Director of Public Prosecutions v Attard

[2022] VCC 1458

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
  Suitable for Publication

CR-20-01546

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW ATTARD

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF SENTENCE:	31 August 2022
CASE MAY BE CITED AS:	DPP v Attard
MEDIUM NEUTRAL CITATION:	[2022] VCC 1458

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              two charges of sexual assault – plea of guilty – delay- no prior criminal history- substance use- strong prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991, Sex Offenders Registration Act 2004, Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen (2014) 46 VR 308

Sentence:                  Community Correction Order for 2 years with 250 hours of unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T Danos	Office of Public Prosecutions
For the Accused	Mr R Hammill	Schembri McCluskys

HER HONOUR:

1

Andrew Attard you have pleaded guilty to two charges of sexual assault contrary to s 40(2) of the Crimes Act 1958, which each carry a maximum penalty of

10 years' imprisonment.

Circumstances of Offending

2The circumstances of your offending are set out in a Summary of Prosecution Opening, tendered as Exhibit A on the plea.

3The offending took place in the early hours of 17 June 2018 following a gathering held at your relative’s apartment in Richmond.  The complainant Tasha Douglas[1], then aged 23 years was not known to you prior to this get-together, but was associated with a friendship group which included your relative.  At the time of this offending, you were aged 25 years, and you would frequently spend time with this relative.

[1] A pseudonym.

4

Earlier in the day, Ms Douglas spent time with her friend, Megan Turner[2].  The two women had dinner together and then went to a bar before deciding to meet up with a man that Ms Turner had been seeing, who invited them to

your relative’s apartment in Richmond.  Prior to attending, Ms Turner told her boyfriend that they were both pretty drunk and didn't want to impose.  He told her that those gathered at the party were also drunk.  Ms Douglas and Ms Turner travelled by Uber to the apartment.  A number of people were already in attendance, including yourself.

[2] A pseudonym.

5During the evening, the victim and her friend continued to drink and each had a line of cocaine supplied by your relative.  The group at the party spent the evening talking, dancing, watching TV, drinking, smoking cannabis, and snorting cocaine.

6Ms Turner and her boyfriend left shortly after 2:00AM.  Before leaving, Ms Turner asked Ms Douglas if she wanted them to drop her home.  Ms Douglas told Ms Turner she wanted to stay at the apartment because she was having fun and felt comfortable.  After Ms Turner left, she texted Ms Douglas to make sure she was all right, and the victim replied that she was having a great time and that they were very respectful.

7After Ms Turner left, the victim and yourself, along with your relative discussed the murder of Eurydice Dixon.  You also watched a segment from The Project about how women get blamed for things that happened to them and Ms Douglas told you both she felt safe with you.

8During the early hours of the morning, Ms Douglas exchanged text messages with her housemate Hugh Bradley[3] informing him that she was at a guy's house and assuring him that she was okay as the guys are respectful and would not try anything.

[3] A pseudonym.

9Before going to bed, your relative arranged a duvet for Ms Douglas so that she could sleep on the couch in the lounge room.  When she went to sleep, she did not know where in the apartment you were, but she does not recall you being in the lounge room.  After being asleep for some time, the victim woke up to find you sitting at the other end of the couch watching television.  She was annoyed at your presence and put the duvet over her head to block out the noise so that she could go back to sleep.

10The next time Ms Douglas awoke, you were lying behind her on the couch.  She was facing toward the television and away from you.  She was sleepy and confused.  Your hand was on her and she pushed it away.  She thinks she went back to sleep.  When she woke up again you had pulled her jeans and underwear down and touched her vagina (Charge 1: Sexual Assault).  Ms Douglas pushed you off and in an angry voice, told you to get off.  She was in shock, confused and still very sleepy.  She fell asleep again.

11Ms Douglas woke up shortly thereafter and she could feel your unprotected penis against her back (Charge 2: Sexual Assault).  You were touching her legs.  Initially she was frozen in fear and had tears rolling down her face, but after a while she got up and walked out the door.

12Once outside the apartment, the victim tried to call Ms Turner several times without success.  Ms Douglas also called her housemates a number of times.  Mr Bradley answered the phone around 10:00AM but Ms Douglas sounded so distraught that he was not sure what she was saying, so told her that he and her other housemate would come and pick her up.  Whilst she was in Richmond, two police officers saw Ms Douglas in a distressed state and approached her.  She was shaking and incoherent.

13The police managed to calm Ms Douglas and she told them that she had awoken to find a male on top of her with her jeans pulled down to around her knees.  The police asked her if there had been penetration and the victim replied no.  She was taken to Melbourne West Police Station, reported the offending and later arrangements were made for her to be examined at the Royal Women's Hospital Centre Against Sexual Assault Unit by Dr Raymun Ghummun.  No genital injuries were observed.

14On 2 December 2018, Ms Douglas telephoned you for the purposes of conducting a pre-text call to discuss the June events at the apartment, and that call was recorded by police.  The victim told you that she was pretty upset about what had happened and that it was completely without her permission.  You told her that you were sorry 'big-time' but that you thought you were both all right.  You told Ms Douglas that you thought maybe there was a bit of consent saying, 'I was stupid.'

15The victim told you she had been asleep at the time.  You told her that you thought she was awake and that you were not trying to do her harm.  You said, 'I thought we were just mucking around and we were having a good time.'  You asked her if she was going to take the matter any further and you begged her not to do so, telling her that you had just bought a house.  You said that what you had done was stupid and that you have definitely learnt your lesson.

Victim Impact

16Ms Douglas has prepared a victim impact statement in which she describes the significant impact this offending has had on her mental health and all aspects of her life.  She describes having been on an emotional rollercoaster in which she has felt anger, frustration, emptiness, loneliness and pain.  She recalled the enormous anxiety that this offending caused her and the feeling of panic she experienced; panic so great that she was initially unable to even tell police what had occurred to her.  The protracted nature of these proceedings has meant that she felt a constant state of anxiety which she describes as like she was 'chained and being dragged along by a truck.'

17Since this offending she has been distrustful of men and often felt uncomfortable and worried for her safety.  She still feels unsafe.  Ms Douglas states the trauma that she experienced will stay with her forever.

Procedural History

18

You were arrested and interviewed by police on 19 January 2019.  You were charged on 18 October 2019.  A committal hearing took place on

16 November 2020 and you were committed to this court to stand trial.

19The matter was listed for trial to commence 27 April 2022.  In the period leading up to the trial, discussions took place with the prosecution with a view to reaching resolution.  On the first day of the trial, you indicated your intention to plead guilty to two charges of sexual assault.  You were arraigned on the same day and your plea hearing adjourned, a plea later taking place on 29 August 2022.  Mr Danos, who appeared on behalf of the prosecution noted that the Crown had indicated its preparedness to accept a plea of guilty to two charges of sexual assault back in November 2021.

Sexual Offenders Registration Act

20Sexual assault is a Schedule 4 offence under the Sex Offenders Registration Act 2004, which means that I have a discretion as to whether you should be placed on the Sex Offenders Register.  The prosecution do not submit that I should place you on the register.  In the circumstances, I do not propose to do so.

Personal Circumstances

21Your personal circumstances were set out in an outline of plea submissions.  You have recently turned 29 years of age.  You were born in Australia to parents of European background, raised in Mill Park and you have an older brother.  You reside with your brother in Doreen.

22You completed Year 12 but undertook no further formal education.  You reportedly had difficulties focusing and you were often disruptive in class.  However, you were heavily involved with sporting activities as a teenager.  You hold a Certificate II in plumbing and a forklift licence.  You have had a consistent work history including working as a mechanic.  For the past four years you have worked as a forklift driver and packer with the same business.  Your employer is not aware of these proceedings.

23Although you enjoy a good relationship with your family, including your grandparents, you are so ashamed by your offending that you have still been unable to tell your parents about these proceedings.  Your brother, who attended court in support of you has, along with a number of your friends, encouraged you to tell your mother and father what you have done.  It is unclear to me that if I were to place you on a Community Correction Order, whether you would ever tell them.  Your counsel, Mr Hammill submitted that if you were to be given a custodial sentence, then it would fall to your brother to have to break the news to your parents.

24You come before the court with no prior criminal history.  This is your first and only experience with the legal system.  You have found the experience frightening and I note that you have been on bail for a number of years.  There are no further charges pending.

25You have however, had some history of recreational drug use.  You would frequently consume cannabis and occasionally experimented with ecstasy and cocaine.  On the night of this offending you had consumed alcohol, cannabis and cocaine.  Your counsel submits that this offending must be seen in that context, as your drug use had a disinhibiting effect, the result of which is said to have been you misreading and misinterpreting social cues which you say were given to you by the victim.  

26You were said to have been surprised upon hearing that Ms Douglas was not a willing participant to your sexual touching.  However, you accept that your victim was most certainly not consenting to your touching.  Pausing there, I consider that it ought to have been very obvious to you that there was no such consent, given that the victim was asleep.  You also accept by your plea that you did not reasonably believe that she consented to the touching.

27You have told psychologist Gina Cidoni, that you believed the victim's behaviour was suggestive at the time but now consider that your arousal may have been due to your cocaine use.  Your counsel submits that since this offending you have remained entirely abstinent from drugs, though you never considered you had a dependency on drugs, using them in what you considered to be a safe and social context.  Since this offending you have purportedly become somewhat of a recluse spending most of your time either working or attending sporting events with close friends.

28Ms. Cidoni conducted a clinical evaluation which indicated no clinical disorders were present, nor a personality disorder, and there are no mental health issues which are said to give rise to considerations raised in R v Verdins.[4]  Ms. Cidoni considers that your presentation was immature and naïve.  She considers your overall risk of sexual recidivism is low.

[4] (2007) 16 VR 269.

29

You have recently commenced counselling with Carmel Nielsen.  You have purportedly expressed an ongoing commitment to counselling and personal development.  She considers that your prognosis is good.  You have been determined to understand how decision-making can impact outcomes and how this might affect your future goals.  It is proposed that you continue to see

Ms Nielsen.  Your counsel has submitted that you had hoped to be able to engage with the Men's Behavioural Change program, however due to an extremely long waiting list, you have been unable to commence this program.

30A number of character references were tendered on your behalf from friends who have known you for a very long time.  Each of them were shocked to learn of these charges.  Casey Lambert describes that in the 15 years of friendship he has never seen you behave in a disrespectful manner towards women.  You are described as an extremely respectful and responsible person who has a very strong sense of family.  Mr Akcamci, a friend of 17 years, states that you have expressed your remorse to him on several occasions.

Nature and Gravity of Offending

31

Mr Attard, your offending here was undoubtedly serious.  You took advantage of a vulnerable young woman who, having consumed alcohol and cocaine, was asleep.  Whilst you as a consequence of your own substance use, may have misread the situation and may have misinterpreted that Ms Douglas was attracted to you, it is difficult to see how you could have been under the misapprehension that the victim was consenting to sexual touching in circumstances where she was asleep.  

Ms Douglas had considered that she was safe in staying at your relative’s house on the couch, and indeed that belief would have been fortified by the conversations that took place throughout the course of the evening regarding women's safety.  Her decision to remain at the gathering and then to sleep on the couch reinforced that she felt she was surrounded by people that she could trust.  Clearly that was not the case.

32Regardless of whatever signals you felt she was giving off, this did not entitle you to pull her jeans and underwear down when she was asleep and touch her on her vagina.  Moreover, any ambiguity over her desire to participate in sexual activity with you should have been well and truly expelled when Ms Douglas pushed you and told you to get off her after this first act.  Nevertheless you persisted and when she woke again from the very sleepy state she was in, she found that you were continuing with your unwelcome advances, placing your naked penis against her back.  The fact that you continued, undeterred by her earlier instruction that you get off her, is an aggravating feature of the offending.

Plea of Guilty

33I take into account your plea of guilty.  It was not a plea entered at the earliest opportunity. Indeed it was an extremely late plea, given that it occurred on the first day that your trial was scheduled to commence.  I accept that a period of negotiation preceded your plea of guilty but it could have resolved a lot sooner.  You conducted a contested committal, in which Ms Douglas was cross-examined and in doing so, she had to relive this experience.  Having said that, your plea of guilty is still one of considerable value.  You have spared the victim the ordeal of having to give evidence again at trial.  You have also spared the community and the courts  the time and expense of running a trial.  Your plea indicates a willingness to facilitate the course of justice.  It is also some evidence of remorse.

34Your plea of guilty also has a further utilitarian value given that it was entered at a time when the courts have been afflicted by the COVID-19 pandemic which has resulted in the suspension of jury trials leading to a considerable backlog.  Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[5] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic's effects.  Your plea of guilty should result in a perceptible amelioration of sentence.  You are entitled to a substantial discount in sentence both for the plea itself and taking into account that this plea has occurred during the pandemic.  As I have said, I note however that the plea occurred on day one of the trial.

[5] [2021] VSCA 169.

Delay

35There has been a considerable delay involved in this matter.  The offending took place over four years ago.  Although you were interviewed in January 2019, charges were not laid until October the same year.  There is no explanation for this 14-month delay.  Further delays have been incurred as a consequence of events outside of your control, in particular the delays associated with the pandemic, though a portion of the delay reflects the fact that you disputed any criminal liability for the offending.

Prospects of Rehabilitation

36You have been assessed by Corrections as a low risk of general re-offending.  However, having regard to Ms Cidoni's opinion that you present as a low risk of sexual reoffending, coupled with your lack of prior criminal history, your good character, the fact that you have stable employment and strong family relationships, in addition to your acceptance of responsibility for this offending; I consider that you have strong prospects of rehabilitation.

Relevant Sentencing Factors

37The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offence, your culpability, the effect of the offending on the victim and your personal circumstances.

38The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to the protection of the community.  I also have regard to principles of parsimony.

General and Specific Deterrence

39General deterrence is an important sentencing consideration in sentencing you for these offences.  Other members of the community must understand that sexual offences against women, such as sexual touching without their consent, will not be tolerated.

40The sentence that I impose also needs to deter you from considering such offending in the future.  I must also give primary consideration to the principles of just punishment and denunciation.

41Your counsel has submitted that a Community Correction Order with both punitive and therapeutic conditions would be appropriate in this case.  It is submitted that the sentencing considerations of both general and specific deterrence can be properly met under such an order.  It would also achieve the purposes of your rehabilitation.  Mr Danos on behalf of the prosecution, submits that a Community Correction Order would be within range.

42Therefore, I have had you assessed for a Community Correction Order and you have been deemed suitable.  I have given this matter careful consideration.  The offending as I have said, was serious.  I had indeed contemplated whether a gaol term ought be imposed in this case, even though this is not a disposition sought by the prosecution.  However, bearing in mind that imprisonment should only be imposed as a last resort, I have determined that a Community Correction Order would address the relevant sentencing principles.

43As the Court of Appeal noted in Boulton v The Queen,[6] a Community Correction Order 'may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.'  Quoting that judgment,

'The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.'

[6] (2014) 46 VR 308.

44The report by Corrections notes that as you have been assessed as a low risk of general re-offending, minimal order conditions are recommended.  However, Corrections recommend that a condition requiring you to be assessed and participate in the Specialised Offender Advice and Treatment Services (SOATS).  A recommendation is also made for supervision so that Corrections may monitor your assessment for sexual re-offending and deliver the appropriate level of intervention required for that risk level.

45The mental health condition is also recommended, even though you are currently receiving counselling from Ms Nielson, so as to enable Corrections to monitor your mental health treatment.

Sentence

46On each of the two charges of sexual assault you are convicted and sentenced to a Community Correction Order for a period of two years.  There are a number of core conditions attached to a Community Correction Order:

(a)   you must not commit any other offence punishable by imprisonment during the two year period;

(b)   you must comply with any and all obligations or requirements;

(c)   you must report to and receive visits from Corrections;

(d)   you must report to your local community Corrections Centre, which I believe is in South Morang, within two clear working days from today;

(e)   you must let a Community Corrections officer know within two working days of a change of address or job; and

(f)    you must not leave Victoria without first getting permission; and

(g)   you must obey all lawful instructions from Corrections.

47They are the mandatory core conditions that attach to any Community Correction Order.

48In addition to that, I am attaching a number of other conditions as follows:

(a)   You are to be under the supervision of Corrections for a period of two years.

(b)   You are to perform 250 hours of unpaid community work over two years.

(c)   You must undergo treatment and rehabilitation as directed, including that you undergo any mental health assessment and treatment which may include psychological treatment.

(d)   You must undergo drug assessment and treatment as directed.

(e)   You are to continue to participate in the Men's Behavioural Change program or equivalent as directed by Corrections.

(f)    You must participate in the Specialised Offender Advice and Treatment Services program.

(g)   I order that some of the hours of treatment and rehabilitation can be counted as hours for the purposes of unpaid community work that is up to 100 hours.

49If you were to breach any conditions of this order; if you were to decide not to do the work or treatment component for example; if you committed any further offences, then it is likely you would be brought back before me on a breach and I would need to re-sentence you for this offending.

50Mr Attard, I need to ask you whether or not you agree to abide by those conditions before the order can be put in place.  Do you understand the conditions as I have set out?

51OFFENDER:  Yes.

52HER HONOUR:  And do you agree to abide by the conditions as I have set out?

53OFFENDER:  Yes.

Section 6AAA

54I can indicate that pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced to you to a term of imprisonment to be served immediately.

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