case and that the facts of the offence need to be considered in light of your age at the time and your level of maturity.
32	I accept, ultimately, that the offending here is at the lower end of the spectrum for this type of offending, for the reasons that I have outlined – and, in particular, your age and the less significant age gap between you and your victim - but for the reasons that I have explained, and relied on by the prosecution, it is not at the lowest end of the spectrum.
33	Tendered on your behalf were the following documents:  a psychological report from Mr Patrick Newton and four character references, including a character reference from your wife and I have had regard to those documents.
Personal circumstances
34	Your personal history is described in the psychological report and was outlined by Mr Moodie on the plea.  
35	You are the eldest of four children.  Your family life was unstable, with both of your parents having drug and alcohol problems.  Your father left the family home for brief periods, on several occasions, and he also served a sentence of imprisonment at one stage.  Your parents' relationship involved significant conflict and your father was occasionally violent.  I am told you now have a reasonable relationship with your parents, who, according to the psychological material, separated approximately six years ago.  I accept that yours was a chaotic and unstable upbringing at around the time that you committed these offences.
36	You had learning difficulties as a child and as an early adolescent.  At around the age of 15 you spent some time at a school or institution called Blackwood, which had a focus on students with learning difficulties.  Ultimately you attended a secondary school where you met the victim in this matter.  You finished Year 11 and then you left to take up an apprenticeship as a mechanic.  You have a solid and consistent employment record as an adult.
37	You have been in a relationship with your wife for 13 years.  She has provided a reference for you in which she describes you as a trustworthy, supportive, respectful, and committed partner.  She says she has never felt uncomfortable with you in an intimate setting.  You and your wife have a three-year-old son, born in 2019.  Your wife describes you as a devoted, caring, and attentive father with an understanding of family and commitment.  She says, and I accept, that the charges in this case do not reflect who you are as a person today.  I accept, based on her reference – and the other references tendered – that you have been a person of good character all your adult life.
38	You have no criminal history outside these offences.  It was submitted by 
Mr Moodie, and I accept, that your offending occurred against a background involving immaturity and instability and chaos in your family circumstances.
39	As a result of being charged with these offences you lost your Working with Children accreditation and the stable full-time employment you had with a hospital working as a truck driver.  Soon after, you obtained alternative employment at a company in Dandenong South, again as a truck driver, but ultimately that employment ceased when the company went into liquidation.  You now have another job, also based in Melbourne involving truck driving, that is physically onerous and requires very significant driving, including commuting to and from that employment.  You presently live in Drouin with your partner and your son.
40	As I said, you have no criminal history.  You have never committed any offences as an adult.  It is now more than 15 years since you committed the offences in this case.  The delay is significant.  You have demonstrated in that time that you are a responsible, contributing member of the community and a responsible partner and father.  I take into account also the stress on you of waiting now for over two years for these matters to be resolved.  I accept that you have achieved rehabilitation in the time since these offences were committed and there is very little risk of you re-offending.
41	There was a committal in this matter, but there were more serious charges at that stage and a plea offer had been made not dissimilar to the charges on the indictment.  As soon as an offer to resolve on the two charges on the indictment was made you accepted that offer and you entered guilty pleas.  It is clear, therefore, that your plea should be regarded as an early one.  You have saved the court the time and the resources involved in a trial, and you have spared the victim the ordeal of reliving the events again at a trial.
42	In accordance with the decision of Worboyes v The Queen [2021] VSCA 169 the utilitarian value of your plea is heightened, given the trial backlog this court faces because of the suspension of criminal trials during the pandemic.  I also accept your plea indicates insight and remorse.
43	In the psychological assessment of Mr Newton, you told him you now consider that the relationship with the victim was ill-conceived and inappropriate, and you expressed regret, embarrassment, and sorrow for the offences.  You appear to have insight into the nature of the offending in this case.
44	So, in sentencing you, Mr Damian, I take into account your early guilty plea, the delay in this case and the extra-curial punishment that you lost your job at the hospital, as well as the stress of waiting a few years for the matter to resolve.
45	Mr Moodie, in his written submissions, asked the court to consider an adjourned undertaking without conviction.  During the course of the plea, I indicated to 
Mr Moodie that the gravity of the offences in this case dictates that such a disposition would not be appropriate.  It would be inadequate as a response to this offending.
46	The prosecution submitted that a community correction order was open in all the circumstances of this case.  I raised with the parties the issue of whether a suspended sentence might also be an appropriate disposition.  Mr Moodie ultimately submitted, in the alternative to an adjourned undertaking; that I should impose a community correction order.  In the circumstances, where both counsel have submitted to me that a community correction order is open and appropriate on the facts of this case, that is the order that I intend to impose.
47	I cannot see any point in ordering supervision in this case, given my view that you have been rehabilitated.  I also cannot see any point in program conditions designed to address offending considerations when I have taken the view that there is little risk that you will reoffend; however, there is a need for just punishment in this case to reflect the severity of the offences and the impact it had on the victim in this matter, which is clear from the statements.
48	Ultimately, given the multiple occasions of sexual penetration encompassed by the charges, the circumstances of the sexual activity, the age of the victim at the time of the offending and the long-term impact of the offending, a community correction order with community work is appropriate.  I have decided to place you on a community correction order for a period of 15 months with 160 hours of unpaid community work.
49	I have considered whether I should impose a conviction.  For the reasons that I have outlined concerning the facts of the offences, the victim's age at the time and the impact on the victim, I have decided a conviction is appropriate, so the order I intend to make is that you will be convicted and placed on a community correction order for a period of 15 months, to perform 160 hours of unpaid community work.  Do you consent to an order in those terms?
50	OFFENDER:  Yes, I do, Your Honour.
51	HIS HONOUR:  All right.  We'll have that prepared and I'll ask you to sign it.  Yes, am I meant to give a Section 6AAA where there's 160 hours of community work?  I can't remember.  I think there's a cap on - can you look that up in the Sentencing Act?  If I do, I will.  It used to be the case that you didn't have to.  Now I think there's a where you go over a certain amount.  You do?
52	Look, the Corrections Centre has to be Warragul, I'm told.  You'll have to report there within 48 hours.  As soon as you do the 160 hours that'll be the end of the order, you understand?  All right.
53	Now, every correction order has core conditions.  If you're moving address, you have to tell Corrections.  If you're leaving Victoria, you have to tell Corrections.  You have to obey all their lawful directions and you have to accept and receive visits from them, as required.  There are other core conditions, but they're the basic ones.  You also can't commit any offences during the period of the correction order.  If you do, you've breached the order and you can be brought back before me, and one of the things that is open is that I have to re-sentence you for these offences.  You follow?
54	So if you just do it and get it over with then it's finished and it's over, all right?  But you have to obey those conditions on any community correction order.  It's in the Sentencing Act, I can't ‑ ‑ ‑ 
55	MS GUESDON:  For a CCO two years or more, so ‑ ‑ ‑ 
56	HIS HONOUR:  Okay.  So I don't have to give a 6AAA?  Well, given that I don't, I won't.  So that's the order that I'll make.  We'll just have that prepared and then you can sign it.
57	Look, I indicate there's a discretion about the Sex Offenders Register and I would decline to place him on the Sex Offenders Register.  He's no risk in these circumstances.
58	Mr Moodie, could you just take that to Mr Damian?  Can you just briefly take him through it and then get him to sign it?
59	MR MOODIE:  Yes, Your Honour.  Thank you, Your Honour.
60	HIS HONOUR:  Right.  Thanks, Mr Moodie.  Thank you.  All right, no other orders need to be made?  Ms Guesdon, nothing else I need to do in this case?  All right, that's the order that I'll make.  
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