Director of Public Prosecutions v Godwin

[2015] VCC 1714

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

AT MILDURA
CRIMINAL JURISDICTION

CR-15-00693

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN GODWIN

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	26 November 2015
CASE MAY BE CITED AS:	DPP v GODWIN
MEDIUM NEUTRAL CITATION:	[2015] VCC 1714

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
For the Offender	Mr A Dickenson

HIS HONOUR: 

1Shaun Godwin.  On Tuesday 24 November, you came before me to stand your trial on Indictment E13886024.1 containing three charges, being Charge 1:  Attempted rape, Charge 2:  Indecent assault as an alternative to Charge 1, and Charge 3:  Rape. 

2The matter resolved, and on the following day, a fresh indictment, E13886024.2, was filed over, containing a single charge of indecent assault.  You pleaded guilty and a plea in mitigation was presented on your behalf by Mr Dickenson of counsel. 

3In summary, on 3 July 2014 you followed the complainant, who had been visiting you and your family, out to her car.  You had placed some bottles in a box at the rear of her car.  The bottles were to be used by the complainant's father for preserves.  At the car, you placed your hand on the complainant's shoulders and began to shake, and said, "I've been wanting to do this since Sydney".  This was a reference to an advance that you had made to the complainant some years earlier and which was one that she had rebuffed. 

4Your utterance shocked the complainant.  She asked you to step back, while she took a step back herself.  You took a step towards her and placed your right hand down the front of her tights between her tights and underwear.  You then moved your hand between her underwear and skin towards the complainant's vagina.  The complainant was shocked and anxious, and said, "What are you doing?  No, don't do that".  She lowered herself to the ground and placed her fists in her groin area and curled up in a ball. 

5You then placed your left hand down the back of the complainant's tights and down past her bare buttocks in the area close to her vagina.  It seems the physical awkwardness of the situation caused you to stop.  The complainant got up.  You offered to help her, but this offer was refused.  As the complainant got into her car, you grabbed her buttocks. 

6The complainant drove away some 50 metres or so, then stopped and broke down and cried.  At or about this time, realising the enormity of your actions, you sent the first of a number of apologies to the complainant via text and pleaded with her not to let your actions interfere with the relationship that the complainant had with your wife and children. 

7The complainant returned to her mother's home and broke down and complained to her mother.  Subsequently, she met with your wife and informed her of your actions.  Later, she complained to the police. 

8On 13 August 2014, you were interviewed under caution during which you made a number of admissions, although you raised the issue of consent in the complainant and your belief in her consent to your actions. 

9The complainant and your wife had been friends for years.  You, too, had been the complainant's friend.  The complainant enjoyed a relationship with your children.  By your actions, you breached the trust that existed between you and the complainant arising out of each of those relationships. 

10Tendered as Exhibit B were the victim impact statements of the complainant and her mother.  Your actions have had a profound effect on the complainant.  She feels isolated.  Her relationship with her own family has deteriorated.  She resists open and normal signs of affection from her mother.  The complainant grieves for the loss of the relationship she had with your wife and family.  She experiences flashbacks and has difficulty sleeping.  She wonders whether her emotional turmoil will continue and affect her ability to have normal adult relations. 

11Prior to the committal in this matter, you offered to plead guilty to the very charge for which I must sentence you.  This offer was rejected by the Crown.  Your plea offer then and your plea yesterday must be regarded as having been made at the earliest opportunity.  You are entitled to the benefits that flow from your plea, namely that it is evidence of your remorse which I accept is profound.  It has utilitarian benefit in that it facilitates the course of justice. 

12You are 33 years of age and without prior conviction.  You were brought up in a loving family.  Your father and brother were present in court to support you, as was your wife.  You were a good student at school, as is evidenced by Exhibit 4 on the plea, and you achieved the High School Certificate in 2000.  For the following three years, you worked at a nursery, a factory and a Lindeman's Wines whilst studying and obtaining Certificate II and III in Laboratory Techniques.  It appears that you worked using those skills at Lindeman's and at the chemical factory where you had worked prior to commencing your employment at Lindeman Wines. 

13In 2001, you joined the Army Reserve, and from 2004, the army reserve seems to have been the focus of your life, and in that capacity, you were deployed to the Solomon Islands in 2007 as part of Operation Anode.  In 2008, you joined the Australian Regular Army and was posted to the Third Battalion, Royal Australian Regiment, which at that stage was a parachute battalion.  Whilst a paratrooper, you sustained injuries to your legs described as "bilateral compartment syndrome" as well as a disc bulge at the C5C6 level (see Exhibit 2).  Despite these injuries, you continued to soldier on, well after the Third Battalion ceased to be a parachute regiment. 

14You were deployed to Afghanistan in 2012.  Your battlegroup served in Urozgan Province.  For your service, you received a citation and a decoration from the US Army and the United Nations (see Exhibit 3). 

15In August 2012, you were promoted to lance corporal, and in January 2013, full corporal.  The officer commanding Support Company Third Battalion, Royal Australian Regiment, writes of your work ethic, leadership and professionalism (see Exhibit 3).  As part of Exhibit 3, a number of soldier performance appraisal reports were tendered.  They demonstrate that you were an exemplary junior leader as a lance corporal and corporal and were regarded suitable for officer training. 

16In March 2014, you were medically discharged because of your physical injuries.  However, by reviewing the medical reports tendered as Exhibit 1 and 2, you suffered serious psychiatric illness by way of major depression and post-traumatic stress disorder as a combination of your service in Afghanistan where I accept that you were the subject to many traumatic experiences, as well as the loss of a career which you had pursued with zeal.  It is while suffering from these illnesses that you committed the instant offence.  I have no doubt that but for your diminished state, you would not have acted on the impulse that prompted your actions.  Your moral culpability is reduced to a substantial degree.  General deterrence, in my opinion, must be sensibly moderated in your case.  Special deterrence is also to be moderated in your case. 

17You are presently too unwell, both physically and psychiatrically, to work.  You may yet need surgery to alleviate the C5C6 disc bulge.  However, you have gained training and experience in signals and electronics in the army and have gained further qualification in training and assessment (see Exhibit 5).  With the support of your family, you hope to re-enter the workforce.  With their support, I regard your prospects of rehabilitation as excellent. 

18I do not regard your offending as at the lower end of offending of its kind.  Your motivation for offending appears to stem from an unreciprocated attraction to the complainant, an attraction of longstanding.  By your conduct, you breached the trust not only of the complainant but your wife and family, as they too had longstanding relationships with the complainant.  Your actions, though of short duration, were intrusive, offensive and shocking in the circumstances that pertained.  They were not only indecent. 

19Your actions have placed stress on your relationship with your wife.  You have resolved to work together to maintain your relationship and the family unit.  You are the father of three young children who need you as their father. 

20Your conduct is deserving of punishment as well as public denunciation.  In my assessment, this is met in part by recording a conviction in respect to you for this offence. 

21Taking into account the circumstances of the offence and their affects with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I propose to sentence you as follows.  Please stand. 

22I convict you, and with your consent, release you upon an undertaking to be of good behaviour for a period of three years.  Are you prepared to enter into such an undertaking? 

23OFFENDER:  Yes, Your Honour.

24HIS HONOUR:  Thank you.  Then a document will be prepared.  You may sit down, please. 

25If you could come out of the dock, please, Mr Godwin, and go to the prosecutor's end of the Bar table and sign that document. 

26You may be seated behind your counsel, Mr Godwin. 

27Mr Godwin, would you please stand.  You have signed the adjourned undertaking.  You have been convicted.  There is a conviction against your name for the offence of indecent assault.  I have placed you on a bond to be of good behaviour for a period of three years.  If you breach this undertaking by any breach of the law, you may be punished for any offence that has been adjourned on your agreeing to enter into this undertaking which is the offence that you pleaded guilty to.  You may be punished for failing to be on good behaviour, and of course you would be dealt with for the offending that brought about the breach.  Do you understand that?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  If that were to happen, you would come back to me.  I do not recommend it to you. 

30Can I have copies of those made for the Crown and for Mr Godwin, please, and his counsel. 

31I will stand down now till the next matter is ready to proceed. 

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