Director of Public Prosecutions v Garnett

[2024] VCC 414

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00623

DIRECTOR OF PUBLIC PROSECUTIONS

v

JON GARNETT

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JUDGE:	HIS HONOUR JUDGE HOLDING
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2024
DATE OF SENTENCE:	5 April 2024
CASE MAY BE CITED AS:	DPP v Garnett
MEDIUM NEUTRAL CITATION:	[2024] VCC 414

REASONS FOR SENTENCE

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Subject:   - CRIMINAL LAW -

Catchwords:  Trial – 2 charges – found guilty of indecent assault

- not guilty of rape – no prior convictions.

Legislation Cited:  Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)

Cases Cited:  -

Sentence:  14 month Community Corrections Order with 240 hours of

unpaid community work. Conviction recorded.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr J. Portelli	James Dowsley & Associates

HIS HONOUR: 

1Mr Garnett, on 28 February this year you were found guilty by a jury of one charge of indecent assault contrary to s39 of the Crimes Act 1958. This offence carries a maximum penalty of 10 years' imprisonment.

2On the same date, the jury found you not guilty of one charge of rape alleged to have occurred shortly after the commission of the indecent assault.

3It is my task to sentence you upon the facts that I find established and which are consistent with the jury's verdict.

4On a Wednesday evening in August 2012 the victim was aged 17 years old and attended a dance class that you were teaching at a studio run by you in Mornington.  The victim had been a student at that dance studio for a number of years.  She started dancing at the studio before you bought it as a franchise and became the principal teacher there.

5When the offence was committed you were 32 years old.  The offence occurred after the dance class, in circumstances where the victim accompanied you back to your apartment.  The reason the victim went with you to your residence was an issue in dispute in the trial. 

6When interviewed by police in May 2021, some nine years after the offence, you told police that you believed the victim had 'a crush' on you, and that you stupidly asked her to come back to your house after the dance class.  You told the police you believed the victim was 18 years old and that you offered her some vodka shots back at your residence.  You claimed the victim then willingly engaged in sexual activity with you.

7The victim on the other hand gave evidence during the trial that you had offered to give her a private dance lesson and convinced her to come to your apartment because you had a DVD of a dance competition at your residence that you would show her.  There was also evidence in the trial that the victim had told others that you had offered to drive her to visit a 'haunted house' that she was discussing with friends at the dance studio, and which was apparently some kind of entertainment venue.

8It was not in dispute that whatever the circumstances as to how the victim attended your house, you told her at the dance studio that you would drive her home, and as a result the victim telephoned her sister from the dance studio and cancelled a prior arrangement that her sister would pick her up after the dance class.

9The victim's evidence was that once you both arrived at your property, you told her to 'have a drink and then we'll dance'.  The victim gave evidence that she hesitantly drank liquid that had been poured from a bottle that appeared to contain alcohol.  Her evidence was that she drank this liquid because she felt 'intimidated'. 

10Her evidence was that after she drank from the shot glass the two of you chatted and moved to the lounge room area.  You put music on, and at this stage the victim felt like her 'vision wasn't at full capacity' and she was 'very unsteady'.  She felt 'almost not in control of her body' and she had never felt this way before.

11The victim progressively started to feel more unsteady on her feet and she describes you holding her up.  You then began to kiss the right side of her neck and then down to her breasts.  It was not suggested by the victim in her evidence that at any time her clothing was removed or moved, and it is unclear whether the kissing of her breast area was on exposed skin or over her clothing.  It is this kissing on the neck and the breast area that constitutes the criminal conduct for which I am sentencing you.

12The victim said in her evidence that she felt as though she was unable to talk, walk or see properly whilst this was occurring.  The jury's verdict is only consistent with a finding that the victim did not consent to you kissing her in this manner, and that you held no reasonable belief that she was consenting to you kissing her in this manner at this time.

13While the jury's verdict indicates that they were not satisfied beyond reasonable doubt of the elements of the rape charge, I regard the jury's verdict of guilty on the indecent assault charge as a clear rejection of your account given in your interview with the police, that the victim had willingly engaged in sexual activity with you. 

14The victim's evidence was that at this time in her life she was a virgin and was inexperienced in drinking alcohol.  Her evidence was that she had no attraction to you whatsoever.  I find your account of the events of that evening given to the police as inherently improbable, and I reject your account that the victim accepted an invitation to attend your premises because she had a crush on you, or that she in any way wished to engage in some consensual sexual activity with you.

15Having said that, I make it clear that I am not sentencing you for anything more than the circumstances surrounding and related to the charge of indecent assault.  As to what occurred after the indecent assault, I make no adverse findings against you in terms of anything that occurred inside your premises. 

16It is not in dispute that you drove the victim home.  I accept the victim's evidence that you told her to say nothing to anyone about what had occurred at your premises. 

17While the victim gave evidence that she believes the drink you gave her contained a drug that incapacitated her, I am not satisfied beyond reasonable doubt that that is the case.  The victim was clearly inexperienced with alcohol and in my view expressed some uncertainty herself in her evidence, where she conceded that feelings of intoxication may have been caused by a drug or a 'stress response from trauma'.

18I do not accept your account to the police that the victim told you she was
18 years old.  I am not in a position to find beyond reasonable doubt based upon the evidence, that you were aware that the victim was 17.  I am however satisfied that there was a significant power imbalance between you and the victim, and that you took advantage of this imbalance in committing this offence. 

19You were a man in his early 30s.  You had no knowledge of the sexual experience of the victim or her experience with alcohol.  You had never previously socialised with the victim and you were aware that she was a teenager, and likely regarded you, given your teaching role, as someone who might offer her guidance.  I accept the victim's evidence that she had no interest in you sexually.  The evidence in the trial relating to the complaints made by the victim, although containing some inconsistencies in detail, was in my view entirely consistent with the victim being shocked and dismayed at the way she was treated by you in your home on this occasion.

20I accept and find beyond reasonable doubt that you kissed the victim knowing that she was not consenting or giving no consideration to whether the victim was consenting to your conduct.  This was not in my view some honest misunderstanding. 

21You did this in circumstances where the victim was vulnerable; she was alone, and she had been persuaded by you to drink alcohol.  She  was in a vulnerable situation that was brought about by your conduct.  The fact that kissing occurred when you were dancing with the victim is consistent with the victim's evidence that she went to your flat on the understanding that you were going to be giving her further dancing instruction.

22The victim has made a very detailed and comprehensive victim impact statement that she has read in court.  I take the contents of that statement into account.  She recalls feeling numb, in shock, and afraid.  She describes how being taken advantage of at such a young age, has had ongoing emotional impacts upon her which unfortunately have been exacerbated by difficulties associated with being the central witness in a criminal trial.  She has suffered ongoing anxiety and stress  that have had significant impacts upon her wellbeing.  She has security concerns and difficulties that have necessitated time off work, using up her leave entitlements in a manner that has created a burden for her. 

23It is hoped that you hearing the victim read her statement in court would have brought home to you just how your criminal offending has had lasting impacts upon an innocent young woman.

24I turn to your personal circumstances.

25You are the youngest of a sibship of four.  Your father is a retired engineer and schoolteacher, he is supportive of you and has written a letter on your behalf. He gave evidence in the trial relating to his management of the dance studio. 

26You attended local schools and excelled in the sporting field.  You have been dancing since early high school years and by the age of 18 you were competing successfully in Australian dancing competitions. You left school after Year 11 to pursue a career in dancing.  You relocated overseas and I am told you reached a very high level on the world dancing circuit.  You have been employed through dancing for your working life.  Following competition, you became a coach and choreographer for various dance groups. You were also employed in Las Vegas hotels and on cruise ships.  You have an accreditation with Australian and international dancing associations. 

27After working overseas for approximately 15 years you this  dance school in Mornington under a franchise with the assistance of your father.  Your father's letter details your achievements as a dancer and a dancing instructor.  He attests to your contributions and involvement in a number of charities. 

28A friend of 17 years, Ms Rotario, also attests your devotion to your business and contribution in providing dancing instruction for many years. 

29Recently, you have suffered a very significant illness.  You were admitted to Frankston Hospital on 28 May 2023 due to a severe case of necrotising pancreatitis.  You were discharged from hospital on 23 September 2023.  A medical certificate tendered during your plea hearing  details your treatment and confirms that after hospital admission, you underwent physical rehabilitation which included aids for your physical mobilisation.  You spent some months in an ICU unit and there is no doubt that you were very seriously ill.

30Also tendered on your behalf was a letter from Ms Jensz, who has known you for 30 years.  She also worked with you in the dance field and describes you as a close friend.  She states that you have spoken openly to her about these charges and she describes you as a very honest, kind and trustworthy person.  She describes these charges as not 'matching your character'.  She also describes the significant consequences of your medical problems, which she believes were partly the result of the stress of facing these proceedings.  She describes how your business has supported numerous local charities and fundraisers.

31The prosecution has submitted that although an assault involving kissing the neck and breasts over clothing might be considered at the lower end of seriousness, the surrounding circumstances make it a serious instance of this offence.  It is submitted that inviting the victim to your house for a seemingly innocent purpose and then immediately encouraging her to drink alcohol, and then assaulting her, makes the offending serious enough to warrant a period of imprisonment.  It is submitted that it was a significant breach of trust.

32The defence rely upon your good character and the significance of the fact that this is your first time that you have been charged with a criminal offence.  It is submitted that the physical conduct involved, namely kissing the neck and the breast region over clothing, places this crime at the less serious level for this type of offending.  Reliance is placed upon the delay between the offending conduct and your sentence.  It is submitted that the time interval of approximately 12 years since your offence, should lead the court to find  that your prospects of rehabilitation are sound. 

33It is pointed out that the delay between the complainant making her complaint, you being charged, and the finalisation of these matters, were through circumstances beyond your control, namely, your illness and the pandemic. It is submitted that during this period you had the charges hanging over your head and that ultimately you were acquitted of the most serious charge.  It is submitted that in all the circumstances a community corrections order without a conviction is the appropriate sentence.

Analysis

34This is not a straightforward sentencing exercise.  The circumstances in which the offence of indecent assault can be committed vary greatly.  It is for that reason that comparable cases can be of limited assistance  and neither party has referred me to other cases. 

35The charge itself is a serious offence, as indicated by the maximum penalty.  During the plea hearing I queried with the prosecution whether the offending in this case could be viewed as a breach of trust in circumstances where I could not make a specific finding as to your knowledge of the victim's age.  I have, however, formed the view that this offending did involve a breach of trust.  Your relationship with the victim was one of teacher, with an outstanding reputation, and a student who was eager to make a career out of dancing.

36The jury have found the offence proved in circumstances where you were dancing with the victim in your residence. In those circumstances,  I am satisfied beyond reasonable doubt  that the victim accompanied you back to your flat on the pretence that you were to assist her with dancing instruction.  Whether or not you were aware that she was 17, this was a relationship that had as its foundation the relationship of teacher and pupil.  It was because the victim trusted you and sought your guidance in relation to dancing instruction that she accompanied you to a place where she was alone without the support of others.

37While there are aggravating features of this crime, in particular the power imbalance previously referred to, as well as taking advantage of a level of intoxication of the victim, it is the case that the criminal conduct was kissing of the neck and breast area, not involving the removal of clothing. You are not to be sentenced on the basis that your offending involved touching skin to skin of the most intimate parts of the body, or that the offending was protracted, or involved threats of violence or force.  These are not circumstances of mitigation, but more properly characterised as the absence of other circumstances of aggravation.

38It is the case that the offence occurred in 2012 and it is not alleged that you have offended either before or after this one evening.  You have through most of your working life been successfully employed in the dancing business.  I accept that a conviction for this offence may well have an adverse impact upon your business.  While you have shown no remorse for the offence and continue to deny having committed the charge, it is my view an important fact that this is the only time you have been before a court.  The offence occurred almost 12 years ago.  The fact that you have not reoffended leads me to conclude that your prospects of rehabilitation are sound. 

39Despite the trauma suffered by the victim, the limited physical contact involved in the offence and the fact that it is an isolated incident, leads me to conclude that protection of the community is not a significant factor in the sentencing analysis.

40The purposes of sentencing are to punish an offender, to deter the offender and others from committing like offences, to facilitate rehabilitation, community protection, and denouncing of the offending conduct.  It is also a principle of sentencing that a sentence should not be any more severe than is required, when balancing these sentencing considerations. 

41In other words, the Sentencing Act 1991 requires that except in certain circumstances relating to certain offences that are not applicable to this offending, the court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which a sentence is imposed. A sentence of imprisonment is according to law a sentence that should only be imposed when alternative sentences cannot adequately address the purposes of sentencing.

42While I regard your moral culpability for this crime as significant, I do not regard the objective circumstances of the offending, in terms of the actual physical contact with the victim, as placing this crime at a level where the only just and proportionate penalty in all the circumstance involves a sentence of imprisonment.

43In saying this, I am not suggesting that this crime was anything other than a traumatic and frightening experience for the victim.  Your conduct in committing this offence must be denounced.  Instead of treating the victim with the respect and care that a young student deserved, you manipulated her into a vulnerable position and then took advantage of her vulnerability.

44The courts must deter people in positions of trust or authority from abusing that trust.  It is only because your offending went no further than kissing for a short period of time without the removal of clothing, and the fact that other than this you come to court with a clean record, that I have determined that your punishment does not warrant a period of imprisonment.

45Taking account of all the relevant circumstances, the material placed before me, and the submissions of the parties, I have determined that a community corrections order can properly reflect the purposes of sentencing in all the circumstances of this case.  I am of the view that you must be convicted for the offence, despite the possibility of adverse economic consequences to your business and ability to teach children.

46I accept the prosecutor's submission that the circumstances of the offending in terms of the breach in trust and power imbalance, makes  the offence too serious to consider a non-conviction.

47This is so despite the fact that the offending appears to be out of character and a one-off incident in your life. 

48On the charge of indecent assault I propose to convict you and place you on a community corrections order for a period of 14 months with a condition that you perform 240 hours of unpaid community work.

49I am not persuaded that any other conditions of the community corrections order are appropriate, given that the mental health issues referred to by your counsel appear to be unrelated to your offending conduct, and my view that the fact that this is a one-off offence makes conditions relating to the offending conduct unlikely to be productive.

50HIS HONOUR: Mr Garnett, would you please stand for a moment. 

51A community corrections order can really only be imposed in circumstances where a person agrees to such an order being imposed.  It is like a contract with the court that you will abide by the conditions of a community corrections order.  Although the order that I have indicated that I will impose is to be for 14 months, certain provisions of the Sentencing Act says that where the only condition is unpaid community work, when that work is completed, the order effectively comes to an end. 

52But there are other conditions that are mandated by an order, that is you must for example, attend when required at the Office of Corrections, listen to lawful directions, not attend in any inebriated sort of form, and other conditions about informing the Office of Corrections if you want to seek permission to change your address, other matters that will be explained to you.  They are essentially the core conditions.

53As I understand it, you live at an address where it is likely to be Frankston Office of Corrections that will be the place that will monitor the order and a condition is that the order would commence from today, and you would have to attend at the Office of Corrections within two clear working days to have the order explained to you, and for you to commence the order in effect.

54Those are the matters that I think it is essential for you to understand before I ask you whether you agree to be bound by the conditions of such an order.  If you do not agree, I would be in a position where I would consider alternatives to this particular sentence.  So I now am going to ask you - and you can seek advice from Mr Portelli if you do not understand anything that I have said - do you consent to an order in the conditions that I have pronounced?

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  I will ask that the order be printed and handed to both counsel.  You can take a seat, Mr Garnett. 

57Is there any problems with the order as drafted?

58MR PORTELLI:  No, Your Honour.

59HIS HONOUR:  You can approach the back and have him sign.

60MR PORTELLI:  Thank you, Your Honour.

61MR PLUMMER:  Your Honour, just a very minor matter.  I may have misled Your Honour.  You may have said the accused was 32 years old at the time of the offence.

62HIS HONOUR:  He was 33 wasn't he?

63MR PLUMMER:  Yes.

64HIS HONOUR:  All right, yes.  I will indicate that the accused may have been 33 at the time of the offence, but it would not have altered the sentence imposed.  

65MR PLUMMER:  Yes.

66HIS HONOUR:  Can I thank the parties for their assistance.  Adjourn the court.

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