Director of Public Prosecutions v Goillon
[2017] VCC 1220
•29 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON GOILLON |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 10-12, 15-18 May, 2 June, 21 July 2017 | |
DATE OF SENTENCE: | 29 August 2017 | |
CASE MAY BE CITED AS: | DPP v Goillon | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1220 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Committing an indecent act with a child under 16
Legislation Cited: Judicial Proceedings Reports Act
Cases Cited:R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, HMcL v R (2000) 174 ALR 1
Sentence: TES – 5 years imprisonment to serve 2 years 9 months before becoming eligible for parole. Sentenced as a serious sex offender on charge 3, 4 & 5 and placed on the sex offender register for a period of 8 years. Forensic sample ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy for trial Ms C. Hollingworth for plea Ms I. Siriwardana for sentence | OPP |
| For the Accused | Mr A. Marshall | James Dowsley & Associates |
HER HONOUR:
1
At the outset, I advise that I am using a pseudonym for the name of the complainant in these reasons. She will be called Tamara Mendelsohn[1].
I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of a pseudonym.
[1] A pseudonym
[2] Section 4 Judicial Proceedings Reports Act
2
Jason Goillon, on 18 May 2017, you were found guilty by a jury of five charges of committing an indecent act with a child under 16. That is an offence with
a maximum penalty of ten years’ imprisonment.
3 The offences took place over one night in November 2015, when Tamara and her siblings were on an access visit with their father, who was then living at your house with you for a brief period. Another male was also living there at the time.
4 In summary, Tamara and her sister fell asleep, one on each of the two lengths of an L-shaped couch in the living room, with her brother on the floor. Their father was drunk and went off to sleep in his room; the boy later moved to that room to sleep. Tamara woke during the night to find you were lying behind her on the couch. You did not dispute this in your evidence at trial. Lying on the couch to watch television and fall asleep was a habit of yours, and you did this on the night Tamara was there, despite her presence.
5 After she woke, Tamara said she felt your penis against her hand. This is not the subject of a charge and you will not be sentenced for this misconduct; it merely forms background to what then occurred.
6 By their verdicts, the jury accepted that you then put your penis on her leg (charge 1) before rubbing your penis against her vagina and bottom over her clothing (charge 2). The jury accepted that you then pulled her clothing to her knees and touched her vagina with your fingers (charge 3) before licking her vagina (charge 4).
7 At this point Tamara’s little sister woke up and went to the toilet. This made you stop touching Tamara, but the jury were satisfied that you resumed your assault on her after the sister returned and fell asleep once more on the couch. The jury accepted that you then rubbed your penis on the skin of Tamara’s vagina (charge 5).
8 I consider this last act to be the most serious of the offences, first, because it occurred after you had time to reflect on what you were doing and an opportunity to stop; second, because the act caused Tamara pain; and third, because the type of indecent act you engaged in is close to the highest level of indecent act[3], because any amount of penetration would have led to your conduct becoming a different offence, that of sexual penetration of a child under 16.
[3] Absent any aggravating features involving degradation, humiliation or the infliction of pain separate to an indecent act or act of penetration.
9 That act of rubbing your penis on her vagina was of sufficient force to cause Tamara pain, so that she pulled up her clothing, and this made you stop. You pulled up your own underwear and I am satisfied you said you could do it again if she liked, and that at a later time you told Tamara not to tell anyone, as you and she would get into trouble.
10 Any sexual assault on a child is serious, but your offending is made even more serious by the following:
· First, there has been a terrible impact on Tamara, as I will refer to in a moment;
· Next, there was a great difference in your ages; you were aged 40 and Tamara was aged 8;
· Next, although you had no formal or even informal responsibility for Tamara, you were the adult whose house she was staying in and I find she had a level of trust in you, which you breached;
· Next, you acted at a time when you knew her father would not be available to her for assistance, because he was, to your knowledge, very drunk and in another room;
· Next, you did not stop when you had the opportunity to do so;
· Next, the offending occurred in the presence of another child aged under ten and continued despite the risk that she might still be awake to observe what then took place, after she returned from the toilet;
· Next, you told Tamara not to tell anyone; and
· Lastly, although the offences occurred on the one night over a relatively short period, the acts escalated in seriousness from touching over the clothes to rubbing your penis on the skin of her vagina.
11
What distinguishes offending calling for the maximum sentence to be imposed from less serious offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. On the one hand, you took advantage of Tamara, a child you had just met; were persistent, by continuing the behaviour when her sister returned; were brazen in your offending against her, with her sister also on the couch and other adults in the house; and the last act involved considerable force on a prepubescent child, causing her pain. On the other hand, it was offending over the course of
a single night.
12 I make the finding that yours is not in the category calling for the maximum sentence to be imposed primarily because your offending was on one night only. Overall, however, my assessment is that I find your offending is towards the high end of the range and your moral culpability is high.
13 The next morning, you were observed by the other male resident, not Tamara’s father[4], to be lying behind her in a position similar to that described by Tamara, from which she said the offending took place during the night. You did not dispute being in this position, although maintaining that it was not the position from which you committed the offences, which you denied. I am satisfied that taking this position in the presence of her father, and the other male, is likely to have had the effect on Tamara of letting her know that she was powerless and unable to tell her father or the other male what had happened during the night, and this added to the trauma she has suffered.
[4] Tamara’s father could not be located and so was not called as a witness at the trial.
14 Tamara’s mother asked that the prosecutor read both victim impact statements[5] out in court, and I have had regard to them in deciding the appropriate sentence. You heard those read out, and so are aware of the extent of the impact of your offending on Tamara.
[5] Exhibit A on the plea
15 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long-term and serious, and both physical and psychological[6], and which includes future harm[7]. In this case, the harm you caused to Tamara covers most of these aspects, although it is too soon to say what the long-term impact will be. The harm has spread to affect her mother, herself a victim of sexual abuse, who has had to endure the impact on her daughter and who has knowledge of the possible impacts yet to come.
[6]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[7]Adamson v R [2015] VSCA 194, [56]
16 Tamara was described as losing her ability to trust, with high anxiety about anyone touching her, leading to extreme ‘meltdowns’ if she was touched, even by family. She finds it difficult to sleep, requiring medication, as she has nightmares, cannot have the room dark, and replays the incidents over and over. She has had outbursts at school, where although they are aware of her situation and try to manage it, her learning has nevertheless suffered. She has said she does not want to live anymore, does not understand why she is feeling emotions such as anger, depression and embarrassment, and is unable to control her emotions.
17
I will not go into further detail to attempt to save Tamara and her mother from further harm, but I acknowledge their pain, and I offer the hope that things will improve over time. I also recommend that Tamara and her mother take the opportunity for obtaining professional help in getting though the dark days, as
I expect counselling will have been suggested by the police and/or prosecution. In other words, they do not have to go through it alone. I do wish them well for the future.
18 I turn now to the matters that I must take into account in your circumstances in deciding the appropriate sentence. First, I was urged to consider your mother’s situation and ill-health as providing the basis for exercising mercy and not sending you to gaol. As I explained on 21 July at the end of your plea hearing, I was then, and remain, not satisfied that these are exceptional circumstances. The reasons I gave on 21 July are attached to these reasons for sentence as Appendix A.
19 Next, I take into account that you have no relevant criminal history, that at your trial, you led evidence of your good character, and that at your plea hearing, you provided further references attesting to your good character. As a result of this material, you will be sentenced on the basis that before this offending, you were a person of good character.
20
Next, the prosecution has conceded that there was some delay in bringing this matter to trial, and that should be considered as a factor in mitigation. The offences occurred on 7 November 2015, the complainant was interviewed by police on 13 November and disclosed the offending, and you were interviewed on 18 December that year. For reasons which are not clear to me, the charges were not laid until August 2016. You were then committed for trial in November 2016, and Tamara’s evidence was pre-recorded in April 2017[8], with the trial proceeding the following month. For an eight year old to wait 17 months to be cross-examined is not acceptable. Further, you have had that period of waiting before knowing the result of the trial and so I do take that into account as
a mitigating factor.
[8] A child complainant’s evidence must be given at a Special Hearing within 3 months of committal. Due to the volume of court business and the 4 weeks the court was closed over December and January, when time is still running, the Special Hearing was heard at the earliest available time on 3 April 2017.
21 Next, I consider your background and other personal circumstances. You are now aged 42 and were aged 40 at the time of the offending. Your parents separated in 1998 and your father died in the early-2000s. You are very close to your mother and moved to Queensland when she did in 1999. You have an older brother, who at the time of the plea hearing, did not know your true situation: that you had been convicted of serious criminal offences and were facing a gaol sentence. No further information was provided today. You completed Year 12, and have been employed in a number of jobs since leaving school, including 5 years of difficult work in an abattoir, and 10 years with Telstra in Queensland. You and your mother returned to Victoria in 2009 where you found further employment, and for the last 12 months you have worked in a warehouse where you are considered a valuable employee, according to the reference provided to the court.[9]
[9] Part of Exhibit 4
22 You have been in a number of adult relationships, and one of your sexual partners gave evidence at the trial. Evidence was given by your mother and others that you have always acted appropriately around children, including your niece and nephew. As I mentioned before, their father, your brother, is not aware of the offences of which you have been found guilty.
23
After the offending, you returned to live with your mother, and as well as undertaking your full-time employment, you were her carer, doing the household tasks that she was unable to perform due to her ill health[10].
I received a report from a psychologist, Mr Cummins[11] and he was of the view that you presented as mildly anxious and mildly depressed, which I accept is as a result of your concern for her, and your current situation. I confirm what I said on 21 July, that I take into account in deciding the appropriate sentence, that worrying about how your mother will fare during your time in prison will weigh heavily on you.
[10] Exhibit 3 contains medical reports and material; I also heard evidence from Mrs Goillon at the plea hearing.
[11] Exhibit 2
24 Mr Cummins also offered the opinion that you are not, and were not at the time of offending, suffering from any disorder, but said, given that by definition the offending would be described as paedophilic, it is necessary and appropriate that you undertake offence specific treatment. Mr Cummins also formed the opinion that you present a low - moderate risk of re-offending.
25 I accept those opinions, and agree that it is essential for your rehabilitation that you do undergo such treatment.
26 I note that the prosecution suggested at the trial that your consumption of alcohol leading up to the offending may provide an explanation for someone aged 40 committing such offences for the first time. You deny that you were drunk and still maintain that you did not commit the offences. I do note that your criminal history includes three drink driving offences, although they are quite some time ago, in 1996, 2009 and 2011. To the extent that your consumption of alcohol is a possible reason for your offending, that is something that should be explored in offence specific treatment.
27 On balance, I assess your chances of rehabilitation as good, given that you have not committed serious or sexual offences before, and do have significant support from your mother and friends who know of the offending, a solid work history, and no mental health issues to prevent you from undertaking and successfully completing the sex offender treatment.
28
Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence, which is of the utmost importance in cases involving sexual offending against a child. That means that by my sentence of you, the court must seek to deter other men from committing sexual offences against children. Further, as I have found that without treatment, there is a risk of you committing more offences, even if it is a low - moderate risk, my sentence must also seek to deter you from
re-offending.
29
Before I turn to the sentence, there are two further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this.
I am satisfied that it is in the interests of justice, that in all the circumstances, I order an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample to then be taken is a blood sample, and police may use reasonable force to enable such a procedure to take place.
30
The second matter is that as a result of my sentence today, you become
a registrable sex offender. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for 8 years. My associate will now ask you to sign a document to acknowledge that you have received notice of these obligations.
31 Mr Marshall, would you accompany my associate, in case Mr Goillon has any questions.
32 MR MARSHALL: Certainly.
33 HER HONOUR: Thank you.
34 As I mentioned earlier, on 21 July your counsel submitted that I should find exceptional circumstances existed, and not sentence you to imprisonment, but order instead that you complete a community correction order. The prosecutor submitted that only a term of imprisonment to be served immediately was appropriate. I was not satisfied as to the existence of exceptional circumstances and found that the only appropriate sentence for all offences was one of imprisonment.
35
I take into account that you are in custody for the first time, and are effectively
a first time offender having the experience of the most serious disposition of
a term of imprisonment at the age of 42.
36 As you are to be sentenced to imprisonment on charges 1 and 2, you are to be sentenced as a serious sex offender on charges 3, 4 and 5. Because of that, for charges 3, 4 and 5, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution have not sought that, and I do not intend to do that because the offences occurred as a single course of conduct on one occasion.
37 It is also necessary for the sentences of imprisonment I impose on those three charges to be cumulative on each other, unless I order otherwise, because of your status as a serious sex offender.
38
I have had regard to the serious sex offender sentencing regime and recognise that this regime places limits on the application of the principle of totality[12]. However, I have still considered the need for today’s sentence to reflect the totality of your offending which is five offences during one night. As a result,
I have decided to order some concurrency between all charges, but not total concurrency, because of the need to reflect the escalation in seriousness of the offending.
[12]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
39 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against children, with the damage that causes.
40 Stand up please, Mr Goillon.
41 You are convicted and sentenced as follows:
On Charge 1, 10 months’ imprisonment;
On Charge 2, 2 years’ imprisonment;
On Charge 3, 2 years' 6 months’ imprisonment;
On Charge 4, 2 years' 9 months’ imprisonment;
On charge 5, 3 years' 9 months’ imprisonment.
42 I make the following orders for cumulation in the usual way, rather than as expressed in the Sentencing Act for serious sex offenders, to make the orders more easily understood.
43 Charge 5 is the base sentence. I direct that one month of the sentence imposed on charge 1, two months of the sentence imposed on charge 2, and six months of the sentences imposed on charges 3 and 4, be served on the sentence imposed on Charge 5 and on each other.
44 That makes a total effective sentence of 5 years’ imprisonment.
45
I direct that you serve 2 years 9 months before becoming eligible for parole. I have set that period, having regard to the matters in mitigation that
I have taken into account, in particular that it is your first time in custody at age 42 and the impact on you of your mother’s ill health, together with your good prospects for rehabilitation.
46
I declare that you have served 40 days in pre-sentence detention, including
21 July and today. These will be deducted administratively from your sentence.
47 You have been sentenced as a serious sex offender on Charges 3, 4 and 5 and I direct that this be entered onto the record of the court.
48 I have signed the orders for the intimate forensic sample and that can be provided to the prosecution.
49 Are there any other orders required?
50 MR MARSHALL: No, Your Honour.
51 MS SIRIWARDANA: Nothing by the prosecution, Your Honour.
52 HER HONOUR: All right, thank you.
53 Yes, Mr Goillon may be removed.
54 Thank you, I will adjourn until 2.15.
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02041
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON GOILLON |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 10 – 12, 15 – 18 May, 2 June 2017 | |
DATE OF RULING: | 21 July 2017 | |
CASE MAY BE CITED AS: | DPP v Goillon | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1220 (Ruling No. 2) | |
REASONS FOR RULING NO.2
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Subject: Criminal Law - Sexual Offences
Catchwords: Family hardship – exceptional circumstances
Cases Cited:DPP v Ramezanian [2013] VSCA 71, R v Panuccio (Unreported, Court of Appeal Victoria, 4 May 1998)
Ruling:Application for Community Correction Order assessment is refused. Accused is to be remanded in custody pending sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy for trial Ms C. Hollingworth for plea | DPP |
| For the Accused | Mr A. Marshall | James Dowsley & Associates |
HER HONOUR:
1 I do not propose to sentence immediately but will be adjourning the matter for sentence on a date to be fixed. However, I stood down to consider two submissions which affect the next steps in this case.
2 First of all, whether to order an assessment for a Community Correction Order, and secondly, whether to remand Mr Goillon in custody for the sentence associated with which submission is consideration of the submission that imprisonment will provide hardship to Mr Goillon’s mother and therefore there should be no term of imprisonment imposed at all.
3 The offending for which sentence will be passed involves conviction after trial of five charges of indecent act against an eight year old in 2015. Mr Goillon was then aged 40.
4 These are serious examples of that type of offending, especially Charges 3 through to 5, for which the prisoner will become a Serious Sex Offender if imprisonment is ordered on Charges 1 and 2.
5 Further, there was an escalation during the course of the one occasion, the one night of the offending, ultimately leading to an act of rubbing the penis on the bare vagina of the victim. At the least those serious charges call for a sentence of imprisonment.
6 I do not consider a Community Correction Order would meet all the sentencing objectives, not even in respect of Charges 1 and 2, and therefore I will not order an assessment to be made. It is my view that imprisonment is the only alternative.
7 As to whether to remand Mr Goillon in custody for sentence on a date yet to be fixed, I did not remand him in custody after the verdict, despite the serious examples of offending because of the potential delay before plea, which turned out to be from 18 May to 21 July.
8 As it happens, Mrs Goillon has had some serious health events within that time. The evidence before me today is that she relies on her son, the prisoner, for financial and practical assistance in the home, and in his absence she says she will not approach her other son nor tell her other son of the offending which has ultimately led to imprisonment for his brother.
9 Mrs Goillon is currently working “part-time sometimes.” She is still able to drive, and occasionally does so. My view of the evidence is that her other son does not know of the true situation in respect of his mother, because he does not know of the true situation in respect of his brother and that is a matter for them.
10 So while I accept she has medical issues and relies on the prisoner with whom she has a close relationship, the circumstances are not exceptional and they must be exceptional in order for there to be effectively no term of imprisonment imposed.
11 I was referred to a case of Ramezanian[13], and within that there was reference to an old case of Panuccio[14] in which it was said by the then-President of the Court of Appeal:
[13]DPP v Ramezanian [2013] VSCA 71, [24] – [26]
[14]R v Panuccio (Unreported, Court of Appeal Victoria, 4 May 1998)
“It goes without saying I think that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected, will require absolution from incarceration.”[15]
[15] Ibid 6-7
12 Putting that in plain terms, the more serious the offending, the harder it is to find exceptional circumstances, which is already a high standard, because it is a choice between imprisonment or not imprisonment, having regard to the seriousness of the offending.
13 So as I have decided in this case that there is no alternative to some time in prison, and that the circumstances in respect of hardship to Mrs Goillon are not exceptional, then the appropriate order is for Mr Goillon to be remanded in custody for sentence on a date to be fixed.
14 I will be giving full reasons in due course, but I do now note that this is Mr Goillon’s first serious criminal offending. There have only been driving and traffic matters before this and also importantly, this is the first time he has been in gaol at the age of 42.
15 I order that Mr Goillon be remanded in custody for sentence on a date to be fixed. I so rule.
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