Director of Public Prosecutions v Forman (a pseudonym)

[2019] VCC 234

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

AT MILDURA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEFFREY FORMAN (A PSEUDOYNM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	5 March 2019
DATE OF SENTENCE:	5 March 2019
CASE MAY BE CITED AS:	DPP v FORMAN (A PSEUDONYM)
MEDIUM NEUTRAL CITATION:	[2019] VCC 234

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr G. Davis	Hilton-Wood Solicitors

HIS HONOUR: 

1Jeffrey Forman[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.  You were 22 years of age at the time of the offending and are now 24 years of age.  Now, you pleaded guilty at the earliest reasonable opportunity and you must get the utilitarian benefit of that plea of guilty.  I am satisfied from the material before me that you do have appropriate remorse.  You made full admissions when interviewed by police and that is very much to your credit.

[1] This is a pseudonym.

2In this particular situation, the complainant made a VARE back in August 2016 and you were not then interviewed for another 18 months.  For somebody who is in their early 20s, that is an extensive period of time.  During that time you had no knowledge of whether the matter was going to be proceeded with, whether it would come back to haunt you or whatever.  In the decision of
R v M.W.H, Mr Justice Callaway, as I recall, said the following about delay, in terms of delay:

"There may be considerations of fairness, especially where the delay is attributable to the prosecutionor there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.  There may be practical considerations that require a marked degree of leniency to be extended.   The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life.  He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed".

3And in my view, that is the situation here.  You do have a significant criminal history, albeit none is for sexual offending and that is encouraging.  Because of the nature of the offending you will be placed on the Sex Offenders Register and I must advise you, that the period of reporting will be for a period of 15 years.  I will ask Mr Davis to accompany my associate to the dock, please.

4MR DAVIS:  Thank you for that opportunity, Your Honour.

5HIS HONOUR:  Yes.  Yes, thank you for that, Mr Davis.  The summary of the offending is that at the time in the middle of 2016, you were 22 years of age.  The complainant was born on 26 May 2001 and was therefore 15.  Accordingly, there is not the long age difference that sometimes occurs in such offending.  You were known to each other as you had had, or were the father of a child that you had with her mother.  I will come back to that again in a moment. 

6You used to stay at the house quite often.  On the evening of Friday 29 July 2016, the two of you were messaging each other from mobile phones.  She told you that she had been out drinking with friends but everybody had ditched her.  You said, "Do you want to come for a drive?" and she agreed and you then picked her up in Mildura and drove to a caravan park.  You began smoking weed in the car and asked if she wanted to join you and she says, "No". 

7You were talking for some time and you kissed her on her lips.  She leant back in response and you then kissed her further.  She says she was unable to pull away, due to her position in the car.  I will make it clear from the outset here, that this is a plea.  Your position is that she was a totally willing participant and it is a situation where she in fact, was the daughter of somebody that you had had a previous relationship with.  So I am certainly not sentencing on the basis that this was forceful.  It is sexual penetration.  There is no allegation of rape or any violence in this and I am not going to sentence on that basis. 

8In any event, you started your car, drove to your grandmother's house in Irymple.  When you arrived, she was asleep in the car.  You knocked on your grandmother's bedroom window and woke her up, asked if the two of you could stay.  She said you could sleep in the spare bedroom, went back to bed.  The complainant got into the single bed in the spare bedroom and you got in with her.  She was falling asleep when you undid the button of her jeans, pulling them off.  As you were doing that you said words to, "Don't go to sleep yet.  You've got to stay awake". 

9You have agreed when talking to the psychologist, that you did initiate the sex and that you did penetrate her vagina and there is no suggestion other than, you inserted your fingers and then your penis into her vagina.  It is in effect a rolled-up charge, though obviously it is a situation where total - if it were, if it were a gaol situation, there would be total concurrency between the two.  She says she was shocked and scared but as I have indicated, I have concerns about that. 

10After a short time you then removed her underwear and as I have indicated, inserted your penis into her vagina.  You then got up and had a couple of, "Bongs", and went back to bed.  The next day apparently you barely spoke.  You drove her to school and that was that.  She told her older sister and her mother's girlfriend what had happened and you were confronted.  The complainant's mother asked you if it was true and you responded that, "She'd asked for it".  That you were crying when you told her this.  As I said, you were not arrested and interviewed for nearly a year and a half, which is of real significance in this process.

11You spent no time in custody.  There is no victim impact statement before me. 

12You apparently left home at around about the age of 13 and had a very disturbed and dysfunctional teenage years.  What has happened is that you have, on the face of it, turned your life around.  By the age of 15 or 16, you were using drugs.  By the age of 18 or 19, you were using ice.  At the time of this offending you were using ice and synthetic cannabis and that would have had a deleterious effect upon you.

13What has happened is, that within a few months of this matter, you not having been interviewed by police, you just having completed a community corrections order for a different sort of offending, you stopped your use of ice, you stopped your use of drugs and you stopped your use of alcohol.  Since then you have returned and are living in a stable family environment with your now partner and her parents and another sibling.  You now have a young child and the grandmother of that child gave evidence before me and I found her to be telling the truth.

14She said that you are a very good father, that you are doing very well and she is sure you are not using drugs or anything along those lines.  You are clearly working.  You have a stable partner who does not use drugs and who has a good influence upon you.  I suspect for the first time in your life, you are living in a safe and protected environment with the sorts of pleasures that a young man should be able to have. 

15The report from the psychologist is encouraging, Mr Purchase.  He says that,

"I do not believe Mr Forman would currently qualify for any psychiatric diagnosis, although he reported a long history of illegal drug abuse.  He claims he is now drug and alcohol free.  He does not smoke cigarettes.  He showed good insight into his own behaviour.  He clearly attributes his current medical malaise [and that is an internal problem that you have that is being investigated] to ice abuse, and spoke with anger at his own stupidity for getting into illegal drug usage.  'It's been a waste of money, a waste of life'.  He sees his own drug taking past as, 'Stupid'.  Concerning his current charges he was equally insightful.  'I shouldn't have done it, I'm a fool.'  He remained adamant that the sex that did take place was not accompanied by force or coercion". 

16And again, I am not going to sentence on the basis that it was.  He said,

"Mr Forman is a young man who clearly has been lost to drugs and the lifestyle that it brings.  However, he now seems to have seen the error of his ways and has reasonably good insight into his own behaviour.  He is in a good and stable relationship which he values.  He is yet to grasp what his future needs to be but seems to be in the best position he's been, since preadolescence.  With guidance, he might still add usefully to society".

17I accept that that is the case and I think the prospects of your rehabilitation on your own efforts are good.  The risk of you reoffending in this way, I think is probably zero.  The defender already indicated it is clear that you have all the protective factors in place for a young person of your age and it seems to me that to incarcerate you this far this track, after what you have achieved in the last couple of years, would not be to the community's benefit.  As the President of the Court of Appeal said in R v Tokava,

"A sentencing judge should be astute to investigate whether a non- custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course. This Court should seek to promote public understanding of the fact that – apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself – there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

18And I propose to follow the words of the learned President of the Court of Appeal and apply that principle in this given situation.  I think they are all the matters I need to take into account in these circumstances.  You are still a young man.  You have got a life in front of you and the last couple of years, you have turned it around.  I certainly am not prepared to do anything in relation to the seriousness of the offending, which is going to jeopardise that and as the President said, it is not to the benefit of the community for a judge to do so. 

19Accordingly, the CCO that I am going to impose will be without programs as I do not think they are necessary, having read the report of Mr Purchase and you also having done programs on a previous CCO, but it will be simply for work hours but the number of work hours must reflect that it is not a trifling offence and I am sure that you are aware of that.  Accordingly, if you agree, you will be placed on a community correction order for a period of two years.  That order will be with conviction, which is a punishment in itself and the amount of work hours that you will be required to perform is 200.  All right.

20So far as 6AAA is concerned, I point out that you made full admissions to all this.  If you had fought it out, you probably would have had a chance at defending it, had you not made admissions to the mother.  In those circumstances, if you had been brought on then you would have been 22, I still would have given you a CCO.  Of more significant proportions, of course.  Do you just want to explain that to your client, Mr Davis and get him to sign it?

21MR DAVIS:  Certainly, Your Honour.

22HIS HONOUR:  All right, that CCO is made.  There is no other orders I have to make?

23MR O'DOHERTY:  No.

24HIS HONOUR:  No.  I want you to stand up for me, for a second, if you would please, Mr Forman?  All right, you are on a CCO.  All right?  Now if things start to go astray with it, you can always bring it back to court.  You can always make sure people understand it can be readjusted.  All right?  I am confident that you will get through all this.  What you have got to understand is, if you got brought back before me for breaching this with any sort of sexual offending, right it is that door over there.  All right?  There just would simply be no choice.  All right?  You have done really well and this is the court recognising how well you have done, but you cannot do it again.  All right?  Very well.  Thanks for that gents. 

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