Director of Public Prosecutions v Croxford

[2019] VCC 1426

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00350

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD CROXFORD

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	26 August 2019
DATE OF SENTENCE:	30 August 2019
CASE MAY BE CITED AS:	DPP v Croxford
MEDIUM NEUTRAL CITATION:	[2019] VCC 1426

REASONS FOR SENTENCE
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Subject: assault with intent to commit a sexual offence and supply drug of dependence to a child
Catchwords: early guilty plea – lengthy criminal record – no history of sexual offending – background of extreme disadvantage – intellectual disability and mental illness – reduced moral culpability
Legislation Cited:
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571, Stephen Nicholson v The Queen [2017] VSCA 238
Sentence: total effective sentence 23 months imprisonment with a minimum non-parole period of 14 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Victorian Aboriginal Legal Service

HIS HONOUR:

1Ronald Croxford, you have pleaded guilty to a charge of supplying a drug of dependence to a child, a charge of assault with intent to commit a sexual offence and a charge of possessing a drug of dependence.  You have also pleaded guilty to the summary offences of careless driving, drive whilst disqualified, two counts, use an unregistered vehicle, possess a prohibited weapon, commit an indictable offence while on bail.

2The circumstances of your offending are set out in the prosecution opening upon plea: Exhibit A. 

3You knew a 16-year-old girl, Gwen Harris[1], and you had a sexual interest in her.  In mid-June 2018, when she was sleeping on the couch of your flat at Morwell, you woke her and offered her methylamphetamine to smoke.  She told you she just wanted to sleep.  You sat on another couch in the room and masturbated yourself in front of her.  When she saw you, she pulled the blanket over her head and turned away.

[1] A pseudonym

4On 4 July 2018 at Morwell, while you were driving your car, you saw Gwen walking along the footpath.  You pulled over and asked if she wanted to smoke methamphetamine.  She got into your car and the two of you smoked methamphetamine that you supplied (indictable Charge 1: supply a drug of dependence to a child).

5You drove her to a bus stop, to pick up her friend, David Keating[2].  On 1 February 2017, you had been disqualified from driving for a period of two years, for driving offences, including drive whilst disqualified and that driving on 4 July 2018 (summary Charge 13: drive whilst disqualified).

[2] A pseudonym

6You took the two of them to your flat, where they stayed overnight.  Very early on 5 July 2018, just after midnight, while you were driving a car at Hazelwood, you struck a fence (summary Charge 1: careless driving).  You got out of the car and knocked on the door of the house where you had damaged the fence.  You were incoherent and the occupiers called police.  When police arrived, you were at the front of the house.  You admitted you were the driver of the car (summary Charge 2: drive whilst disqualified).  The car you were driving was unregistered (summary charge 3: use an unregistered vehicle).

7Police impounded your car and drove you home.  You went out to get more methamphetamine.  You returned home around 6 am.  You knocked on the spare bedroom window and David Keating woke up.  He unlocked the back door for you.  Inside, you told him to sit on the couch for ten minutes and you would come back with some methamphetamine for him.  You went into the spare bedroom, where he had been sleeping with Gwen.  You closed the door.  Gwen was asleep on her stomach and clothed.  You pulled down her leggings and underwear and laid on top of her.  You put your penis between her buttocks and began pushing it against her anus.  You intended to take part in an act of sexual penetration with her (indictable Charge 2: assault with intent to commit a sexual offence).

8I have read a transcript of Gwen's VARE statement.  She said she woke to find you on top of her and ran out of the house.  Outside, she walked up and down the street, screaming and crying, and messaged a friend, who called the police. 

9When the police attended, they found her in a distressed state.  Police found you drug affected on a couch in your lounge room.  You had 1.81 gram of methamphetamine in a small deal bag, with a number of empty deal bags and a small set of scales on the couch near you (indictable Charge 3: possess a drug of dependence, where the trafficking purpose is not excluded).  There was a modified machete on the bed where Gwen had been sleeping (Charge 6: possession of a prohibited weapon).

10You were arrested and taken into police custody.  When you sobered up, police interviewed you in the presence of a third person.  You made a no comment interview, as was your right.  You were charged and remanded in custody. 

11At the time of this offending, you were on bail for unrelated matters and you were also subject to a community correction order imposed by the Latrobe Valley Magistrates' Court on 28 April 2017.  You pleaded guilty at the committal mention stage.  Yours is an early guilty plea.

12You have admitted a criminal record, from 19 March 2001 to 28 April 2017, for around 70 convictions in Magistrates' Courts at Shepparton and the Latrobe Valley for driving offences, street offences, drug offences and violent offences.  You have had suspended terms of imprisonment imposed, in June 2011, for using a carriage service to menace, six months, in December 2011, for recklessly cause serious injury and affray, 12 months, which sentence was wholly activated after you had contravened the suspended sentence order.

13You have served other terms of imprisonment.

14In November 2012, for drive whilst suspended, you were sentenced to one month’s imprisonment, and for trafficking cannabis, three months. In July 2015, for persistent contravention of the family violence order, possess methamphetamine and drive whilst suspended, you were sentenced to 36 days imprisonment, which was your presentence detention and an 18-month community correction order. On 1 February 2017, for family violence offences, drug and dishonesty offences and drive whilst disqualified, you were sentenced to 6 months imprisonment with an 18-month community correction order.

15Most recently, on 28 April 2017, on charges of false imprisonment, recklessly cause injury and criminal damage you were released on a community correction order for 18 months.

16You have a history of sustained and persistent summary level offending, but you have no history of sexual offending. 

17Ms Guesdon, who appeared for the prosecution, told me the police have been unable to locate Gwen, so there is no victim impact statement.  As your counsel Mr Pyne acknowledged, your assault upon Gwen would have been very distressing.  She was a child.  You were 20 years older than her.  She was vulnerable when you assaulted her.  They are aggravating features of the assault.  You concede your offending is objectively serious. 

18You are a Yorta man, born on 2 February 1982.  You are now aged 37 years.  You were 36 years old and using methamphetamine heavily when you offended.  It would appear you had not slept for some time before you assaulted Gwen.  She said, when she felt your penis against her anus, it was soft, not hard.  You did not flee after you attacked her but were found by police on a couch in the lounge.

19You have battled a methamphetamine addiction since 2013.  Your stints in prison have been the only times you have been abstinent. 

20I have read the neuropsychological report dated 26 April 2019 of Dr Linda Borg, which was Exhibit 2.  You described to her an upbringing of extreme disadvantage.  Your parents separated when your mother was pregnant and you lived with your grandmother in your early years.  Your father was an alcoholic.  You were abused sexually, emotionally and physically as a small child.

21When you were five years old, you were placed in care and lived at Cobram with Wilma Kay, a foster parent who looked after you.  She told Dr Borg, when she first met you, you were unable to talk.  Your head was shaved and marked with scars.  You were petrified of everything and, if a man came near you, you would get under the car, or hide under the bed.  You slept with a nightlight until you were 18 years old.

22She said, because of your delayed speech, you could not go to school until you were six years old and even then, you had the same teacher for two to three years because she was the only staff member who could understand you.  You had learning difficulties and were bullied.  When you were hurt at school you often ran away.  You were diagnosed ADHD.  In your early secondary school years, you tested at a level of intellectual disability and were given an integration aide to help you.

23Mr Pyne told me you left Cobram Secondary School in Year 10 and picked fruit locally for a few years.  You were good at sport and, in the leadup to the 2000 Sydney Olympics, you finished second in a state-wide javelin competition.  When you were 18 years old, you started drinking heavily.  Mr Pyne told me you do not remember much of your 20s.  You have had two significant relationships.  You had three children with Simone Terby.  Sadly, only your daughter Yarula survives.  You moved to the Latrobe Valley in 2013, with
Ms Terby, to try to make a fresh start.  However, you started using methamphetamine and your relationship broke down.  You have since had two children with another woman, Cara Morgan.

24You have a history of suicidal and hallucinatory thoughts.  In September 2010, police took you to Goulburn Valley Hospital after you had attempted self-harm.  You were admitted involuntarily to the high dependency unit, where you were kept for three days.  In December 2015, you were assessed at Goulburn Valley Hospital again with suicidal thoughts.  You reported an uncle had sexually abused you when you were a child and, in September 2016, you were taken to the Latrobe Regional Hospital, again with suicidal thoughts and self-harm behaviour, after asking police to shoot you.  You were made an involuntary patient and had two further admissions after you reported you had seen people passing through your window in October 2016.

25You were seen for a neuropsychological assessment in September 2016.  Your full-scale IQ was 62 and your reading and spelling abilities were at Grade 1 level.  You were assessed with an intellectual disability and specific reading disability, with depression and poly drug abuse contributing to your mental impairment.

26Dr Borg administered a number of neuropsychological tests when she assessed you on 2019.  Your full-scale IQ was 69 and your verbal comprehension index was 63. In her opinion, this indicated impaired reasoning skills, basic knowledge of words and their meanings, as well as a poor understanding about societal norms and socially acceptable behaviours.

27Despite your intellectual disability and psychiatric diagnoses, you met the criteria for fitness to be tried.  However, you could not explain remorse, regret, or shame.  You did say you regretted your behaviour, because you were hurting your kids and because you were back in gaol.  You said you were sorry for the offending and all the people you hurt, including your girlfriend and your mum.  Mum is a reference to Mrs Kay, who you regard affectionately for the care she gave you in your childhood.

28In Dr Borg's opinion, your early childhood abuse and stressors will have negatively affected the development of your brain, with enduring neurobiological effects.  You have a developmental verbal learning disorder and developmental dyslexia, which she considers to be permanent.  Your drug use will have made those vulnerabilities worse.  In her view, you have a moderate to severe degree of cognitive impairment.  In result, your ability to make calm, reasoned and informed choices is considerably compromised.

29Dr Borg said your mental disorder did not cause your offending behaviour; however, it may have potentially been a contributing factor.

30In written submissions, Mr Pyne relied on Dr Borg's opinion to contend the Verdins principles are engaged.  During his oral submissions, I indicated
Dr Borg's qualified opinion was insufficient for me to accept that submission.  He did not press it when I indicated to him I accepted your disadvantaged background and your learning disorder and your dyslexia, caused by it, should be given full weight in accordance with the Bugmy principles, which the Victorian Court of Appeal restated in Stephen Nicholson v The Queen [2017] VSCA 238.  In that case the court said,

'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way'.

31And the court went on to quote the High Court in Bugmy at pp.494-5,

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision.  However, this is not to suggest, that an offender's deprived background has the same mitigatory relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender'.

32You have been held in custody since your arrest on 5 July 2018.  Mr Pyne told me you have spent significant periods in isolation because of disputes with other inmates.  In one you were assaulted and lost a tooth.  I accept, because of your learning disorder and dyslexia, imprisonment will be more burdensome for you.

33Nevertheless, while you have been in custody you have completed programs to address your drug and alcohol, and relationship, issues, and to prepare yourself for this sentencing hearing (exhibit 3 – certificates).  You have also participated in the highly regarded Koori arts and cultural program, which is offered to prisoners (Exhibit 4 – certificates). I accept these achievements demonstrate your motivation to advance your rehabilitation.

34Mr Guesdon submitted I should be guarded about your prospects of rehabilitation.  She referred to Dr Borg's opinions that, because your neuropsychological problems are permanent and severe, without disability and advocacy supports and drug and alcohol counselling, you will likely relapse into drug use and reoffending.

35I must also take into account that you have not taken advantage of a number of opportunities to rehabilitate yourself in the community on community correction orders and your previous sentences of imprisonment have been insufficient to deter you from reoffending.  These are all matters relevant to not only your rehabilitation but also specific deterrence and protection of the community.

36Because you are to be sentenced for a number of offences I must have regard to the principal of totality which requires me to ensure that the total effective sentence is just and appropriate, having regard to the totality of your criminal behaviour.

37I have made orders for cumulation and concurrency to structure a sentence which ensures all sentencing objectives will be sufficiently achieved.

38In summary, Mr Croxford, your offending was serious. You gave a young girl drugs to try to get her to respond to your sexual interest in her and then, when you were high on ice and she was asleep, you assaulted her, intending that she would take part in an act of sexual penetration with you.  I bear in mind you are not to be sentenced for attempted rape.

39In relation to your possession of a drug of dependence, Mr Pyne did not try to persuade me you had the methylamphetamine only for personal use.  In circumstances where you had not only the drug but also empty deal bags and scales, he was correct not to do so.

40In relation to the driving offences you have a bad driving record, including prior convictions for driving while suspended and for driving whilst disqualified, and convictions for driving at a dangerous speed in a manner dangerous and carelessly.

41In relation to the weapons offence you have five prior convictions for weapons related offences. 

42As Mr Pyne conceded, imprisonment is the only appropriate sentence in your case.

43I have reduced your total effective sentence and non-parole period to give full weight to your early plea of guilty, your reduced moral culpability due to your traumatic childhood and resulting learning disorder and dyslexia, and the greater burden prison will have on you because of those disorders.

44Please stand, Mr Croxford.

45By the sentence impose I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or a similar kind.  I must also look to your rehabilitation, taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows.

46On Charge 2, assault with intent to commit a sexual offence, you are convicted and sentenced to 18 months' imprisonment.  That is the base sentence.

47On Charge 1, supply a drug of dependence to a child, you are convicted and sentenced to 12 months imprisonment and I order that three months of that sentence be served cumulatively on the base sentence.

48On Charge 3, possession of a drug of dependence, trafficking purpose not excluded, you are convicted and sentenced to two months' imprisonment and I order that that sentence be served concurrently with all other sentences.

49On the summary charges; summary Charge 1, careless driving, you are convicted and fined $250.

50On summary Charge 13, which is the first of the drive whilst disqualified offences, you are convicted and sentenced to two months' imprisonment, which is to be served concurrently with all other sentences.

51On the second charge of drive whilst disqualified, that is summary Charge 2, you are sentenced to two months' imprisonment one month of which is to be served cumulatively on all other sentences.

52On summary Charge 6, possess a prohibited weapon, you are convicted and sentenced to two months' imprisonment one month of which is to be served cumulatively with all other sentences.

53On summary charge 3, use an unregistered vehicle, you are convicted and fined $250.

54And on summary Charge 9, commit an indictable offence while on bail, you are convicted and fined $500.

55I intend your total effective sentence to be 23 months' imprisonment and I order you serve 17 months' imprisonment before being eligible for parole.

56I declare you have already served 421 days, or nearly 14 months of your sentence, by way of presentence detention.  You will be eligible for parole in approximately three months.

57Under s.78(1) of the Confiscation Act, I make an order for disposal of the methamphetamine and the deal bags and the scales, which police seized from you.  And under s.9(1) of the Control of Weapons Act 1990, I order the machete, which police seized from your home, be forfeited.

58Pursuant to s.6AAA of the Sentencing Act, I declare but for your plea of guilty I would have sentenced you to a total effective sentence of 30 months' imprisonment, with a non-parole period of 22 months.

59Now, finally, Mr Croxford, assault with intent to commit a sexual offence against a child is a class 2 under the Sex Offenders Registration Act and under the Act you are now a registrable offender and you must comply with the reporting conditions of the Act for eight years.  You must report your personal details to Victoria Police within seven days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.  It is an offence punishable by imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.

60Shortly my associate, Ms Phillips, will give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these conditions.  When she gives you that notice she will ask you to sign an acknowledgement that you have received it.

61In relation to the drive whilst disqualified charges, I must cancel any licences held by you and I disqualify you from obtaining any licence or permit for a period of 18 months from 5 July last year.  So you will be a disqualified driver until January of next year.

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