Director of Public Prosecutions v Buckow

[2015] VCC 832

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00685

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN BUCKOW

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2015
DATE OF SENTENCE:	17 June 2015
CASE MAY BE CITED AS:	DPP v Buckow
MEDIUM NEUTRAL CITATION:	[2015] VCC 832

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of guilty to one charge of sexual penetration of a child under the age of 16 years – young offender

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:R v Tokava [2006] VSCA 156, R v Edwards (1993) 67 A Crim R 486, R v Mills [1998] 4 VR 235, Boulton v R [2014] VSCA 342

Sentence:Convicted and sentenced to a Community Corrections Order for a period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Gullaci (Plea) Mr C. Marshall (Sentence)	C. Marshall & Associates

HIS HONOUR: 

1Mr Buckow is 21 and was born on the 24th day of August 1993.  He is a labourer by occupation.  He pleaded guilty to one charge of sexual penetration of a child under the age of 16, which is the charge on Indictment E11125242.  Mr Gullaci appeared on his behalf for the plea and Mr Marshall appears today.  Ms Dipietrantonio appeared on behalf of the Director. 

2The offence warrants, pursuant to the determination of Parliament, a maximum penalty of ten years' imprisonment.  Such is indicative of the serious nature of this offence and that should not be forgotten.  Such legislation is passed to protect children, and as a response to community concern that children under a certain age are to be protected, and in this instance, are protected from inappropriate sexual activity occurring when they are under age.

3As was said yesterday, the issue of consent is simply not an issue in a case such as this.  The fact is that Parliament prescribed that a person should not sexually penetrate a child under the age of 16.  Given your age, albeit a relatively close age to that of the victim on this occasion, the maximum penalty, as I said, that you face is ten years' imprisonment. 

4Exhibit A was the further amended prosecution opening dated yesterday's date, prepared by the learned prosecutor, for which I thank her.  The circumstances of that document were accepted by Mr Gullaci as the facts upon which I was to sentence his client.  At the time you were 19.  The victim was present yesterday by video link, and indeed, was present when the victim impact statement was read out. 

5You were, in fact, a friend of one of her ex-boyfriends, but had not seen each other for some time.  You came upon her somewhere near the Sunshine Railway Station at 1:30 pm in the afternoon of 28 May 2013.  At that stage apparently the victim had consumed a considerable amount of alcohol and was intoxicated, you equally had apparently been consuming alcohol and drugs.  The victim describes herself at the time as being, to use her words as set out in the opening at Paragraph 8, "pissed off her head". 

6The victim had little recollection of the evening, as she describes herself as being "zoned out".  However, the agreed prosecution opening that she did have a recollection of you, Mr Buckow, having sex with her, by way of penile/vaginal intercourse, and that you were not wearing a condom. 

7It is significant, it seems to me, in the circumstances of this case, albeit that the issue of consent is not appropriate to consider and you have not been charged with anything concerning an allegation of no consent.  However, the circumstances were described by you, as pointed out in Paragraph 10 of the prosecution opening. 

8When the victim woke up the next morning she went to the Watergardens Shopping Centre.  At that stage you phoned her, and indeed, apologised.  You said to her that you took advantage of her when she was drunk.  She told you that she did not know how you could have done such a thing like that.  That seems to indicate that whatever happened, alcohol and drugs, as I said in regard to both parties, had a considerable effect on this night.

9Subsequently, on 31 May 2013, the victim disclosed this offending to her youth case worker, Perry Castleton, who I am told was present again with the victim yesterday.  You were subjected to a record of interview, to which you answered, "no comment," and you were finally charged by summons on 21 March 2014,  that was a fairly considerable time after this offending took place. 

10Insofar as the committal mention, that took place ultimately on 24 April 2015 and obviously you have been fully cooperative and it was indicated that you were going to plead guilty at that time and here we are on 16 June of the same year, before the Court about to be sentenced. 

11The victim impact statement was read out by the learned prosecutor, tendered Exhibit B.  There is nothing exaggerated about the statement, although I think, as was demonstrated yesterday, there is a number of aspects to her life that could certainly not be sheeted home to what had happened between you and her.  However, given that issue, Mr Gullaci was happy for the statement to be tendered as a whole. 

12As I have already said, the sexual reporting legislation applies to you.  In your circumstances as a young man you will now have a serious conviction and be subject to sexual reporting for a period of 15 years.  You will also be subject to the requirement to furnish a forensic sample of which I will sign a document.  That means within a specified period, which will be set out in that document, it is necessary for you to provide to the authorities, by attending at a police station, a swab from your mouth.  Again, you will get a notice in that regard. 

13The learned prosecutor pointed out in summary what I have already said, and what cannot be disputed, that this is a serious offence.  As I stress, it is an offence prescribed by Parliament to protect innocent children.  The prosecutor also stressed the fact that you were aware of her age, and you were aware that she was intoxicated.  It was put that you therefore took advantage of her vulnerability.  I suppose that really depends, in a way, on the precise circumstances of your intoxication and the effect of drugs.  It was also stressed that you did not use a condom, and fortunately the consequences of same do not appear to have occurred.

14It was noted by the learned prosecutor that an apology was made by you the next day and that was a favourable matter, as far as you were concerned.  The learned prosecutor put, after hearing all of the matters put by the defence on your behalf, that the Court had a variety of alternatives and that is a Community Corrections Order or imprisonment, or combination thereof. There is an automatic retention of your forensic details, as well as the automatic reporting obligations.

15Insofar as the plea was concerned of Mr Gullaci, I thank him firstly for his defence submissions, which we dated yesterday’s date.  He tendered as Exhibit 1, the report of the forensic psychologist, David Ball, dated 10 June 2015.  Mr Gullaci stressed that you had pleaded guilty, and this offence occurred at 19, you are now 21. 

16It was noted that, despite two quite different minor matters in your past, you effectively have no priors, and you have certainly never been in gaol before.  It was put to me that in discussing the issue of delay, not only over the last two years have you not committed any other offences, and it was put to me that there is nothing that is to be dealt with in the future, but that you have had a considerable concern, and indeed, been somewhat terrified in regard to a gaol sentence.  This may have played a part in the reason why this has taken some time because apparently you did not appear on one of the occasions and were somewhat difficult to contact over a long period.

17Mr Gullaci stressed the offending, which I have already referred to, in regard to both parties, involved a considerable amount of alcohol, and in regard to yourself, the consumption of Jack Daniels and cannabis.  Given your mental state and health, as I said yesterday, it is a dangerous cocktail for you.  He stressed that you had apologised for taking advantage of the victim when she was drunk, and I have already mentioned that, and he tendered Exhibit 1, which was the report I earlier referred to. 

18That report was somewhat restricted because of your own limitations. It was noted on Page 2 of that report, that your skills by way of literacy and numeracy, are such that the normal psychometric test that we often get in this case were not possible in your instance.  There was also an issue as to your timing attending for appointments, so that at the end the report was somewhat limited.  Mr Ball was able, however, to confirm that there was no frank mental illness and no psychotic symptoms, hallucinations or delusions.  However, given your background as I said to you, it is very dangerous for you to be involved in cannabis because you can get to a situation where you will get psychotic symptoms. 

19It was also stressed that there were limitations in regard to your verbal communication.  Unfortunately you have had a difficult background by way of family and when I asked about family support, it was explained to me your difficulties, the fact that you have been in care for a considerable period of your life.  You had a period when your step-father was looking after you and apparently he was a very excellent impact in your life.  However, you had difficulties, as was pointed out, and have suffered post-traumatic stress disorder from crimes committed upon you by your uncle. 

20You went back to DHS in a residential units from 14 and thereafter lived with your grandfather, and indeed, that was the premises where this offence took place.  Your grandfather unfortunately died last December.  You are currently living with a friend, in Bacchus Marsh, at the home of her family. 

21You have had somewhat limited education, no doubt because of your skills, and indeed, limited employment, although for the first time you have obtained some employment through friends at the Bacchus Marsh Football Club where you attend, which involves some labouring from two to three days' per week. 

22In essence, the matters put at Paragraphs 4 to 12 by Mr Gullaci was stressed by him insofar as the plea was concerned.  He stressed, at Paragraph 4 the fact of you pleading guilty and pleading guilty essentially in the circumstances of this case at the earliest time possible and I accept that.  He also stressed that you are a young man of 21 years without any priors effectively. 

23This offence took place when you were 19, and since that time your rehabilitation has been effected by the fact of no further offending.  Mr Gullaci submits that, not only is there remorse demonstrated by your phone call, but by your plea of guilty and the timing of the plea.  He stressed the issues as to the sentencing of a youthful offender and I take into account the comments made by the Court of Appeal in R v Tokava [2006] VSCA 156, in particular, by the President, as to the importance of steps being taken and a concentration on rehabilitation when one is dealing with young men, even in circumstances where we are dealing with a serious offence such as this. It is obviously a very difficult balancing process. Mr Gullaci himself put well known cases and the same principles that I speak about, such as R v Edwards (1993) 67 A Crim R 486 and R v Mills [1998] 4 VR 235.

24Insofar as the issue of delay, in response to my comment that a lot of the delay was caused by your own actions, Mr Gullaci stressed, however, that it was this fear of gaol and he submitted that on his instructions that had been hanging over you for some time.  He also relied on the report that I have read out from Mr Ball and asked me to take that into account in regard to an appropriate sentence.  Mr Gullaci submitted essentially that you are a young man with no effective prior history, who should be seen by this Court as having made a very serious mistake, who has in the last two years, rehabilitated himself.  In those circumstances, his fundamental plea to me was, despite the seriousness of this case, was that the balancing of all factors would mean that I do not impose an immediate sentence of imprisonment.

25I indicated that I was not prepared to decide the matter without further consideration overnight and, indeed, the matter was adjourned for the formal requirement of having a Community Corrections Order assessment report prepared and that, as I have said, was prepared by Mr Richard Temple-Camp, tendered Exhibit C.  It is a positive report in regard to you and you have consented to that and, in regard to the various circumstances and conditions that have been proffered. 

26The creation of the Community Corrections Order brought with it an amendment to the Sentencing Act, being s.5(4C). In exercising a determination as to sentence, a Court is required to undertake a consideration of all the matters set out in s.5 of the Sentencing Act, but in particular, when considering a serious matter such as this which would normally, because of the importance of general deterrence, warrant a period of imprisonment, a Court is prescribed by s.5(4C) to take into consideration whether, in fact, a Community Corrections Order should be imposed, rather than the imposition of a sentence of immediate imprisonment.

27That consideration has exercised me overnight, Mr Buckow. Fortunately for you I have come to the conclusion that upon a consideration of s.5(4C) there is an alternative to imprisonment and I find that such alternative is the course proffered by Mr Gullaci, and as indicated by the prosecution, professionally it seems to me, in all the circumstances available in your case.

28Mr Marshall, before I formally announce what I intend to do, and the terms of it, your client has signed the Community Corrections Order assessment report.  That requires community work to the effect that in what I am contemplating is a Community Corrections Order that would go for three years and community work of 150 hours over an intensive compliance period of 18 months, and I would impose all of the conditions as recommended, in particular that of supervision.  It seems to me, in your client's interest, that would be very important and especially the programs in regard to drug and alcohol. 

29MR MARSHALL:  Yes, Your Honour.

30HIS HONOUR:  There has also been recommended an offender behaviour program.  I am pretty certain if I was not prescribed by Parliament I would not have either of the matters on and nor would I put him under that but given that there was a breach, I will leave that really to the authorities under the Community Corrections Order, as to what form of offender behaviour program takes place. 

31MR MARSHALL:  I think it indicates initially an assessment would take place and it may be nothing further ‑ ‑ ‑

32HIS HONOUR:  Yes, I would have thought but these matters happen sometimes in one's life.  You make a mistake and it does not seem to me there is anything about him that would warrant reporting for 15 years, for example.

33MR MARSHALL:  No.

34HIS HONOUR:  But what can we do about that? 

35MR MARSHALL:  Nothing. 

36HIS HONOUR:  It was suggested that Parliament reassess this at one stage. 

37Anyway, so Mr Marshall, would you be good enough - I know your client's signed it but now that I have indicated I am going to pronounce it, just to make sure that he fully understands.  Would you point out to him that the conditions in this matter are far more rigorously monitored than previous community matters and it is important that he go to every meeting that he is required to, or every attendance with supervision, because it can form part of a breach.

38MR MARSHALL:  If I can approach?  Your Honour, he consented to the order. 

39HIS HONOUR:  Stand up please Mr Buckow.  As I said, having pleaded guilty you have now got on your record a plea to a very serious offence for which you have had to be subject to sexual reporting regulations for some 15 years.  In addition, I am imposing a Community Corrections Order of three years, with the terms of punishment as recently set in Boulton v R [2014] VSCA 342, but in particular those matters as set out in a report that you perform 150 hours community work over an intensive compliance period of 18 months, that you undergo drug and alcohol treatment as prescribed and that you be subject to supervision.

40Also, as just discussed with your solicitor, you may also be subject to an assessment as to offender behaviour programs.  Whether you have to undergo the full sex offender program, I am not sure, but certainly you will have to undergo such assessment.  So it is important, and I stress again, for you to understand that you have been lucky here.  Do you understand that? 

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  There will not be a second chance.  If you come back here and you have not gone to the programs and you have breached then you run a very, very strong chance of going to gaol.  Do you understand that?

43OFFENDER:  Yes.

44HIS HONOUR:  This Court does not want to put you in gaol.  I understand you do not want to go to gaol.  So comply with the conditions.

45OFFENDER:  Yeah.

46HIS HONOUR:  Then once you have got rid of that, you cannot get rid of the reporting.  You have got that for 15 years but once you have got rid of the Community Corrections Order, you can then get on and make something of your life.  All right?

47OFFENDER:  Yep.

48HIS HONOUR:  Right.  Don't stay on that cannabis.  It's not going to be any good for you. 

49OFFENDER:  Yeah.

50HIS HONOUR:  Good luck.

51OFFENDER:  Thank you. 

52HIS HONOUR:  Thank you both to counsel.  Any other matters? 

53MS DIPIETRANTONIO:  Thank you, Your Honour.  A s.6AAA declaration?

54HIS HONOUR:  I don't think it's necessary where I make such an order, is it?  When it's a Community Corrections Order? 

55MS DIPIETRANTONIO:  I merely am obliged to raise it, Your Honour.  If Your Honour doesn't wish to declare it.

56HIS HONOUR:  I don't think it's necessary.  It's only necessary where I made an order under that particular section.

57MS DIPIETRANTONIO:  Thank you, Your Honour. 

58HIS HONOUR:  Thank you.  I should say, and as I said yesterday, I do also remark, as I said earlier, that we did have the victim in this matter and she was present when the victim impact statement was read out and behaved in a most appropriate manner in the Court for which I thank her. 

59MS DIPIETRANTONIO:  Thank you, Your Honour. 

60HIS HONOUR:  Yes, I'm sorry.  I've got to get the Community Corrections Order signed. 

61MR MARSHALL:  Your Honour, I don't think you formally announced whether the sentence was with conviction or without.

62HIS HONOUR:  It was with conviction.

63MS DIPIETRANTONIO:  Thank you, Your Honour. 

64HIS HONOUR:  Yes. Mr Marshall, you have to go over the Community Correction requirements with him and also the importance of his reporting.

65MR MARSHALL:  Yes, Your Honour.

66HIS HONOUR:  Although he probably knows that already.  It doesn't hurt to go over these things.  I often have young men coming back who don't seem to have any idea of what the conditions are.

67MR MARSHALL:  I find people coming back on for very technical breaches. 

68HIS HONOUR:  Exactly.  Thank you.

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