Director of Public Prosecutions v Boag (a pseudonym)

[2017] VCC 972

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

AT SHEPPARTON
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEO BOAG (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	20 July 2017
CASE MAY BE CITED AS:	DPP v Boag (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 972

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 S. Devlin	Office of Public Prosecutions
For the Accused	Ms R. Cameron

HIS HONOUR:

1Leo Boag,[1] you have pleaded guilty to one charge of sexual penetration of a child aged under 16.  You have no other criminal history.  The facts of the matter are set out in Exhibit 1, the summary of prosecution opening.  They are not disputed by your counsel.  I will not refer to the facts in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

[1] Leo Boag is a pseudonym.

2Briefly stated, you met the complainant in 2011 when she was aged 15 and you were aged 20 at a basketball competition.  From November 2011 you began a boyfriend, girlfriend relationship with her.  The sexual misconduct occurred on 29 February 2012.  The complainant turned 16 on 09/06/2012 approximately four months later.  The relationship continued until October 2014. 

3A victim impact statement was tendered and read to the court.  After discussion with counsel I deleted some of it as irrelevant and indicated the manner in which I would consider the balance of the contents and I have taken the victim impact statement into account in that way.

4The prosecutor submitted that a community corrections order was within range although the offending was serious and you were some four years or so older than the complainant.

5Your counsel filed written submissions and supplemented them orally.  She referred me to sentencing snapshots and a number of cases.  She tendered character references and work achievement certificates.  I have taken all that material into account. 

6After completing Year 11 you pursued a career in digital media and obtained relevant certificate.  Since 2014 you have worked as a commercial chef and are currently working at a restaurant in Mornington.  Amongst the references tendered were a number in respect of your work and you are described as a decent, hardworking and kind person.  I found those work references to be particularly impressive.

7You have a partner and are currently living in Dromana.  You have been together for two years and you are expecting your first child in January 2018. 

8I accept your counsel's submissions in mitigation and take them into account.  Namely,

1.Your early plea of guilty which is an expression of responsibility by you for your offending and has saved the court and time of a jury trial and more particularly in these types of offenders, it has meant that
the complainant has not had to give evidence either at a committal or in front of a jury;

2.You have made full admissions to the police;

3.You have excellent prospects of rehabilitation;

4.The context of the relationship and its duration after the offending; and

5.She submitted the offending was a single act with no aggravating circumstance.  In my view it was a single act for which you are to suffer consequences which will result in a conviction.  In my view the offending was toward the lower end of this type of offending.

9In sentencing you the basic purposes for which a court may impose a sentence are punishment, general deterrence and specific deterrence.  Rehabilitation, denunciation and protection of the community are also factors.  I do not consider specific deterrence and protection of the community to be a factor here.

10In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of the behaviour.

11I obtained a Community Corrections assessment report which indicated that you were at the lower risk of offending.  In my view the offending here and your personal circumstance, there is no need for any treatment offending orders.  This led me to the conclusion or to question whether I should impose
a community corrections order in any event.

12Weighing up all these matters I have decided that imposing a conviction and an adjourned undertaking for two years would be a sufficient punishment for you and to satisfy the requirements of sentencing that I have to consider.

13You are to be placed on the Sex Offender's Register for 15 years. 
The prosecution has asked me to consider a s.464ZF(2) order for the taking of a forensic sample.  Considering the offending here I am not convinced that it is so serious as to require that type of order and I reject that application.

14That adjourned undertaking will be prepared and you will be asked to sign it.  Also it will be sought - the Sex Offender's Registration documents, or sought to be served on you, you do not have to accept service but your counsel will indicate to you what that is about and will explain to you the very onerous conditions that are now placed on you because of your registration on the Sex Offender's List.  Just take a seat for a moment while those documents are prepared.

15Mr DEVLIN:  As Your Honour please.

16Mr CAMERON:  Your Honour pleases.

17HIS HONOUR:  Any other orders I need to consider?

18Mr CAMERON:  No, Your Honour.

19Mr DEVLIN:  No, Your Honour.

20HIS HONOUR:  Thank you.  If you'd like to take these up to your client and see that ‑ ‑ ‑ 

21Mr CAMERON:  Yes, Your Honour.

22HIS HONOUR:  ‑ ‑ ‑ one, whether he'll accept service and if so give them to him.  I expect you to explain the whole of it to him afterwards and whether he wants to sign the adjourned undertaking.

23Mr Boag, you have signed the adjourned undertaking saying you understand the effect and conditions of the order and consent to it being made, is that correct?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  What it means is that if during the next two years you do not re-offended and that can be for any sort of behaviour, you will not be required to attend court again.  If you do re-offend you will be brought back before myself or another judge and be dealt with not only for this matter but also for whatever matter it is that you have re-offended by.  Thank you.  You can come out of there, Mr Boag.  Adjourn the court until 9.30 tomorrow.

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