Director of Public Prosecutions v Fletcher, Daniel Richard
[2013] VCC 275
•12 March 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL DIVISION
Case No. CR-12-02265
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DANIEL RICHARD FLETCHER |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 12 March 2013 | |
DATE OF SENTENCE: | 12 March 2013 | |
CASE MAY BE CITED AS: | DPP v Fletcher, Daniel Richard | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 275 | |
REASONS FOR SENTENCE
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Subject: Trial - sentencing
Catchwords: Indecent act with a child under 16
Legislation Cited: Sex Offenders Registration Act 2004, Sentencing Act 1991
Cases Cited:
Sentence: Without conviction, released on an adjourned undertaking for a period of 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr J. Kantor | Rod Higgins |
HIS HONOUR:
1 Mr Fletcher, could you stand? I will not be able to complete the formal aspect of your sentencing just yet because there are some formalities that have to be attended to, in particular with the Sex Offenders Registration Act, to which unfortunately you now fall a victim as a result of your offence being, I think, a Class 2 offence with a reporting period of eight years. That is an onerous aspect on any person to have to register as a sex offender, as you would appreciate, but as severe as that is, it is not something I can objectively take into account in considering penalty. The law says that I do not, and I do not.
2 But there are some formalities that have to be done online by my associate back in chambers to prepare the necessary formulation of the documents and I have to sign them, so it may take a little time shortly for that to be done, so you will have to wait around.
3 But in the meantime I am prepared to accept the indulgence, really, that has been given to you by the prosecution in this case, and it is not just Mr Cordy acting fairly, but also in consultation with the Office of Public Prosecutions to actually give their imprimatur to what otherwise might be seen as quite a lenient penalty.
4
I will accede to the submission by Mr Kantor that you receive a non-conviction undertaking to be of good behaviour, and I will order a period of six months for that, on the basis that I think it is appropriate in the circumstances, it has been accepted as being reasonable by the Office of Public Prosecutions and it reflects your background as being otherwise a very young man. You are only 19 now. You were 18 at the time of the commission of the offence. You have no prior convictions. You are from a stable home environment. You have performed well academically to Year 12 standard at school, and you have some sense of direction in your life.
5 Why you are standing here today, though, is because what you did, as a matter of the criminal law, notwithstanding being given an indulgence on your penalty, is a serious offence because it involves essentially what you may not necessarily fully appreciate, and that is the exploitation of a very young girl.
6 You and your contemporaries get fed an enormous amount of material, much of it irresponsible, through social media, through the general media and through magazines, and the law and the community has always understood and respected the fact that young people are often not able to maturely make rational decisions about this sort of behaviour. They may superficially give an impression that they understand and can act rationally, but the fact is that the law and the community has understood for years that they have to be protected from themselves because they do not really fully understand the consequences of these actions.
7 Now your conduct is serious because, quite frankly, in your record of interview you appreciated that any sort of sexual behaviour with a girl of this age was unlawful and it was wrong. You gave eloquent testimony as to why, in your own heart and soul, you understood it to be wrong because you thought if anyone else knew you were knocking around with this girl, making out with her, you would be disparaged in the eyes of your own contemporaries, as "What are you doing with a 15-year-old, a girl who has just turned 15 out of 14?"
8 The other thing is, you do not understand the background sometimes as to why someone might be acting in a way which might appear responsibly accepting to your behaviour. One of the witnesses, I think it was Valli, had to censure the victim at one stage and learnt, consistent with the other evidence we know about her family, that she is partly autistic. Autistic people often do not read the signs in other people. So this is the sort of thing that you have got to understand. When you have got a young person, they may even be more vulnerable than usual.
9 So it was an act by, I think, an intelligent, and a perhaps a little manipulative, person that got you there to decide that in a 30-minute break you could rush home and make out with this young girl, and that is why you are here today, probably not because you are a man who has developed any antisocial nature or you are a criminal type or you are in any way a sex fiend, you were just stupid. You are really stupid.
10 The other thing about this, I think, that shows reason for the indulgence that is going to be given, is that it struck me that you are quite an intelligent fellow. In your record of interview in response to a very difficult circumstance in the police station, your age and the manner, the delivery and the immediacy of your responses I think was quite striking, and I have seen a lot over 35 years. It struck me that you have an intelligence that you can really use, and use for your sensible development in life, if you choose so to do. I think you have got a bit of growing up to do, get a bit of maturity and start applying yourself seriously, and I suspect that the whole process you have been through over the last almost 12 months may be a feature that enhances that maturing process. Nobody at your age should have to go through what you have gone through or to have put their parents through what you have, and I have no doubt at all from your family background that you would be feeling that very strongly.
11 The way you can make reparation is to put your head down and really start to develop a decent life for yourself, and nobody has ever achieved that without a fair modicum of hard work and a bit of personal discipline.
12
So the sentence I am going to impose is going to reflect the fact of what you have done, but also the fact that it is an anomaly in your life and you can put it behind you and you will not have to carry with you all your life a recording of a conviction for a sexual assault.
13 So the sentence that will be passed is that the matter will be adjourned on your entering into an undertaking to be of good behaviour for a period of six months, without conviction.
14 Please take a seat.
15 Now what I am going to do - it is again unfortunate for you as a matter of time, but I cannot have that done in the next 20 minutes - you have to sign the actual undertaking to be of good behaviour and I have to sign the form for the Sexual Registration Act and you have to countersign that, and I will not be able to do that until after the lunch break. So, in fact, that will be at 2.30. I am sorry that that extra is there, but it is unfortunately necessary.
16 Now does that inconvenience you greatly, Mr Cordy?
17 MR CORDY: Not at all, Your Honour.
18 HIS HONOUR: No, all right. This matter will be adjourned until 2.30 when those matters will be dealt with then.
19 (At a later stage.)
20 Mr Fletcher, could you please stand again.
21 On Charge 2 of indecent act with a child under 16, without conviction, you are released on an adjourned undertaking.
22 The undertaking starts today and goes for a period of six months from today.
23 The conditions of the undertaking are that you must be of good behaviour during the period of the undertaking and you must attend before the court if called upon to do so during the period of the undertaking.
24 Do you agree to these conditions and do you understand them, Mr Fletcher?
25 PRISONER: Yes, Your Honour.
26 HIS HONOUR: If your circumstances materially alter or if it appears that you are no longer willing to comply with the conditions of the undertaking, then either you, the Director of Public Prosecutions or the police may apply for a variation or cancellation of the undertaking. I recommend that you obtain legal advice if any such application is made.
27 However, I must warn you that if you breach any condition of this undertaking, you will be brought back before me to be re-sentenced on the original charge and also dealt with for the breach. Do you understand that?
28 PRISONER: Yes, Your Honour.
29 HIS HONOUR: A breach can be occasioned by even a relatively minor offence. That is the aspect of the condition of being of good behaviour. So do you understand the consequences of breaching an adjourned undertaking?
30 PRISONER: Yes, Your Honour.
31 HIS HONOUR: All right. I will ask you to sign that undertaking shortly.
32 There is that further matter which I need to attend. You can take a seat for the moment.
33 I need to speak to you about the provisions of the Sex Offenders Registration Act.
34 The offence of which you have been found guilty is a registrable offence pursuant to the provisions of the Sex Offenders Registration Act, and by reason of your being sentenced for this offence you are a registrable offender and obliged to comply with reporting obligations imposed by that Act.
35 As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of a sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
36 Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which is for eight years.
37 My associate will in a moment hand you the Notification Of Reporting Obligations which I have already signed.
38 Your representative in court today, Mr Kantor, will ensure that you understand the requirements set out in this form, and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgement to my associate.
39 The adjourned undertaking material and the sex offenders registration material can be now passed to Mr Fletcher.
40 All right. Those procedures have been completed.
41 At the plea hearing the Crown sought an order for the taking of a forensic sample which, through your counsel, you opposed. I have decided that it is not necessary in the circumstances to make such an order due to your young age, your otherwise good character, my being satisfied that you are not likely to be a threat to the community and that the making of such an order is not in the public interest.
42 Are there any other matters from either counsel?
43 MR KANTOR: No, Your Honour.
44 HIS HONOUR: I just make one further comment. I have said that I am satisfied that you are not likely to pose any risk or threat to the community, and in my view the need for the making of a sex offenders registration in the circumstances of this matter is absurd. This is yet another example of what unfairness can occur when Parliament decides to remove discretion from judges. The law needs serious and urgent reconsideration.
45 Notwithstanding that comment, Mr Fletcher, you must comply with the reporting obligations.
46 This court will now be adjourned until 10.30 tomorrow. I just ask the parties to remain to obtain copies of the undertaking after I leave.
47 MR KANTOR: As Your Honour pleases.
48 HIS HONOUR: Thank you.
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