Director of Public Prosecutions v Evans
[2023] VCC 2417
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01304 and CR-22-00455
Indictment No. M10466239B and M10466239A
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL EVANS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 22 November – 1 December 2023 Plea: 8 December 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Evans | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2417 | |
REASONS FOR SENTENCE
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Catchwords: Trial indictment; theft of underwear; aggravated burglary (intent to steal, intent to assault person within), sexual assault x2. Plea indictment: theft, attempt to obtain financial advantage and handling stolen goods; related summary matter; commit indictable offence on bail. 48 years of age at time of sentence. Some relevant criminal history including prior conviction for sexual assault of a child and subsequent conviction for ‘up skirting’. On bail and CCO at time of offending. Mixture of pleas; Trial indictment; pleaded to two charges. One plea to aggravated burglary with intent to steal, as against the principal charge of aggravated burglary with intent to assault for which he was acquitted. Acquitted of Charges 2 and 4. Value of rejected guilty plea; Carr v The Queen [2012] VSCA 299. Mixture of plea dates, Worboyes v The Queen [2021] VSCA 169; remorse. Increased burden in pandemic as in custody since 2021.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
| For the Offender | Mr J. Blackley | SLKQ Lawyers |
HIS HONOUR:
1 Daniel Evans, you have pleaded guilty to the three dishonesty offences on the plea indictment (M10466239B). That is very straightforward.
2 We also have a trial indictment (M10466239A). That is less straightforward in terms of chronology. On 22 of November of this year, you pleaded guilty before the jury panel to Charge 1, theft of underwear. Before the same panel, you pleaded not guilty to Charge 2, aggravated burglary with intent to assault, but guilty to Charge 3, the alternative charge of aggravated burglary with intent to steal. That plea was not satisfactory to the Crown, they said as much, both to me and to the jury. So the trial proceeded and whether or not a jury would be required to return a verdict on the alternative charge was dependent upon their verdict upon the principal charge. If you were convicted on Charge 2, no verdict would have been taken on Charge 3. You also pleaded not guilty to Charge 4 and 5, charges of sexual assault.
3 No verdict was required on Charge 1, as you had pleaded guilty to that charge of theft and there was no alternative charge. See s253B Criminal Procedure Act 2009 (Vic) and also Michael David Wilson v The Queen [2015] VSCA 211.
4 The jury found you not guilty of Charge 2 by majority. Hence, they were required to return a verdict on Charge 3 and so you were unanimously found guilty by the jury of Charge 3, the alternative which you had admitted by your guilty plea. You were found not guilty of Charge 4, sexual assault by majority and guilty of Charge 5, sexual assault, also by majority.
5 I believe that the first time you had actually been arraigned on the trial indictment was when I came into the matter and had you arraigned in the absence of any panel, before getting some understanding of a few brief matters that I had to rule on before empanelment. That was also on
22 November. At that stage, you pleaded guilty to Charge 1 and 3 and not guilty to Charges 2, 4 and 5, so the very same pleas as were entered before the panel later that day, when you were arraigned, and we then empanelled the jury.
6 The prosecution opening has a chronology showing various dates of relevance, including the many procedural listings in this and the Magistrates Court.
7 Even from what little I have said already, it follows that for all but one of the matters for which I am passing sentence, you must receive the benefits of a guilty plea. As to the stage of that plea, the written submissions were not in agreement on that point. For Charge 5, you have never offered to plead guilty or pleaded guilty. That is simple enough. I will say more about the stage of the plea and issues connected to the plea as it is not uniform across all charges, and nor did the parties agree in their written submissions at least, as to the approach I should take. It must be said that altered in the running when I mentioned the reality of your position and the issues truly in dispute here, and the way one should apply the principles from cases such as Carr[1] and Zarghami.[2] I will say more about that later. Nor then is there any uniform Worboyes[3] allowance or allowance made for remorse. These things will be informed by many things, including, but not limited to the plea and stage of the plea, or irrespective of the timing of the actual plea, whether there was actually any contest ever to be had or not.
[1]Carr v The Queen [2012] VSCA 299 (‘Carr’)
[2]Zargari v R [2020] VSCA 74 (‘Zarghami’)
[3]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
8 You have admitted a prior criminal history of relevance to my task. There is also a relevant subsequent matter, in that you had offended earlier, but not been dealt with until after the commission of these matters. Hence that May 2022 appearance is not a prior conviction but is of relevance involving as it did ‘up skirting’ and more dishonesty offending including burglary. There are also a large number of outstanding matters of a sexual nature alleged to have occurred in 2019. They will be determined down the track at some point, presumably up in Queensland. They are pending matters and I obviously cannot take them into account.
9 The maximum penalties are correctly set out in the document filed on the plea.
10 The plea indictment was very simply opened pursuant to the agreed summary dated 5 December 2023 and marked as Exhibit A and those three crimes on that indictment occurred prior to the matters the subject of the trial indictment. I will say little more about those plea matters.
11 For the matters the subject of the trial indictment, the verdicts are easy enough to interpret. The jury was not satisfied beyond reasonable doubt of the existence of an intent to assault at the time of entry. Hence the acquittal on Charge 2. They were satisfied beyond reasonable doubt of an entry with the intent to steal, as had been readily admitted by you in the interview and by your guilty plea before them. They were not satisfied beyond reasonable doubt of the sexual touching the subject of Charge 4 but satisfied beyond reasonable doubt of your sexual touching the subject of Charge 5 on the indictment. As I have said, you had pleaded guilty to the theft of the G-string from the clothesline before entering the premises. That was Charge 1 on that indictment and no jury verdict was required.
12 Evidence was given before the jury by a number of witnesses. Jasmine Adkins[4], elected to give evidence in the presence of the jury. She was an extraordinarily good witness.
[4] A pseudonym.
13 The evidence is adequately summarised in the summary of prosecution opening for trial dated 1 August 2023, in the sense that her evidence conformed broadly with the evidence expected to be given by her.
14 Though her evidence went into greater detail, that summary adequately sets out the facts of the charges you have either admitted or been convicted of.
15 In May 2021, you lived in a room in a shared house at Dimboola Street Broadmeadows. It was a couple of houses along from the premises that you entered as a trespasser. Ms Jasmine Adkins was one of three residents in that house at [address redacted]. She lived there with Mr Andre Oliver[5] and Ms Kelly Hart.[6]
[5] A pseudonym
[6] A pseydonym
16 You were familiar with her appearance and had spoken to her and had seen her often enough at those premises. I have no doubt at all that you knew she was an occupant at that address.
17 After 5:00am on the morning of 4 March 2021, you left your premises. In fact, you had been committing the plea indictment offences at some point. You told the police in the police interview that you were affected by amphetamine and you spoke of the effect on your state of arousal when you used that drug. You said, to use your words that you ‘were thinking of pussy’. See Record of Interview Questions 329 to 335. You described the desire for an adrenaline rush and that there was an ‘arousal thing’ when you stole. See Questions 505-509 and 335. Of wanting to put yourself in a dangerous situation that would, as you put it, ‘jack up’ your adrenaline. See Question 509. You detailed to the police, as you described it, the ‘uncivilised or urgent sexuality’ arising from drug use. See Question 403-05. You had told an offsider that you felt like ‘doing something bad’. See Question 296.
18 You climbed a locked gate and got into the backyard of victim’s address. You went to the clothesline and stole a pair of underpants, a G-string that belonged to Ms Adkins.
19 She was asleep inside. She had had some difficulty sleeping that night and had left her bedroom and was sleeping under a light blanket on a divan or couch in the lounge room. Her housemates were in their respective rooms. The front door was locked, but the rear sliding door was unlocked. She was wearing a light robe with nothing underneath.
20 Having taken the underpants from the clothesline, you then entered the premises. The jury was not satisfied beyond reasonable doubt of your having an intent to assault. That is a testament to the strength of the system and the jury's capacity to give separate and fair consideration to the charges and not to overvalue evidence or bow to prejudice. You had stated in the interview that you were entering to steal something of value. Despite your statements in the police interview about the way you were feeling before, and the fact of taking the G-string just before entry and what they, the jury were satisfied beyond reasonable doubt that you did in the loungeroom, they acquitted you of the charge of aggravated burglary with intent to assault.
21 Rather, you were found guilty of the alternative charge of aggravated burglary with intent to steal, to which you had pleaded guilty. You must get the full benefit of that acquittal.
22 Having entered the premises, you made your way through the house. You had a torch and you described that you used it. The victim was in the loungeroom asleep and described being woken up by a stroking or brushing on her outer right thigh, at what would have been the level just below the side panel of her underpants. The first stroking woke her and was the subject of Charge 4 of which you were acquitted. It was dark and she was drowsy and thought it was the cat and tried to brush it away. That was the nature of the touching and she endeavoured to go back to sleep. She did not get back to sleep, for she felt the same touching in the same location and this time, she opened her eyes to find a man crouching down next to the divan. That man was you, though she did not know that at the time.
23 Your account in the interview was that you were playing with the dog and tripped over the dog and fell onto her in some fashion that you described. That has been rejected. I am not surprised. It had a number of problems. Firstly, the very suggestion of playing with a dog in the course of a burglary was bizarre enough. Secondly, you described that the dog was visible. Thirdly, you had a torch, but finally the touching that
Ms Adkins described bore no relationship at all to the style of the accidental impact that you were describing. As I say, she was describing a gentle brushing or stroking motion.
24 You were acquitted on Charge 4 sexual assault. The jury was not satisfied beyond reasonable doubt of your guilt and that may well have just been a reasonable doubt derived from the fact that the victim was aroused from her sleep and had her eyes shut. Eleven of them had no doubt at all as to your guilt in relation to Charge 5.
25 It follows then that you have entered these premises in the very early hours, but I must not sentence you as having an intent to assault at the time of entry. You were acquitted of that charge. You entered as a trespasser with an intent to steal. Once within, you have deliberately and intentionally sexually touched Ms Adkins as she lay on the couch, from your perspective, a totally vulnerable woman sleeping or endeavouring to sleep in what should have been the safety of her own house at about 5:30am or thereabouts.
26 Once disturbed and once she realised it was not one of her housemates, she chased you and but for her efforts in climbing a fence and going out on to Sorrento Street and then Benambra Street, you would have avoided prosecution for any of this offending. But she was made of very stout stuff indeed and she confronted you out in Benambra Street. You tried to wave away her accusations, but she persisted. You persisted in your lies. You tried to demonstrate that you had taken nothing by showing the empty backpack and then pulling out your pockets, but in doing so, by mistake, you turned out her G-string which she recognised. You said in your interview that you probably would have left that in your pocket, that it came out by way of a mistake. See Question 677. You also had a torch that you had been using inside the premises. She confronted you and demanded your name and you, perhaps a bit nonplussed by all that had happened and her doggedness, gave your name. She had also been mentioning the possibility of not taking the matter to the police. You described her as being very reasonable at the scene. Who knows what possessed you to give your details? I am certainly not remotely satisfied it was to facilitate a police investigation or prosecution.
27 A male occupant from the house was approaching carrying a stick. This was Mr Oliver. You then bolted, leaving your cap, torch and the empty backpack.
28 You did not bolt off down to the police station to hand yourself in then, nor at any other stage. You bolted home, where you told the police that you intended to masturbate.
29 The only thing you had stolen were the underpants taken prior to entry. Police were called, the torch, backpack and cap were seized and various CCTV footage was obtained.
30 Police attended your residence later that day and seized some clothing items said to be connected to the aggravated burglary. You were arrested later that night at an address in Glenroy. It is common ground that you bolted again when the police attended. You described that at length in your interview, in a portion not placed before the jury. A search of the backpack at that stage, so not the abandoned one that I have described earlier, but a different one, disclosed other items of female underwear, though of course the jury was not on notice of that find.
31 Your interview with the police was very heavily edited. You admitted taking the G-string from the clothesline. You said you had stumbled onto the girl when you had entered the house, intending to steal valuables. You said that you had not noticed her on the couch as she was completely covered by a blanket. I interpose the touching was under the blanket, I am satisfied of that beyond reasonable doubt. That was the clear effect of the evidence that she gave. It is unclear whether it was over clothes or on her skin and so as a matter of fairness then, I will sentence on the basis of the former. Plainly you noticed her, as Charge 5 necessarily involved you intentionally touching her. The jury was told that they had to exclude beyond reasonable doubt any accidental touching.
32 You described in the interview getting home after this chase and then wanting to masturbate. That was excluded from the jury's consideration. You agreed that you were aroused the night before, leaving your own home and you described in some detail in the police interview your fetish for underwear and ‘up skirting’. That was excluded from the jury's consideration. Also the fact of those other underpants that you said you had found abandoned in a park. See Question 1152. That came out as well obviously. You did describe the excitement derived from stealing. I have already mentioned some of those questions and answers a bit earlier in these reasons. You said you often, as you put it, played porn in your head and had a feeling of arousal from the use of ice.
33 You told the police that you felt no attraction to the girl and that there was no sexual intent. Plainly, that is not so, though of course I deal with the intent upon entry consistent with the verdict delivered on Charge 2, that is, an intent to steal at the time of entry, that after entry, blossomed into an intent to sexually assault once in the lounge.
34 You made detailed admissions to the aggravated burglary with an intent to steal and described the state of your belief as to persons being present within.
35 Though of course the jury was not awake to the plea indictment, in another portion of the interview that they did not see, you admitted the conduct in the plea indictment, conduct which preceded the aggravated burglary. That was pretty straight forward. It involved entering a car in Jacana between 8.50 pm on 3 March and 5.00 am on 4 March and taking a wallet from the centre console and then using a card from the wallet to try to buy some items at a service station. The transaction was declined hence the attempt to obtain financial advantage by deception (Charge 2). When you were ultimately searched, the backpack that you had with you then contained a new packaged knife, hence the charge of handling stolen goods (Charge 3). You made full admissions to the charges on the plea indictment. They really have made their way up to this court purely as you are up here already, as those sorts of matters are matters that very routinely, if not typically, would be dealt with in the Magistrates Court.
36 You were on bail at the time of all of these offences on each indictment. Hence I have the summary Charge 7 of committing an indictable offence on bail. You were also on a community corrections order. I will say more about the chronology in one moment as it assumes some real importance in this case.
37 You were charged on the day and you were remanded in custody and you have remained there since March 2021.
38 So much then for my summary of the offending. Obviously greater detail as to the aggravated burglary and theft and sexual assault can be gleaned from the evidence given at trial by the various witnesses.
39 I must sentence consistently with the verdicts that have been delivered.
40 As I have said, Ms Adkins was a most impressive witness in court and as I have said, but for her efforts on the morning, in what was a very confusing and confronting situation for her, you would have escaped prosecution. As to the matters on the plea indictment, I sentence pursuant to the more detailed agreed summary.
Impact
41 There is an impact statement in this case from Ms Adkins and as with everything else about her, it too is impressive. She is, as I am sure you will appreciate, not spitting venom at you, in her statement. Far from it. She spells out though the very significant way, that your crimes have impacted upon her. I will not set it all out again in my reasons. I read the impact statement again since the plea and her preference was that it not be read aloud in court. She has been surprised by the level of impact arising from your entry into her home and your touching of her. It has called into question her feelings of resilience and it has caused her some self-doubt. She has struggled deeply since your crimes. Your offending has impacted her in so many domains of her life. She has felt many things, including isolated and worn down by the legal process, to a degree.
42 She has had sleep difficulties. She is hypervigilant and wakes at the slightest noise and is less trusting of strangers. Quite incredibly, she expresses some empathy for you in her impact statement. She has worked with vulnerable people it would seem and knows how tough a time the lockdowns were. Your crimes have had a really significant impact upon her. You may or may not recall, but I mentioned this in the course of the plea, she was brought to tears when recounting some aspects of what was obviously a confusing and confronting event. This was not by virtue of any aggressive attack in cross examination by counsel. There was very little in dispute in this case and no attack upon her as a witness. Rather, it was her reliving, thinking back to this distressing experience. It is still distressing now over two and a half years later. An event brought about by your deliberate entry into her home, and your decision then taken, once inside the home, to touch her. Aggravated burglary is renowned for the sizeable impact that it does cause. For the erosion of the sense of security and safety that one should feel in one’s own home. Those things are all on display here. I take into account the impact of your crimes. Regrettably, it has been and it remains very sizeable indeed.
In mitigation
43 In November of last year, you were going to apply for bail and that bail application was listed before me. It was withdrawn very late in the piece after some prosecution materials were filed. There had been reference to some matters still outstanding up in Queensland and also to the offending which had occurred earlier in 2021, so before the March 2021 offence date that I am dealing with, but which had not been dealt with until heard in the Magistrates Court in May 2022. I had of course in preparing for the bail application, briefly perused those materials. As I say, the application was withdrawn and did not proceed.
44 It was no part of my task to access any of those materials in the currency of the plea. However, of course I knew about them in broad terms and I expected to be told about them in the course of the plea, and flagged that by an email sent to the parties. Pretty obviously the subsequently dealt with matters, matters that had been finalised, were of relevance to my task.
45 Mr Blackley who conducted the plea in mitigation on your behalf relied upon a written outline dated 7 December, a letter from you and a report from Dr Claire McInerney. That was an old report, prepared to consider aspects of a possible mental impairment defence and had very significant limitations. So much so that I wondered why it was filed on the plea. It was odd that it was relied upon at all, and the true oddness became far more apparent in the course of the plea, when other material surfaced that called into question many aspects of the report.
46 Dr McInerney acted on your account of accidental contact in the house and seemingly, had no knowledge of the February 2021 up skirting incidents dealt with in May 2022. She had you denying your guilt of the November 2019 sexual assault of a child, for which you were sentenced following a guilty plea entered by you in April 2020. She seemingly had no knowledge of the existence of the sets of charges pending up in Queensland relating to allegations of sexual touching or up skirting in April of 2019.
47 The report did have a detailed statement as to your background, which was useful, as well as details as to various admissions for mental health treatment over the years. However, she subscribed to the view that it was unlikely that you even had bipolar disorder.
48 The report indicated, and Mr Blackley relied on this in terms of his submission, as to rehabilitation, that it did not appear that you needed any psychotropic medication by way of ongoing treatment. Dr McInerney said that based on your clinical history, ‘I think it is plausible that with long term abstinence, he may either not experience further episodes of manic psychosis again or only experience them very infrequently’. Mr Blackley referred me to that very paragraph. Dr McInerney saw you in November 2021. She referred in the report to the existing Justice Health records at paragraph 3.13 of that report, which supported the view that you did not have bipolar disorder and were deemed not to require any psychotropic medication.
49 I learnt in discussions with your counsel that the Justice Health file had been subpoenaed and nothing was being placed before the court from that file. A decent way into the plea, Mr Blackley dropped in the detail that you had been admitted to Thomas Embling Hospital in February of this year. So that is almost two years after you were said to be drug free. I enquired and was told that you were then displaying multiple delusional beliefs. What do I know about that admission? About its duration? About the reasons? About the diagnosis? About any of the surrounding circumstances? Virtually nothing. What did Dr McInerney know? Well obviously nothing at all, given the chronology. What then can I take from her report in terms of your actual condition and risk of relapse and risk more generally? Nothing.
50 One does not wind up at Thomas Embling without being very unwell indeed. Why then was her report being placed before this court at all, and reference being made to the section dealing with future prognosis? It was, I must say, all quite strange. I cannot force the defence to provide details to the court. It is not my task to scout through that subpoenaed file and of course I have not. But the plea had that pretty uncomfortable reliance on an old report, which must have been known to be outdated or rendered to a large part obsolete by later events, not known to the author or the court at that stage. The written submissions dealt with aspects of mental health, but failed to mention any deterioration in prison. See paragraph 22-25. Mr Blackley, in a later portion of the plea, when explaining his failure to go into any detail as to the subsequent criminal matters, indicated he was not making any positive statement or assertion, as though that was some satisfactory response. I will come to that later when I deal with the chronology.
51 However, the expert report from January 2022 and the December 2023 letter from you were being relied upon in a positive fashion, going to your rehabilitation and in circumstances where counsel was plainly on notice of other material cutting directly across what was being implied or stated in the report. I really do not believe that report should have been relied upon in that way, if at all.
52 I will say more about the plea in one moment when I go to the chronology, as Mr Blackley thought it none of his business to inform the court of any of the details of the subsequently heard, but previously committed offending, which included offending with a sexual tone, namely ‘up skirting’ on two dates in February of 2021. The written submissions were completely silent on the existence of any subsequently proven matters and did not mention the existence of any matters which were outstanding.
Mr Blackley said when quizzed, that he had made no positive statements as to there being no subsequent matters. Well I agree, he had not. But as far as I am concerned, it has a bit of a hollow ring to say as he did, that it is not for him to tell the court about those matters when he is placing before the court submissions, and material going to the issue of your prospects of rehabilitation.
53 I really would expect counsel to positively disclose these things. I have said what I have said and I regret having the need to say what I have said. These were decisions taken by your counsel, poor decisions, I believe. But none of these things were of your making or in any way referrable to you. I put those choices taken by him aside in my task. That is not to say I will not return to the unsatisfactory aspects of that report, or the issues thrown up by the chronology of offending. That is a different thing altogether, for I have to sentence on the materials placed before me and I must make judgements as to your prospects of rehabilitation and future risk.
54 Either by reference to the oral or written outline or that expert report, I had sufficient information as to your personal background including family details, education, work, drug history and mental health issues.
55 Your counsel made some submissions to the court as to the level of objective seriousness of the various offences, as well as the relevant sentencing purposes in play here. He made submissions as to your prospects of rehabilitation.
56 In the plea conducted on your behalf he relied chiefly upon the following matters in mitigation:
· Your cooperation with police and early guilty plea in relation to most of these matters, with heightened benefit owing to the global pandemic backlog (Worboyes);
· The presence of remorse for most of the matters;
· An increased custodial burden in the course of the pandemic for that portion of your remand when restrictions were in play;
· He was relying on the provision by you of your name to the victim at the scene, as being a ‘voluntary disclosure’ attracting an Ellis[7]/Doran[8] type discount.
[7]R v Ellis [1986] 6 NSWLR 603 (‘Ellis’)
[8]R v Doran [2005] VSCA 271 (‘Doran’)
57 He conceded that a term of imprisonment with a non-parole period was the only option open to the court here.
Prosecution
58 The prosecutor Mr Grant dealt with some sentencing submissions in each of the documents that had been filed on the plea. See Exhibit A and B. He also made some oral submissions.
59 The various prosecution submissions seemed to me to be quite uncontroversial, going as they did to establish matters of sentencing. Each party for instance, had worked their way through the Meyers[9] principles in relation to the aggravated burglary. Each had recognised the features of aggravation in relation to that matter, as well as the sexual assault. There really was no major disagreement between the parties. There was a parting of the ways as to the stage of your plea in the written submissions, but the Crown have correctly retreated from the suggestion of it not being particularly early, given that your plea offers had been rejected.
[9]DPP v Meyers [2014] VSCA 314 (‘Meyers’)
60 The prosecution did not accept that there was any moderation of culpability derived from any mental health condition, or the combination of any mental health condition and drug use. The prosecution did not accept there was any reduced culpability as at the highest, it was a ‘questionable diagnosis’, with possible contribution which could not be disentangled from disinhibition from drug use. You had admitted in the interview your understanding of the effect of drug use and its effect on you. That just could not be mitigatory. No one suggested I should treat it as an aggravating feature and I will not. The prosecution disputed any suggestion of the application of a Doran type discount in this case.
61 They made submissions as to the relative gravity of the offending, with the aggravated burglary and sexual assault plainly the most serious of the offences. The Director of Public Prosecutions was calling for a head sentence and non-parole period, but so much had already been conceded by Mr Blackley in the course of the plea. The prosecution placed before me details of some of your prior and subsequent proven matters and the updated criminal history. See Exhibits D and E on the plea. They argued that specific deterrence, community protection, general deterrence and denunciation all loomed large here.
62 I will come back a bit later to consider the various submissions made by the parties.
Background
63I will turn firstly and briefly to your background. I am not going to set it all out, as I have no reason not to act on what is before me in Dr McInerney’s report as to family background, and in the written and oral submissions made as to your family background.
64Briefly then, you are 48 years of age, born in September 1975. You are one of four children brought up in Western Australia. Your parents and siblings are all still alive and I was told that you communicate with them and they with you. That there are still good relationships in play. You completed high school and then you did three years of a degree before mental health issues intervened.
65You have worked in a variety of jobs, including in hospitality and as a draughtsman. I was told that you had in the past been diagnosed as suffering from bipolar disorder and there have been many admissions over the years. The report placed before me suggests it may well be a drug induced condition and not actually that condition at all. It is on the materials before me, a questionable diagnosis.
66You have had significant issues with illegal drugs. When prescribed medication for the illness that seems now to be questioned, you have shown a preparedness not to take your prescribed drugs and to shy away from conventional treatment. You do know of the impact of illegal drugs and you have kept taking them over the years. You speak of that in your interview.
67You moved around the country and you have assembled convictions in a number of States.
68You have been in custody since your arrest, with all but a few months to be declared in relation to this sentence which I will soon impose. You have done many courses and programs and have worked in custody. Your letter speaks of the improvements you say that you have made and the reasons why they have been achieved. The period excluded from your pre-sentence detention declaration to be made in this case, relates to offending committed before the offending I am dealing with, but dealt with after that date. It was dealt with in fact on 26 May 2022. Hence it is a subsequent matter. It plainly has some relevance and the summary is before me as part of Exhibit E. So too the summary for the previous conviction for a sex offence on a child dealt with in April of 2020.
69I did try in the running to assemble in my mind, a chronology and I found it very difficult, as there were some doubts about commission dates and what you were on bail for and when. I received virtually no assistance at all from your counsel, whose attitude was that it was not for him to inform the court about these things at all. He was on notice of those matters. It seems to me that the moment he put any submission to me as to rehabilitation, was the moment he really had to inform me of those proven matters. The moment any submission was made as to totality, as it was in this case, likewise, given the totality considerations would also embrace that period imposed by way of sentence in May 2022. How could that task be done quarantined off from any knowledge of the matters for which you were then actually sentenced? It would be impossible.
70As to the existence of outstanding matters, it is the practice of almost all counsel, to disclose such matters to the court, in the sure knowledge they will never be misused. If they are pending, in circumstances where either there is to be a not guilty plea or no determination has been made as to what plea will be entered, they will simply be put aside as they are here. As far as I am concerned, it is better to always err on the side of disclosure to the court.
71In any event, this is the chronology that has now been placed before me by the prosecution.
72On 5 November 2019 at the bail and remand court, you were admitted to a 12-month adjourned undertaking, with a requirement that you engage with therapeutic services as set out in the CISP report. That was for various charges, including assault, resist, theft and possession of drugs. On the 30 November 2019, so within weeks, you committed the sexual assault on an 11-year-old child on a tram. This is one of the matters that was dealt with at Melbourne Magistrates Court on 21 April 2020. That summary is part of Exhibit E. You received five months imprisonment for those various matters that were listed that day. On 5 February 2021, you were engaged in some up skirting behaviour in the central business district in Melbourne. That is part of the conduct that was dealt with at Melbourne Magistrates Court on 26 May 2022. You were spoken to on 5 February 2021, but not processed on that date.
73On 9 February of 2021, you were charged with a number of offences of theft and theft from car, attempted theft of a car and obtaining property by deception. This was described as the Lewis brief relating to offences committed that day (9 February). You were released on bail on that day, and that is the bail undertaking that you were on when you committed all of the offences that I am now dealing with.
74The day after being bailed, so 10 February, you were remanded in custody for the matters ultimately dealt with at Broadmeadows Magistrates Court on 15 February 2021. So fresh offences including theft and various dishonesty offences and offending whilst on bail.
75You received a 12 month community corrections order on 15 February 2021, and entered that order immediately from custody.
76So upon your release at that stage from prison, you were on a community corrections order and also the undertaking of bail. Notwithstanding those things, on 27 February, you committed the further up skirting offending set out in the summary marked as part of Exhibit E. Again there was a field interview, but you were not proceeded against for that matter until July.
77So that is the lead in to all of the offending that I am dealing with. Offending occurring in the currency of a community corrections order with various treatment conditions, and also whilst subject to a bail undertaking and having been given the tap on the shoulder by police on 5 February and the 27 February, in relation to offending with an undoubted sexual element.
78That is the chronology placed before me. It exists as a matter of fact and of course, the report of Dr McInerney cannot possibly grapple with any of this. Some of it did not even exist at the time she saw you. She had you giving the account of denying your guilt of the offence to which you pleaded guilty in April 2020, and she had your account of tripping over a husky in relation to the sexual assault I am dealing with. She gives no opinion as to your risk of offence or reasons for offending. She was not being asked about those things at all. She was giving consideration to the issue of a mental impairment defence. She did note the sexualised nature of the interview, one where you described your sexual urges and fetishes, for want of a better word, but she was not being asked to address any of those matters.
79It was unclear to me in the course of the plea, I did ask and I do not believe I received a direct response as to whether a further report had been commissioned. I have asked again this morning. I have been told directly by Mr Blackley that there was no further report obtained either from Dr McInerney or from any other consultant expert. That is the reality that I am faced with. No report is placed before me to in any way explain the offending or any of the past issues or any aspects of future risk.
80I must say I have considered whether in those circumstances I should call for a Forensicare report. I have decided not to. The defence, for whatever reason, have chosen not to place any material before me. Your legal team have subpoenaed the Forensicare file, they are in possession of that, and presumably if there was any material of assistance to you it would have been filed on the plea, or for that matter made available for a consultant expert to provide a report. In any event, I have considered whether I should call for a report. I have chosen not to. Mr Blackley was plainly not suggesting that I should be calling for any report.
81I also have in this case the victim, who speaks very directly in her impact statement about the impact of the court process. She is still in therapy of some description. She speaks in the impact statement of the toll taken on her work and study and I see that there is a clear need for finality for her, of starting a new year, with this chapter at least closed. So I will move to finalise the matter.
82You have assembled a very worrying resume. ‘Up skirting’, sexual assault of a child and now sexual assault of a sleeping woman in her own home. That is before I even consider the large number of other convictions, many of which involve dishonesty. The chronology in the lead into this offending which I have rehearsed speaks of someone who was virtually unstoppable. Someone who was describing the impact of drugs on his conduct, including his sexuality. Well, you have used drugs for well over 20 years and you were showing no signs of stopping. Quite aside from that there are the fetishes, for want of a better word, which you describe in the course of the interview - for underpants and for up skirting. They seem not to be connected with drug use. Finally, there is the very worrying aspect of your description of seeking an ‘adrenaline rush’ that you say played a role in the offending.
83The criminal history and chronology is obviously of relevance to my task. I see no need to set out the full detail of the prior criminal history. The details are set out in the document that has been filed and they will not alter.
84You have a long enough list of convictions for many styles of offending. Amongst them, various types of dishonesty offences, some violence or resist arrest offences, some drug and property damage and obviously Bail Act offences. Also, of course, the sexual offences that I have spoken of a moment ago being the sexual assault of a child and the up skirting that has been dealt with subsequently.
85You were on bail and a community corrections order at the time you committed all of these offences and that is a matter of some aggravation.
86 You do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and you served them. Your prior criminal history does not in any way aggravate this offending, nor the subsequently dealt with matters. The fact that you were on bail, and a community corrections order is though, as I say, a feature of some aggravation.
87 I must pass proportionate sentences for this offending. However, the criminal history, the prior and the subsequent matters, and the chronology I have spelt out, assumes real importance as I endeavour to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. You have cobbled together a very worrying set of prior and subsequent convictions. I have real concerns as to your future prospects.
Guilty plea
88 I turn then to the other matters raised on the plea, the first of those matters being your guilty plea. It was a plea at what I will treat as the earliest opportunity for all the matters bar the sexual assault to which you have never offered to plead. You made detailed admissions to the theft of the underpants and to the aggravated burglary with intent to steal. It is not reasonable to think that you were ever contesting those matters. The matter came for trial owing to the principal charge and the two sexual assaults, matters that you disputed. Indeed, it is plain that from the moment that the matter arrived in this court you were spelling out your preparedness to plead to Charges 1 and 3. At each of the mentions or procedural hearings in this court, that much has been made very clear. The Crown were rejecting that stance and their 'bottom line', for want of a better term, was a plea to aggravated burglary with intent to assault, and a charge of sexual assault. You were acquitted of Charge 2, the aggravated burglary with intent to assault, and the first of the sexual assault charges.
89 You made full admissions to the matters on the plea indictment as well. Obviously, there is no credit at all for any plea to the sexual assault as it was never offered. There is no remorse for that either, that much is plain. All I have is your account of tripping over a dog and falling upon the victim, an account unsurprisingly rejected by 11 of the jury.
90 But I apply cases such as Carr and Zarghami to my task. As a matter of pure chronology, yes, there was a very late plea in the sense that the first time you were arraigned was in the pre-trial phase just before empanelment. You then pleaded guilty to Charge 1 and to Charge 3. For the plea indictment it was a later plea still. The first time when you were arraigned was on 8th December 2023, on the day that the plea actually proceeded. But there had been no reason to arraign you earlier.
91 Those late pleas viewed purely by way of chronology say nothing about the reality of this case and what you intended.
92 You were always proceeding in that way, and you must get the utilitarian benefit as though your plea had been accepted in the case of the trial indictment or made in the case of the plea indictment at a much earlier stage. So in the case of the trial indictment, you have coming your way the discount that would have been given had your guilty plea to Charge 3 been accepted. So that is to say the lost utilitarian value of the rejected plea in relation to that charge.
93 You made admissions earlier still and you were co-operative with the police, and I take that into account as well. So you have taken this early responsibility for the crimes to which you have pleaded guilty.
94 The submission made as to the significant extra discount owed to you by virtue of what is described as your ‘voluntary disclosure’ is far-fetched. I reject that Doran/Ellis submission entirely. It can in no way be equated with a true voluntary disclosure made in the course of an interview with the police or of someone going to the police to disclose the existence of a crime previously unknown to them. You committed the aggravated burglary. You then committed the sexual assault upon a person you thought to be sleeping. She awoke, you panicked and you got out of there as fast as your legs could carry you. You tried to get away. She pursued you, and amazingly she caught you. She challenged you, you batted away those challenges denying any role in any entry to her home and really rubbishing her claim. You tried to convince her by showing the empty backpack and turning out your pockets. As I mentioned earlier, you told the police that you accidentally flipped out the G-string. She challenged you again, she demanded to see your face. She demanded your first and last name. You had ‘run out of legs’ by this point, and you gave your true details. To describe any of this as a voluntary disclosure by you is quite problematic. To say it is one worthy of a Doran-type discount, more problematic still. Who knows what was going through your mind. Maybe panic. Maybe you had just run out of lies. Each lie to that point had been discovered. You said you did not enter, did not steal anything. You did and you had. You describe the victim as being quite compassionate to your situation. See Question 605. You said the stress and the flight had drained you completely and you were standing there panting and puffing. See Question 656. Maybe you were hoping to talk your way out of the situation as she was being so reasonable at the scene and was mentioning to you not going to the police. You probably still hoped to avoid arrest and prosecution, as you had when you fled, and as you had when you lied. It was just a different tack. To be fair to you, at least you did not make the situation far worse by assaulting or threatening her in any way. Your conduct, though, bears no resemblance to the type of conduct meriting a large or even a modest discount. You did not head off to the police station then or later. I have no doubt at all that when you left that scene you were still hoping that your conduct would go unreported and unprosecuted.
95 You do get credit for your admissions made to the police, of course you do, that is a different thing altogether, but no Doran discount is coming your way, that is for sure. The claim that remorse can be gleaned from the exchange out on the street ignores the fact of the lies that you had been telling at that scene and the fact that you did not then, or even now, admit any deliberate touching inside the house.
96 So here a contested hearing has not been avoided. You were never pleading to any sexual assault. You were always, I believe, pleading to the theft of the underpants and the alternative charge of aggravated burglary with intent to steal given the admissions that you made. And so, too, obviously the matters on the plea indictment.
97 Now some of the witnesses have been spared entirely the experience of giving evidence. For instance, the witnesses relating to the plea indictment charges. Others have given evidence in relation to the trial indictment - where there has been a challenge to your intent and you have been acquitted of two of those three charges that formed the contest here. You get the full utilitarian benefit of an early plea for Charges 1 and 3 on the trial indictment. That is despite the fact that a trial was conducted, and that is because you never joined issue on those charges. By the same token, there was always going to be a trial as your never offered to the sexual assault and you have been convicted of Charge 5, so Ms Adkins and other witnesses have been called. I do note that the cross-examination of her was not in any way hostile, and in reality she was not being challenged as a witness of truth. Rather the inferences that could be drawn from the evidence were what was under challenge.
98 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
99 I believe we are close to the point in time now where any future decision to plead guilty will not be met by any heightened sentencing benefit. That is because not only have we moved beyond the global pandemic, but the pandemic backlog in this court has now actually been cleared. We are operating at pre-pandemic levels, as the Chief Judge announced recently to the legal profession. These plea offers, however, were made well in advance of that announcement. Indeed, they were made amidst the pandemic. As I hope I have made clear, you get the utilitarian benefit of the rejected plea offer and that includes, of course, the heightened Worboyes benefit. It is plainly appropriate to give heightened benefit to the fact of the guilty plea or the intended plea in line with the principles from Worboyes. I will treat your guilty plea in each case as worthy of extra weight for the many reasons set out in that decision.
100 I take these matters into account in mitigation.
COVID-19
101 I accept the submissions made by Mr Blackley as to the impact of COVID-19 restrictions on your custodial experience.
102 It is clear that the COVID-19 virus, and the response to it by those who run the prisons, has increased your prison burden for at least some periods when you have been on remand. It cannot be forgotten you have been in custody since March 2021. For a period of time when you have been held on remand, prison was undoubtedly a more stressful environment. Social distancing was not easy. No doubt there would have been a worry about catching the virus in such a setting as that where, unlike someone in the community, there was no level of autonomy or ability to practise social distancing. Indeed, I was told you caught COVID twice. There were also some lockdowns and some periods of quarantine, of that I have no doubt.
103 There were limitations to visiting as well, and no doubt also limitation to the full range of courses in some of the period in which you have been held.
104 It was not a good time to be locked up. These things gradually eased and visiting resumed from about March of last year, and various other restrictions eased and have now been phased out altogether. Indeed, concessions have been made before me in other recent cases that there is no heightened benefit in 2023 and nor was Mr Blackley suggesting there had been this year. Earlier periods, of course, were quite different when there were restrictions in play.
105 So I take into account the increased burden posed by the response to COVID-19 in the ways contemplated by your counsel in his submissions to me.
Remorse
106 Your counsel argued that there is some remorse here. He pointed to your guilty plea for many of the matters and your admissions in the interview, and also your conduct and admissions at the scene. I mentioned a moment ago you were lying at the scene until you were caught out. It was not being suggested that you had any remorse for the sexual assault and of course that was committed after the illegal entry. It really is no simple business finding genuine remorse in the circumstances where you make admissions and apologies for some conduct but not the sexual conduct.
107 You have pleaded guilty at the earliest opportunity for most of these matters and a guilty plea is usually indicative of at least some remorse. Here, though, in relation to the trial indictment, I repeat, I have the finding on Charge 5. What does that say as to your apologies? What can I really make as to the presence of remorse when crimes are so closely linked in their timing with one admitted and the other not and that other taking place in the setting of a victim no doubt thought by you to be asleep.
108 I have not found it an easy business, but having considered the matter since the plea, I am satisfied that there is some remorse here, certainly some to be implied from your guilty pleas and some to be gleaned from the admissions made. Of course, there is none for the sexual assault.
Reduced culpability
109 Your counsel was explicit in stating that there was no reliance on Limb 1 of the case of Verdins[10], or any limb from that case for that matter. He argued, though, that there was some moderation of culpability as a result of the reference in Dr McInerney’s report on the last page where she said it was possible that some aspects of your behaviour have been partially contributed to by your mental illness - see 10.5, the final dot point. Well, the problem with that is that a fair reading of that report suggests that she, and others for that matter, question the actual diagnosis altogether. Mr Grant in his submissions worked his way through the report, going to various portions - 3.9, 3.13, 4.3, 4.4, 5.4, 6.1, 10.2, and 10.4. I am not going to set out all those portions of the report.
[10]R v Verdins [2007] VSCA 102 (‘Verdins’)
110 The contention that there should be some allowance made for the possible contribution of a mental illness that may well not even have existed at the time is quite unsustainable. You were, of course, no doubt significantly disinhibited by drugs, and you spoke of that at length in the interview. Even if you had some mental illness, it would be impossible to be satisfied to the requisite degree of any actual contribution or realistic connection. As I say, Mr Blackley was not relying upon any application of Limb 1 of Verdins, even though the argument had the feel of a Limb 1 argument actually. I quizzed him on that and he was explicit. He was not submitting that there was any realistic connection existing in the way that is required to enliven that first limb. As I see it, there is neither Verdins or non-Verdins moderation of culpability in play here. In fact your culpability was high and is not in any way reduced by the voluntary taking of illegal drugs and any disinhibition that may have been brought about by that act. I have said earlier though, I will not treat that as an aggravating feature.
Rehabilitation
111 I turn to your prospects of rehabilitation. Your counsel argued that I should not find that they were completely extinguished, that you had some prospects. That is as high as he put it.
112 You have a lengthy enough criminal past history and relevant subsequent history. You have some problematic mindset, such as to have you, for whatever reason, very interested in female undergarments and up skirting of females. You describe that in detail in the interview. You obviously have some serious control issues when using drugs. You have described that as well.
113 You have taken it to the next level by sexually assaulting two people, one an 11-year-old girl in 2019, one an adult woman sleeping in her own home in March 2021.
114 So there is the long-term and highly problematic use of illegal drugs. When previously you were thought to have a mental illness, you would not take the drugs prescribed to you or maintain your links with conventional treatment. You would not desist from taking illegal drugs.
115 I have many past court appearances for dishonesty offences as well as a demonstrated incapacity or unwillingness to abide by court orders. Being on the adjourned undertaking meant nothing to you. Being on a community corrections order and bail seemingly meant nothing to you. It is an aggravating feature that you were on bail and a community corrections order at the time of this offending that I am dealing with. I have this serious offending, and when I say that, I am speaking of the aggravated burglary and the sexual assault. These offences were committed by a mature adult, not some silly teenager.
116 You may be deterred to a degree by the sentences I will soon impose but court orders seem not to have deterred you in the past, including those engaging a prison term. It may well be that you are required to complete a sex offender's program in custody. I have no idea if you will, and even if you do, whether that would reduce your risk. I have every reason to think that you will deny any past sexual contact offending, including what I am dealing with, and of course that would be problematic in terms of the success of any treatment.
117 I have no reason to be in any way optimistic here, and nor was Mr Blackley suggesting that I could be. The chronology, which I will not set out in full again, is quite disturbing. Your offending is disturbing and serious.
118 You have been doing well in prison, according to your letter, but really what is the reality? Yes, you have done courses. You have done all these things. You speak of the way in which you have approached your task, but what led to your movements to Thomas Embling? What is that all about? Well, your counsel chooses not to place material before me in relation to that at all.
119 Your counsel was not suggesting that you had good prospects of rehabilitation. He was not using any sort of extravagant language, and that was sensible advocacy. Merely that you had some prospects of rehabilitation, and I am certainly prepared to accept that submission. From where I sit though, presently, your prospects of rehabilitation are quite poor in my view.
120 There was an unusual element of risk-taking informing the aggravated burglary that you have described. That itself is alarming. You described wanting to do something bad and you were speaking of the thrill and the adrenaline rush provided by the commission of a crime. The sorts of things you used to feel when you were skateboarding and surfing. That is a real worry when it leads you, a mature man, into another person’s house intending to steal in the early hours, and that intent then gives way to an intent to sexually assault a woman in that setting. You present a serious enough risk of re-offending, in my judgement.
The Offence
121 The agreed summary describes your various offending on the plea indictment, and I am not going to mention that in any detail now at all. In the scheme of things it is the least of your problems - you broke into a car whilst you were on bail, you stole a wallet, you used a credit card to purchase items but failed in that regard. As I say, those matters are up in this court purely as a result of the trial indictment. It is offending typical of that dealt with in the Magistrates Court on a daily basis. The aggravated burglary is of course far more serious, and so too the sexual assault. I also have the theft of the underpants prior to entry which has an unpleasant feel to it.
122 Aggravated burglary is inherently serious. I say at the outset, this was not a confrontational aggravated burglary. you entered with intent to steal and the feature of aggravation was the presence within of a person and your state of knowledge as to that fact.
123 The manner of assessing the seriousness of aggravated burglaries has been discussed in a number of cases, including the case of Meyers which I mentioned a bit earlier. It has a list of factors, the presence of which might be viewed as aggravating. The absence of a feature of aggravation, though, says nothing about the presence of other features of aggravation or the overall seriousness of the offence. These Meyers considerations[11] as to how a court might best assess the seriousness of an aggravated burglary are not exhaustive considerations, they include things such as the intent upon entry, the mode of entry, whether a weapon was carried, whether the offender was alone or in company, the time of the day, what the offender knew about who would be inside and whether the offender was someone of whom the victim was particularly frightened.
[11]DPP v Meyers [2014] VSCA 314; 44 VR 486 at [48]
124 Counsel in their written and oral submissions worked their way through these factors. Well here it was an intent to steal - no forced entry, no weapon, lone entry and no aspect of prior association which would raise the fear levels of those within. However, obviously the time of day was significant, it was past 5:00am. These were residential premises and you knew that they were occupied generally. You knew who lived there in the sense that a female lived on those premises, of that I have no doubt. You had seen the victim often enough. You stole female underwear from the line. You entered that house with an intent to steal in circumstances where you believed it probable that people were sleeping within.
125 You then sexually assaulted a completely vulnerable woman, one you thought to be sleeping as she lay in what should have been the safety of her own home in the early hours. It was a frightening and confusing crime for her and the impact has been very large indeed.
126 It is conceded that you have committed objectively serious crimes. Again, I make plain, I am speaking of the aggravated burglary and the sexual assault.
127 I believe it is always a fraught task trying to plot where on the spectrum of offence seriousness an offence might sit. Categorisations are just that, they are all a bit arbitrary and all a bit subjective. Differing views may be held as to what a mid-level or high level or low-level example of an offence is. It is usually better to look at the actual conduct, what was actually done, rather than trying to place or jam it into some particular category.
128 However, we had in this case the obligatory session of trying to place the instant offending onto the spectrum of offence seriousness with the usual silliness associated with that process where the sexual assault was described by defence counsel as falling between, not the low but the upper low to mid-range - see paragraph 31 of the Outline of Plea Submissions. Where that upper low range might start and stop is anyone’s guess, and the same might be said of the mid or even lower mid-range. They might even intersect or go past each other. This sort of discussion might easily be misunderstood by anyone who happens to observe the proceedings as indicating that the crime under discussion was not somehow serious, and that was not the thrust of it at all. All we are really endeavouring to do is to assess the nature and the gravity of the offence, which is part of my exercise. After all, it is an inherently serious offence to enter residential premises at the time that you did with an intent to steal. Sexual assault is, itself, inherently serious.
129 It is a serious example of sexual assault, for a complete stranger, an intruder, to sexually assault a woman within their own home at the time and in the setting which you did. That touching was opportunistic in that you were not entering those premises intending to assault. However, once inside the house, once in the lounge, you have seen the victim. You must have seen how vulnerable she was. You have determined to touch her. The physical touching itself was not as serious as some in that it was not skin on skin touching, it was not skin on skin touching to the genital region for instance, albeit sexual assault will never involve any act of penetration obviously enough. Here it was under the blanket, but the context, the setting, is a very significant aggravating feature indeed, that is of her, your victim, lying on a couch in her own home at a time past 5:00am where she was vulnerable, and you knew that fact. You knew that you were a trespasser in her home. There has been lasting impact.
130 I have scarcely mentioned some of the other offences, and I have I think indicated, they pale almost into insignificance as against the aggravated burglary and the sexual assault and this conduct occurred whilst you were on a community corrections order and on bail.
Purposes
131 I have to consider a number of purposes of sentencing and one such purpose is rehabilitation. Your prospects are not at all strong, indeed I believe they are quite poor. I believe there is a serious enough risk of future offending.
132 I must punish you but I must do that justly and proportionately.
133 I must also denounce your conduct. Denunciation is important here. I do strongly denounce your conduct. You really should be ashamed of yourself.
134 Specific deterrence relates to the need to deter you and it is of obvious importance in this case. I must deter you from offending in the future. Courts have tried repeatedly and failed. Well, I will try again.
135 Community protection is also obviously important here given the nature of the most serious of the charges and the past history, and the chronology that I have set out. Court orders have not deterred you, neither has an undertaking to be of good behaviour or a community corrections order – neither of those things have curbed your offending. Bail has not impeded you. Being spoken to by the police has not abated your offending. You are a real worry, and prior to your remand, you had shown no signs of stopping drug use.
136 There has been this progress that is referred to both in the written and oral submissions and also in your letter. That has to be seen in light of movement at one point to Thomas Embling, of which no information has been placed before the court.
137 Drug use and offending go hand in hand for you, but there is also this strange sexual element to some of it as well. Whether it is connected to drug use or some unconnected fetish is really impossible for me to determine on the materials. But you did speak of deciding on this night to do something bad. You spoke to Dr McInerney of wanting an adrenaline rush and wanting to do something reckless. You spoke of these things in the interview. You do present as something of a danger. Plainly community protection is of importance.
138 General deterrence relates to the need to deter future offenders, and that is obviously also important here given the nature of the two major crimes. I must endeavour to send future likeminded offenders a message to cause them to reflect on and re-consider their position and not offend in the serious way that you did.
139 I must have regard to the maximum penalties, I have mentioned them, I will not re-state them all, they are set out in the summaries. Aggravated burglary has a 25-year maximum term of imprisonment, sexual assault a 10-year maximum.
140 I must also pay regard to the impact of your crimes and that has been very significant here. That is hardly surprising. The impacts of aggravated burglary and sexual assault are well known. Here the sexual assault occurred within the victim's home, and she felt that act taking place shortly after initially waking in a dark room. How could it not very seriously impact upon her future attitude to safety and security in her own home and more broadly in relation to her attitude to strangers?
141 I also have to pay regard to current sentencing practices. Current sentencing practice is not a single controlling factor. Some cases have been placed before me, it was not suggested that any of them are comparable, and I have read them and I agree they are not. What has occurred in other cases, even if I could find a case identical to yours, would not dictate the outcome required in this case. Of course, it is almost always impossible to find a case on all fours. Here I have the undoubted sexual motive behind the theft of the underwear. I then have the entry following on from that but with an intent to steal, not to assault sexually or otherwise. I then have the sexual assault occurring within. It is an unusual sequence. I have all of your individual factors in mitigation and aggravation. I have the chronology I have rehearsed which is of no assistance to you at all.
142 It really is a forlorn task trying to find a comparable case. The cases I have been referred to did not greatly assist me in terms of the sentences imposed in those other cases. Statements of principle within some of them were more important but such statements as to the seriousness of aggravated burglary and sexual assault are hardly news to me.
143 I have looked at the sentencing statistics including the 2021 Sentencing Advisory Council Snapshot No. 262 for aggravated burglary, as well as the online data which is more up to date. I looked also at the Sentencing Advisory Council Snapshot for sexual assault No. 280 of 2023 and the online data.
144 I have looked also at some instances of sentences imposed for those two crimes as contained within the Judicial College of Victoria Sentencing Manual.
145 But having done all these things; I have mentioned other cases, I have mentioned statistics, sentencing is not some mathematical task. Statistics have limitations. They tell me nothing about the individual features of a crime represented. They tell me nothing about the crime or the offender or the risk or the prospects of rehabilitation, or whether there is remorse or not or the stage of the plea.
146 Other cases are not precedents and no amount of looking at other cases or the statistics can ever provide the answer to my task, and that is because I am exercising a sentencing discretion in your case.
147 Nor for that matter is there such a thing as one correct sentence.
148 Each case has to be determined on its own facts. As I say, I am sentencing you for your crimes, taking into account the matters in mitigation and in aggravation in this case. In your case.
149 Prison is a disposition of last resort. Your counsel concedes that prison is required here and of a duration where a non-parole period will need to be fixed as a matter of law. Plainly that concession was sensibly made.
Totality
150 I do pay regard to totality of sentence. I have taken a last look at the overall effect of my sentences to ensure it is commensurate with your overall criminality. Your criminality was high here. There was of course a temporal relationship between Charges 1, 3 and 5 on the trial indictment in that it involved a criminal foray. The theft preceded the entry to the premises. It was a separate crime with separate elements. It was in no way subsumed by the later crimes. The entry itself is constituted by the aggravated burglary charge, a serious crime in its own right.
151 Some aggravated burglaries do not lead on to other crimes. Some do. Well, this one did, and that crime was a sexual assault. That crime is in no way subsumed by the aggravated burglary as it took place after entry. Here, once inside the house as a trespasser in the early hours, having entered with an intent to steal, you have committed a quite separate and serious crime. There is the temporal connection of course which dictates a measure of concurrency in my view. However, it is accepted that there must be a level of cumulation. The fact is the sexual assault was a separate serious crime with its own elements, including a state of mind quite disconnected from the state of mind existing at the time of entry to the premises. A separate serious crime no doubt having a role in the overall impact described by Ms Adkins.
152 There is also of course the temporal connection with the offending on the plea indictment which would dictate a measure of concurrency, both for the sentencing on that indictment itself and in relation to the total effective sentence on the other indictment. In fact, having considered those matters I will impose an aggregate term on the plea indictment.
153 In considering totality I also have regard to the period that is excluded from your strict pre-sentence detention calculation. That is the limited period referable to the short prison sentence imposed on you in May 2022. You have been continuously in custody since March 2021 and that is relevant to these totality considerations. I take that period where you were undergoing that other sentence, into account in a general fashion.
154 Given the dimensions of the sentence I will soon impose, I am required to fix a non-parole period. I will in that way provide for the possibility of your early release on parole. I am not permitted to consider whether you will actually be released on parole, I must proceed on the assumption that you will serve every day of the head sentence that I will soon pronounce. Whether or not you are released on parole, will be in the hands of the Adult Parole Board.
Disposal Order
155 I just don't recall whether an application was flagged in terms of a disposal order but there is one that is applied for, it's an application under s78 of the Confiscations Act for forfeiture to the State of underpants, an empty box of Suboxone, some other bits and pieces including the knife that's referred to. Did I raise that with the parties or - - -
156 MR BLACKLEY: I believe it was made and it was consented to - - -
157 HIS HONOUR: There's no issue in terms of it, I just wasn't sure about that.
158 An application is made then for forfeiture of various items referred to in the schedule attached to the disposal order. It is an application made under the provisions of s78 of the Confiscations Act. I am satisfied that the criteria for the making of that order are made out. I have signed that order.
159 I order pursuant to the relevant provisions the forfeiture to the State of that property referred to in the schedule and that it be handled and managed in the way contemplated by that signed order.
Sentence
160 I am sorry to have taken so long to get to this point then, Mr Evans. I will have you stand up now and I will pass sentence in relation to these various charges. It will take a bit of time and I will explain the effect of these orders towards the tail end. So you will not really know what it all means until I get to the end of my remarks. I will deal with the plea indictment.
On the Plea indictment M10466239B
161 As I indicated a moment ago, I have decided in the circumstances to impose an aggregate sentence in relation to the matters on the plea indictment, such is the close relationship between those charges. I believe an aggregate is both open and appropriate to me.
162 So on those three charges you are convicted and sentenced to an aggregate period of three months' imprisonment.
Total Effective Sentence on Plea Indictment
163 Hence, there is a total effective sentence on that indictment of three months.
On the Trial indictment M10466239A
164 I move then to the trial indictment.
165 Charge 1, which is the theft of the underwear, you are convicted and sentenced to one month's imprisonment.
166 On Charge 3, which is the aggravated burglary, you are convicted and sentenced to five and a half years' imprisonment. That will be the base sentence on this indictment.
167 On Charge 5, the sexual assault, I convict and sentence you to three and a half years' imprisonment.
Cumulation trial indictment
168 I direct that 17 months of the sentence imposed on Charge 5 is to be served cumulatively upon the base sentence imposed on the aggravated burglary.
169 I direct that the one month sentence imposed on the theft charge will be served concurrently with both those sentences and all other sentences imposed this day.
Related summary matter
170 On the related summary offence of offending whilst on bail, I convict and sentence you to seven days' imprisonment. Given that it is a feature of aggravation that you were on bail at the time, I have decided to otherwise direct concurrency under that provision to avoid any aspect of double punishment - see s16 3C.
Total Effective Sentence on trial indictment
171 So these orders produce a total effective sentence on the trial indictment of six years and 11 months.
Cumulation as between indictments
172 I direct that one month of the total effective sentence imposed on the plea indictment is to be served cumulatively upon the total effective sentence on the trial indictment.
Global Total Effective Sentence
173 It is my intention that these orders produce a global total effective sentence as between both indictments of seven years.
Non-parole period
174 I fix a period of five and a half years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
175 You have already served 882 days of this sentence by way of pre-sentence detention and that is declared pursuant to s18 of the Sentencing Act and entered into the records of the court.
Section 6AAA
176 I have taken into account your guilty plea and I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial – I have said what I have said in terms of the stage of the plea, of course, there is one contested matter here – I would have convicted and sentenced you to eight and a half years' imprisonment. I would have fixed a non‑parole period of six years and 10 months. Let me just see if there is anything else. Have a seat then for a moment. Any other matters from your perspective, Mr Grant?
177 MR GRANT: No thank you, Your Honour.
178 HIS HONOUR: Mr Blackley?
179 MR BLACKLEY: Nothing from me, Your Honour.
180 HIS HONOUR: Thank you. That completes the matter, I will revise this as soon as I get it back from VGRS but whether that's this week or not is up in the air, I guess. It will probably come back, I reckon. If I get it back, I will revise it and then once it's revised I'll make it available to the parties. So you'll speak to your client – I think you've got some other commitment at the moment, Mr Blackley.
181 MR BLACKLEY: Yes, I won't be able to speak to him this morning, I will arrange a video conference with him later in the week.
182 HIS HONOUR: Alright, thank you. That completes the matter then, Mr Evans, so Mr Blackley will be in touch with you in due course to discuss what has occurred here today and your rights in relation to that sentence. So he will arrange a link and discuss your rights in relation to that. Alright, that completes the matter then so Mr Evans can now be removed please.
183 OFFENDER: Thank you, Your Honour.
184 HIS HONOUR: I'll stand down then, thank you.
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