Director of Public Prosecutions v Austin

[2016] VCC 1758

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

CR 16-01785

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS AUSTIN

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wodonga
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2016
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2016] VCC 1758

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Ms J. Clarke

HER HONOUR:

1Nick Austin, you have pleaded guilty before me to three charges of sexual penetration of a child under the age of 16.  Each of those offences relate to the same victim. She was the younger sister of your de facto partner and at the time of the offences was 13 years old.  Each of those offences were committed against her when she was staying for various reasons at the house occupied by yourself and her older sister. 

2The first charge relates to an incident between 8 and 31 January this year.  The girl was staying at your home whilst her mother was away in Sydney.  On the second night of her stay you were all watching a movie together.  The sister fell asleep.  According to the prosecution opening, which was tendered before me, what happened then was that you woke the victim, put your hand over her mouth and took her into the bedroom and she tried to push you off but you were too strong.  You pulled down her pants, you put your penis into her vagina and moved up and down on her.  You then left the bedroom.

3According to you, through your counsel, you dispute that there was any physical violence involved in that incident.  You do agree that you put your penis into her vagina.  There is no evidence before me one way or the other as to those different versions of what happened in the first charge.  I will sentence you in relation to that charge on the basis that you put your penis into the vagina of the 13 year old, but not on the basis that there was any violence which accompanied it.  So that is the subject matter of the first charge.

4The second charge relates to the week between 18 and 26 June of this year, so about five months later.  On that occasion the victim's mother, as well as the victim, were staying at your house.  When the mother and sister were asleep, you again woke the victim and took her to your bedroom.  Again, you penetrated her vagina in a similar manner that I have described in the first charge.  You also put your penis inside her mouth and made her suck your penis and swallow your ejaculate and then you walked out of the bedroom again.

5Now as I understand it, that is the way that the matter is put on the prosecution opening.  You have said through your plea that you do not agree that you ejaculated and that, apart from that, you do agree that the charge took place in that way.  Once again, I have no evidence either way and I will sentence you on the second charge as I have described it but without taking into account the act of ejaculation, which is put forward in the prosecution opening.

6The third charge relates to your offending on the very next night with the same girl.  You inserted your penis into her vagina.  The prosecution opening suggests that on that occasion as well you made her suck your penis and swallow your ejaculate and that that closely followed the events of the previous night's offending.  Once again, your counsel has indicated to me that you do not accept that you did ejaculate on that occasion, and I will sentence you on the basis that that offending occurred, but without reference to the issue of ejaculation.

7In your record of interview you admitted that you knew the child was aged, I think you indicated about 12, she was in fact 13, and you also admitted in your record of interview that you should not have committed those acts.

8Now, Mr Austin, the maximum penalty for each of those offences is ten years' imprisonment, and if I sentence you to a prison sentence in relation to Charges 1 and 2, then the Sentencing Act says that you are to be sentenced as a serious sex offender on Charge 3.  That means that I must regard the protection of the community as uppermost in sentencing you and doing so I can impose a disproportionate sentence, but the prosecutor has not sought a disproportionate sentence and I do not believe that it required in this case.  That section also says that unless I make other orders, Charge 3 must be cumulatively served on the other sentences for the offences on Charges 1 and 2.

9I received two victim impact statements, one from the victim and the other from her mother.  Your victim describes having nightmares and a lot of trouble sleeping because of what you did to her.  She was worried that she would not be believed and she described the process of reporting the crime as being shameful.  Her mother describes how the family has been split by this offending by you and she feels a lot of guilt because it was she who introduced you to the family.  She thinks that things will never be the same in relation to the relationships between the family.

10Mr Austin, I received a lot of information about your early life and about yourself from your counsel, who has provided me with a report of Carla Lechner, and I have read that report.  That report is dated 22 October 2016. 

11I also received an outline of submissions from your counsel and I have received also some sentencing remarks by His Honour Judge Lacava dated 6 February 2014.  On that occasion you were in the County Court on a sentence for armed robbery.  Now a lot of the matters which were referred to today and previously by your counsel are also in those sentencing remarks, and so if I do not refer to all of those matters, you may take it that I have taken them into account whether referred to here in these sentencing remarks or referred to in the sentencing remarks of His Honour Judge Lacava.

12You are a young man.  You are of Aboriginal heritage.  You are 23 years of age.  Your father committed suicide when you were approximately ten and you have had a very fractured upbringing, living a transient lifestyle, attending 11 different primary schools, barely attending secondary school at all, and according to Judge Lacava, although I do not think it was mentioned in the plea before me, you can barely read and write.  That is a reflection of the insufficient education that you have had to date, but it also may well be a reflection of an intellectual disability. 

13Mr Austin, before I get on to that issue of intellectual disability, I note that you have had some issues with drugs, which have been set out in the plea before me.  Basically your drug of choice has been cannabis.  Carla Lechner says you are in remission for cannabis use at the moment, but it appears that that is because you are in remand.  I really do not know very much about whether or not you have got a long-term cannabis problem.  I will treat you as having, because of your background, turned to cannabis in order to try to sort out some of the problems which arose because of your dislocated background.

14You have undergone previous assessments in relation to your mental abilities, and I notice that there was a report in about 2006 by a Dr Skilbeck, which assessed your intellectual level as being very low, approximately 60.  The cut-off for intellectual disability services, as I understand it, is 70, and it was as a result of that assessment that you were placed on disability services and at the moment you are still a Disability Services registered client.

15Ms Lechner saw you before the plea before His Honour Judge Lacava and there seems to have assessed you as having an IQ of 71.  In the report before me, she has assessed you as having an IQ of 80 with a difference between your verbal and non-verbal skills of a significant amount, and that difference is quite in contrast to what she said about you when she assessed you before Judge Lacava when she said there was no real difference between your verbal and non-verbal skills. 

16So I am really placed in a dilemma as to the reality of your intellectual disability.  That dilemma is heightened by the fact that I had to adjourn this plea when it was first before me because you continually interrupted me and did not seem to me to understand what was being said as part of the plea.  To some extent that has happened again this morning.  My view is that your presentation in court tends towards a conclusion that your intellectual disability may be more than what is apparent from the reports of Ms Lechner, but I do not really have much information about that. 

17There has been a person from Disability Services sitting through this plea, but that person has not given evidence.  I understand that it may be possible for me to obtain some more evidence about that if I was to adjourn this matter for a further plea, but having regard to everything that I have heard today and at the previous hearing, it is my view that it would be best for you if I was to proceed to sentence you today, and that is what I am going to do.  You have today interrupted your own counsel to ask me to do that, and although I have given what she said priority in this plea hearing, the fact that you seem concerned and agitated is a matter which I cannot ignore in sentencing you today.

18You do not have any prior convictions for sexual matters, but you do have a significant amount of prior history leading up to the sentence for armed robbery imposed by His Honour Judge Lacava in February 2014.  My impression from the way that you have presented today is that it takes you some time to understand the reality of the situation that you face, and I will come back to that later when outlining to you the sentence which I intend to impose.

19I note also that you have pleaded guilty to these charges, and, of course, as your counsel as submitted, that should be taken into account in your favour in relation to sentencing you today, both because it means that the victim did not have to give evidence and also because it means that the community has been saved the cost of a trial.

20I note that there is a significant age disparity between you and your victim, but in terms of that age disparity, I treat you as being overall a very simple man and a man who does not appear, from the material that I have before me, to be capable of applying the same maturity that one would expect of a 23 year old in the community.  I say that not on the basis of any expert opinion that I have received, but on the basis of the material, so far as I can assess it, and also taking into account the analysis of His Honour Judge Lacava in his sentence at paragraph 22 of you as being a “simple man with humble dreams”.  I think that was an incisive description of you, and I certainly see some of that being reflected in the way that you have addressed me in the terms of the plea and in the material that has been provided by your counsel.

21I accept your counsel's submissions that I must have great concerns today about the prospect of your rehabilitation.  I accept that you are socially immature and young for your age, and I accept that you do appear to be vulnerable in prison. 

22There has been an assessment by Ms Lechner that you are at a moderate low risk of sexual re-offending.  This calculation has been made on the basis of an assessment on the Static-99 assessment tool of a moderate to high risk which is moderated by the use of a more specific tool which is often used by psychologists in making these assessments, and that is the sexual violence risk protocol tool.  Of course, those tools are only guidelines.  There is nothing inherently persuasive about them except in general terms, but I must say that I really, from your presentation where you do not really appear to have understood the nature of the matters that were before me in relation to these charges, I would be much more guarded than that in my assessment as to your likelihood of rehabilitation.

23I note also there is some suggestion by Ms Lechner - although she really is not able to give a definitive opinion about this, there is a suggestion that you may have some likely autism spectrum disorder.  Overall, her suggestion is that you need lengthy and intensive rehabilitation and a moderate to high level of support when released into the community.

24It is on the basis of all of that, that your counsel has suggested to me that the appropriate disposition is a term of imprisonment followed by a community corrections order.  She says that this will supply the balance between the need for general deterrence and punishment of you and also provide a level of support and some comfort, that the issues which seem to be under the surface in sentencing you today will be addressed.

25I note that you have served 106 days by way of pre-sentence detention, and that, of course, I will take into account in relation to the sentence that I impose today.

26Mr Austin, I have come to the view that you are not ready to be placed into the community to serve a community corrections order.  I really think that if I was to impose a community corrections order on you today, that I would set you up to fail. What I propose to do instead is to sentence you to a term of imprisonment and to set a very short non-parole period.  This will mean that the parole authorities will be able to monitor you in the community and to provide to you the supports that you need. 

27The community corrections order is an order which can have great advantages when it is used to deal with people who have a good chance of independently being able to arrange their lives so as to comply with the terms of the order.  If I was to order a community corrections order, it would be lengthy and onerous, and I simply do not believe, on the basis of the material before me, that you would be capable of complying with an order if I was to make it today.  I would also need, of course, to obtain a report as to whether you were suitable.  I have decided that there really is no point in me calling for such a report because of the conclusions that I have reached on all the matters that I have referred to so far.

28Mr Austin, if you could stand up, please.

29Nicholas Austin ‑ ‑ ‑

30OFFENDER:  Yes, Your Honour.

31HER HONOUR:  On the first charge of sexual penetration of a child under the age of 16 years, I sentence you to be convicted and sentenced to 18 months' imprisonment. 

32On the second charge of sexual penetration of a child under 16 years, I sentence you to be convicted and sentenced to two years' imprisonment.

33On the third charge of sexual penetration of a child under 16, you are convicted and sentenced to two years' imprisonment.

34Now they are three separate charges, so I am going to cumulate those sentences to some extent.

35I will direct that four months of the sentence on Charge 1 and four months of the sentence on Charge 2 be served cumulatively on each other and on the sentence imposed on Charge 3.  The total effective sentence then is two years and eight months' imprisonment. 

36I indicate that I have moderated that sentence having regard to the evidence before me as to your intellectual disability.  Even though that evidence is to some extent conflicting, I am persuaded enough that you have an intellectual disability of some description so as to require me to moderate the sentence and so as to put me in the position where the issue of general deterrence is not as important as it would otherwise have been.

37So the total effective sentence is two years eight months' imprisonment.

38As I said before, I will impose a much lesser than usual non-parole period in order to give you a significant time to live in the community under the requirements of parole.  So the minimum term to be served before being eligible for parole will be one year's imprisonment, and I will declare that period of 106 days as being a period of imprisonment already served under this sentence. 

39You are registrable under the Sex Offenders Registration Act, and the length of that reporting is life, because these are three Class 1 offences.  I will note on the order you are sentenced as a serious sex offender, and I will indicate to you that if you had not pleaded guilty to this offence, the sentence which I would have imposed would have been five years with a non-parole period of three years. 

40Now, Mr Austin, there are some documents that you need to sign in relation to the Sex Offenders Registration Act, and I will have my associate bring them to you and I will have your counsel approach the dock so she can explain them to you.

41OFFENDER:  What's the weather like out there, Your Honour.

42HER HONOUR:  It looks good to me, Mr Austin.

43OFFENDER:  I would've done a bit of work by now (indistinct words).

44HER HONOUR:  No, I told you I would let you speak, but we will just finish off this and I will let you say whatever you want to say.

45OFFENDER:  Thank you, Your Honour, I appreciate that.

46HER HONOUR:  All right.  Now are there any matters I have omitted?

47MR O'DOHERTY:  No, Your Honour.

48MS CLARKE:  No, Your Honour.

49HER HONOUR:  All right, now, Mr Austin, those are the orders that I have made today.  Is there anything that you wanted to say?

50OFFENDER:  I'm happy with - Your Honour, I'm happy with the sentence and with the conditions.  I will do my best as I can in prison.  I will try not to get in any fights as this moment, but I can't promise ya, 'cause, you know, it's - it's a prison as it is.  Um, thank you.

51HER HONOUR:  All right.  Thank you, Mr Austin.  Yes, please remove the prisoner.

52I will just sign that order.  I have now signed that order.  Thank you very much, Ms Clarke, for your assistance today, and thank you very much, Mr Prosecutor, for your assistance on the circuit.  I think that is the end of the circuit.

53MR O'DOHERTY:  It is indeed, Your Honour.  Thank you very much for your assistance and your learned staff.  Mr Tipstaff has been amazing in his attendance to his duties and so has the associate too, he's excelled.

54HER HONOUR:  And that's all noted on the transcript, I think.

55MR O'DOHERTY:  I hope it is, Your Honour, and I also think you should note that the final customer was very happy.

56HER HONOUR:  Yes, thank you. 

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