A Victorian man who sexually assaulted a 15-year-old girl on a dark oval could spend more time behind bars after the prosecution argued a judge made an error when he labelled the victim a “willing participant”.
Harry Smith was 20 when he met him with his victim outside a Woolworths in Sale before going to an oval about 10pm in September 2020.
He sexually assaulted the 15-year-old girl on the oval before she went to police and told them she was a missing person.
A caregiver later picked her up and divulged to police what happened the next day.
The Yarram man was sentenced to 18 months behind bars in August last year after he pleaded guilty to two counts of sexually penetrating a child under 16, assaulting an emergency worker and resisting an emergency worker.
He was ordered to serve nine months before he would be eligible for parole, but prosecutors argued this was not tough enough.
xjmtzywSenior crown prosecutor Diana Piekusis QC also said the original sentencing judge made an error when he labelled the victim a “willing participant” when he jailed Smith.
“His honour found that the victim was a willing participant in the offending itself as opposed to the prelude to the offending,” Ms Piekusis told the Court of Appeal on Wednesday.
This made a difference as to how the judge assessed the gravity of the crime, she said.
The prosecutor also told the court Smith was aware of the girl’s age and had been warned to stay away from her three times – including by police – before he assaulted her in the park.
“The victim was vulnerable and [Smith] knew as much,” Ms Piekusis said.
The now 21-year-old arranged to meet the teen for “sexual gratification” and didn’t use a condom during the assault, the court was told.
She said the individual sentences for the sex assault “fell far short” of sentencing guidelines and Smith had been found to be a moderate to high risk of sexual reoffending.
When police went to arrest the man he attacked an officer who quizzed him about cannabis plants, the prosecutor said.
“[He] effectively explodes and punches an officer to the head with a closed fist,” Ms Piekusis said.
The man was only jailed for one month for assaulting the sergeant.
But barrister Patrick Tehan QC said there was no coercion used, no threats and his client’s mental age was “probably less than 20”.
He said the judge was referring to the “willing participant” in the sense there was a negotiation to meet up before the crime.
“That’s what he’s referring to, not to the offending, but the precursor activity beforehand,” Mr Tehan told the three judges.
He said it was a case about “loss and abandonment”.
“Two young people both with problems arrange to meet up in Sale, the young girl who was four months shy of her 16th birthday travelled by train,” he said.
Smith was abandoned as a child, raised in foster care, and had been speaking to the victim for some time, Mr Tehan said.
The young man told a psychiatrist “I don’t want to be alone, I just need to have someone”, Mr Tehan said.
“Both the young girl and the young man in the factual matrix which brought them to the oval in Sale had feelings of loss and abandonment,” he told the court.
The Court of Appeal judges will hand down their decision at a later date.
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