Director of Public Prosecutions v Field (a pseudonym)

[2024] VCC 954

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL FIELD (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Ballarat
DATE OF HEARING:	17 June 2024 and 24 June 2024
DATE OF SENTENCE:	24 June 2024
CASE MAY BE CITED AS:	DPP v Field (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 954

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:Total effective sentence of 9 months imprisonment and a 12 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Angus Cameron Lawyers

HIS HONOUR: 

1Mr Field,[1] you have pleaded guilty to one rolled up charge of sexual assault. The maximum penalty is 10 years' imprisonment. The rolled up charge encompasses five separate instances of offending and any sentence of the court must consider all the circumstances of the offending and the totality of the harm so as to capture the aggregate of your overall offending within the context of a single count.

[1] A pseudonym.

Summary of offending

2The circumstances of the offending were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference.

3In brief outline, you were born in February 1970 and at the start of the period of the offending were aged 48. The victim, born in 2000 and aged 17 at the start of the period of offending, was the girlfriend of your eldest son. She has a mild intellectual disability.

4The offending to which you have pleaded guilty in the rolled up charge was over the period 1 December 2017 to 31 December 2019.

5The victim and your son were residing at your property in a bungalow adjoining the main house. The bungalow had no kitchen or bathroom, so the pair would often be in the main house to use the facilities.

6Sometime in December 2017, the victim was in the main house alone with you, doing washing, close to your bedroom. You pulled the victim into the bedroom and shut the door. The victim asked you 'What are you doing?' and you then pushed the victim onto the bed where she landed on her back. You then tried to pull the victim’s pants down and place your hands inside the front of her pants. This is the first incident that forms the basis of the charge of sexual assault.

7The victim immediately got up and went to leave the room. You told her 'We’re just mucking around…no-one has to know'. At the time of this offending, the victim was aged 17 and you were aged 48.

8Between December 2017 and April 2020, there were several instances of you slapping the victim’s buttocks whilst she was in the house. On one occasion, the victim was in the kitchen preparing something to eat when your son came home from work and observed you walk past the victim and slap her buttocks.

9On another occasion, you were drinking with some friends in the main house, with the victim present. The victim sent a text to your son, who was in bed in the bungalow, stating you would not leave her alone and kept slapping her buttocks. As a result of this, your son came into the main house and punched you in the face. The altercation escalated, and you ended up in the backyard where you threw an axe at your son.

10On another occasion, the victim had used the shower in the ensuite of your bedroom and was getting dressed in the bedroom. As she walked out of the bedroom, you slapped her on the buttocks. Your son observed and heard the slap and saw the look of dismay on her face. He and the victim then went straight to the bedroom in the bungalow.

11Sometime between 1 May 2018 and 19 July 2018, the victim was in the main house when you pulled her by her arm and dragged her into your bedroom. In the bedroom you said to the victim that you wanted to have sex with her and that you wanted to have a threesome with her and her mother. The victim said 'That’s disgusting. Don’t talk to me like that. That’s my mum and I’m dating your son.' You responded 'I know you want it…no one has to know.' At this time, the victim was 17 years of age and you were 48. The victim’s mother (who is currently aged 45) subsequently entered into a relationship with you from December 2020 to April 2022.

12On 31 December 2018, New Years Eve, the victim was home with you, your three sons and a friend of your eldest son. That evening, you, the victim and the friend were in the main house together drinking. Your eldest son was asleep in the bungalow and your other two sons were also in bed.

13You offered cannabis to both the friend and the victim. Both refused, but you continued to pressure the victim until she took some. This was the first time the victim had tried cannabis. She became highly affected and removed all her clothing. You watched the victim, winking at her and moving your eyebrows up and down while looking at her up and down. The friend eventually got the victim to put her clothes back on.

14After the friend assisted her to dress, the victim was feeling unwell and went to the backyard for fresh air. The friend went out to the front of the house and stood near the picket fence that separated the front yard from the back yard on the side of the house. He was on the phone when he saw you follow the victim outside and grab her breasts. As soon as he saw this, the friend jumped over the fence, grabbed you and dragged you back inside the house.  That is another item of the rolled up charge.

15Later that evening the victim was lying in the lounge room feeling unwell. You came up to her, knelt beside her and attempted to pull down her pants. The victim said 'No' and 'Don’t' as she tried to push your hand away.

16The friend had been outside smoking, and came inside immediately when he heard the victim saying 'Don’t' in a loud and shaken voice. He saw you standing over the top of the victim trying to pull her pants down. You said to the friend 'We should take her pants off and do stuff to her.'

17You then proceeded to pull her pants down to her knees. You also put your hand down her pants in her underwear. You grabbed the top of the victim's underwear and pulled them down, exposing her vagina. You then put your hand on top of her exposed vagina. This incident also forms one of the bases of the charge of a sexual assault. 

18The victim told you to stop several times and that what you were doing was wrong, but you would not listen and kept going. The friend eventually pulled you away from the victim and took you outside.

19The friend then went to the bungalow to wake up your eldest son and tell him what had happened. When your son and the friend re-entered the house they found the victim slouched on the couch with you beside her again trying to pull her pants down. You had your hand down the front of her pants in the region of her vagina. This incident also forms one of the bases for the charge of sexual assault. 

20Your son and the friend pulled you away from the victim. The friend helped the victim sit up whilst your son took you to the kitchen where you had a seizure and collapsed. An ambulance was called and paramedics arrived and took you to hospital. At the time of this offending, the victim was 18 years old and you were 49.

21Sometime towards the end of 2019, the victim had developed a rash under her breasts. You told the victim to go to your bathroom and get some cream. She went into the ensuite to get the cream and began rubbing it on the rash. She was wearing only a singlet top and had lifted it up so she could rub the moisturising cream under her breasts.

22You then came into the ensuite and took the cream and said 'I’ll help you'. She said 'No, I’m ok. I can do it myself',  but you proceed to rub it on the victim’s breasts. This incident forms another of the bases of the charge of sexual assault.

23The victim said 'No I’m fine. Can you stop doing that', but you continued to rub the cream all over her breasts. You said she had nice breasts and you liked her breasts. You then stopped and walked out of the room. At the time, she was
19 and you were 49.

Complaint

24In mid-2020, the victim and your eldest son moved out of your house and moved in with your ex-partner, who was the mother of your eldest son.

25Sometime between late January and early February 2021, your son told your ex-partner that the victim was upset and scared to tell you something. Your
ex-partner went to the victim’s room and found her crying and in bed. She asked the victim what was wrong and the victim told her about you touching her breasts and rubbing the cream on them, slapping her on the buttocks repeatedly, and telling the victim you wanted her to have a threesome with her and her mother and about standing over her when she was drunk and lying on the ground.

26In early February 2021 the sexual assaults were reported to the police. In early March the victim attended at the Ballarat SOCIT and completed a VARE.

27In mid-May 2021, you were arrested and taken to the Ballarat police station, where you participated in a record of interview in which you denied all the allegations of sexually assaulting the victim.

Seriousness of the offending

28The offending here spans a period of nearly two years. It was perpetrated against a young woman who was involved in a relationship with your son and living in a bungalow at the back of the property. She was using the facilities within your house so she could be regarded as a member of your household.

29The five individual sexual assaults cover a span of sexual touching including skin on skin touching of the genital area.

30The offending can be characterised as being in a mid range of seriousness.

Prior convictions

31You possess a criminal record, but I do note that this is your first appearance before the County Court and on charges of this nature.

32In 1990 you faced the Ballarat Magistrates Court on charges of possession of amphetamine, unlicenced driving, failure to answer bail, exceeding PCA whilst in charge of a vehicle, and stating a false name and address. You were fined on that occasion.

33In 1991 you were again before the Magistrates Court in Ballart and were gaoled for four months on charges of Burglary and Theft.

34In 1995 the Ballarat Magistrates Court convicted and fined you $300 ex parte for behaving in an offensive manner in a public place.

35In 1998 the Ballarat Magistrates Court convicted and fined you for cultivation, possession and use of cannabis.

36In 2006 the Bendigo Magistrates Court convicted and sentenced you to a
12 month community corrections order for cultivation, possession and use of cannabis.

37In 2007 you were again before the Bendigo Magistrates Court for possession and use of cannabis and were convicted and fined.

38Your most recent court appearance prior to the current offending was in 2017, where you were convicted and sentenced to a 12 month community corrections order for unlawful assault in the Ballarat Magistrates Court. You were the subject of this CCO for part of the offending period here.

39Your prior convictions are of a different character than your offending here and thus carry less salience in terms of your moral culpability for this offending, but you do not come before this court as a first offender.

Victim impact statement

40The complainant in this matter has made a victim impact statement wherein she indicates that your offending has made her very isolated whilst living in your household. She often locked herself in her room. She was very conscious of her clothing as a result of your comments and lived in fear that you would hurt her again. Even when she moved out, she was still carrying her fear and isolation.

41The offending impacted on her psychologically. She previously had anxiety, but it became heightened and her medication increased. She was scared of seeing you in the community so that she stopped socialising and felt even more isolated.

42Following her report to the police her mother entered a relationship with you which then caused her isolation from her own mother and fractured their relationship.

43She now has trouble sleeping and does not trust people and checks the locks.

44She has been anxious with the whole court process and the delays in you admitting responsibility and she has described it as traumatic, frustrating and exhausting. She looks forward to closure in relation to this matter.

45It is clear from the victim impact statement that your offending has had a significant and continuing impact on the complainant in the matter. This must be reflected in the sentencing, and I take it into account.

Forensic history

46You were charged on 8 October 2021. The matter was the subject of a number of committal mentions is in the Magistrates Court during 2022 with the initial directions hearing in the County Court on 13 October 2022. 

47The matter was subject to a further directions hearing on 8 February 2023 and listed for a s198 hearing on 13 April 2023, with a plea offer being accepted on 21 April 2023.

48You were arraigned in that plea indictment and subsequently you made an unsuccessful application to change your plea, which was determined in this court by another judge on 19 December 2023 and dismissed, and the matter was then listed for plea in this court to the single rolled up charge of sexual assault.

Personal circumstances

49You are about to turn 54.

50Your personal history is set out in a medical report from Mr Simmons and in your plea submission. You have two older siblings. Your mother died a couple of years ago and your father has dementia and is in a nursing home.

51You were educated locally until Year 8 and your childhood was disrupted as your parents were rarely at home.

52You are qualified as a cleaner and from aged 18 worked as a commercial cleaner. You have been in that position until you were dismissed following these charges and are now on a Disability Support Pension.

53You entered a relationship at age 19 and continued in that relationship for
25 years and have five sons aged between 13 and 30. You have been with your current partner for a period of three years.

54A significant feature of the plea was your current medical condition. You have had episodes of self-harm in 2018 and 2021. Your physical and mental health is fragile. The mental health assessment indicates that you require ongoing assessment of your mental health. You would also benefit from participation in psychological counselling.

55In the medical report from Mr Simmons, he indicates that you meet the criteria for alcohol use disorder, and he suggested a referral to a drug and alcohol counsellor. He further notes you have an average risk of reoffending.

56In sentencing for this matter there has been considerable delay due to the fact that it was a circuit matter, and also your decision to seek to reverse your plea.

57Delay however is a matter that I do take into account in your favour. You have had the matter hanging over your head for some two and a half years since you were charged.

58In your favour you have not reoffended, and you also come before the court for the first time for sexual offending. 

59Notwithstanding your lack of insight into the offending and your relatively limited prior criminal history, and your continued denial, I am still of the view that with appropriate treatment I would regard your prospects of rehabilitation as reasonable.

60It is clear from the mental health assessment and also from the medical report tendered this day from Dr Dove, that you have a number of chronic and acute mental and physical health conditions including reactive depression and according to the mental health assessment undertaking, you present:

…as an emotionally vulnerable, socially isolated man experiencing stress and distress secondary to court matters, and not having contact with your children and also physical health issues.

61You had an admission to hospital in 2022 for pneumonia. You were also the subject of voluntary psychiatric review and treatment between June and September 2022. You also have cirrhosis of the liver and a heart condition.

62The medical report from Dr Dove indicates that you have suffered from epileptic seizures, back pain, depression and cirrhosis of the liver, but you are not currently under any investigations.  He provides a list of your current medication and said that you have recently been investigated for DVT and you are on another medication for another condition that I cannot understand the writing.  You are on multiple medications, according to a medication summary provided.

63On the plea your counsel submitted that a sentence of imprisonment would be significantly burdensome on you.  I accept that a sentence of imprisonment would be burdensome on you given your age, and your multiple medical conditions, and thus would be more burdensome than a person who is younger and in good physical health, and I take that into account in your favour.

Sentencing submissions

64Your counsel submitted that this offending was in the lower range of seriousness and could be addressed by way of a community corrections order. She relied particularly on your history of self-harm and that your mental health required support, and that you were relatively isolated in the community in rented accommodation.

65The learned prosecutor submitted however that a combination sentence would be within range, but he submitted that the seriousness of the offending here called for a period of imprisonment.

66The learned prosecutor emphasised the importance of general deterrence and that you were in a position of trust in relation to the complainant. Further, whilst this is your first appearance for a sexual offence, considerations of prior good character carry less weight in circumstances where you were in a position of trust.

67In considering this matter, given your lack of insight into the offending which is indicated in the report of Mr Simmons and also in the CCO assessment, considerations of specific deterrence still carry some salience and there is no evidence of any insight into your offending and you do lack any remorse.

68Your counsel strongly submitted that the principle of parsimony and the authority of the Court of Appeal decision in Boulton v R [2014] VSCA 342, were such that all sentencing considerations could be achieved by way of a CCO.

69I had you assessed for a CCO and the assessor noted that you continued to deny the offending and you had no insight into the impact of your offending on the complainant.  You are assessed as having a medium risk of general reoffending, but were still found suitable.

Purposes of sentencing

70The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.

71In sentencing I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

72I must have consideration to the principle of parsimony. The overall sentence needs to be a just and appropriate measure of your criminality, which in this case is a rolled up count involving five separate events over a period of two years.

73The seriousness of the offending here, involving the partner of your son, over a considerable period encapsulated in the five individual events set out in the prosecution opening, and the impact on the complainant as set out in her victim impact statement, are such that considerations of general deterrence and denunciation call for the imposition of a sentence of imprisonment.

74The complainant, as a teenager living in your household as the boyfriend of your son, was entitled to pursue that relationship without you seeking to obtain your own sexual gratification by engaging in the conduct that is the subject of this rolled up charge over a two-year period.

75Having considered all the competing sentencing submissions I am satisfied that the sentencing considerations can be addressed by way of a combination sentence, and I note that you are prepared to consent to a community corrections order.

76I have also taken into account the impact of a sentence of imprisonment on your personal circumstances, but notwithstanding what obviously will be a significant impact on you, considerations of denunciation and general deterrence call for a sentence of imprisonment. 

77In the interests of your rehabilitation however, I am satisfied that I can sentence you to a term of imprisonment followed by a 12 month community corrections order, to commence upon your release from prison, and that will enhance your rehabilitation.

78So the sentence of the court is a sentence of nine months, followed by a 12 month community corrections order to commence upon your release from prison.

79Consequent upon your conviction, you must go on the Sex Offender Register for a period of eight years, and you will be provided with the relevant paperwork.  I will mark the indent with details of your medication and provide to the authorities the medical reports and the discharge summaries that have been exhibited on the plea.

80I declare that had you not pleaded guilty I would have imposed a sentence of 30 months' imprisonment with a non-parole period of 20 months.

81I will ask you to sign a copy of the community corrections order and return it to me and I will then sign it. 

82I will ask that you not be removed from the court for a short time, to allow your counsel to explain the community corrections order to you:

i.You are required to attend at the Ballarat Community Corrections Centre within two business days of your release from custody.

ii.To be under the supervision of the Office of Corrections for a period of 12 months after that, during that period.

iii.You are also required to accept visits and follow directions over that period.

iv.And not leave the State without permission of the Office of Corrections.

v.You will also be required to undergo drug and alcohol testing, as required.

vi.And to undergo any mental health assessment, as directed.

vii.And to engage in programs, as directed, including sex offender programs.

83You will be handed the sex offender registration material now, which requires you to report to the Registrar on an annual basis.  You will need to acknowledge that you have received the relevant sex offender paperwork.

84I thank counsel for their assistance in this matter and request the officers to allow Ms Swiney to speak to her client for a short time.

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