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 boy’s 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.
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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 father’s unit, where you were living. Other
activity took place at TAR’s 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 TDLR’s 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 girl’s
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 father’s 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,
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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 teenager’s 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.
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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
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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
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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-
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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
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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 psychologist’s 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
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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.
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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 son’s 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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