Director of Public Prosecutions v Causon
[2017] VCC 881
•29 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00349 and CR-17-01245
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON WILLIAM CAUSON |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2017 | |
DATE OF SENTENCE: | 29 June 2017 | |
CASE MAY BE CITED AS: | DPP v Causon | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 881 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Goodenough and Ms I Custovic | Office of Public Prosecutions |
| For the Accused | Ms S. Lacy | Lethbridges |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Jason Causon, you have pleaded guilty to one charge of indecent act with or in the presence of a child under 16. The maximum penalty applicable being ten years’ imprisonment, and one charge of attempted kidnapping, with a maximum of 20 years’ imprisonment.
2 The victim involved in relation to the indecent act was Andrea Gilmore[1] and in relation to attempted kidnapping, Beth Hamilton.[2] These crimes arose out of events which took place between you and your two victims on 28 October 2016. It is not necessary for me to recount in great detail the facts in this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A.
[1] Andrea Gilmore is a pseudonym.
[2] Beth Hamilton is a pseudonym.
3 I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are, in my opinion, most serious and disturbing, not the least in that there is not any reasonable explanation for your offending.
4 I turn to a brief summary.
5 At the time of the offending you were 44 years of age and you are 45 at time of sentence.
6 Turning to Charge 1 involving Andrea Gilmore. On 28 October 2016, Sara Gilmore,[3] Andrea’s mother, was in the front yard of her house in Oak Park with Andrea, who was then just 4 years of age.
[3] Sara Gilmore is a pseudonym.
7 At approximately 12.15 pm, you approached Sara and asked her where Glenroy Station was. She pointed towards the left. You took a few steps towards Pascoe Vale Road and then went back. Sara called Andrea back to her. She stood next to her mother and you walked to where they were standing. Andrea was facing away from you. You said “such a pretty girl”, then reached down, pulled down her pants so that her bottom crack was exposed by about an inch. Andrea received a graze just above her hips from your actions. Sara grabbed her daughter and pushed you away. You ran around the corner to your car. Sara described you as smelling strongly of alcohol. She made a 000 call and made a note of your car registration.
8 Later that same afternoon, Beth Hamilton, who was then 10, was returning home from school, walking with a school mate, Amy Whitney,[4] who was 11. You came up to both of them in your car, stopped close to them and asked where Sydney Road was. Amy told you where it was. Beth felt in danger and was about to run, when you grabbed her between her shoulder and her elbow and pushed her towards your car. You said, “You’re coming with me”. Amy yelled “Hit him.” Beth pushed you away and you let her go, but she fell to the ground. You then ran to your car. Amy ran. Beth met another boy from the school and they walked back to the school where police were notified.
[4] Amy Whitney is a pseudonym.
9 That same day, on 28 October 2016, police pulled you over in your car and you were arrested. An interview was conducted with you at Fawkner Police Station in the presence of an independent third person. You said you asked a couple of school kids who were getting into a van and some adults for directions to Sydney Road. You said you did not speak to any girls on the street, rather that they got into a van. You said you had obtained some ice that day and had also seen your friend at Glenroy Station. After that, you went to the Crazy Horse strip club in the city at about 11.20am, then to the Dendy in Chinatown, which was closed. You said you asked some 10 year old girls who were getting into a van and wearing school uniforms, how to get to Sydney Road. You also said you asked other people you nearly reversed into. You also said you asked a tradesman and an Indian looking woman with a pram. You said you had spoken to at least six people and also to a taxi driver, also to a mother who had a “kid on a swing”. You said you did not get out of the car to ask for directions.
10 Regarding the first incident involving Andrea Gilmore, you denied the allegation, saying, “That’s sick, no, no I didn’t.” And regarding the second incident involving Beth Hamilton, you also denied the allegations.
11 You have, at your plea hearing, instructed your counsel that you purposely lied to police regarding your lack of involvement with the two complainants at the time of the interview.
12 There were aggravating features of your offending. You were, at the time of both offences, subject to a court order, specifically a community correction order. Also in relation to Charge 2, your offending involved a child and such was conceded by Ms Lacy.
13 You have pleaded guilty to these two charges and you have also pleaded guilty to breaching the community correction order. You are entitled to have that fact taken into account in your favour and I do so. The community, by your pleas, have been saved the time and expense of a trial and in particular the victims of your offending on the indictment have been spared the ordeal of having to give evidence upon your trial, and I note their young ages.
14 You entered pleas of guilty on 14 February 2017 at a committal mention and your plea hearing proceeded on 21 June 2017. I accept you indicated your intention to plead guilty to these charges early, and such is indicative of some remorse. I note, however, you denied your offending to police when they spoke to you about it and that the motivation for your offending on the indictment is very unclear.
15 Also before me for sentence, as I have said, is a breach of the community correction order imposed on 25 May 2016, pursuant to s84AD Sentencing Act 1991. On that date, you appeared at Sunshine Magistrates’ Court on charges of attempted robbery, possessing a prohibited weapon without exemption or approval, possessing and using heroin. You were, on each of those charges, convicted and placed on a community correction order for a period of 12 months with a number of conditions, including community work, treatment and rehabilitation in relation to drug use. The commission of the two offences on the indictment, as I have previously stated, breached that community correction order, as did non-compliance. Your counsel, Ms Lacy, agreed to that breach and re-sentencing on those charges, pursuant to s83AJ Sentencing Act 1991.
16 A report from Correction officer, Eve Lundmark-Bourke, dated 3 March 2017 was before me regarding contravention of the community correction order.
17 I turn then to a very brief summary of that offending. On 26 October 2015, you attended Sunshine Post Office, remaining there for a short time. At approximately 3.01pm, you re-attended the post office, walked up to the sales assistant and said, “I have a gun in my shirt, so empty the drawer.” At that time, your right hand was concealed in your jacket pocket. You were unsuccessful in obtaining any money and left the post office a short time later.
18 The proprietor of the post office obtained details of the vehicle being driven by you. Police attended your address in Coburg North and saw you in your car. When searching your bedroom at those premises, police located a crossbow. You were taken to Sunshine Police Station for interview, where you made full and frank admissions relating to the attempted robbery, saying you needed money to buy heroin. You further admitted to possessing and use heroin shortly before you were arrested.
19 Relevant, as I have said, to your breach of the community correction order, was also your non-compliance. You failed to attend on four occasions for treatment and rehabilitation (regarding your drug use) and failed to attend on three occasions for community work. I note that order was imposed on 25 May 2016 and your first non-attendance was on 6 June 2016, approximately two weeks later. The commission of the offences on the indictment on 28 October 2016 occurred approximately five months after that order was imposed.
20 In the report of Ms Lundmark-Bourke, it was noted that while you initially engaged with the service, your dynamic risk factors became concerning, as you had been dismissed from your place of employment for abusing heroin and had disclosed intentions of committing suicide. You were referred to Coburg ReGen for counselling and attended two of the six counselling sessions, before being exited from the service. You incurred a number of unacceptable absences from your drug treatment. It was of concern and noted by the author of the report that despite being on the Methadone program, you had relapsed into drug use.
21 Test results on 14 October 2016 indicated positive to opiates, cannabinoids and Methadone. Your progress on the order was described as sporadic. Further, concerning dynamic risk factors were demonstrated, as I have said, including your relapse into heroin use and suicidal ideation.
22 I also heard evidence from Ms Lundmark‑Bourke regarding your compliance and non-compliance with the order. Ms Lundmark‑Bourke referred to receiving information from your drug and alcohol counsellor on 26 October, that you had expressed a desire to commit suicide. Ms Lundmark‑Bourke had not been aware you had lost your job until disclosure by that counsellor. There were also concerns expressed by your counsellor regarding the wellbeing of your mother, as described. As a result of Ms Lundmark‑Bourke hearing of the counsellor’s concerns, she called emergency services.
23 I accept that on 26 October, you had what Ms Lacy called an emotional “breakdown”, and not coping with life at that point. That, however, does not explain the nature of your offending on the indictment compared with your previous offending.
24 I was also told by Ms Lacy of an incident on the night of 27 October, where you were heard screaming and shouting near your home and that your mother called 000 in an effort to have the police try and “talk you down”.
25 You also have other prior court appearances which you have admitted. None of that offending involved the type of offending before me on the indictment.
26 Your first court appearance was on 14 March 1996. You were charged with carrying a firearm whilst drunk, convicted and fined $500. You then appeared on 26 May 2004 on one charge of possessing heroin and without conviction were fined $150. Your next appearance was at Broadmeadows Magistrates’ Court on 12 May 2008 on charges of possessing/using heroin and were convicted and fined an aggregate of $250. On 28 August 2013 you were before the court on two charges of recklessly causing injury and one charge of criminal damage. I was told by Ms Lacy that involved violence by you to your family. On those three charges, you were convicted and placed on a community correction order for 18 months with community work, treatment and assessment for drug abuse, alcohol abuse and a mental health assessment. You completed that order without breaching it.
27 The victims of your offending on the indictment before me have suffered considerably in the manner described, and I shall return to pass some remarks on those statements later in my sentencing remarks.
28 Whilst there were understandably no victim impact statements from either of the complainants, I have no doubt Andrea Gilmore was very scared when you called her “such a pretty girl” and tried to "take her away" as she said in her VARE and that, "Her Mummy saved her". I have no reason to doubt the description by her mother in her statement sworn 28 October 2016, that Andrea was crying and scared as a result of your offending.
29 In the VARE conducted with Beth Hamilton on 28 October 2016 (then 10 years of age), she described feeling in danger when you were out of the car and physically close to her, just before you grabbed her. She described being “so scared” because she had heard of stories on the news and she did not want to die (Q 55). She said she was shocked and really scared and that she was really happy she did not get into that car and you did not take her. Whilst not in victim impact statement format, I can accept that both Andrea and Beth felt the way they described at that time.
30 Ms Lacy prepared a written outline of submissions for your plea hearing and also tendered a report from a psychiatrist.
31 Turning to her written submissions, Ms Lacy urged that there are a number of matters in mitigation of your sentence. She urged the gravity of your offending in Charge 1 was at the lower end of the scale and referred to the lack of planning, limited exposure to the victim and limited physical contact with the victim. Those matters are accurate. Regarding Charge 2, Ms Lacy also urged your offending fell at the lower end of gravity, absent again, she urged features of planning, weapons, physical harm, direct threat of harm and ransom. In my opinion however, the offending in Charge 2 must be seen in context, that is, occurring shortly after your offending in Charge 1 involving another young girl in very concerning circumstances.
32 Whilst of course I accept a number of aggravating features are absent in your offending, your offending, in my opinion, does not fall at the low end of gravity, rather mid-range.
33 I was told something of your background and history. You are 45 years of age and living with your parents until your recent remand in October 2016.
34 Your father worked for Victorian Railways. He passed away following a stroke in March 2017. Your mother is retired. You have one sibling, an older brother, who lives at the family home.
35 You completed Year 12 at Hadfield High School and since then worked almost consistently in unskilled manual labour. You worked for Victorian Railways for approximately 11 years, then did casual ‘odd jobs’, cleaning and factory work for about two to three years, before taking up a full-time position as a machine operator at Flexovit.
36 You worked at Flexovit for thirteen years, six days a week and long hours, until you were sacked on 1 October 2016, as a result of a positive drug test.
37 Turning to your drug use, you used cannabis for ten years, from approximately 20 years of age, ceasing temporarily when you obtained employment on the Spirit of Tasmania.
38 You began using heroin when 24 and had been prescribed Methadone since 25. You were currently in receipt of 11 milligrams a day of Methadone on remand.
39 You had been able to use heroin throughout your working life and still maintain employment.
40 You first used ice in about mid-2016 and also used it prior to the offences on the indictment, stating it was your substitute for heroin.
41 As at the date of this offending in October 2016, your employment had been terminated approximately four weeks prior and you were living out of your car during work days so your parents did not know you had lost that work. You were not in receipt of unemployment benefits and had effectively spent your savings on increased use of heroin.
42 On the day of this offending, you said you borrowed $40 from your mother which you spent on ice.
43 I received a report prepared by Dr Prashant Pandurangi, Consultant Psychiatrist, dated 16 May 2017, who interviewed you on 7 April 2017 at the Metropolitan Remand Centre.
44 You initially described your time in custody as ‘actually good’, then later described it as ‘stressful’. You had, however, obtained a full-time job in industries. You denied having any problems working in prison industries and were able to concentrate during those duties. You had plans after release from custody, to return to employment and attend a drug and alcohol counsellor. You said you had made some friends in prison and socialised with co-prisoners.
45 You were not currently in receipt of any medication for any psychiatric condition, although were prescribed Methadone daily.
46 Further details regarding your background and history were provided within that report. You had some early difficulties with speech, due to having a harelip and cleft palate, for which you had earlier received surgery.
47 You described a ‘good upbringing’ and that your father’s mental health had settled down by the time he was in his 60s. Your father died two weeks prior to your interview with Dr Pandurangi.
48 You denied any behavioural or emotional problems in your primary years and denied any problems with your confidence and self-esteem.
49 You adamantly denied any interest in pubescent or pre-pubescent children, although I note Dr Pandurangi’s assessment did not involve analysis by her of your initial offending involving a statement to Andrea Gilmore that she was "such a pretty girl" and pulling her pants down, then later that same day grabbing Beth Hamilton and asking her to go to your car. There has been no real explanation for why you asked Beth to go with you and that it followed your offending in Charge 1.
50 Reference was made to you losing your eleven year employment with the Railways as a result of testing positive for cannabis and heroin. You had also lost your recent employment, testing positive for illicit drugs.
51 You denied any contact with mental health services and mental health professionals, although you reported occasionally experiencing depressive or anxiety symptoms, although not sufficient to warrant professional attention.
52 Reference was also made in that report to your drug and alcohol history and your use of Methadone ‘on top’ of heroin. You began using ice intravenously in 2016, describing using it once a month, spending approximately $80 on it.
53 Regarding your offending on the indictment, you said you had relapsed into heroin use prior to the offences, were also unemployed and not in receipt of the pension. You said you used Methadone on this day with $40 of ice on the morning of the alleged offences. You said you recalled “driving round, tried to commit a crime … was half hearted, wasn’t going to go through …”. You said you were drug-affected at the time. That, however, does not explain your offending before me in any meaningful way.
54 You acknowledged to Dr Pandurangi, the victims of your offending would have been scared and that you were sorry for what happened.
55 I discussed with Ms Lacy the full circumstances of your activity prior to this offending on the indictment and that it had not been addressed or analysed by Dr Pandurangi, in particular your admissions in the record of interview to earlier that day attending what you described as ‘strip joints’ and after that committing these two offences.
56 Whilst I am very much aware I must not speculate about this, I am surprised Dr Pandurangi did not discuss this with you and address it in some way in her report. Your pulling down the pants of Andrea Gilmore occurs shortly after your attendance at Crazy Horse. Nor was any assessment made by her of your future risk. It appears her conclusion regarding your lack of sexual interest in prepubescent and pubescent children comes solely from your self-report and of course, lack of prior similar offending.
57 Again I say, I discussed this at some length with Ms Lacy and the transcript will reveal that discussion.
58
Turning to your mental state examination. Dr Pandurangi observed you had
a reasonable degree of fluency in your speech, with no obvious abnormalities. I note somewhat inconsistent with her conclusion (paragraph 52 of her report). Cognitively, you appeared to be of average intellect, were generally oriented and your consciousness was not affected in any way throughout the interview.
59 Concerningly, I note as recently as 7 April 2017, you continued to deny any contact with the victims of your offending (paragraph 40).
60 She described you as having an ‘odd communication style’, with deficits in non-verbal communication (although not further defined) and restricted and repetitive behaviour and interests.
61 Ms Lacy submitted incarceration would be onerous for you and relied upon the report of Dr Pandurangi that you would likely experience incarceration as more onerous due to your ‘odd communication style’ and the deficits in non-verbal conversations, which she said would make you vulnerable.
62 In my opinion, assessing the entirety of her report, which also included paragraphs 5-9 inclusive, that does not support mitigation of your sentence. I discussed this also at some length with Ms Lacy, as the transcript will reveal. The impact of imprisonment upon you following sentence is also speculative.
63 In Dr Pandurangi’s opinion, you did not present with significant cognitive deficits, or with a serious personality dysfunction.
64 You denied any deviant sexual interest, preferences or arousal or any paedophilic interests. I repeat my concern, that this was not further analysed as previously mentioned by her.
65 In her opinion, you needed ongoing drug and alcohol counselling to gain an understanding of the effect of illicit drugs on your mental state. I am sure you do and I encourage you to undertake as many programs as you can.
66 You have still not provided an explanation for these offences and as Dr Pandurangi noted, it was difficult to decipher your motivations that led to this offending. That, in my opinion, is particularly concerning.
67 Ms Lacy conceded she was not relying on any of the principles in R v Verdins & Ors[5], and that was an appropriate concession, based on the material before me.
[5] (2007) 16 VR 269
68 Turning to your rehabilitation prospects, Ms Lacy urged they were “fair” and that in support of that, when most recently on remand over eight months approximately , you had withdrawn from the use of drugs. I am not as optimistic as Ms Lacy regarding your rehabilitation prospects.
69 I have real concerns, given your lack of explanation for this offending, other than possible use of ice and drugs on that date. You have been a drug user for many years, yet not previously committed offences like this. Drug use (or need for money) does not seem to provide the answers/reasons for this offending, unlike your prior attempted robbery where you needed money for drugs. This offending before me is different.
70 I turn to the victim impact statement of Timothy Gilmore,[6] Andrea’s father, sworn 5 June 2017. He described the impact of your offending on Andrea’s sense of safety. She had been unable to forget and dismiss your attack upon her. Your offending occurred within 15 metres of the front door of their home and Andrea’s outside world had now become an unsafe place for her.
[6] Timothy Gilmore is a pseudonym.
71 He said Andrea also feared for her sisters. The family did not have enough money to increase their security, due to being a single income family and therefore the family deal with their safety concerns by remaining inside. Attached to the victim impact statement was correspondence from Claire McConville, Psychologist, dated 10 May 2017, Andrea having been referred to her for psychological counselling following your offending.
72 The author described Andrea as presenting with signs of PTSD, not wanting to sleep in her bed, increased tantrums, feeling sad and crying, avoiding the front of her house, wanting to be pushed in the pram, “so the bad man could not get her” and nightmares. The various symptoms described by Ms McConville had not improved with time and reassurance.
73 Prior to this incident, Andrea had been a well-functioning 4 year old with no developmental concerns. The impact of this incident on her family had also been profound, her sisters reporting they no longer felt safe at home and Andrea’s mother recently diagnosed with PTSD as a result.
74 Andrea had completed nine sessions of psychological counselling, engaged well and had made significant progress, however her family was still struggling to feel safe. Ms McConville anticipated her progress would further improve after her family, particularly her mother, received support. Your offending had impacted on all of them.
75 There was also a victim impact statement from Sara Gilmore, Andrea’s mother. She described your actions had changed their lives forever, robbing them of their security and turning Sara into a frightened recluse. She felt she had failed as a mother to properly protect her child. Seeing Andrea terrified and withdrawn after this incident was heartbreaking for her. They thought of your offending every day, including what could have happened to her, had she been taken. They were working towards increasing security at their home in the future.
76 They were shocked that someone could do this to their daughter. They expressed emotions ranging from anger to deep sorrow and constant fear. She experienced severe anxiety and panic at the thought of taking the children out on her own. She had also been diagnosed with PTSD and was at home during the day, where she is responsible for the children's care and safety.
77 The front yard of the home had not been used since this incident, as they did not feel safe.
78
As a result of your offending, she was stressed when with her children in public, especially when a stranger walked very close to them. Your offending had caused her paranoia, panic and trepidation, being in constant fear the incident would happen again. She constantly asked why it had happened to them. She had lost the ability to trust other people with their children and was no longer
a confident person.
79 I also received a victim impact statement from Andrew Hamilton,[7] father of Beth. He described the significant emotional impact of your offending upon their daughter. She had gone from being a playful outgoing 11 year old, to a scared, fearful and internally bound child. A daughter who was very outgoing had now developed paranoia, suspicion and fear when in public, seeing people in the street or a passenger in a car.
[7] Andrew Hamilton is a pseudonym.
80 He said his daughter required attention like a 5 year old for her emotional issues and the emotional impact had impacted upon the entire family. Her innocence and freedom to walk the streets has been taken away from her.
81 The family were no longer sports and leisure-minded. From previous encouragement to go out and play and go for family walks, their daughter was now paranoid.
82 His wife had to return to self-employment so that she could work from home, however, that created problems for her, feeling isolated and disconnected from the workforce. There had also been a significant reduction in her wages as a result. There had also been an impact upon Andrew’s parents who reduced their workload to spend time with the children.
83 His daughter did not feel safe anymore or anywhere, constantly asking for adult supervision. She did not play in the streets anymore or visit local parks. She had stopped going to children’s birthday parties, fearing other parents. She was suspicious of men, refusing to attend parties, sleepovers and most social events unless the entire family also attended.
84 Their daughter had received psychological counselling.
85 Also relevant is the notion of social rehabilitation. A number of authorities have referred to this notion. In DPP v Toomey[8], his Honour Vincent J referred to social rehabilitation, citing DPP v DJK[9], allowing of course for the difference in factual circumstances to your present case:
[8] [2006] VSCA 90
[9] (2003) VSCA 109, [17]-[18]
“With respect to these (victim impact statements), I repeat comments
I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour, to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, His Honour said, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence."
His Honour further stated:
"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime, can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime, may well aggravate the situation.”
86 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991). While I have referred to them in some detail, I am of course conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
87 Your counsel, Ms Lacy, urged your offending could be appropriately dealt with by the imposition of a term of imprisonment of up to 12 months, with a community correction order. In that regard, she relied on principles in R v Boulton & Ors[10] and as discussed in cases since.
[10](2014) 46 VR 308
88 I am, of course, mindful of the decision of Boulton and the subsequent pronouncements of the Court of Appeal, relevant to those principles. A community correction order has both a punitive and rehabilitative aspect to it and in Boulton, the Court was urged to ‘rethink the conventional wisdom about whether prison is really the only option’.
89 Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[11], Alam v The Queen[12], Marocchini v The Queen[13] and Hutchison v The Queen[14] and of course the fairly recent decision of Gul v The Queen[15]. I am also, of course, mindful of the different offending in those cases, compared to yours.
[11] [2015] VSCA 95
[12] [2015] VSCA 48
[13] [2015] VSCA 29
[14] [2015] VSCA 115
[15] [2016] VSCA 82
90 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other courts relevant to your offending, now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
91 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of your charges. Further, I note Priest JA observed in Hutchison that:
"It should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
92 I was referred to a number of authorities. DPP v Zakeri[16], R v Sumner[17], in which the court confirmed the principles in Saenz v The Queen[18].
[16] (2015) 15 VR 68
[17] [2016] SASCFC 59
[18] [2011] VSCA 154
93 Sumner involved a trial (not your case). The Court referred to R v Jackson[19] regarding kidnapping offences (yours, I note, is attempted kidnapping).
[19] [2007] SASC 332
94 Sumner involved a charge of attempted kidnap and noted:
“There can be no doubt that offences of attempted kidnap, even when the offender has no prior record, are to be treated as grave crimes.”
95 Saenz involved a charge of attempted kidnapping of a 14 year old girl. This was a trial (not your situation). The factual circumstances of that offending have some similarity with yours and also some significant differences. In that case, there was no discernible motivation for that offending. In that regard, the court said:
“The sentencing judge said that the Crown could not prove any particular motive on the part of the applicant and said that ‘does make it difficult for this court to approach the question of your prospects of rehabilitation with the same degree of confidence that might have otherwise been the case had there been an explanation for your behaviour’. Despite the applicant having reached the age of 49 years without any prior convictions (in that case) and his strong family support, the sentencing judge found his prospects of rehabilitation were no better than ‘good’."
The court said:
"In my opinion, His Honour did not fall into error. The judge catalogued and apparently took into account the applicant’s age, lack of prior convictions, good work history, a loving family and strong community support. Nevertheless, it was relevant to an assessment of the applicant’s prospects of rehabilitation that no reason for the offending could be identified, for it could not be demonstrated that there had been a reduction in the prospect of another like offence being committed by the removal of the motive or reason for the attack upon the complainant.” [33]-[34]
96 Ms Lacy referred me to the decision of Zakeri and submitted that there were distinguishing features between the cases of Seanz and Sumner and your offending and she is correct, there are.
97 As I discussed briefly with counsel, it is very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence. Ultimately I have to determine the appropriate disposition on all the facts in your case, being assisted of course as I am, by statements of principle and sentences from other courts dealing with similar offending.
98 Mr Goodenough, who appeared for the prosecution, submitted it could not be concluded that imprisonment would be a burden for you. He submitted to so conclude beyond sentence would be speculation and that what was known currently was that you are coping as well as could be expected in custody.
99 The prosecution submission was that the appropriate disposition was a head sentence with a non-parole period, specifically that the disposition being urged by Ms Lacy of a term of imprisonment together with a community correction order would be outside the range of appropriate dispositions for this offending.
100 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
101 There is also the need for specific deterrence when sentencing you. You do have a criminal history, albeit I note yet again not the same type of offending and I do note, however, your offending here occurred on two separate occasions involving two different victims on the same day.
102 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me, given the lack of risk assessment undertaken by Dr Pandurangi and any real explanation for your offending.
103 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
104 In my opinion, to impose the disposition urged by Ms Lacy would not adequately or appropriately reflect all sentencing considerations in your case.
105 When sentencing you, I take into account principles of totality and proportionality.
106 I sentence you as follows.
107 On Charge 1, convicted and sentenced to 15 months’ imprisonment.
108 On Charge 2, convicted and sentenced to 3 years and 6 months’ imprisonment.
109 Charge 2 on the indictment is the base sentence and I direct that 9 months of Charge 1 be served cumulatively upon Charge 2.
110 On the summary charges of attempted robbery, possess a prohibited weapon without exemption/approval, possess heroin and use heroin, I sentence you to an aggregate sentence of 12 months.
111 I direct that 4 months of that aggregate sentence of 12 months, be served cumulatively upon the sentence imposed on Indictment G129819910.
112 On the charge of failing to comply with the community correction order, you are convicted and fined $150.
113 That results in a total effective sentence of 4 years and 7 months’ imprisonment and I direct you serve a period of 3 years before you are eligible for parole.
114 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 244 days in custody by way of pre‑sentence detention (up to and including yesterday, 28 June) and I direct that be entered into the records of the court. I would like that checked.
115 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these two charges on the indictment and been found guilty of them, I would have sentenced you to a term of imprisonment of 6 years and 6 months, with a non-parole period of 4 years and 6 months, and I would have ordered a period of cumulation in relation to the summary offences.
116 I turn to the Sex Offenders Registration Act 2004 (the Act). Mr Goodenough referred me to the decision of Cartwright[20] and urged the combination of facts in the two charges on the Indictment before me should lead me to exercise my discretion to make the order for 15 years.
[20] (2015) 15 VR 68
117 Ms Lacy opposed the extension of time on the Sex Offenders Register from 8 years (relevant to Charge 1) to 15 years.
118 In DPP v Cartwright[21], the court considered s.11(3) of the Act and that section says:
"The court may only make an order under this act if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or the community."
[21] (2015) 45 VR 168
119 The power is discretionary.
120 Relevant to your offending, I note, is that it involved two young girls, the second offence occurring shortly after the first, and I note they were young girls, not young boys, which had involved you calling Andrea Gilmore "such a pretty girl" and pulling her pants down. The second offending occurs soon after that in Charge 1 (being sexual offending) with no explanation/motivation for your offending. Both offences involved physical contact with the victims. Until very recently, you denied committing the offences.
121
I was also assisted by the analysis of s11 of the Act in Bowden v The Queen[22], see paragraph 19 and following and in particular, paragraphs 40 to 42 and
45 to 46.
[22] [2013] VSCA 382
122 My assessment involves consideration of the evidence before me and the lack of information regarding the likelihood you would re-offend (although I add, not determinative of my decision, consistent with paragraph 47 of Bowden). Relevant also to existence of risk is my assessment of your rehabilitation prospects.
123 In my opinion, the order pursuant to the Act should be for 15 years.
124 My associate will, in a moment, approach you with a document to sign, acknowledging receipt of the paperwork relevant to the Act. You are not being asked whether you want to be on the Registration Act or not. I have made that order. You are simply being asked to sign for acknowledgment of receipt of the paperwork, nothing more.
125 Now, let us clarify before Ms Jackson wanders down to the back, any orders need clarifying?'
126 MS CUSTOVIC: No, Your Honour. There is just one matter though that - just with the $150 fine.
127 HER HONOUR: Yes.
128 MS CUSTOVIC: I just looked at the Government's website, the Department of Treasury and Finance say that the value of a penalty unit, up until 30 June of this year, is $155.46.
129 HER HONOUR: So I have to make it one penalty unit?
130 MS CUSTOVIC: Yes, Your Honour.
131 HER HONOUR: Why do I have to? Do I have to actually - it says penalty unit though. $155 and how much?
132 MS CUSTOVIC: Forty-six cents.
133 HER HONOUR: Forty-six cents. That seems to be as low as I can go.
134 MS LACY: Your Honour, I don't take issue with that, Your Honour.
135
HER HONOUR: I mean, you know, in the scheme of it. So it is now 150 -
I always work on a hundred, just because the maths is easier, but it is - one unit is now 150 - but at the time of the offence? That is when it applies. Well,
I mean, argue about $5.
136 MS CUSTOVIC: So from 1 July 2016 to 30 June of this year.
137 HER HONOUR: So that would take - and this offence was in October.
138 MS CUSTOVIC: Yes, it was in October.
139 HER HONOUR: Well I will have to convict and fine $155.46.
140 MS CUSTOVIC: Forty-six cents.
141 HER HONOUR: Yes, all right.
142 MS CUSTOVIC: Thank you, Your Honour.
143 HER HONOUR: Well I make that change to that sentence. Now what about the PSD? Is that correct?
144 MS LACY: Happy with the PSD.
145 HER HONOUR: Excellent.
146 MS CUSTOVIC: Yes, Your Honour.
147 HER HONOUR: Do the maths add up, at least? I am not asking if you agree with them, I am just asking if the maths add up.
148 MS LACY: Yes, Your Honour.
149 HER HONOUR: You do not want more figures - - -
150 MS LACY: Was it four month cumulative on the summary offences?
151 HER HONOUR: Yes.
152 MS LACY: Yes, that adds up.
153 HER HONOUR: Yes, and that is on top of Charge 2, which is the base, is that all clear?
154 MS LACY: Yes.
155 MS CUSTOVIC: Yes, Your Honour.
156 HER HONOUR: Yes, all right, so long as it is. Now, Ms Jackson is going to go down to the back and have him sign for the paperwork. It is just receipt of the paperwork. He is not being asked if he agrees with my ruling or decision. You do not have to sign if you do not want to.
157 MS LACY: Yes, Your Honour.
158 HER HONOUR: Is that done, signed? Thanks Mr Causon, would you mind hopping out please.
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