Director of Public Prosecutions v Davidson
[2024] VCC 1512
•26 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01842
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DREW ANTHONY DAVIDSON |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2024 | |
DATE OF SENTENCE: | 26 June 2024 | |
CASE MAY BE CITED AS: | DPP v DAVIDSON | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1512 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of Guilty – Sexual assault – Mid-range offending – Previous good character – Intellectual disability – Reduced moral culpability – Delay
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic);
Cases Cited:Worboyes v The Queen [2021] VSCA 169; O’Neal v The King [2024] VSCA 129; Stevens v The Queen [2021] VSCA 218; Muldrock v The Queen (2011) 244 CLR 120; Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] 262 CLR 428; DPP v Debenham [2021] VCC 949; DPP v Ernie (a pseudonym) [2023] VCC 1823; DPP v Attard [2022] VCC 1458; DPP v Riley [2023] VCC 77; DPP v Fern [2021] VCC 1950; DPP v Plucke [2018] VCC 1085; Rezai v The Queen [2020] VSCA 106; DPP v Tennison [2020] VCC 343; R v Mills [1998] 4 VR 235; Boulton v R [2014] VSCA 342; Perry v The King [2023] VSCA 218
Sentence: 2 year CCO – s 6AAA declaration – Imprisonment for 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr M. Weinman Ms Z. Alhalabi | Gallant Law |
HIS HONOUR:
1Drew Anthony Davidson, you have been charged with one count of sexual assault contrary s 40 of the Crimes Act 1958 (Vic) to which you have pleaded guilty. The offence carries a maximum penalty of 10 years’ imprisonment.
Summary of the Offending
2You are to be sentenced based on the basis of the Summary of Prosecution Opening for Plea dated 7 June 2024, which I note is an agreed document.[1]
[1] Exhibit P1.
3The victim in this matter is Renee Fowler[2]. She was born in 2000 and was 20 years of age when you offended against her. At the time she was employed as a hairdresser and was living with a friend she had known since Grade 5, Sharon Pruneda[3], in Benalla.
[2] A pseudonym.
[3] A pseudonym.
4Prior to the offending, you and Ms Fowler were known to each other, as Ms Fowler worked with your then fiancée at a salon in Wangaratta.
5At approximately 12:00am on Saturday 5 September 2020, Ms Fowler called her boyfriend, Max Searle[4], to let him know she was coming to pick him up from an address in Monds Avenue, Benalla. When Ms Fowler spoke to Mr Searle, he told her he was with you and that you were coming home with them. Ms Fowler drove to Monds Avenue and picked up Mr Searle and yourself.
[4] A pseudonym.
6At approximately 1:00am the three of you arrived at Ms Fowler’s home address. When you arrived, Ms Pruneda and her boyfriend David Sullin were also present.
7Inside the house, you wanted ‘some more drinks’ so Ms Fowler gave you ‘what was in the fridge’, being a couple of cruisers and a bottle of wine. Ms Fowler was not drinking alcohol that evening but Mr Searle and you were ‘both drunk’.[5]
[5] Statement of Renee Fowler, quoted in Exhibit P1, 2.
8A short time later, Ms Fowler went to her bedroom with Mr Searle and yourself. You lay on Ms Fowler’s queen size bed with her and Mr Searle and watched movies. You continued to consume the alcohol you took into the bedroom with you.
9While you watched the movies, you went into Ms Fowler’s walk-in robe and put her underwear (‘knickers and bra’) on and according to Ms Fowler were ‘[were] walking around in them like an idiot’. Ms Fowler thought you were being ‘stupid’.
10At one point Ms Fowler told you to go lie down on the couch, hoping that you would fall asleep there. You did this but soon returned, saying you were bored, and again laying down in Ms Fowler’s bed.
11Ms Fowler remained on one side of her bed, making sure Mr Searle was lying in the middle of the bed between her and yourself.
12As Ms Fowler tried to sleep, you kept reaching over Mr Searle and touching her side and waist. Each time this occurred Ms Fowler pushed your hand away and tried to ignore you and go to sleep. You eventually stopped touching Ms Fowler and you all slept.
13At approximately 8:00am, Ms Fowler woke and turned the television on. At this time, Mr Searle and you were both also awake. Mr Searle got up and went to the toilet. When he returned to the bed he got in on Ms Fowler’s side placing her in the middle of the bed between him and you.
14You all watched some television and during this time you consumed wine from the bottle you had brought into the bedroom. Mr Searle fell asleep again, and later Ms Fowler did too. The television was still on.
15At some point between 9:00am and 9:30am, Ms Fowler was awoken again by you placing your hand under her pyjama shorts and underwear. You then used your fingers to rub over the top of Ms Fowler’s vagina for what felt to her like one to two minutes. Ms Fowler looked at you, and saw that you were looking at her also. Ms Fowler was ‘in shock’ and lay there ‘unable to speak or do anything’.
16Ms Fowler thought she ‘had to get out of [the] situation’ and rolled towards Mr Searle who was still lying on his back asleep in the bed. When she did this, your hand was removed from her underwear and pyjama shorts.
17Ms Fowler then gently shook Mr Searle to wake him. On waking he asked her, ‘what’s wrong?’. Ms Fowler did not answer Mr Searle but told him she was ‘going to have a shower’ and got out of bed and went into her bathroom.
18While she was in the bathroom, she sent a text message to Mr Searle asking him to come to the bathroom. When he arrived in the bathroom Ms Fowler was unable to ‘say it or speak’ and ‘didn’t know what to say’. Mr Searle kept asking Ms Fowler ‘what was wrong’ but she ‘just couldn’t get the words out’.[6]
[6] Statement of Max Searle, quoted in Exhibit P1.
19Ms Fowler had a shower while Mr Searle went back to bed. After her shower Ms Fowler went to Ms Pruneda’s bedroom and told her and Mr Sullin what you had done. According to them Ms Fowler appeared to be ‘in a hysterical state’, and was ‘really upset and was crying’.[7]
[7] Statements of Sharon Pruneda and David Sullin, quoted in Exhibit P1.
20Ms Pruneda then told Ms Fowler ‘you need to tell’ Mr Searle ‘what happened’ so Ms Fowler messaged Mr Searle to come to the room. When Mr Searle came to Ms Pruneda’s bedroom, Ms Fowler was again unable to tell him what happened so Ms Pruneda explained to Mr Searle what Ms Fowler had told her.
21Ms Pruneda then told Mr Searle to take you home. Mr Searle returned to Ms Fowler’s bedroom and told you, ‘come on, time to get up, you’ve got to go home, I’ll take you home’. You responded by asking ‘what’s going on? Have I broken something?’ but Mr Searle wouldn’t say, telling you that you ‘had to go home’.
22During the drive you kept asking Mr Searle what you had done. When Mr Searle eventually told you, you [were] shocked, couldn’t believe it and started crying’. You told Mr Searle to stop the car and got out, refusing to get back in. Mr Searle returned to Ms Fowler’s address where Ms Fowler continued to refuse to speak with him about what you had done.
23Later that morning, Ms Fowler got a text from you telling her she was not allowed to go to your house. You sent the text as there was a previous arrangement with your fiancée Ms Hogg, that Ms Fowler would go to your address to have her nails done that day.
24The only other people that Ms Fowler spoke to regarding the allegations were Abbey Webster and her boyfriend. At the time Ms Fowler spoke with Ms Webster, she said that she ‘didn’t know what she wanted to do’, that she was ‘scared what everyone would say about her’ and that she ‘didn’t want to lose [Ms Hogg] as a friend and didn’t want it to come between them’. Ms Fowler told Ms Webster ‘I don’t think I should (Go to the police)’ but then told her ‘I think I should (Go to the police)’.[8]
[8] Statement of Abbey Webster, quoted in Exhibit P1, 5-6.
25On 22 March 2021 Ms Fowler made a formal complaint to the police at the Benalla Watch House. The Benalla SOCIT team were notified and an investigation commenced.
The Pretext Call
26On 3 July 2021 Ms Fowler conducted a pretext call with you. You maintained that you ‘honestly didn’t remember doing anything’ but told Ms Fowler that ‘if she was saying that [you] did this’ that you would ‘admit to this’.[9]
[9] Text messages arranging phone call between victim and the accused, and transcript of the Pre-Text call, quoted in Exhibit P1, 6.
27During that phone call, Ms Fowler told you that she was seeing a psychiatrist and that she had lost a whole friendship group. You told her that she was ‘not the only one that had lost friends over this’.
28When you asked Ms Fowler to ‘say what she had to say’, and she told you that what you did was wrong, you returned to maintaining that that you ‘felt like [you] didn’t do anything’.
29You and Ms Fowler spoke for about 25 minutes with you maintaining that you were ‘never gonna admit to it’ as you knew you ‘didn’t do it’. You told Ms Fowler that you knew telling her this would ‘hurt her’. Ms Fowler told you that she was ‘annoyed that [you] wouldn’t admit it’.
30Towards the end of the call you told Ms Fowler that you were sorry for what you did and went on to tell her that you would ‘never do that again’ and that you were ‘very sorry, there’s not much I can do about it now. Whatever the fuck happened, I can’t do anything about it now’.
31You then asked Ms Fowler to ‘go to the police and dob [you] in please’, telling her that you had not returned any of her calls as you had been ‘shit scared’ about what she would do.
Arrest and Record of Interview
32At the time Ms Fowler reported the incident to police, you were working and living in Western Australia. COVID restrictions prevented your return to Benalla for arrest and interview.
33On 7 November 2021, following your return to Victoria, you presented at Benalla Police Station where you were placed under arrest.
34At 10:10am that morning, a record of interview was conducted. During that interview you told police:
(a) That you didn’t think you had done it and got woken up by Max Searle telling you that you had to go and they wouldn’t tell you why and Mr Searle told you halfway as he was driving what happened and that you asked Mr Searle why he was driving you and Mr Searle had told you that he didn’t believe Ms Fowler and that’s all he knows; and
(b) That you had known Ms Fowler for two years and you were friends to an extent not good friends but associates and you did hang out usually when your missus was there and you had never been romantically involved with her; and
(c) That you had been drinking a few beers/12 beers with your mates somewhere in Monds Avenue and at 10:00pm maybe Mr Searle and you went to Ms Fowler’s house where you had more drinks/few cruisers as you didn’t drink anything else and had some/a tablet of MDMA and you didn’t know how or what time they got there and the other girl and her partner were there in her room and you had more to drink (maybe three Cruisers) and you went to bed/not for the whole night but a little bit; and
(d) That you didn’t remember being told to go back onto the couch and she basically told you to stay in there, it’ll be fine and Max Searle was keen as well and maybe you put her underwear on but didn’t remember it; and
(e) That originally Max Searle was in the middle of the bed but Renee Fowler moved over to the middle of the bed but can’t remember when that happened but it was dark and you didn’t remember touching her and first woke up to being told to leave; and
(f) That you didn’t think you had anything else to drink the following morning when you woke up; and
(g) That Renee Fowler had messaged you that day saying don’t tell anyone, I’m not going to tell anyone about this and you told your partner what you had done allegedly and you texted her to say not to come to your house as you didn’t want someone there who was making bullshit up about you and when she said don’t tell anyone as she wouldn’t, you told her that you had already told Maddy; and
(h) That despite drinking and taking MDMA that night you were aware and weren’t paralytic and was functioning fine and the next morning could still walk and was still fine and wasn’t blackout drunk to do anything like this but it was 12 months ago or more so you’re not gonna remember bullshit night; and
(i) That Maddie doesn’t believe this happened and Ms Fowler doesn’t have any friends anymore and is moving to Queensland.
35The interview concluded at 11:01am.
Gravity of the Offending
36The offence of sexual assault is an inherently serious one, involving as it does a violation of a person’s right to their own bodily integrity and to decide who and when is allowed to touch them, and when. The seriousness of the charge is reflected in the maximum penalty of 10 years’ imprisonment.
37Your counsel accepted the serious nature of the offence and conceded that the offending taking place in Ms Fowler’s own home and while she was asleep are factors which are aggravating. Nonetheless, your counsel submits that the circumstances of your offending place it in the ‘low to mid-range’ category of these types of offences.
38The opportunistic nature of your offending, which lacked sophistication or planning, the fact that it was an isolated incident of limited duration, that it did not involve the use of weapons, threats or physical violence other than the sexual violence inherent in any nonconsensual sexual touching, were all raised as factors which mitigate the offending. Your counsel pointed out that other common aggravating factors in sexual assault matters, like supplying alcohol or drugs to the victim or taking photos of them, were absent.
39The prosecution, on the other hand, submitted that your offending fell within the upper range of objective gravity based on the following factors:
(a) The touching was on the most intimate part of Ms Fowler’s body; and
(b) The touching was underneath her pyjama shorts and underwear and was on her skin; and
(c) The touching was not fleeting lasting as it did for one to two minutes; and
(d) The touching did not stop until Ms Fowler turned her body away to force your hand out of her underwear and pyjama shorts; and
(e) You had no reason to believe Ms Fowler had any sexual interest in you - the previous night she had pushed your hand off her waist and the side of her body more than once; and
(f) You took advantage of the fact that Ms Fowler was asleep.
40I accept the prosecution submission that your offending falls within at least the mid-range of objective gravity for sexual assault. As a sexual assault can involve a fleeting touching of the breast on the outside of a woman’s clothing, the sustained touching of a woman’s vagina on the inside of her underwear must necessarily constitute more than ‘low to mid-range’ offending.
41It is also relevant that Ms Fowler allowed you into her home where she was entitled to feel safe.
42Further, despite attempts by her to remove you from her room, and to remove your hand from her body, you nonetheless felt entitled to sexually touch her without her consent or even her consciousness.
Victim Impact Statement
43In her victim impact statement dated 7 June 2024 Ms Fowler makes clear the profound and traumatic impact your offending has had on her life.
44Ms Fowler stated that she ‘didn’t really feel present’ in the days following the offending, and had trouble sleeping, studying and working. She described becoming increasingly upset and stressed as time went on, and the shock of having friends, acquaintances and clients in her workplace talking about the incident.
45Ms Fowler states that she now isolates herself socially and has difficulty going out. She describes her worry about living in the same small town as you, and her understandable concern at the thought of running into you or people you are connected to.
46Ms Fowler states that there have and continue to be many other impacts of your actions which are too personal to include in her statement, in circumstances where your shared community ‘know more about this and [Ms Fowler] than they should’.
47I have taken the impact on Ms Fowler as described in her statement into account when sentencing you.
Personal Circumstances
48You were 27 years of age at the time of your offending, and have recently turned 31.
49You were born in Wangaratta and resided with your parents and younger sister.
50Despite your parents separating at an early age you have a positive relationship with them and report a particularly close bond with your father.
51Your father describes you as ‘always looking out for others’ and ‘caring, considerate and trustworthy’,[10] descriptions which as your counsel acknowledged, are at odds with your offending that is before the court.
[10] Character reference of Wayne Davidson dated 8 June 2024 (‘Exhibit D3’).
52You experienced learning difficulties throughout primary school, repeated your first year of secondary school and ultimately left school after year 8.
53You describe being diagnosed with attention deficit hyperactivity disorder in primary school and prescribed Ritalin, however you describe your symptoms as having been mild and not persisting into adulthood. You ceased taking medication in your second year of high school.
54After leaving school you commenced working in several roles including on an assembly line, as a bricklayer, and with a plumbing company for over five years. You sought to commence an apprenticeship in plumbing but left that after experiencing distressing circumstances related to the attempted suicide of your employer.
55You subsequently found work in the Western Australian mines as an excavator and loader operator, and found similar work in Victoria after returning to this state in 2022.
56You are now a leading hand in the business, holding a position of responsibility which has you overseeing a number of other employees in both South Australia and Victoria.
57You met your wife Madeleine at 17 years of age, have been married just under two years and have a strong relationship despite difficulties following your offending. Letters of support tendered to the court from Madeleine and her sister Stephanie Hogg demonstrate the continued support of both your wife and her family.
58Madeleine states that:
Drew has realised that drinking plays a huge part in his poor decision making and has expressed his remorse and has made changes to his social life and drinking habits…I believe his behaviour that caused him to be charged was a different man to how he is now.[11]
[11] Character reference of Madeline Davidson dated 15 May 2024 (‘Exhibit D5’).
59I have taken into account the letter from your wife as well as that penned by your sister-in-law, Stephanie Hogg[12] and one from your father Wayne Davidson.[13]
[12] Character reference of Stephanie Hogg, undated (‘Exhibit D4’)
[13] Exhibit D3 (n 7).
60Two psychological reports were tendered to the court.
61The first was a report dated 25 May 2023 prepared by Mr Warren Simmons, psychologist.[14] Mr Simmons concludes that, based on testing he performed, you are in the average risk category for sexual re-offending relative to other adult male sex offenders.[15] Importantly, Mr Simmons reports that you display no significant antisocial personality traits and you do not have a tendency towards any inappropriate deviant sexual behaviour.[16]
[14] Exhibit D1.
[15] Ibid, [24].
[16] Ibid, [23].
62A more recent assessment of you was made by Dr Mathew Staios, Clinical Neuropsychologist. Dr Staios’s report dated 22 May 2024 was based on his interview with you on 13 May 2024.[17]
[17] Exhibit D2.
63Dr Staios notes your poor scholastic record and concludes, based on testing that your level of intellect falls ‘within the Borderline Range’ thus placing you in the bottom 10% of the community.[18]
[18] Ibid, [6.3].
64Dr Staios assesses your level of risk on the sexual recidivism range to be within the moderate range based on your age. None of the other risk considerations was present.[19]
[19] Ibid, [7.2].
65Dr Staios considers that the offending which is before the court ‘appears to have resulted as a result of acute intoxication, leading to limited capacity for emotion/behaviour regulation, consequential thinking, and an understanding of appropriate social boundaries’.[20]
[20] Ibid, [8.2].
66Importantly, Dr Staios reports that you acknowledged your offending and while you displayed a level of ambivalence and avoidance when discussing specifics relating to [your] present offending’, this is likely to reflect a sense of shame ‘rather than denial of [your] actions’.[21] Your account of the events of the night indicate to Dr Staios ‘a limited capacity for social boundaries and will require ongoing monitoring moving forward’.[22]
[21] Ibid, [8.3].
[22] Ibid, [8.3].
67Looking to the future Dr Staios opines that:
… Mr Davidson would benefit from engaging with a clinical or forensics psychologist to assist with moderating his level of risk, specifically around appropriate social/sexual boundaries, moderating his use of alcohol, and navigating the complexities of his relationship following his present offending.[23]
[23] Ibid, [8.4].
68Dr Staios concludes with the observation that you are ‘a good candidate for community-based rehabilitation and that [your] level of risk can be further reduced with appropriate support’.[24]
[24] Ibid, [8.4].
69I direct that a copy of the report prepared by Dr Staios be provided to Corrections Victoria together with a copy of these my reasons for sentence.
Matters in mitigation
Guilty Plea
70Although you only formally pleaded guilty on 17 June 2024, it is common ground that you offered to plead guilty to a charge of sexual assault first in December 2022 and again in July 2023. On both occasions the offer was rejected by the prosecution.
71Your plea of guilty is of significant utilitarian benefit. It spares Ms Fowler the trauma of having to give evidence at a trial. It also saves court time and prosecutorial resources. I have moderated the sentence accordingly.
72Because you offered to plead guilty at a time when the delays to the court’s processes were still affected by the pandemic, you are entitled to an ‘actual and palpable’ additional discount on sentence in accordance with the decision of Worboyes.[25] As the Court of Appeal has recently explained, in a case such as yours, the relevant date is the date the plea offer was made and not the date the plea was entered that counts in this regard.[26]
[25] Worboyes v The Queen [2021] VSCA 169.
[26] O’Neal v The King [2024] VSCA 129, [51]-[52].
73Although there was a s 198B hearing in your case, the only witness cross examined was the informant.
Remorse
74Your plea of guilty is evidence of your remorse.
75There is further evidence of your remorse in the character references provided to the court and the evidence of Dr Staios.
Previous good character
76You come before the court as a man in your early 30’s with no prior criminal history.
77You have an impressive work record and you currently hold a responsible position.
78You are entitled to and will receive full credit for your otherwise exemplary character.
Intellectual Deficit
79As noted earlier, Dr Staios reports that your general intelligence falls within the borderline range overall. He opines that this is due to your history of learning difficulties during early childhood.
80While this is not a formal diagnosis of intellectual disability, and there is no evidence before me of your Full Scale Intelligence Quotient, this evidence taken with the evidence that you failed to complete year 8 at school raises a real question about whether you may have an intellectual disability.
81I have decided to approach the assessment of your moral culpability on the conservative basis that you may well have an intellectual disability. In such cases, the High Court has explained that:
… because the [offender’s] lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct [this] will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community’.[27]
[27] Muldrock v The Queen (2011) 244 CLR 120, [54].
82More recently, the Court of Appeal has explained that:
‘… in the case of an intellectually disabled offender, general and specific deterrence may — depending upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender — be moderated or eliminated as sentencing considerations’.[28]
[28] Stevens [2021] VSCA 218, [32].
83In your case, because of the state of the evidence I have moderated the need for both specific and general deterrence to a modest extent.
Delay
84Your offending occurred in September 2020, nearly four years ago. That is a lengthy delay none of which was your fault.
85Delay is relevant in two ways. First I take into account that the case has hung over your head all of this time and you have been through the anxiety and stress of preparing for a trial until very recently when your plea offer was accepted by the prosecution.
86Secondly, you have not re-offended in the last four years and have in fact taken steps to reduce your drinking and, in the words of your father, ‘make the changes needed to be a better person’. This gives the court some confidence that you are on the path to rehabilitation and lessens the need to impose a sentence that specifically deters you from further offending.
Comparative Sentences
87A sentencing court is required by law to have regard to ‘current sentencing practices’ among a range of other considerations.[29] The plurality in Dalgliesh[30] explained the rationale underlying this requirement:
Section 5(2)(b) of the Sentencing Act informs the process of instinctive synthesis as a statutory expression of the concern that a reasonable consistency in sentencing should be maintained as an aspect of the rule of law.[31]
[29] Sentencing Act 1991 (Vic), s 5(2)(b) (‘Sentencing Act’).
[30] Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] 262 CLR 428 (‘Dalgliesh’).
[31] Ibid, [50] (Kiefel CJ; Bell and Keane JJ).
88The first identified purpose of the Sentencing Act is to ‘promote consistency of approach in the sentencing of offenders’.[32]
[32] Sentencing Act (n 25) s 1(a).
89To assist the court in attaining this object, your counsel referred to six decisions of judges of this court where sentences were imposed on offenders who had committed sexual assaults without also committing other offences.[33]
[33] DPP v Debenham [2021] VCC 949; DPP v Ernie (a pseudonym) [2023] VCC 1823; DPP v Attard [2022] VCC 1458; DPP v Riley [2023] VCC 77; DPP v Fern [2021] VCC 1950; DPP v Plucke [2018] VCC 1085.
90In each of these cases, the offender had pleaded guilty, had no prior convictions and was assessed as having at least good prospects of rehabilitation. The facts of the cases, with the exception of Ernie,[34] were quite similar to the facts of this case in that they all involved a male briefly touching a woman’s vagina under her pants. In Ernie the touching was on the outside of the victim’s pants.[35]
[34] [2023] VCC 1823.
[35] Cf. Perry v The King [2023] VSCA 218, [37].
91All of the offenders were sentenced to non-custodial outcomes. In those of the cases where a declaration pursuant to s 6AAA of the Sentencing Act 1991 was made by the court,[36] the declaration was that, but for the plea of guilty, the offender would have been imprisoned.
[36] See Ernie, [68]; Attard, [54]; Fern, [141]; Plucke, [32].
92The prosecution submitted, quite rightly, that beyond these similarities, there were important differences between those cases and yours. For example, counsel for the prosecution Mr Brown referred to a number of the offenders being in their early twenties and showing more genuine remorse than you have done.
93The prosecution also referred the court to two cases it said were comparable.
94The first such case was a decision of the Court of Appeal in Rezai v The Queen.[37] A combination sentence of imprisonment for 9 months and a 2 year community correction order was upheld on appeal with the court describing it as ‘lenient’.[38] The offender had briefly touched the complainant’s vagina under her skirt while walking behind her at a nightclub where he was employed as a security guard. The court accepted that there were strong matters of mitigation that could be called in aid by the offender.
[37] [2020] VSCA 106.
[38] Ibid, [30].
95The principal difference between that case and yours is that the sentence there was imposed after a trial. It is therefore of limited utility as a comparable case as the s 6AAA declarations in the cases referred to by your counsel demonstrate.
96The other case relied upon by the prosecution was the decision of this court in DPP v Tennison.[39] The offender sexually assaulted a very drunk woman in a taxi. The woman was the girlfriend of his friend with whom he had earlier agreed to look after her and take her home. Instead, he assaulted her by putting his hand down her pants on multiple occasions over a 12 minute period. After concluding that the offending was serious and the offender’s moral culpability was high, the court sentenced him to a term of imprisonment for seven months followed by an 18 month community correction order.
[39] DPP v Tennison [2020] VCC 343.
97I consider that the offending in Tennison was more serious than yours.
98I have taken the cases to which the court has been referred into account in determining the appropriate sentence.
Sentencing submissions
99Mr Brown for the prosecution submitted that the objective seriousness of your offending means that, notwithstanding your guilty plea and other matters of mitigation, ‘the only appropriate sentence is a custodial sentence’.[40]
[40] Prosecution Submissions on Sentence dated 14 June 2024, [5].
100Mr Weinman, who appeared together with Ms Alhalabi on your behalf submitted that it is open to the court to impose a standalone community correction order.[41]
[41] Defence Outline of Submissions for Plea dated 6 June 2024, [41].
Consideration
101The starting point is s 5(4) of the Sentencing Act which provides that a court must not imprison an offender unless it considers that the purposes for which the sentence is imposed ‘cannot be achieved by a sentence that does not involve the confinement of the offender’.[42]
[42] See also s 5(3)
102The main purposes for which sentence is to be imposed in your case are general deterrence, denunciation and just punishment. It is also desirable to promote your rehabilitation and thereby lessen further your risk of re-offending. The need to deter you from further offending, and the corresponding need to protect the community from you, are lesser concerns in light of my assessment that you are not likely to re-offend for the reasons earlier explained.
103This is a difficult sentencing case. On the one hand you have committed a serious example of a criminal offence that attracts a maximum penalty of 10 years’ imprisonment. The offending has had a considerable impact on your victim Ms Fowler. You were 27 years old and do not attract the full benefit of the leniency that is accorded to young and youthful offenders.[43]
[43] R v Mills [1998] 4 VR 235.
104These considerations call for significant punishment which, under our system of law, usually involves a period of incarceration.
105On the other hand, you have accepted responsibility for your conduct by pleading guilty and have thus spared Ms Fowler the ordeal of giving evidence at your trial. This is no small matter. You also come before the court as a first time offender and can point to the other matters of mitigation that I have already canvassed.
106On balance, taking into account all of the considerations that the law mandates I consider, I have concluded that your preparedness to plead guilty which, if it was accepted in late 2022 when it was communicated to the prosecution would have been of particular benefit to the Victorian community, tips the balance in favour of a non-custodial disposition.
107All of the sentencing purposes that I have identified earlier can, in my view, be achieved without sending you to jail and instead requiring you to serve an onerous sentence in the community by way of a two-year community correction order.
108Such an order should not be viewed as a soft or lenient sentence. It will mean that your record will disclose that you are a convicted sex offender. Further, as the Court of Appeal explained in the case of Boulton, a CCO ‘has obvious punitive elements … [which] materially impinge on an offender’s liberty’.[44] The court was there referring to the standard conditions listed in s 45 of the Sentencing Act 1991 which restrict an offender’s freedom of movement and general liberty albeit to a considerably lesser extent than would be the case with a prison sentence.
[44] Boulton v R [2014] VSCA 342 [91].
109The principal advantage of a CCO over a term of imprisonment is that, by imposing a CCO, a court can attach other conditions that are tailored to the circumstance of the individual case. In your case, that will involve requiring you to participate in a program to address your abuse of alcohol and increase your understanding of appropriate social/sexual boundaries as recommended by Dr Staios. These are important considerations that are ultimately of benefit not just to you but to those around you such as your wife and family and the community more generally.
110I had you assessed by Corrections Victoria for suitability for such an order and in a report dated 21 June 2024, you were assessed as suitable.
Orders
111On charge 1, sexual assault, you are convicted and sentenced to a community correction order of two years’ duration commencing today.
112The standard conditions that apply to all such orders are:
· you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
· you must comply with any obligation or requirement prescribed by the regulations;
· you must report to, and receive visits from the Secretary during the period of the order;
· you must report to Wangaratta Community Correctional Services within 2 clear working days after the order comes into force;
· you must notify the Secretary of any change of address or employment within 2 clear working days after the change;
· you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
· you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
113In addition, the special conditions that I impose are that:
(a) You must perform 200 hours of unpaid community work;
(b) You must participate in treatment and rehabilitation programs as directed for mental health, drugs and alcohol and programs to reduce offending; and
(c) That 60 hours of treatment and rehabilitation are to be counted as unpaid community work.
114If you breach any condition of the order you can be brought back to court and sentenced for up to 3 months in jail for breaching the order and you may be re-sentenced on the original offending.
115If you are having difficulty complying with the order you may apply to this court to vary a condition.
116Do you understand the nature of the order I intend to impose on you? Do you consent to the order?
117Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed if you had been found guilty by a jury of this offence would have been imprisonment for 9 months.
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