Director of Public Prosecutions v Giri

[2019] VCC 1973

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 19-00875

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON GIRI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	26 November 2019
DATE OF SENTENCE:	28 November 2019
CASE MAY BE CITED AS:	DPP v Giri
MEDIUM NEUTRAL CITATION:	[2019] VCC 1973

REASONS FOR SENTENCE
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Subject:  Sexual assault under 16 years of age.
Sentence:  4 and a half years' imprisonment.  Non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.R. Cordy
For the Accused	Mr M. Turner (For Plea)
Mr R. Timms (For Sentence)

HIS HONOUR: 

1Jason Giri, you have pleaded guilty to seven charges of sexual assault of a child under 16 and one charge of engaging in sexual activity in the presence of a child under 16.  The maximum penalty for each of these offences is imprisonment for 10 years.

2You are now aged 46.  You were aged 45 at the time of this offending.  When you pleaded guilty you also admitted a number of prior convictions from 33 previous court appearances between 1991, aged 18, and 2017, aged 44.  You have prior convictions for dishonesty offences as well as for offences involving violence.  In August of 2017 you were convicted, amongst other offences, of sexual assault, which I was told was in the context of a relationship breakdown.

3You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty you have saved the time and cost of a trial of the charges.  By your pleas of guilty you have accepted and admitted responsibility for your crimes and you have facilitated the administration of justice.  Importantly in this case by your pleas of guilty you have saved the complainant from being called to give evidence against you and being cross examined by your counsel.  I accept that is a significant matter in this case, because the complainant is but a young girl who has been significantly affected by this offending and had she been called as a witness at trial the likely effect upon her would be to exacerbate the consequences of this offending upon her.

4Here the charges proceeded to this court by way of hand-up brief.  Whilst the matter only recently formally resolved into a plea, I was told and accept that there were negotiations on foot from an early time after your arrest and charging and that I should regard you as having indicated a plea of guilty at an early time.  For the purposes of sentencing I do regard you as having indicated that you would plead guilty to charges at an early stage.  I note that when interviewed by the police you made some admissions and indicated your regret at your offending.

5Because you have pleaded guilty at an early time the law provides that you are entitled to a reduction in sentence and this will be reflected in the sentences that I will shortly pass.  I regard your guilty pleas as evidencing genuine remorse.

6The circumstances of your offending are contained in a summary of prosecution opening that was tendered in evidence and read in open court by the prosecutor Mr Cordy.  Your counsel Mr Turner accepted that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way. These sentencing remarks should, however, be read with what is set out in more detail in the summary.

7The complainant was aged between eight and nine years of age at the time of this offending.  She lived with her parents in Maldon.  You were a long term friend of the complainant's parents and you frequented their home, where you would use drugs together with the parents.  It was in that context that you had opportunity to be alone at times with the complainant and the offending occurred.

8On one occasion you were alone with her in the lounge room of the house when you pulled her pants down and touched her on the vagina.  Your act was interrupted by the approach down the hallway of the complainants' father, Charge 1.  I was told and accept that your offending in Charge 1 occurred within a very short time of your having been released from a prison sentence imposed in 2017.

9Another occasion involved you pulling the complainant's pants down and touching her vagina when she was with you in your blue Ford Falcon, Charge 2.  In Charge 3 you touched the complainants' vagina under a blanket in the lounge room.  In Charge 4 you touched the complainant's vagina over her underwear whilst sleeping beside her on the floor in the lounge room of the house.

10You also had the complainant touch your exposed penis.  In Charge 5 you had the complainant touch your exposed penis in the lounge room one night when you stayed over.  On another occasion you had the complainant touch your exposed penis whilst seated in a white van near the house, Charge 6.

11The complainant made a VARE statement to the police on 4 December 2018.  The last time she said you had her touch your exposed penis was about two weeks before she made her statement.  You pulled your penis out of your pants in the lounge room and she touched it for two to three minutes, Charge 7.  Charge 8 is of a different kind and is agreed to be representative of approximately three other occasions where you showed the complainant sexually explicit movies of a pornographic kind on your iPhone.

12Your offending is clearly very serious.  You repeatedly over a period of about two months took the opportunity entrusted to you by the parents of the complainant to be alone with her and to sexually offend against an eight to nine-year-old child.  I accept that your offending occurred when you, and probably the parents, were drug affected.  That puts the offending in some context and helps to explain it but does not excuse it. 

13I accept that your offending involved touching of the complainant's vagina and not penetration and I accept that having exposed your penis to her you allowed her to touch you, but you did not penetrate the complainant with your penis in any way.  This is not one of the worst cases of sexual offending against a child, but in all the circumstances it is nonetheless constituted by serious examples of what are clearly serious offences. 

14Your conduct towards the complainant must have been a bewildering experience for her, a child aged only eight to nine.  This is I think is reflected in her victim impact statement which I must and do take into account.  It is the experience of the court that offending of this kind can have lasting impact upon young complainants and this case seems no exception.

15I also admitted into evidence a very moving victim impact statement from the parents of the complainant.  They blame themselves for trusting you and for not properly looking out for the safety of their young child.  To some extent that blame is understandable because they allowed you into their home and they, together with you, took the drug ice that provided some of the background and context for this offending, and that in turn had the consequence that for a time the child was taken into the care and protection of DHS.  Fortunately the child is now back in the care of her parents.  But it was your offending in these charges that triggered the child being taken from the care of her parents.

16I turn to some matters personal to you.  Your counsel Mr Turner provided a helpful outline of his submissions in writing which I marked as Exhibit 1 on the plea. You are aged 47 and you grew up in the Bendigo area where your parents conducted a business.  You are one of three children.  Your brother and sister have not been in trouble with the law.  I was told and accept your father was somewhat of a strong disciplinarian, which resulted in your leaving home aged 14.  You have had a number of relationships which have produced five children aged between 25 and nine.  You have had a limited education to Year 8 and are said to have been bullied at school.  You have a good work history, working in family businesses as a removalist.

17I was told and accept you have been abusing alcohol and drugs, cannabis and amphetamines, since aged 14.  You have been addicted to amphetamines since 2000.  Mr Turner conceded you have no physical health problems and you do not suffer from mental illness, although your judgment is impaired by drugs evidenced by your lengthy criminal record and this offending.

18I received into evidence as Exhibit 2 on the plea a psychological report from David Ball, who saw you for that purpose on 28 February of this year before you had entered a plea of guilty to the charges.  At the time he assessed you, you were taking Avanza prescribed in custody for depression and anxiety.

19Mr Ball opined there was no evidence of frank mental illness.  He said amongst other things:

'Overall Mr Giri impressed me as a man with impairment to his capacity to exercise good judgement and to plan and execute positive and self-sustaining behaviours.  He presented as socially isolated and living on the fringes of the community'. 

20He went on to express his diagnosis as follows:

'Based on Mr Giri's history taking, forensic history and clinical interview, my view is that he satisfies the DSM diagnostic criteria for paedophilic disorder, exclusive type, sexually attracted to females.  This means he is attracted to young girls.  He also satisfies the DSM-5 diagnostic criteria for antisocial personality disorder.  I consider this to be severe.  He satisfies the DSM-5 diagnostic criteria for moderate cannabis and stimulant disorder, in early remission, in a controlled environment.

'Notwithstanding the above disorders, Mr Giri is in no way impaired in his understanding and appreciation of the criminal justice system and the illegality of sexual or other offences.  He presents with no impairment to his capacity for moral reasoning or culpability'.

21Mr Ball also carried out appropriate risk assessment of you, which took into account a number of dynamic risk factors and protective factors.  Using the Static-2002R assessment tool this showed you to be a low to moderate risk of recidivism.  However, it was Mr Balls' opinion that the risk assessment tool used was conservative and Mr Ball considered you to be a higher risk of reoffending in this way than the assessment tool would suggest.  He recommends that whilst in prison you undertake and complete the sex offenders program.

22Taking all of this evidence into account I have concluded that your prospects for rehabilitation must remain guarded.  Clearly your offending may in part be linked to your drug-taking.  You are currently in remission from drugs in a prison setting.  Whether you remain drug free out of prison remains to be seen.  For this reason I must guard against predicting you will rehabilitate in prison.  I note that despite your lengthy criminal history this will be the longest sentence you will have received.

23In sentencing for offending of this kind the sentence must have full regard to deterrence, both general and specific.  Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and that the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself who might be minded to take advantage of them for personal sexual gratification. 

24The sentence must appropriately reflect denunciation of your offending.  The sentence must also have regard to your prospects for rehabilitation and impose just punishment.  Because of the seriousness of your offending I must impose an immediate custodial sentence and fix a non-parole period and it has not been suggested otherwise.  Your counsel Mr Turner, recognising this, asked me to fix a period on parole longer than might be considered normal.  In my judgment there is no good reason to take this approach and this is reflected in my sentence.

25Because you have a prior conviction for sexual assault and because I will sentence you to a term of imprisonment on Charge 1, the offences in Charges 2 to 8 are each serious sexual offences for sentencing purposes. That means that as you will be convicted of these counts and sentenced to a term of imprisonment, you are a 'serious sexual offender' within s.6B(2) Sentencing Act. I intend sentencing you to prison for those offences. I am required to sentence you on Counts 2 to 8 as a serious sexual offender. In doing so I must consider Part 2A Sentencing Act 1991.

26In determining the length of any prison sentence imposed on Counts 2 to 8, protection of the community from you must be the principal purpose for which the sentence is imposed.  In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of the objective circumstances.  This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason.  I do not consider that a disproportionate sentence is called for.  In my view, the overall effective sentence I propose will properly and adequately provide for protection for the community.  I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence. 

27Every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed by me, be served cumulatively on other sentences I impose on you.  See s.6E.  I will impose some accumulation and order some concurrency which I regard as appropriate taking account of all of the circumstances discussed.  I am required to cause to be entered in the court's records that I sentence you as a serious sexual offender on Charges 2 to 8 inclusive and I direct that be done. 

28On Charge 1, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

29On Charge 2, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

30On Charge 3, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

31On Charge 4, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 12 months.

32On Charge 5, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

33On Charge 6, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

34On Charge 7, sexual assault of a child under 16, you are convicted and sentenced to a term of imprisonment of 18 months.

35On Charge 8, engaging in sexual activity with a child under the age of 16, you are convicted and sentenced to a term of imprisonment of two years. 

36I direct that six months of the sentences imposed on each of Charges 1, 3, 5, 6 and 7 cumulate upon the sentence imposed on Charge 8, making a total effective sentence of four and a half years' imprisonment.  The sentences imposed on Charges 2 and 4 are to be served concurrently with the other sentences imposed.

37I direct that you serve a minimum term of three years' imprisonment before being eligible for release on parole.

38I note that you have served 356 days pre-sentence detention under the sentences passed this day and I direct that 356 days be reckoned as having been already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.

39For the purposes of s.6AAA of the Act, had it not been for the fact that you pleaded guilty to these charges I would have imposed a total effective sentence of seven years' imprisonment and I would have fixed a non-parole period of five years.

40I recommend that whilst in prison you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter be brought to the attention of the Parole Board at the relevant time. 

41Each of the offences that you have been convicted of is a Class 2 offence for the purposes of the Sex Offenders Registration Act 2004. You are a registrable offender within the meaning of that Act with reporting obligations for life. I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act 2004. You will have to comply with the reporting obligations upon your release and for the remainder of your life.

42Are there any questions arising out of that?

43COUNSEL:  No, Your Honour.

44HIS HONOUR:  Thank you.  Would you remove Mr Giri, please.  Adjourn the court till 2.15.

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