Director of Public Prosecutions v Chambers (a pseudonym)

[2018] VCC 495

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE CHAMBERS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 April 2018
CASE MAY BE CITED AS:	DPP v Chambers (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 495

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	Ms C. Duckett
For the Accused	Ms N. Karapanagiotidis

Pages 1 - 13

 

 

HER HONOUR: 

1Blake Chambers,[1] you have pleaded guilty before me to two charges of sexual assault.  The facts underlying your offending are as follows.

[1] Blake Chambers is a pseudonym.

2You and the complainant, Freya Wilton[2] were known to each other, as she had been friends with your wife for about eight or nine years.

[2] Freya Wilton is a pseudonym.

3On 6 July 2014 at about midday, the complainant went to your home to catch up with your wife.  When she got there, you were present and your two year old daughter was at day care.

4At about 2.30, your wife and a friend left the house to pick up your daughter from day care.  When they left, the complainant was eating a sandwich and stayed in the house with you.  Once they had gone, you approached the complainant with your hands down your pants and started asking her whether she had done anything sexual with your wife.  She told you, "It's not like that," but you persisted in asking whether the complainant had touched your wife's "tits" or "pussy".  You then took your penis out of your pants, saying to the complainant, "Go on, you know you want to suck it."  The complainant said no and that she wanted to eat her sandwich in peace and you walked away.

5She then got up from where she was sitting and went to put her plate in the sink and then felt her behind you "Humping against her butt."  She told you to get off and pushed you away, then turned around so she was facing you, put her hands up and said, "No."

6You continued grinding your penis into her vaginal area saying, "Is it touching the hole?"  And "It's all right."  These actions underlie Charge 1 on the indictment, sexual assault.

7The complainant told you that it was not all right and asked you "What about Molly?" [3] (referring to your wife).  You did not stop thrusting against her and she pushed you away and went to the laundry to throw something in the bin. 

[3] Molly is a pseudonym.

When she turned around, you were there, you had your penis in your hand and said, "Come on, I know you want to suck it."  The complainant said no, but you kept trying to kiss her neck.

8She broke away from you but you grabbed her head and forced it towards your penis which you rubbed on and around her mouth while she clenched her teeth to prevent your penis from going into her mouth.  She then felt you ejaculate over her face.  Those actions underlie Charge 2 on the indictment,
sexual assault.

9Once you had ejaculated, you let go of the complainant's head and she wiped her face.  She looked down and saw that there as semen on her T-shirt. 
You told her she had better clean the semen off the front of her T-shirt "before they get back," referring to your wife and friend. 

10The complainant went to the bathroom and washed her face with water and tried to wipe the semen off her T-shirt using a towel.  She went outside as your wife and her friend pulled up the driveway but did not tell them what had happened while they were away and just tried to act normally.

11She was aware of problems between yourself and your wife and was scared of what would happen if she said something.  She stayed at your house for dinner, but during the evening, went on Facebook with another friend, Mark Raegan[4] and told him that "something had happened."

[4] Mark Raegan is a pseudonym.

12After dinner, the friend, Sarah Lovell[5] who had also been at the house with you and your wife went home after her husband rang her and as she was leaving, the complainant asked if she could drive her to Raegan’s house, which Lovell agreed to do. 

[5] Sarah Lovell is a pseudonym.

13Once the complainant got to Raegan’s house, she was crying and told him what had happened and Mr Raegan said she should tell your wife.

14The complainant tried calling your wife but there was no answer, so she sent a text message asking her to ring her and text messages went backwards and forwards until about 9.42 pm when your wife rang the complainant, who told her what had happened.  Your wife hung up the phone.

15At 9.45, Lovell rang the complainant telling her that your wife had called her and that the complainant had better ring you or you were going to come and talk to your mother.  The complainant was crying and when Lovell told her to "stop" and "that it was okay."  She said, "No, it's not," and hung up.

16In another telephone conversation, Ms Lovell told the complainant that you were denying anything that happened and that you and your wife were arguing about it.  The complainant said she would try to call your wife.

17At 9.56 pm, you sent the complainant a text messages, "WTF," that is "what the fuck" "did you say to Molly?"  You also tried to ring the complainant, but she did not pick up.  You then sent her a second text saying, "You better pick up your phone or I'm coming to talk to your mum now," and then tried to call the complainant four times.  You sent her a further text message saying, "Thanks for fucking up my family's life."  The complainant tried to call your wife, but you answered the phone so she hung up and walked home from Raegan’s house. 

18Once she got home, your wife telephoned and there was an exchange between you and your wife, your wife ultimately hanging up.  The complainant told her mother that she had been sexually assaulted by you and that her friend, your wife, did not believe her.

19The complainant's mother told the complainant that your wife, Molly, was not a true friend and to go to bed as it was late.

20There were further text messages that night between your wife and the complainant where certain questions were asked by your wife and the complainant sent two text messages the next day to your wife saying what had happened.  She then spoke to her mother and then called the Western Centre Against Sexual Assault who advised that she make a report to police. 
Police then called the complainant and came to her house where they took the clothing the complainant had been wearing at the time and photographed the text messages that had gone on that night.

21In the afternoon, your wife sent a text messages to the complainant telling her not to contact her anymore and that the complainant was a sick person trying to break up her family and made other comments.

22A few days later after the incident, your wife attended the complainant's house at which time she was crying and asked the complainant's mother to tell the complainant not to report her husband to police as it could leave her daughter without a father.

23On 7 July 2015, the informant, Detective Natalie MacFarlane, received notification from West CASA that the complainant had contacted them wanting to report a sexual assault.  She then attended the complainant's house, as I have said, and seized the clothing the complainant had been wearing that day.

24On 12 July 2015, you attended the Brimbank police station by appointment and took part in a record of interview.  Essentially, you denied the sexual assault saying that you had never laid a finger on the complainant the entire day.

25The Adidas black T-shirt the complainant has been wearing on the day of the sexual assault was then subjected to forensic investigation.  It was found to have semen on the front of it and the estimation that was made was that it was 100 billion times more likely that you were the source of the semen and a non-sperm fraction of the mixed DNA profile of two contributors than another person being the contributor.

26On 23 May 2016, your wife attended the Footscray police station and made a statement saying that she had given the complainant the T-shirt she had been wearing on the day of the sexual assault and that she had worn that T-shirt a week before the incident and performed oral sex upon you when you had ejaculated onto her face, some of it dropping it onto the T-shirt in an evident effort to undermine the police investigation and to protect you.  Further testing showed no DNA contribution from your wife but instead DNA contribution from the complainant.

27The matter proceeded by way of a contested committal on 10 October 2016 in which the complainant was cross-examined.  Eventually, the matter was listed for trial 29 May in the reserve list for three days, negotiations took place and a plea offer was made which was then rejected.  The trial was not reached. 
On 20 November 2017, the trial was listed and the matter was resolved, the accused arraigned and the criminal history admitted.

28I now turn to your personal circumstances.  You are 38 years of age.  You are the son of parents who emigrated here from Bosnia in the 1960s.  Your father worked as a painter in his own business.  Your mother worked as a cleaner.  You have two brothers who both work as painters and live in Melbourne and you have a sister who is married and has undertaken a law degree. 
You reported a fairly happy upbringing, although your father had some difficulties with alcohol.

29You did have some difficulties yourself at school with reading or writing and you suffered from an amount of bullying because of a tongue condition from which you suffered and from which your daughter also suffers and for which you were not surgically treated until your late teens.

30On leaving school, you began apprenticeships as an auto electrician and then as a mechanic, completing both and working for a number of years in a business in Sunbury and then working for a number of other locations in
South Melbourne.  You worked in a franchise for Ultra Tune for five years and worked in a Ford dealership in Sunbury.  You returned to work for the
Ultra Tune franchise where you were promoted to manager and have now been promoted as to district manager.

31You met your wife in 2004 and you married in 2010.  You have one daughter who was born in 2013.  Your daughter has the same problems with her tongue which will require surgery and which you are paying for privately.  You hope to have this surgery carried out before she begins school in order to avoid the unwelcome teasing and bullying that you yourself experienced as a child.

32You do have limited prior criminal history.  In 2001, when you were aged 20, you were dealt with by way of a fine for assault with a weapon and driving in a manner dangerous.  This related to you conducting burn outs in a car which underlay the dangerous driving.  There were weapons in the car and there appears to have been some altercation.

33In 2014, you were placed on a community corrections order on charges of recklessly causing injury, using threatening words in a public place and criminal damage.  Those offences occurred whilst you were living with your father in law at which time an argument broke out and ended in a fist fight.  The only condition of that community corrections order was that you undertake work hours but you were still on that community corrections order at the time of this offending.

34During the plea, I received a report dated 31 January 2018 from psychologist Ian Joblin.  He noted that you appear to have no problems with drugs and alcohol.  It was his view that after speaking to you, the sexual offending against the complainant was not the result of any persistent wish for sexual relationships with her.  During your conversation with Mr Joblin, you indicated that you thought the complainant was excited and exuberant and that there was no reason for you to consider that she was at all distressed.

35It was Mr Joblin's view that the offending was "more a matter of opportunistic consideration of sexual relations."  He stated, "Furthermore, Mr Chambers acknowledged that had he considered that Freya was distressed or upset, he would have placed that upset into the context of his responsibility and be appropriately remorseful.  However, he indicated that he did not perceive there to be any distress at the time when Freya was in the house before she left in the car.  He indicated that in his opinion, there was no suggestion of his being responsible for any distressed state she might have had as a result of the commission of this offence."

36It was Mr Joblin's view that you were very fearful of the criminal justice system, that you were very concerned that as you were the only income earner, the effects of any incarceration upon your family would be catastrophic. 
For obvious reasons, I was very concerned at the attitude you displayed when you were interviewed by Mr Joblin and I adjourned the matter so that a further psychological report could be undertaken.

37You began attending on psychologist, Linda Roglic, on 5 February and she saw you further on 19 March and on 11 April this year.  Ms Roglic, in her report, dated 17 April 2018 noted under the heading issue of concern that the judge "did not get from the report that he appreciated the seriousness of the charges or that he was sorry and that she was angry/frustrated with him."

38It appears during your conversations with Ms Roglic on the three occasions you have attended upon her, that you spent a lot of time discussing your concerns about your daughter, the fact that you were bullied a lot for having difficulties speaking because of the tongue difficulties that both you and she have. 
You reported positively on your marriage and stated "the events of the charges against him had been stressful, hurtful for his wife."

39It was Ms Roglic's opinion that there was a very strong possibility that you were overwhelmed with the "real and ongoing consequences of the event involving his actions, including the pain of shame, both public and private, as well as covert and overtly expressed judgment of him within the community, both to him and his wife."  It was her view that from a brain function perspective, you might at times been operating from a "highly aroused sense of flee/flight from the amygdala which effectively shuts down to all other areas of the conscious and reasoning brain including the ability to self-express effectively.  This brain response state is likely to be triggered in circumstances when matters relating to the event and its consequences are raised or evident to him."

40She believed that you were engaged in the sessions and made considerable efforts to participate "as he listened, assimilated new information and learned."

41Ms Roglic outlined the way in which the sessions with you then proceeded.  Interestingly, in one of the sessions she spoke about "the far reaching concept of respect, its workings intertwined with both broad and specific implications.  This was an area of greatest learning and meaning to Mr Chambers.  It became evident to the writer in session as Mr Chambers being and to recognise the loop referencing relevance from the personal to the extended out to others and vice versa in all behaviours.  This demonstrated to him the enormous power he did not realised he possessed to be respected by acting respectfully regardless of the situation.  Connecting this realisation in his mind map allowed
Mr Chambers some greater insight into the importance of his thinking in determining his behaviour towards others and the impact of the same upon the singular and broader other as well as himself and those connected to him."

42What I took that to mean was that basically, she is speaking to you about the way in which you should treat other people and the effect this will have on your life if you do so.  Might I say that given your behaviour on the occasion of this offending, this is a lesson you very much need to learn.

43Ultimately, it was Ms Roglic's view that you had demonstrated good progress "in terms of insight, development in session.  His sense of remorse as expressed to the writer is considerable as he deals with express sadness at having hurt another through his own stupidity."

44During the further plea hearing, the prosecutor quite rightly in my view, expressed some concern over the word stupidity as being a word that properly described your behaviour, and I agree.  Your behaviour on this occasion was far more than stupid, although it certainly was stupid.  It was appalling, violent, contemptuous behaviour at which you were apparently annoyed over some perceived sexual attraction between your wife and the complainant, the basis of which I have no idea of whatsoever.  It was you seeking to assert yourself in a dominant sexual way over another human being who you perceived as some sort of threat to your marriage.  It was, in my view, as basic and animalistic as that.  It was absolutely disgraceful behaviour as I have made clear a number of times in both plea hearings.

45I received no victim impact statement from the complainant.  I note that she moves in the same social circles as you and that may, I cannot say, account for the failure or her decision not to complete a victim impact statement.  Nevertheless, I am perfectly prepared to accept, given that this court sits on hundreds and hundreds of sexual assault matters every year, that the effects upon the complainant have been drastic and long lasting.  She was subjected to an entirely uncalled for, degrading sexual experience at the hands of a friend's husband.  No one believed her.  Great efforts were made to deny what had occurred to her and whilst you are to be given some credit for ultimately entering a plea of guilty, I note it was after she had been brought to court and subjected to the trauma of cross-examination.  There it was put to her that she was lying about the events, these appalling, distressing events and she knew that her friend, your wife, made a patently false statement in an attempt to protect you about the T-shirt presenting all the forensic evidence that what she said had happened to her, indeed did happen to her and quite frankly both you and your wife should be thoroughly ashamed of your behaviour towards her.

46It has been submitted that I should place you on a community corrections order.  This is a most unusual request or submission.  Generally, persons who behave in the sexually aggressive and power inflicting way that you behaved can expect nothing but gaol, a term of imprisonment to be immediately served. 

47The courts are expected to respond sternly to the sorts of behaviour that you and far too many men in our community undertake.  Women are not objects to be dealt with sexually.  Men are not entitled to dominate over women because they are stronger and can force sex upon them in a way which cannot be resisted.

48Ultimately, you have pleaded guilty to charges of sexual assault.  The maximum penalty for this offending is ten years.  Because of the level of the charge of sexual offending you have pleaded guilty to, it is my view a community corrections order is open to you and indeed the prosecution agreed that this was the case.

49Somewhat reluctantly, I am going to place you on that order.  You have a good work history.  Ultimately and however in the face of what I regard as overwhelming evidence, you have entered a plea of guilty.  You have not spared the complainant the trauma of cross-examination and given that it is considered that the community corrections order is open, given the personal matters that have been placed on your behalf, given that it would appear that you are sincerely undertaking some therapy in that you have attended upon Ms Roglic three times and she has indicated that you have further appointments with her, given that you actually appear to have some glimmer of genuine remorse about what you did to the victim as opposed to what all this has meant for you because you were arrested, I am prepared to place you on a community corrections order.

50It will contain a condition of judicial monitoring.  You will be seeing me again, Mr Chambers, and you better be doing a good job on that community corrections order or I will gaol you.  Do you understand me?

51OFFENDER:  Yes.

52HER HONOUR:  I can only place you on this order with your consent, therefore I need to outline the conditions which apply to that order.  They are, one, that you must report to the Community Corrections Office within two working days of the making of the order, that is by Friday of this week.  Whilst on the order, you must not commit another offence punishable by imprisonment.  The order will last for a period of three and a half years.  What that means is sir, is not that you commit and offence and get sent to gaol, but that you commit an offence for which theoretically you could be sent to gaol, so if you knock off a box of matches from Woolworths, that will amount to a breach of the order.

53Whilst on the order, you may not leave Victoria without the consent of the Community Corrections Office.  You must report any change of address or employment within 48 hours of the making of the change to the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol.  You must report to and receive visits from the Community Corrections Office.  You must obey all lawful directions of the Community Corrections Office.

54I am going to order that you undertake 300 hours of unpaid community work.  You are to attend for programs which are designed to reduce reoffending, in particular a sex offenders program.  You are also to be subject to judicial monitoring.  I will see you, sir, in three months' time.  Have a seat, we will find you a date.

55OFFENDER:  Yep.

56HER HONOUR:  The order is of course is a conviction.  The other condition is you are to write a letter of apology.

57OFFENDER:  Yep.

58HER HONOUR:  Which I want to see.  You are not to send it to the complainant directly because she may not want it.  It will go to the informant and the informant will make the appropriate enquiries.  She deserves some acknowledgement of what you subjected her to.

59I will see you, sir, for judicial monitoring at 9.30 on 1 August at which time I will receive a report from the Community Corrections Office as to your progress on the order, thank you.

60OFFENDER:  No worries.

61HER HONOUR:  I will also order supervision.

62No doubt when you go home, it will be a great relief that you have not gone to gaol but do not think this is all over.

63OFFENDER:  No.

64HER HONOUR:  You have escaped gaol by the narrowest of margins.  So here is you, here is gaol and here is the community corrections order in the middle.  You may find that the obligations to attend upon the Community Corrections Office, to go for sex offender program, to undertake unpaid community work are going to be extremely difficult and hard to fulfil and get in the way of your normal life.  That is too bad.  If you do not make that community corrections order a huge priority in your life, you will end up in gaol.  I have given you this opportunity, if you do not grab it with both hands, if you do not do an impeccable job on this community corrections order I will gaol you, do you understand me?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  Thank you.

67MS KARAPANAGIOTIDIS:  Your Honour, may I approach while my client signs the order?

68HER HONOUR:  Yes, of course.

69MS KARAPANAGIOTIDIS:  Thank you.

70HER HONOUR:  Yes, thank you, you can come out of the dock, sir, thank you.  I thank counsel for their assistance in this matter.  I have got a sex offenders program, Ms Duckett, I do not think I need to do a mental health condition?

71MS DUCKETT:  No, the recommendation was as to - well having a period of time to ‑ ‑ ‑

72HER HONOUR:  He is going to attend a sex offenders program.

73MS DUCKETT:  Yes, and they will make the evaluation.

74HER HONOUR:  It is up to him whether he wants to go and keep seeing
Ms Roglic or not.  There was no particular mental health difficulty.

75MS DUCKETT:  No.

76HER HONOUR:  Just a sexual behaviour difficulty.  All right.

77MS DUCKETT:  As I understand it, there was a behaviour, anger behaviour program completed on the last corrections order.

78HER HONOUR:  That's different offending.

79MS DUCKETT:  Yes, Your Honour.

80HER HONOUR:  Thank you very much, I will leave it as is.  It is up to you whether you want to keep attending Ms Roglic.  You are not obliged to, but if you have got any brains, you will.  All right, thank you very much.

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