Director of Public Prosecutions v Francois

[2014] VCC 1276

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00358

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDRE FRANCOIS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2014
DATE OF SENTENCE:	8 August 2014
CASE MAY BE CITED AS:	DPP v Francois
MEDIUM NEUTRAL CITATION:	[2014] VCC 1276

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty 1 charge sexual penetration under 16; Young offender- 19,  victim 14;  Full CCO report obtained; some anti-social behaviour; no longer uses Ice, Offender suffers from Scotopic Sensitivity Syndrome, undergoing psychological therapy; special condition; Offender to cease any contact with victim.
Sentence: Community Corrections Order  2 years, with 80 hours of unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stevanovic
For the Accused	Mr J. Taaffe

HER HONOUR:

1Andre Francois, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  The maximum penalty for this offence is ten years' imprisonment.  Largely because of your youth, and the primary importance of your rehabilitation, despite the seriousness of the matter, a prison sentence in your case is not necessary, and you will be obliged to comply with the conditions of a Community Corrections Order, the details of which I shall explain later.

2

You established a relationship with the complainant, whom you knew from school days, via Facebook.  You told her your true age, which was 19, and she told you she was 15 when, in fact, she was 14.  The next day you suggested to her that she come to the drive-in with you, but the complainant said that she could not go as she would be spending that week at her father's house and he would not allow her to go because she was only 14.  You suggested that she not tell her father how old you were, or tell him she was going to a friend's house.  Alternatively, you suggested bringing your

13 year-old brother who could pose as your friend.  You were prepared to use lies and subterfuge.

3A few days later her father interrupted a telephone conversation you were having with the complainant and told you that you were too old and he was opposed to you being friends with his daughter.  A week later you went to the complainant's home, where she lives with her mother and you were introduced.  Her mother warned you both about having any sexual activity with each other, saying her daughter was only 14.  That is a matter you have disputed; you told the police that her mother did not tell you this.  But, in any event, you knew how old she was.  You then went to the drive-in and had sexual intercourse in the back of the car.  She had not had sex before and asked you stop because it was hurting.  You stopped, and soon afterwards drove her home. 

4A few days later the complainant became concerned she might be pregnant and she contacted you by Facebook.  You exchanged messages about this and these were seen by her father, prompting him to call the police.  She told her father and stepmother that she had had sex with you, saying that she wanted to but had changed her mind, but then let you do it anyway.

5This is at odds with what she said in her VARE, where she said she had consented.  It's important that you understand that her state of mind is relevant only in assessing the context of the offence and does not, of course, allow for consent to be a defence because she was too young to be able to consent.  Her father and stepmother provided Victim Impact Statements in which they described their anguish over not having been able to protect their daughter, and the lack of trust that now prevails in their relationship with her.

6You are now aged 20, living at home with your parents and siblings, in what has been described as a happy and supportive family environment.  Your school years were made difficult by the fact that you suffer from a condition called scotopic sensitivity syndrome which is a perceptive visual dyslexic disorder making reading difficult.  It led to behaviour problems at school and there were signs of depression and anxiety linked to being bullied.

7You have been undergoing psychological therapy since the beginning of this year with Dr Rachel MacKenzie who provided a report setting out some of your personal background and offering the opinion that, while you do not suffer from any disorder, you have adopted maladaptive coping strategies in response to distressing situations.  Dr MacKenzie is treating you with cognitive behavioural therapy and, specifically, education concerning sexual relationships.  It is relevant to note that she considered you to be immature, and naïve and you well understood the reasons why young teenagers should not have sex, and you have now become more guarded about developing relationships.

8Dr MacKenzie considered that you have made some progress in five sessions but you still have a long way to go and, ideally, you should engage in therapy not in a group, but in sessions tailored to your needs.  She stated she is prepared to continue with this therapy if you are placed on a Community Corrections Order, but a specialist drug and alcohol treatment service should also be engaged.

9Returning to your history over the past few years, you left school during Year 11 and completed a certificate course at TAFE but your employment opportunities have been plagued with problems, not always of your making.  For a time you used ice regularly, and fell in with some anti-social company, which is the background to the offending before this offence, but for which you were not dealt with until March this year.  You were placed on a Community Corrections Order for burglary and theft, and in early 2013, you and your brother were dealt with for an assault in a supermarket, when you considered you were being harassed by security guards on racial grounds.  There is no formal record of that matter, suggesting it may have been dealt with by means of diversion.  The only relevance of those matters is that it demonstrates your drift into anti-social behaviour, which is out of character for you.  You observed how badly ice affected your acquaintances, and you have since ceased all drug use but you still sometimes drink to the point of intoxication.

10You pleaded guilty to this charge at the Committal Mention in February this year at a very early stage, and for that you are entitled to a discount on your sentence because, importantly, it has avoided the need for witnesses to have to give evidence and to be cross-examined at a trial.  I accept it, also, as an indication of remorse.

11Because you are a young offender, and in this case your immaturity has been noted, your prospects for rehabilitation are to be given primary importance.  You have taken steps to address the factors that have led you to offend, and although your treating psychologist has not assessed your risk of re-offending, there is little to indicate that likelihood.  Your engagement in counselling, your strong family support and your willingness to continue to address your problems are all matters that lower that risk.  That is the view of the Corrections Officer who assessed you recently as to your suitability for a Community Corrections Order.

12Because your compliance with the current order has been found wanting through unacceptable non-attendance on six occasions, your suitability for a further such disposition has been confirmed with reluctance.  Despite that, and for all the reasons I have already outlined, a Community Corrections Order is the appropriate punishment.  The prosecution instructions in relation to sentence were that such a course is open to me.  The Order will assist you to continue to see Dr MacKenzie and to undergo a sex offender course as well, if that is considered necessary, bearing in mind Dr MacKenzie's view as to the need for individual therapy.

13You will also have to attend for treatment for drug and alcohol abuse and, importantly, you will be required to cease any contact with the complainant.  It appears this has been continuing via Facebook according to the Corrections Officer, and it must cease.  I will ask you to stand now please, Mr Francois.

14The Community Corrections Order will begin today and it will last for two years.  You will be under supervision and you must participate in the programs that I have just mentioned.  In addition, you must perform a further 80 hours of unpaid community work over six months, so that is in addition to the community work under the previous community order.  I understand that you have agreed to be bound by these conditions.

15An appointment has been made for you to attend the Corrections Officer at Dandenong at 11.00 am on 11 August.  I your had pleaded not guilty to this charge I would have sentenced you to a three year Community Corrections Order with 150 hours of unpaid community work.

16The prosecution seeks an order for a forensic sample of saliva to be obtained under s.464ZF of the Crimes Act. That is not opposed and I make that order. I must advise you that the police have the power to use reasonable force to obtain that sample, if necessary, but I trust that won't be the case.

17

It is mandatory that you be placed on the Sex Offenders Registry and that, under the legislation you provide your details to the police every year for

15 years.  I have no discretion about that.

18Are there any other matters?

19MR TAAFFE:  I'm just raising, perhaps for clarification, it's not with respect to the sentence, but this notion of continuing contact via Facebook, I think for the benefit of the complainant's parents as well.  There's been no active communication over that time, it's the maintenance of what's a passive connection through the software.

20HER HONOUR:  I see.

21MR TAAFFE:  There's been no active communication and even that passive connection has now been terminated.

22HER HONOUR:  Thank you for clarifying that, I'm sure that's much appreciated by everyone here in court today.

23(Community-based order signed.)

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