DPP v SHANNON FRANCIS

SENTENCE

1. Shannon Francis, you have pleaded guilty to a number of sex offences, which you committed against four teenage girls.

The offences 2. I sentence you on the basis of the opening which was read by the prosecutor at the plea hearing (Exhibit A). Between 1999-2000, you had an ongoing sexual relationship with two girls then aged under 16, you sexually penetrated another girl aged under 16 on two occasions, and you attempted to sexually penetrate another girl who was then aged 16.

3. I will briefly summarise your offending. In doing so, I will refer to each of the young adult women who were your victims as teenage girls by initials and not by name. I do so to preserve their anonymity, which is required by law, but I do not mean them any disrespect. Also, when I refer to them as your victims, I do so to recognise that they are victims of crime, but each young woman is an individual, whose life and existence is far more than being a victim of your crimes. In saying that, I still acknowledge the impact of your crimes on them, which I will turn to in a moment.

4. In brief, you came to know all of the young women through your work as a basketball coach. You coached a boys team in which the younger brother of sisters TAR and TDLR played, and you came to have a close association with the whole family. The children lived with their mother. You gained the trust of all of them, and were considered a male role model for the sole boy in the household. Staying the night became a regular occurrence, as you were a valued friend of the family. You drove TAR, TDLR and their brother to their basketball commitments as well as to other social and recreational activities, which gave you the opportunity to take advantage of the two girls, and you did.

5. Over the course of the year of 1999, you engaged in illegal sexual activity with TAR, the older sister of the two, involving a range of sexual acts of a serious nature. (Charge 1 maintaining a sexual relationship with a child under 16, an offence with a maximum sentence of 25 years imprisonment) TAR was aged 14, and you were aged 22-23. On a number of occasions, sexual activity took place at your fathers unit, where you were living. Other activity took place at TARs family home when you were staying the night there.

6. In 2000, you engaged in sexual activity with her younger sister, TDLR, on two occasions, which are represented in charge 4. (Sexual penetration of a child under 16 years whilst the child was under your care, supervision or authority, an offence with a maximum sentence of 15 years imprisonment) On each occasion, you were entrusted by TDLRs mother to look after TDLR. TDLR was aged between 13 and 14. You were aged 23-24.

7. In the season from 1999 to 2000, you became the coach of a girls basketball team. You drove many of the team members to and from basketball commitments, and again you took the opportunity to take advantage of two vulnerable members of that team, JFS and HM.

8. Between June and December 2000, you engaged in illegal sexual activity with JFS involving a range of sexual acts of a serious nature. (Charge 2 maintaining a sexual relationship with a child under 16, an offence with a maximum sentence of 25 years imprisonment) Again, some of the sexual activity took place in your bedroom at your fathers place. JFS was aged 15. You were aged 23-24 and took advantage of the feelings JFS had for you. The strength of those feelings and your manipulation of them were demonstrated when, on being questioned in late 2000, she denied that anything was happening between you.

9. Another member of that basketball team, HM, confided in you about a highly sensitive personal matter in mid 2000, and became emotionally close to you over the course of some months. On 9 September 2000, 2

when she was aged 16, and you were aged 23, you encouraged her to leave her home during the night, undetected, and meet you. You attempted to engage in sexual intercourse with her. (Charge 3 attempted sexual penetration of a 16 or 17 year old child, an offence with a maximum sentence of 5 years imprisonment) HM discovered that you were engaging in sexual activities with JFS, and you used the threat of suicide to gain her sympathy, which was manipulation of a most callous kind in the circumstances.

Impact on the victims 10. I received statements about the impact on your victims, from each of them, and from the mother of TAR and TDLR (Exhibit B). Each put into their own words the significant impact your crimes had on them, and continue to have on them. Nothing I say can match their heartfelt eloquence. When you offended against them, each was in a vulnerable place due to circumstances then existing in their lives, and you betrayed the trust they put in you. The whole family where you were a trusted role model, which trust you abused by engaging in sexual activities with two of the daughters, has been severely affected. Each of the four young women recognise from the distance of 14 years how manipulated they were by you, which only increases their hurt.

11. As I did on the day of the plea hearing, I acknowledge the bravery of each young woman in speaking out. I add this to what I said then: the sexual abuse of a child, whether very young, or a teenager, is never, repeat, never, the fault of the child. A person under 18 is a child at law, and a vulnerable teenager can be easily confused by sexual advances from a trusted adult taking advantage of the teenagers perceived need for intimacy and acceptance.

12. The law recognises how hard it is for a child of any age who is being abused to speak out, and also recognises that it often takes time for a victim to be confident to do so. No victim should feel blame for taking time to tell what happened to them. 3

13.To the young women, and the mother of two of them, I express the hope that with today, this chapter will be closed for you, and that you can move on with your lives with some peace and increased chances of happiness. I wish you all well.

Basis for sentencing 14. Shannon Francis, I sentence you on the following bases:

15. Your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt: The offending represented a gross breach of trust of the young women and their families, and of the clubs or organisations to which they belonged, who had engaged you to coach young people in basketball; Your offending was planned and persistent, and involved four vulnerable teenagers aged 16 or under over a prolonged period of two years in total; Although you were a relatively young man at the time, you were an adult in a position of responsibility over your victims, and the age differences ranged from 6 to just under 10 years; For charges 1 and 2, the duration of the offending, and the serious nature of the sexual activity engaged in with each girl underlines the gravity of those charges; Emotional manipulation was a feature for all the offending, but was particularly heinous for charge 3; and For charge 4, there are two occasions represented in the charge.

16.Once you are sentenced to imprisonment on charges 1 and 2, as it is conceded you must be, you will be sentenced as a serious sex offender as defined by law. By that law, I am required to regard the protection of the community as the principal purpose for which sentence is imposed. In order to achieve that purpose, I am able to impose a sentence greater than is proportionate. I do not propose to do so in your case, as the

prosecution do not seek it, and I am of the view that you now pose a lower risk to the community than you did at the time of offending.

17. Because your offending involves sexual offences committed against children, another very important purpose of my sentence is to seek to deter other men from acting in the way you did. That is known as general deterrence. By my sentence I must send a message that the community will not tolerate sexual offending against children of any age, and that those who do so must expect severe punishment.

18. I note the powerful words of Vincent JA in DPP v Toomey [2006] VSCA 90, at paragraphs 22-24, It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly. 23 Although much has been done in recent years to encourage young persons who have been subjected to inappropriate behaviours to report what has happened, by reason of the presence of a variety of factors it must be anticipated that often the commission of such offences will not be revealed for years and that their eventual disclosure will be both extremely difficult and painful for those offended against, their families and others associated with them. 24 If the system cannot be seen to have recognised the significance of what has occurred and to have responded appropriately, then its operations will discourage victims from coming forward and indirectly contribute to the concealment of offences. In my view, this cannot be permitted to occur. 19. It is often also a purpose of a sentence in cases like this to deter the particular offender from re-offending. In your circumstances, I find that purpose is of less importance because of the passage of time since you

offended, and the steps you have taken to rehabilitate yourself over that time.

20. You have no criminal history, and so you will be sentenced as a person who was of good character before the commission of these offences.

21. The two charges of maintaining a sexual relationship (charges 1 and 2) are the most serious of those for which you are to be sentenced, because of the age of the girls, the types of sexual activity you engaged in, the duration of the offending, the effect on the girls, and the maximum penalty, which is the second highest sentence available in the criminal law.

22. Next in seriousness is the charge in respect of TDLR (charge 4), because of her age, the representative nature of the charge, the type of sexual activity engaged in, the effect on her, and the maximum penalty.

23. Finally, there is the charge in respect of HM (charge 3). Looked at objectively, it is to be treated as the least serious of the range of offences before me, because it involves one event, and has a much lower maximum penalty than the others. However, it is still a serious example of this type of offence, given the age of HM, the effect on her, and the type of sexual activity attempted by you.

Factors in mitigation and personal circumstances 24. The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. 25. Your counsel submitted that your plea is far reaching and significant and saved the community an arduous, lengthy and stressful trial. I accept that by your plea, the community has been spared the time and cost of a trial. I also accept that your victims have been spared the ordeal of giving evidence in a trial. 26. However, the plea came 12 months after each had been vigorously cross-

examined at committal, an experience that left them highly anxious about the trial. Until you entered your pleas of guilty in the month the trial was due to start, each was preparing to undergo an arduous, lengthy and stressful experience as described by your counsel. 27. I am told that it took some time for you to come to terms with reality, and that is why there was no early plea, although discussion of the possibility began earlier this year. I recognise that you are having to face up to the consequences of your conduct many years after the events. In the circumstances, I accept that your plea is of utilitarian value, and saved the young women from giving evidence a second time, and on those bases, the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial. 28. I also accept that the entry of the plea of guilty in respect of each of your victims does show a level of remorse and contrition for your crimes as well as for the effect on the young women, and at last, an acceptance by you of responsibility for your behaviour and its consequences. 29. I also find expressions of remorse by you to your father (see his reference, part of Exhibit 3); to the psychologist who provided a report dated 22 July 2013 (see Exhibit 2, at the top of p4); and to your friend who gave evidence on your plea to the effect that you now understand the effect of your actions, even if you did not then. 30. I do take into account that fourteen years have passed since the offending began. While that passage of time is not itself a mitigating factor, I cannot ignore what has happened since then. Firstly, you have not committed any further offences of any nature. Secondly, in that time you have rehabilitated yourself from the selfish, immature, manipulative young man of 22-24 which you were then, to be an excellent husband, father and employee, aged 37 years.

31. While taking the passage of time into account in those ways, I am still mindful of the need to impose a sentence appropriate to the offending. As

was said by Vincent JA in DPP v Toomey [2006] VSCA 90 at paragraph 16:

it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.

32. Your background and personal circumstances are set out in the Outline of Plea of your counsel (Exhibit 1) and in the psychologists report (Exhibit 2). I will not repeat them, except to say two things: first, you met your future wife when travelling overseas and she came to Australia to be with you. You married in 2003 and you have a son who will soon turn 5. The loving support of your wife, family and friends is vital to your continued rehabilitation. At law, I cannot take into account the hardship your wife and child will endure during your imprisonment unless it is exceptional. Unfortunately, it is all too common that there are other innocent victims of crime, and your family is no exception.

33. The second thing is that your intelligence and work ethic will also stand you in good stead when you return to the community, as your employer thinks highly enough of you to take you back into the company where you have worked for the last fourteen years, despite his awareness of the term of imprisonment you will be serving for these serious offences.

Ancillary orders 34. Application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected, if you change your 8

mind, I must inform you that the police may use reasonable force to enable such a procedure to take place.

35. As a result of my sentence of you today, you become a registrable sex offender. As your crimes were committed against children and involve penetration or attempted penetration, they are all class one offences. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life under s34(c)(i).

36. I will now have my Associate hand to you a form which notifies you of your reporting obligations. Would you please sign where indicated to acknowledge that you have received this form?

Submissions 37. The prosecution submitted that your offending was deserving of condign punishment and put forward a range for a term of imprisonment of 8-10 years with a minimum of 6-7 years.

38. Your counsel submitted that the range was too high in the circumstances of this case. He submitted that although the offending was serious, it was less serious due to you being a younger offender, whose offending arose out of immaturity and naivety, so that the disparity in ages was not as great as for a much older offender. It was submitted that serving a term of imprisonment at your age and stage of life will be much harder, with a young son whose formative years will be spent apart from you. Emphasis was placed on the rehabilitation which you have already effected, and your continued good prospects for rehabilitation. An alternative range was put forward of 6-8 years imprisonment with a minimum of 3-5 years.

Findings 39. Apart from the findings I have already made earlier in my remarks, I am satisfied as follows. 9

40. Based on all the material before me, I consider you are a low risk of reoffending, and I accept that assessment of the psychologist in Exhibit 2. I also accept that you are not diagnosed as a paedophile, and that there are no psychological issues which require treatment.

41. I accept that going into prison for the first time at age 37, with no previous criminal history, will be difficult for you. I accept that it will be made more difficult by your concern over how your wife will cope, with no family in Australia, and by your absence from your sons life. The fact that neither is to blame for the situation in which they find themselves, but that you are to blame, will weigh heavily on you.

42. For charges 3 and 4, for which you are to be sentenced as a serious sexual offender, I have decided to direct that there be some concurrency because of your demonstrated rehabilitation.

Sentence 43. You are convicted and sentenced as follows:

On charge 1 maintaining a sexual relationship with a child under 16: 6 years imprisonment.

On charge 2 - maintaining a sexual relationship with a child under 16: 6 years imprisonment.

On charge 3 attempted sexual penetration of a child aged 16 or 17: 14 months imprisonment.

On charge 4 sexual penetration of a child under 16 under your care, supervision or authority: 3 years imprisonment.

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44. The sentence on Charge 1 is the base sentence. I direct that 12 months of the sentence imposed on charge 2, four months of the sentence imposed on charge 3, and eight months of the sentence imposed on charge 4 are to be served cumulatively on the sentence imposed on charge 1. I have expressed these orders in this way rather than as required in the serious offender provisions of the Sentencing Act, to make it easier to understand them.

45. That results in an effective sentence of 8 years imprisonment.

46. I direct that you serve a minimum term of 5 years 6 months before becoming eligible for parole. I have set this minimum term having regard to your previous good character, and your rehabilitation.

47. I also direct that it be entered into the records of the court that I have sentenced you in respect of charges 3 and 4 as a serious sexual offender within the meaning of the Sentencing Act.

48. I declare that you have served 12 days of pre-sentence detention, not including today.

49. If you had not pleaded guilty, but had been found guilty of all the offences after a trial, the total sentence I would have imposed is 10 years 6 months imprisonment with a minimum of 8 years.

50. I have made the ancillary orders.

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