Director of Public Prosecutions v Ernie (a Pseudonym)

[2023] VCC 1823

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

Denzel Ernie (A Pseudonym)

---

JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2023
DATE OF SENTENCE:	10 October 2023
CASE MAY BE CITED AS:	DPP v Ernie (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1823

REASONS FOR SENTENCE
---

Subject:Criminal law - sentence

Catchwords:              Guilty plea – one charge of sexual assault – one charge of common law assault – one charge of contravening a family violence intervention order – offending against former wife – high moral culpability – lower level examples of offences – no prior criminal history – evidence of remorse – good prospects of rehabilitation – 99 days spent on remand – relevant sentencing considerations achieved through therapeutically focused community correction order

Legislation Cited:      Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169

Sentence:                  18-month community correction order, with conviction.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. B. Hammill	Office of Public Prosecutions
For the Offender	Mr C. Terry	Tyler Tipping Woods

HER HONOUR:

1Denzel Ernie[1], you have pleaded guilty to one charge of sexual assault contrary to s40 of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment and one charge of common assault contrary to the common law, the maximum penalty for which is five years' imprisonment.[2]

[1] A pseudonym.

[2] Pursuant to s320 of the Crimes Act 1958.

2In addition, you have agreed to this court hearing a summary offence, being a charge of contravening a family violence intervention order contrary to s123(2) of the Family Violence Protection Act 2008, the maximum penalty for which is two years' imprisonment.

3At the time of this offending, you were 50 years of age. You have no prior criminal history.

4The victim of your offending is your former wife, with whom you have a daughter who was born in 2015, and with whom you lived in Drouin.

Circumstances of offending

5The circumstances of your offending are detailed in the summary of prosecution opening for plea dated 25 September 2023, which is the agreed basis upon which you are to be sentenced.[3]

[3] Exhibit A on Plea, 26 September 2023.

6You and the victim first met when you were in high school together. You commenced your relationship in 2014 and married in November 2019.

7On 21 October 2022, the two of you travelled to Melbourne with another couple to stay overnight at an apartment in the Eureka Towers. After socialising in the city together, the group returned to the apartment at around 9.00 pm. The four of you had been drinking alcohol over the course of the evening.

8On your return, you and the other male continued drinking, while the victim went with the other female to lie down in bed where they continued talking and drinking.

9At one point you walked past the bedroom and saw them in bed together. The other female had been cuddling the victim affectionately from behind and was touching her stomach and breast. The victim then left the bedroom, telling the other female to get some sleep. The victim went to the toilet, before returning to the sofa bed in the front room of the apartment that the two of you were using.

10When you approached the victim to give her a kiss, she told you to 'fuck off'. You then left the bedroom. You continued drinking in the kitchen area.

11You returned to the victim while she was in bed, telling her 'you girls turn me on'.  The victim denied anything had happened. You became angry and accused her of lying and of being 'in denial'. The victim repeated that nothing had happened, saying they both had their clothes on in bed. You became angrier, calling the victim a liar. You told the victim, ‘'You are my wife' and 'you will love me'.

12As the argument continued, you physically struggled with the victim in bed, ripping her pyjama top in the process, exposing her breasts. At one point, you twisted the skin around her nipple, causing her pain. You are not charged with this conduct, rather it is a part of the factual context to your offending. You then grabbed the victim on her vagina over her clothing. It is this act that is the subject of the charge of sexual assault – Charge 1.

13You continued to verbally abuse the victim, calling her a 'liar' and at one point thumping your fist down on the mattress near her head which scared her.

14At 2.00 am, the victim attempted to leave the apartment. You woke and asked, 'where the fuck are you going?'.  You took the victim's bag from her and put it where she was unable to retrieve it. The victim felt trapped.

15At 6.00 am, the victim woke and left the apartment. She told you she was going for a walk, but instead went to Southern Cross Station. You called her and were abusive to her. She told you she was on the train heading home. The victim also spoke with the other female and told her what had happened the night before.

16The victim went to her parents' place to pick up your daughter. You rang asking where she was, and she told you. A short time later you attended at her parents' home.

17Over the next few days, you accused the victim of cheating on you, of ruining your friendships and making offensive comments about her friendship with the other female, calling her 'your licking girlfriend' and saying, 'I hope you’re happy.'

18Over the intervening days, you continued to argue with the victim about the events at the Eureka Tower, with you accusing her of cheating on you. On occasions these arguments occurred in the presence of your daughter.

19After an argument at your daughter's school, the victim sought assistance from a family violence service on 26 October 2022. She returned home at around 6.00 pm where you continued arguing, again overheard by your daughter. The victim left the house at one point, and you followed her out to the front yard where passers-by heard you arguing.

20You then continued arguing with the victim in the backyard of the house. You stood in front of the victim and putting your hands on her neck, you pushed her backwards, causing her pain. This act is the subject of Charge 2 – common assault.

21You continued to argue with the victim, calling her offensive names that were overheard by neighbours, including calling her a 'fucking slut' and a 'fucking bitch'. The victim saw that her daughter was watching this happening from inside the house and repeatedly told you to stop, but you did not. The victim then went inside to your daughter.

22You were arrested on 27 October 2022 when police attended to conduct a welfare check on the victim. You were interviewed at Morwell Police Station where you told police you became upset with the victim for cheating on you when you stayed at Eureka Towers and admitted grabbing the victim to the vagina over her clothing. You denied ripping her pyjama top and grabbing her breast. You admitted arguing with the victim the previous evening but denied assaulting her.

23The circumstances in which you contravened the family violence intervention order relate to a letter you wrote to the victim's father on 29 January 2023, asking that it be given to the victim, in which you apologised for your conduct and asked the victim to forgive you.

24You were remanded in custody and ultimately spent 99 days on remand.  You were first granted bail on 21 December 2022. However after contravening an intervention order by contacting the victim you were remanded again. After being sentenced for that offending, you were granted bail in this Court on 21 July 2023.

Gravity of offending

25The gravity of your offending arises from the circumstances in which it occurred. You sexually assaulted the victim and later pushed her to the ground in a jealous rage, accusing her of cheating on you. The victim was your wife of many years. Your daughter was also exposed to your violent and abusive conduct towards her mother. Although your conduct may be explained, at least in part, by your level of intoxication it does not excuse your conduct.

26The authorities make it clear that instances of family violence such as this, often perpetrated by men in a state of jealousy and anger, is to be clearly denounced by the courts. Further, that general deterrence is a paramount sentencing consideration in such cases.

27Although this was a lower level example of a sexual assault, involving sexual touching of the victim on the vagina over her clothes, it occurred on her bed after you had ripped open her pyjamas, twisted her nipple area, and were verbally abusing her. It must have been a frightening experience for the victim.

28The common assault occurred over the next days is also a less serious level example of this offence, but it too occurred in the context of ongoing verbal abuse witnessed by your daughter.

29Fortunately, the victim was not physically injured by your conduct. However, the trauma caused by your conduct is evidenced in her victim impact statement which was tendered on your plea.[4] The victim speaks of the emotional hurt caused by knowing that 'a loved one' could treat her in this way. She says both her and her daughter now struggle with sleeping. She describes an anxiety that she never had before. She lost her job in the family business and describes having to deal with being a single mother with no support, and no regular income; a position she never expected to be in. It is clear your conduct has had a profound impact on many aspects of the victim's life.

[4] Exhibit B on Plea, 26 September 2023

30You bear a high level of moral culpability for your conduct, however, this is also informed by your personal circumstances to which I now turn.

Personal circumstances

31You were born in Melbourne and grew up in Lysterfield on a semi-rural property with your parents and five siblings. Your elderly parents now live in Warragal and suffer ill health. Your youngest brother, who is on a disability pension, lives with them on a part-time basis.

32You were educated at Pakenham High School until leaving school at the age of 15, to take up work in the family business, undertaking brick paving and stone masonry.

33In 1990, you began your own paving business, which you operated until sustaining a back injury in 2007. Unable to perform manual labour, you started a heavy vehicle hire company, purchasing a 4-tonne excavator and a skid-steer. You would hire equipment out to the civil construction industry.

34The business rapidly expanded and over the years you purchased multiple excavators, loaders, a large bulldozer and water truck. This equipment is mainly used in road construction, subdivision and agricultural drainage. Not only do you own the equipment, but you hire it out with an operator included, either yourself or others.

35You operated this business up until the time of the offending and upon your remand. Until you were granted bail, you had to suspend these business operations. Then, once granted bail, you were prevented from attending the property where the machinery is located. As a result, you could not resume work in the business whilst subject to bail.

36Once these conditions were no longer in place, you are in a position to resume operations on a full-time basis and have an indication of future works to be undertaken on a subdivision in Pakenham.

37On your behalf it was submitted that your offending was the culmination of a serious decline in your mental health that commenced in 2015. It was argued that a series of traumatic events had led to a decline in your emotional state, including the tragic death of your older brother in a farming accident in 2015, and coinciding with this event, your wife suffering a miscarriage.

38Further, in 2015, the government approached you to buy three acres of your 125- acre farm for access to the Pakenham bypass. You had purchased this property from your parents in 1985 and had lived there from that time. You had spent a considerable amount of money renovating that property. In the event, the entire property was compulsorily acquired and you moved with you wife and daughter to a terrace home in Pakenham.  In 2016/17, this house was accidentally destroyed by fire when your stepdaughter left some paper smouldering in her bedroom.

39This was a period of significant stress and instability in your lives, as you moved to eight different homes, none for longer than a few weeks at a time. Fortunately, the house was insured, and you eventually returned to live there but found it was no longer suitable and you were forced to relocate once more. This was an additional cause of distress and anxiety for you.

40The family relocated to a two-acre property at Nar Nar Goon. During this period, you were involved in disputation over the amount of compensation to be paid for the compulsory acquisition of your farm. This was the cause of financial strain due to the significant legal costs incurred through this process.

41The compounding stressors led to increased drinking and problems in your relationship. You also argued with your wife's father, leading to a family violence intervention order being taken out against you.

42I accept that it was in the context of these increased stressors in your life that the offending occurred.

43After being granted bail, you sought assistance though a local psychologist, Ms Alessia Mattea. You saw her fortnightly and then on a three to four weekly basis for a period.

44No psychological material was provided on your plea and there is no basis to conclude that your mental health caused or contributed to your offending such as to reduce your moral culpability for this offending, or the role that general deterrence must play in your sentence in accordance with the principles enunciated in the case of Verdins.[5] Nonethless, I accept that your stress and general anxiety at the time contributed to your increased consumption of alcohol and is the context in which you, a man of 50 with no history of offending, engaged in this conduct.

[5] R v Verdins [2007] VSCA 62

45You report that you have ceased drinking and have remained abstinent from alcohol since 31 January 2023, which is positive.

Subsequent matter

46Following this offending, a full family violence intervention order was made by the Magistrates Court prohibiting you from contacting the victim in any way.

47On 1 February 2023, you were remanded in custody for the offence of contravening the family violence intervention order, constituted by texts and calls that you made to the victim commencing almost immediately after the order was made.

48On your behalf, it is submitted you did not fully appreciate the seriousness of the order at first. It is accepted that you did not threaten or abuse the victim, but rather that you were contacting her in the hope of reconciling. However, you did so in breach of the court order that expressly prohibited any contact with you.

49On 26 May 2023, you were convicted and sentenced to four months' imprisonment for the offence of contravening the family violence intervention order. That sentence lapsed on 3 June 2023. You then remained on remand until 21 July 2023 when you were granted bail by a Judge of this court. Since that date, you have had no further contact with the victim other than as permitted through legal representatives.

50You entered a plea to the charges on which you are to be sentenced by me  on 26 September 2023.

Guilty plea

51While your plea was not entered until after a committal hearing in the Magistrates Court, the charges to which you have pleaded are now substantially different to those you then faced, and you are entitled to be seen as having entered an early plea. Notably, you offered to plead guilty to the sexual assault charge prior to the committal. Your plea has significant utilitarian benefit. Not only have you saved the court and the community the time and resources associated with a trial, but you have spared the victim the ordeal of giving evidence at trial. In these circumstances you have facilitated the administration of justice and you are entitled to a benefit for that.

52The utility of your plea is even greater by reason of the fact that you entered it at a time when delays in the justice system are still being experienced, to some extent, following the pandemic. This results in a more pronounced amelioration of the sentence than at other times.[6]

[6]Worboyes v The Queen [2021] VSCA 169

Remorse

53Your guilty plea also signifies your acceptance of responsibility for your offending. It is also an indication of remorse for you conduct.

54In addition, you expressed remorse and a level of contrition when you were interviewed by police.

Previous good character

55Your prior good character is also relevant to my sentence. Until the age of 50 you had otherwise lived a law-abiding life, contributing to your community and caring for your family. You have worked hard and built up your own business. You have never been in trouble with the law.

56In a reference provided by your parents dated 15 May 2023,[7] they describe being shocked by what occurred, saying you have worked hard in life, have never been in trouble, and are known to get along well with others. Your parents describe this conduct as out of character and indicate their ongoing support for you.

[7] Exhibit 1 on Plea, 26 September 2023.

57A long-term family friend, Nigel McGovern[8], has also written a reference dated 15 May 2023 on your behalf.[9] Mr McGovern has known you and your family since the 1970s. Mr McGovern highlights your work ethic and desire to 'make something of his life'. He also speaks of the difficulty and anguish you experienced when your property was compulsorily acquired and the devastating impact of your brother's death on you and your family.

[8] A pseudonym.

[9] Ibid.

58Mr McGovern describes you has someone of excellent character and of being a kind and considerate friend. I note, however, that Mr McGovern makes no reference to the alleged offending, and provides a general character reference, no more.

59That said, I accept that you are entitled to have the benefit of your previous good character recognised in the sentence I impose.

60Given the lack of any prior criminal history and the salutary effect of your time in custody, I assess you have good prospects of rehabilitation.

Sentencing submissions

61On your behalf, it was submitted that a community correction order would be a sentencing disposition within range but for the fact that you wish to give priority to your business commitments, and put these matters behind you. For that reason, it was submitted that a term of imprisonment, not exceeding 99 days already served by way of pre-sentence detention, should be imposed as a sentence.

62In order to consider the appropriate sentence, I requested that you be assessed for a community correction order. You were found suitable for such an order and have consented to it being made. In the opinion of the assessor, you would benefit from engagement in an offence-specific program. The mental health assessment recommends that you engage in a program such as the Men's Behavioural Change program. In addition, it is suggested that you engage in supervision to address the risk of re-offending.

63To be clear, I support the recommendation that you engage in a Men's Behavioural Change program, I do not consider it appropriate that you be assessed for, and undertake, a Sex Offender Treatment program.

64Section 5(3) of the Sentencing Act 1991 expresses the sentencing principle of parsimony by providing that when sentencing an offender the court must not impose a sentence that is more severe than is necessary to achieve the purpose or purposes for which the sentence is imposed.

65In this case, while the context of your offending against the victim was most concerning, these are both less serious examples of the offences of sexual assault and common assault committed by an individual with no prior criminal history. I consider that all relevant sentencing considerations, including the need to promote your rehabilitation, are best met by a therapeutically-focused community correction order.

66Given your time on remand, in addition to the sentence you have now served for contravention of the family violence intervention order, I consider the need for the sentence to operate as a specific deterrent to you is reduced, and that a punitive component to the order is not required.

Sentence

67Mr Ernie, on Charges 1 and 2, and on summary Charge 13, you are convicted and sentenced to an 18-month community correction order with the following conditions attached:

·        You are subject to supervision;

·        You are to participate in treatment and rehabilitation programs as directed for you mental health; and

·        You are to participate in offence-specific treatment and programs as directed, namely the Men's Behavioural Change program, if you are assessed as suitable.

68Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would otherwise have imposed is a period of imprisonment combined with a community correction order.

69Mr Ernie, you should be aware that the community correction order may be breached by non-compliance with its conditions or by way of further offending. If that were to occur, you can be charged with contravening the order and may have to be sentenced for that offence in addition to being resentenced by me in respect of the offences for which you have been sentenced today.

- - -