Director of Public Prosecutions v Barnett

[2015] VCC 707

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE BARNETT

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v Barnett
MEDIUM NEUTRAL CITATION:	[2015] VCC 707

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. Cordy
For the Accused	Mr L. Richter

HIS HONOUR: 

1You have pleaded guilty to an indictment charging you with an offence of sexual penetration of a child under the age of 16 years.  The offence occurred between 1 February and 13 March of last year when the young lady concerned was about 15 and a half years of age. 

2You have also admitted a number of court appearances and prior convictions, although I note that there are no prior court appearances or convictions for offences of this kind or any other sexual offence for that matter. 

3The offence to which you have pleaded guilty is a serious one.  It carries a maximum term of imprisonment of ten years and ordinarily for an offence committed by somebody of your age on an underage girl, it would require the court to impose an immediate custodial sentence. 

4The prosecution has read portions from the opening prepared for the purposes of trial, which relate to the precise particulars of the offence to which you have pleaded guilty.  Your counsel submitted that that was at the low end or the lowest end of the range.  Mr Cordy for the prosecution submitted that it was not because of the age difference.  I accept that submission, however, it does seem to me that this offending conduct lacks many of the aggravating features that are associated with conduct of this kind and perhaps the degree of exploitation involved which ordinarily arises where there is a significant age gap were not as marked in this case and there are in many others. 

5The principle thing to be said in your favour, it seems to me, which was relied upon by your counsel, is that you did plead guilty.  That has had a marked advantage for the victim of the offending conduct.  The victim impact statement was read to the court and as in most cases of this kind, offending conduct of this kind does have an emotional impact which is often ongoing and can be long-lasting.  Young people of under the age of 16 have to be protected from themselves on occasions and this is one such case, it seems to me, where that principle is true. 

6However, again it seems to me that the offending conduct is not such that on a plea of guilty and with the advantages that that provides it is necessary for me to impose a custodial sentence. 

7You have family responsibilities.  You have a mother who is not able perhaps to provide the degree of assistance and care for your parenting responsibilities as might otherwise have been the case.  There is a risk, it seems to me, that there will be a significant adverse consequence to your three and a half year old son, Charlie, by sending you to gaol.  Indeed sending you to gaol would have been extremely hard on you because of the close nature of your relationship and the degree of your single parental responsibilities. 

8It is to be hoped that now he is three and a half years of age and with some help from your mum and your mum apparently indicating that he is a pretty good kid to look after, that you might be able to get back to work.  I am sure that that will be a very good thing.  The order that I have in mind making hopefully will help you to explore options that will increase your prospects of obtaining work. 

9It is of course necessary for the court to impose a sentence that punishes you adequately for your offending conduct, denounces your conduct, deters you from committing further offences and also importantly, deters others from committing offences.  However, it is also important the court considers your rehabilitation and I propose to do that to the extent that it is consistent with my - with the other principles to which I have just referred. 

10The Court of Appeal has recently made it clear that the court is required to look to other options before imposing a term of imprisonment and it seems to me that you having pleaded guilty to this offence enables me to impose a community correction order.  You have been assessed, the assessment report finds you suitable and I have indicated that the order I have in mind making would be for - well, I do not know whether I told you the period, but it would be for two years. 

11You would be subject to supervision.  You would be required to complete 250 hours of unpaid community work and you would be required to submit to assessment and treatment for alcohol misuse and also for mental health issues and those - and also for programs that are designed to address factors relating to your offending. 

12The conditions of the order are set out in the draft order that I have had prepared and you will be taken through those in a minute.  No doubt you have had them explained to you already but the most important thing you have to consider is that during the period, two year period from today, when the order is in force, the order will operate rather like a suspended sentence because if you commit another offence punishable by imprisonment during that two year period, not only will you be up for up to three months' imprisonment for breaching the order but you would be liable to be brought back to this court and sentenced again for these offences.  If you were to find yourself in that position, there would be a fair chance that ultimately the court would have to impose a term of imprisonment for this offence.  So it is important you stay out of trouble. 

13It is also important that you comply with the other conditions of the order because if you do not you will be in breach of the order for those reasons and again you will be up for three months for the breach and possible three months for the breach and again up for sentencing on this matter all over again.  So I am sure you do not want that. 

14This order will be a nuisance.  It to some extent is designed to be and to remind you of what you did and why you should not do it again and to punish you.  I imagine you would regard it as better than having to serve a term of imprisonment. 

15All right, so it is important that you comply with all of the terms of the order and avoid any further consequence for this offending conduct.  All right, so are you prepared to consent to the order that I have outlined? 

16OFFENDER:  I am, Your Honour. 

17

HIS HONOUR:  You are, all right.  Well I am going to ask

Mr Richter to accompany my associate to take you through the terms of the order, make sure that you understand exactly what you are being asked to sign, then if you are prepared to sign it, I will counter-sign it, the order will be in place and I will make - pronounce the orders. 

18Just stand up a minute if you would, please.  Dale Barnett, for the offence of sexual penetration of a child under the age of 16 years, to which you have pleaded guilty, I convict you and order that you be the subject of a community correction order commencing today and ending on 28 May 2017 for a period of two years and I order that in addition to the core conditions that you complete 250 hours of unpaid community work, be subject of supervision of the and direction of the community corrections officer for a period of two years and you must undergo assessment and treatment for alcohol abuse and dependency, mental health and also you will be required to participate in programs and courses designed to address factors relating to your offending conduct. 

19In addition, I make the order for you to provide a forensic sample, that is by a scraping from the inside of your mouth and you will be given a copy of the order that would require you to report to the Bendigo Police Station within the period specified in the order and there you will be asked to provide a scraping from the inside of the mouth.  If you complete that task satisfactorily, that will be the end of the matter.  If, however, you fail or refuse to do that when asked, the authorised officer will be able to - will be authorised to take a blood sample and may use reasonable force to do that.  I am quite sure you will not put them to that trouble. 

20You will also be the subject of reporting conditions under the Sex Offenders Registration Act for a period of 15 years and you will be given a document which sets out your obligations under that Act and you will in a minute be required to sign an acknowledgement of receipt of that material. 

21But for your plea of guilty, I would have sentenced you to imprisonment for 15 months with a non-parole period of ten months.  Any other orders? 

22MR CORDY:  No, Your Honour. 

23HIS HONOUR:  No, all right.  Well the only other document that needs to be provided to you is the - have I got that, yes - is the material relating to your reporting obligations under the Sex Offenders Registration Act and that will be provided to you now. 

24MR RICHTER:  I might accompany (indistinct words). 

25HIS HONOUR:  Yes, would you please, thank you.  All right, you may now leave the dock and I think that completes this proceeding. 

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