Director of Public Prosecutions v Ellard

[2015] VCC 1551

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01710

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE MATTHEW ELLARD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 September 2015
CASE MAY BE CITED AS:	DPP v Ellard
MEDIUM NEUTRAL CITATION:	[2015] VCC 1551

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Offender	Ms K. Ballard

HIS HONOUR:

1Jake Matthew Ellard, you pleaded guilty to an offence of sexual penetration of a child under the age of 16 years.  You have no prior convictions.  The maximum penalty for the offence is ten years imprisonment.  So if you did not know before, you do know now that it is regarded by Parliament, as a very serious offence and ordinarily, people who engage in that kind of conduct can expect a term of imprisonment.

2The prosecution has tendered and relied upon a prosecution opening on the plea and that has been read a very short time ago.  I am not going to repeat it.  I incorporate it into these reasons for sentence in its entirety. It shows that the circumstances involved you taking the opportunity of being in the presence of a young lady, with whom you were socialising.  It seems that there was an opportunity which presented itself and which resulted in what appears to be some consensual kissing which led onto the offence being committed.

3Now the prosecution have also tendered the victim impact statements of the complainant and her parents.  Not surprisingly, the effect of your conduct has had consequences in terms of emotional disturbance.  It is well recognised that this offence is there to protect persons under the age of 16 years, sometimes from themselves, because it is recognised that emotionally, persons under the age of 16 are or can be, extremely vulnerable to the engagement in sexual behaviour, before they are ready emotionally. Therefore, it is recognised that offending, even on the facts of this case, can have and it would seem, have had in this case, ongoing emotional consequences for the victim and her family.

4I have to take into account the effect on the complainant and indeed, the effect on her family and I do so .  However, on your behalf, a report has been tendered which is dated 2009 which shows that you have had difficulties with school and learning. The assessment is that you have a relatively low IQ.  That seems to be supported by the psychological report from Carla Lechner, psychologist, who also has diagnosed an adjustment disorder and depression which seems to have been a reaction to you being prosecuted for this offending.

5I am told by your counsel and I accept that the fear of going to prison has weighed heavily upon you. I note the mild intellectual disability which seems to have been diagnosed does not seem to me to reduce to any significant degree your moral culpability.  You were aware of the age of the young lady and you went ahead with your conduct in that knowledge.

6It is very much to your credit you pleaded guilty.  It is very much to your credit that you admitted your conduct to the police when questioned and I accept that you are remorseful for your behaviour.  I also accept that you have learnt a very stern lesson from being prosecuted for this offence.  You have the support of your family.  I would assume on the facts before me that you will not offend again and that your prospects of rehabilitation are therefore good, and that there is no reason why you should not lead a trouble free and productive life.

7In those circumstances, it seems to me appropriate to deal with you by way of a non-custodial sentence, but I need to punish you adequately for your offence.  I have to take into account the maximum penalty.  I need to denounce conduct of this kind and to provide some measure of individual deterrence.  That is, deterring you from committing further offences in the future and to deter others.  All of those have to be balanced against the need to promote your rehabilitation.  You were 18 at the time of the offending conduct, 19 now.  So you are still a very young man and rehabilitation has to be regarded as a significant, if not the most significant sentencing consideration.

8In my view, that completely rules out any custodial sentence and therefore the sentencing considerations can properly be met by imposing a community correction order upon you, with a requirement that you complete 280 hours of unpaid community work.  That will be burdensome.  Is there any reason why that should not be done within a year if I make that a one year order Ms Ballard?

9MS BALLARD:  Well the only - all I would have to say about that, Your Honour, is that Mr Ellard, while he is currently employed, he's recently been doing some casual labouring and he is hoping to move back into a more permanent position of employment.  I'm just concerned that if he does, that a year might be a little bit of a tight timeframe to get it all done.

10HIS HONOUR:  Will I make it 18 months?

11MS BALLARD:  Yes thank you, Your Honour.

12HIS HONOUR:  All right, well I will make the order 18 months.  Now it is important that you comply with the terms of the order.  They will be explained to you if they have not already.  In addition to the core conditions, you will be required to report to the Community Corrections Centre which will be - your nearest one is?

13ASSOCIATE:  It would be Broadmeadows, Your Honour.

14HIS HONOUR:  Broadmeadows, is that right?  Yes.

15ASSOCIATE:  Sunbury, it's closest to Sunbury.

16HIS HONOUR:  Yes, Broadmeadows is the closest to Sunbury?  All right, you will be required to report there within 48 hours of today.  So it will be sometime early next week I guess.  Two clear business days I think it is, but anyway it is explained in the order.  You will be required to complete 280 hours of unpaid community work as directed by the Community Corrections officer who is assigned to you at the Broadmeadows Community Corrections Centre.

17I am going to give you 18 months to do that 280 hours.  However, if you complete the 280 hours satisfactorily within that timeframe, the order comes to an end automatically because there were no other additional conditions to the order.  Do you follow?  So it is in your interest to put it behind you as quickly as possible. 

18If you fail to comply with the terms of the order, you are liable to be charged with breaching the order and that in itself, carries a maximum term of three months' imprisonment.  You also run the risk of being brought back to this court and re-sentenced for this matter.  So you will be in jeopardy again of a more severe punishment.  If you breached it by committing another offence, punishable by imprisonment, then you would be up obviously for punishment for that offence as well.  So there is a strong incentive for you to comply with the terms of the order in every way, all right?

19That order will be drawn up and you will be asked to sign it and I will ask Ms Ballard to accompany my associate to ensure that you understand what you are being asked to sign. I will be required and am required to notify you that you are the subject of the reporting obligations under the Sex Offenders Registration Act. You will be given a piece of paper which sets out your obligations and Parliament has specified that for this offence, you are on that register for a period of 15 years.

20I also make the order for forfeiture in accordance with the draft, which I have not yet been supplied, but I am about to be supplied, and I declare that but for your plea of guilty, I would have imposed a community correction order with a requirement that you perform 350 hours of unpaid community work.

21MS MALOBABIC:  If I may just confirm, Your Honour, the order is with a conviction?

22HIS HONOUR:  Yes, it is with conviction, sorry yes. 

23MS BALLARD:  I might just temporarily leave the Bar table, Your Honour.

24HIS HONOUR:  Yes please, Ms Ballard.

25MS BALLARD:  Thank you, Your Honour.

26HIS HONOUR:  All right, well you may leave the dock now and I have signed that order so it is now in place.  Are there any other orders that I need to make?

27MS MALOBABIC:  No, Your Honour.

28MS BALLARD:  No, Your Honour.

29HIS HONOUR:  All right, yes thank you.

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