Director of Public Prosecutions v Donnelly (a pseudonym)

[2019] VCC 727

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDWARD DONNELLY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2019 (Bendigo)
DATE OF SENTENCE:	22 May 2019 (Melbourne)
CASE MAY BE CITED AS:	DPP v Donnelly (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 727

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW – Sentence

Catchwords:   Late Plea – one charge of sexual assault – one charge of sexual penetration of a child under 16 – one charge of using a carriage service to transmit indecent communication to a person under 16 years – no prior convictions – intellectual disability – physical disability – prospects of rehabilitation – whether a sentence of imprisonment would be too onerous – whether a community corrections order a more appropriate disposition

Legislation Cited:      Crimes Act 1958 – Sentencing Act 1991
Cases Cited: -
Sentence:                  Two year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr M. Habib	Docherty Legal

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

HIS HONOUR:

1I am mindful in sentencing Mr Donnelly[1] that the neuropsychological assessment report in evidence as to his intellectual functioning indicates that he has difficulty understanding verbal material.[2] Therefore, I will proceed with some simplicity in sentencing him.

[1] A pseudonym

[2] Exhibit 4 on the plea.

2Mr Donnelly, you have pleaded guilty to one charge of sexual assault, one charge of sexual penetration of a child under 16 and one charge of using a carriage service to transmit indecent communication to a person under 16 years.  The maximum penalty for the sexual assault charge is 10 years' imprisonment, the maximum penalty for the sexual penetration of a child under 16 years is 15 years' imprisonment and the maximum penalty for the using a carriage service to transit indecent communications of a person under 16 is seven years' imprisonment.  You pleaded guilty to those three offences.

3Now, the circumstances of the offending were set out in the prosecution open which the learned Crown Prosecutor read in open court when we were in Bendigo on the plea and I incorporate that by reference. In essence, you got into Facebook communication with the complainant, the girl, who at the time was aged 13 in December 2017. You proceeded to send her a number of messages containing sexual or indecent communications and they were exchanged between the two of you over a short time.[3] You told her your age and she says that she told you that she was aged 13, then you then arranged to meet her a day or so after this and you then met in a park in Bendigo. You then proceeded to go to a public toilet disabled cubicle where you then proceeded to start kissing her and then you then proceeded to touch her vaginal area, that constitutes the first charge of sexual assault on a child under age 16.[4]

[3] Contrary to s 474.27A(1) of the Criminal Code (Cth).

[4] Contrary to s. 49D(1) of the Crimes Act 1958 (Vic) (as amended by the Crimes Amendment (Sexual Offences) Act 2016 (Vic).

4Then you removed your penis from your underwear and she got on her knees and proceeded to perform oral sex on you.  You were unable to gain an erection.  She then stood up, turned around, made an excuse and left the cubicle.  So that event constitutes sexual penetration of a child under 16.[5]

[5] Contrary to s. 49B(1) of the Crimes Act 1958 (Vic), (as amended by the Crimes Amendment (Sexual Offences) Act 2016 (Vic).

5You then left the cubicle as well and sent her a text message later saying sorry that you were not able to achieve an erection.

6That all happened on 9 November and then about three weeks later, she saw you and your partner in the street with your children in the street in Bendigo and then she then reported it to the facility that she was residing at, a DHS facility, and said she wanted to have you charged. Then the matter was taken to the police and she gave the police her mobile phone which showed some of those indecent messages that you had been exchanging with her.

7Subsequently the police arrested you, executed a search warrant and seized your phone and you then in the record of interview did make some admissions to the police that in fact there had been sexual contact between the two of you and you had sent her these indecent text messages. You claimed that she had told you that she was 17 but it is clear that she was not 17 and you, by your plea, admit that you knew that she was less than 16 and that constitutes the offence of sexual penetration with a child under 16, the fact that you could not prove that you believed that she was over 16.

8The matter was listed for a trial in Bendigo and you pleaded guilty in Bendigo after some negotiations with the learned Crown Prosecutor by your counsel, Mr Habib.

The seriousness of the offending. 

9You are an adult.  You were aged 27 at the time.  You are now aged 28. Children under the age of 16 are to be protected by the law from premature sexual activities.  Inherently sexual activity with a child under 16 is wrong and it causes harm.

10In this case, there has been no victim impact statement filed which, although that is the case, still there is a presumption that it has caused harm to this girl by the fact that you engaged in this sexual activity with her.  So it is serious offending. Similarly, the exchanging of the indecent text messages between the two of you.  They are of relatively limited number and the whole three offences that you have pleaded guilty to took place over a very short period of a day or so and they are to be treated as a single course of conduct, that is relevant to the seriousness overall of the offending but, still it is serious offending.  It is evident by the maximum penalty and the way the community regards such offending.

11I turn now to the matters that were raised as to your personal circumstances and on the plea.  As I said, you are now aged 30.  You were 28 at the time of this offending and most significantly you come before the Court with no prior convictions and nothing outstanding against you.

12Now, for a person with the intellectual disability that you carry, that is very significant.  You have got to the age of 28 when this offending occurred, now 30, without being drawn into the criminal justice system by offending.  You have been able to survive out there in the community when you are in the lower end of the scale of intellect.

13You are married.  You have got two children.  You fathered another child but, notwithstanding all of that, you have not got yourself into the criminal justice system so that is to your credit and I take it into account very significantly and that is reflected in the Community Corrections order report which indicates that they regard you as having a low risk of reoffending.

14The submissions that were put to me by your counsel on the plea were that given that you have low intellectual achievements, a disposition that emphasised your rehabilitation was appropriate.  Your personal circumstances were set out in the plea and they were also out in the psychiatric report[6] and the neuropsychological reports.[7]

[6] Exhibit B on the plea.

[7] Exhibit 4 on the plea.

15You had a very difficult childhood and right from very early in the months after you were born, you were in hospital having major surgery.  It seems that there was a genetic pre-disposition for intellectual impairment. You have to have a shunt to take some fluid pressure off your brain and this is still there. That is relevant to you, you would find a sentence of imprisonment more onerous than a person with normal physical health as well as with a person with general intellectual achievement.

16You struggled academically and you had behavioural difficulties. You were diagnosed for ADHD early.  You did not really achieve a lot in your educational experience but, notwithstanding that, you were in a special school. In the period since you reached adulthood, despite the fact that you have got these intellectual problems, you have been certified as eligible for support under Disability Services since 2005 and also you have been on a DSP, Disability Support Pension, for many years. You have also been in the workforce in a number of different occupations in the Bendigo area.

17I indicated that you are married and you have got these two children and an older child as well, a five-year old.  All of them are being looked after by the DHHS or being looked after by family members and not by yourself and your partner. Indeed the DHS became involved in the family because of fears and worries about whether both you and your partner were able to properly parent these children.

18So, notwithstanding that, your aim, according to your counsel, Mr Habib, is that you want to get back with your partner and get the children back.  Now, that will be a matter ultimately for the Health and Welfare Services Department, the DHS.

19Now, in sentencing you, I have had you assessed for a community corrections order.  I also had you assessed as to what services would be available to you under a Justice Plan and they indicated that it would be appropriate for you to engage with a justice coordinator.  They have indicated that you ought to engage with a disability justice coordinator and engage in any supports, assessments or treatments that they recommended.

20So, I am going to place you on a Community Corrections Order and part of the condition of that is that you do engage with the Disability Justice Coordinator.  They will tell you who that person is and, in a sense, that person is designed to sort of hold your hand and guide you through your obligations under the community corrections order.

21I commend you that since this offending you also have already engaged with a men's behaviour change program and you are having some counselling with a counsellor up in there in Bendigo and that indicates that, after this offence came to light, you were prepared to take some control over your life and engage in some counselling.

22At the time, you have told the psychiatrist that you were under the influence of alcohol, but alcohol does not seem to be a major problem although it has been a problem in the past and I have included in the Community Corrections Order that you undertake any alcohol treatment and courses that they might direct.

23So, in sentencing you, I am required to balance a number of different competing considerations.  General deterrence, to deter others from engaging in this conduct, specific deterrence, to deter you from doing it in the future, denunciation, community has got to manifest its denunciation for your conduct, and your rehabilitation.

24Now, in your case, due to your intellectual impairment, both considerations of general deterrence and, to some extent, specific deterrence play less weight and so the focus of the sentence is rehabilitation and Mr Cordy in his submission to the court on the plea indicated that a Community Corrections Order was within range, particularly having regard to your lack of prior convictions and indeed the assessment of the community corrections office of a low risk of reoffending.

25So, it is in the community interest that you would be rehabilitated and do not reoffend, particularly as you have been a person who has, in a sense, been supported by the community on a DSP and eligible for Disability Services for many years since for all sorts of reasons, not your responsibility, of your coming to this world with these intellectual problems. You have been able to show that you can comply with two intervention orders from past relationships and also for the 18 months since this offending you have been on bail.

26So, it is in the community interest, given your intellectual impairment, which according to the report[8] put you on the lower end of the scale, that, that be addressed by a Justice Plan and by a Community Corrections Order and under that order you might be required to come to Melbourne to participate in a sex offender program, or possibly in Bendigo with a disability forensic assessment and treatment service program as appropriate. The Justice Plan is designed to put you in contact with those and guide you through it, as I said.

[8] Exhibit C on the plea.

27The Director of Public Prosecution also wants a forensic sample from you which means that you are to go to a police station within the next 28 days and provide a mouth swab that is to go onto the database and if you do not do that, the police can use reasonable force to get it from you. I have made that order so you will get the paperwork and you are to take that to the police station which is down the road, up there in Bendigo.

28The authorities, have also sought the forfeiture of the phones.  I have made an order that that Samsung phone that you had is forfeited.

29As a consequence of your pleas and these convictions, you are to go on the Sex Offender Register.  I am satisfied that the two sexual offences were within the 24 hours and the three offences were within 24 hours and so under the Sex Offender Registration Program, you are on the register for 15 years.  Do you understand that?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  Yes.  Well, Mr Habib has mentioned that he has explained it to you but it is an onerous obligation but you have got to comply with it and breaches of those obligations which includes when you get a new mobile phone, when you change your address, when you get a job, register a new car, that you have got to tell them within seven days or 14 days, tell the register of that.

32So you have got to understand that all those things of addresses have got to be reported to the Registry of the Sex Offenders and you have got to do that for 15 years and that again is to protect the community, but it is not relevant to my sentence.

33So, Mr Donnelly, I commend you for the actions you have taken so far to address your behaviour, to comply with the bail conditions and I want you to continue it.

34For the next two years, you are on a community corrections order.  It is two years for the two sexual offences and 12 months for the using carriage service.  They are concurrent, they go together, and you have got to understand for that two-year period, if you commit another offence carrying a term of imprisonment, that breaches the order and if you committed any type of offence that carries a term of imprisonment, that breaches the order.

35If you do not comply with turning up under supervision of the Office of Corrections or when they send you to a program, like a sex offender program, a group session, if you do not turn up to that, that breaches the order.  Do you understand?

36OFFENDER:  Yes, Your Honour.

37HIS HONOUR:  And, similarly, the Disability Justice Coordinator.  When they make appointments for you to see them and they say, 'Go and do this', you have got to do it and if you do not, that breaches the order. Similarly, if you get caught or you do send obscene messages to anyone but, particularly, girls under 16, again that breaches the order. That carries a seven-year maximum and you have got a prior conviction for it, so you will be in gaol if you get involved in that again.  Do you understand?

38OFFENDER:  Yes, Your Honour.

39HIS HONOUR:  And if you do breach the order, then, as I say, I will make a special trip up to Bendigo, I will remind you of what I said to you today and tell you that if you breach the order and commit a significant offence, I will cancel the order and I will resentence you to a term of imprisonment.  Do you understand all that?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  All right.  So, I am giving you this one opportunity because you have drawn a limited set of cards in life and for this one occasion, you have fallen off and committed offending and it is in the community interest that you are able to get back to a law-abiding life and hopefully you can be back with your partner but try and get the children back and then bring them up to be productive members of the community.

42In the meantime, you have got to keep off the alcohol, and maybe get back into some part-time work.  You have been in work previously which would not be easy in Bendigo and particularly given your relatively limited education but there are plenty of job agencies there in Bendigo and the disability justice coordinator, they can refer you.

43According to Dr Chow, you have been engaged with a few of those job agencies so you might be able to get a bit of work.  Maybe go out to the gold mine.  There are 600 men out there apparently in the gold mine, get a job out there possibly.

44HIS HONOUR:  6AAA:  In sentencing you, Mr Donnelly, I have taken into account your plea of guilty.  It was a late plea but it is still relevant because it did save the complainant from being dragged through the court system giving evidence, and had you not pleaded guilty, I would have imposed a sentence of imprisonment followed by a community corrections order.

45So, Mr Donnelly, we are going to send the community corrections order up there to Bendigo.  You have got to sign it.  We are also going to send up to Bendigo the Sex Offender Registration material.  You have got to sign that, acknowledge that you received it to the Registrar before you leave the building.  Do you understand?

46OFFENDER:  Yes.

47HIS HONOUR:  And also, within two business days, you have got to report the Office of Corrections.  Now, they are literally around the corner from where you are at the moment.

48MR HABIB:  I might indicate at this stage.  Mr Donnelly already has an appointment for Friday, Your Honour, that he will keep.

So, it is two years and I do not want to see back here.  Do you understand?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  All right.  And you have got the 28 days and go and provide the forensic sample and the phone is forfeited.  All right?

51OFFENDER:  Sure.  Yep.

52HIS HONOUR:  Yes.  All right.  All right.  I want to thank you, Mr Habib, for your assistance in this matter.

53MR HABIB:  Thank you, Your Honour.

54HIS HONOUR:  And again, Mr Cordy, and I will adjourn until sine die.

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