Director of Public Prosecutions v Grant

[2018] VCC 1346

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR 18-00864
CR-15-01427
AP-18-1805
AP-18-1447

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON GRANT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:
DATE OF SENTENCE:	24 August 2018
CASE MAY BE CITED AS:	DPP v Grant
MEDIUM NEUTRAL CITATION:	[2018] VCC 1346

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 R Hammill	Office of Public Prosecutions
For the Accused	Mr R Thyssen

HIS HONOUR:

1Aaron Grant, you have pleaded guilty on indictment to one charge of a sexual penetration of a child under the age of 16 years.  At the same time, you have pleaded guilty to a breach of an adjourned undertaking that you received in September 2015 for the same offence.

2I also have before me two appeals, in numbers ending 462 and 633, from the Magistrates' Court.  I have already set aside the Magistrates' Court orders in respect of those, and am going to deal with you in respect of the breach of the undertaking.

3Firstly, I will deal with the matters on the indictment.  You are now 21 years of age.  You pleaded guilty, and had you been of a lesser age, I would certainly have sent you to Youth Justice rather than put you in an adult prison.  However, in this situation, there is no choice.

4That plea of guilty - it is debatable whether it is accompanied by remorse, but I will certainly give you the benefit of the doubt in respect of that, and you must get the utilitarian benefit of that plea of guilty.  The evidence against you essentially comes from your own actions in terms of being compelled to plead.

5You do have a criminal history, obviously, and you have subsequent matters as indicated by the appeals.  The appeals are realistically failure to comply with the Sex Register, and failure to appears, and the like.  I do not propose to summarise them at all.  Because of this offending on the indictment, your reporting conditions on the Sex Offender Register will be for life, and your counsel explained that to you, and a copy of that information will be forwarded to you at the gaol.

6So far as the indictment is concerned, you were 21 and the complainant was 14.  She became pregnant and had a child.  In September 2017, a DNA sample was taken and indicated that you could not be excluded as the natural father.  The results were six million times more likely that you were the biological father than any other Caucasian male.

7In any event, you were ultimately arrested.  You initially made no comment, which you are perfectly entitled to do, and by your own actions of ringing DHS and telling them that you were the father and wanted to see the child for Christmas, you put yourself in a situation where you are now to be sentenced by me.

8There is no suggestion here that the act was in any way, shape, or form without consent, and it is just a sad set of circumstances.  There is no victim impact statement.  Whilst you do not appear to have an intellectual disability as such, you are obviously a very immature young man and have had a difficult period of time within your life.

9The matter for which Judge Stuart gave you the two-year adjourned undertaking was that in January 2015, a 13-year-old girl organised to meet you in the backyard of her house after her mother had gone to bed.  The meeting was obviously clandestine, but was certainly consensual.  The two of you began to kiss, and you commenced to have sex with her.  It was penile-vaginal.  You were interrupted by a noise in the backyard, and you ran from the address.  You basically denied that matter to the police, and the fact that you received a without conviction two-year adjourned undertaking which was agreed by the Crown at the time indicates the level of it.

10Unfortunately, insofar as the breach is concerned, you appeared to learn not a lot from that experience and had difficulties ever since, resulting in this matter coming before the court.  As I have said, insofar as the appeal is concerned, they were all in the intervening period and involve you simply failing to comply with obligations and, as I said to the prosecutor a few moments ago, simply not turning up to things.

11Your background can be described in pretty simple, succinct terms.  You, as I said, are still 21 years of age and therefore a relatively young offender.  You have had family difficulties over the years with alcohol in the family.

12You yourself had a drug and alcohol history, commencing around about the age of 16.  Around about the age of 20, you commenced using amphetamine, and it is clear that has played a part, certainly in the appeal matters, of you not turning up and being all over the place.  Alcohol consumption commenced at the age of 17, and you had difficulties with that as well.

13You have, in custody, done your best.  You have tried to engage in courses.  You have done woodworking.  And your parents are here today to support you, and probably have had to support you through some very difficult times. They indicate that you are good at woodwork and that that is the sort of program you are undergoing in prison.

14You were, as a child, diagnosed with ADHD.  And at one stage, at least, you were hospitalised and on Seroquel after a suicide attempt. It is my understanding that it is not known whether that hearing of voices and the like, or psychotic state, was drug-induced or is the onset of something more sinister.  But in any event, the principles in Verdins, do not apply in your situation.

15You have done courses before.  You have worked before.  Upon your ultimate release, you will have somewhere to go with the support of your teachers.  Your schooling is limited, but it is a situation where your health and things like that are such that if you really do want to rehabilitate and live a useful life, you are in a position where you can do so.

16The risk of you reoffending is problematic, and the risk of you reoffending on a corrections type of order would be enormous.  But there is not much else I can say or do about it.  You are an immature, very young person who has just got himself into a real situation.  Unfortunately, I cannot sentence you on my feelings about the situation.  I have to sentence you according to law.

17General deterrence must play a significant part in this sentencing process.  Specific deterrence to you, I think probably would have already been satisfied by the time you have already done in gaol.  They are a factor.  Denunciation is problematic, bearing in mind the ages and your difficulties in life, but there must be an appropriate punishment for the reasons I have outlined of particularly general deterrence.

18You have had the common sense to have all these matters brought together in one situation, and realistically, it comes down to questions of totality, your prior - prior to this, a short period of time at least in custody in regard to other matters, and totality, as I say, for a very immature 21-year-old who simply cannot seem to cope.  Hopefully that maturation will come in time.

19However, I have to sentence you according to law, and I have taken into account the materials that have been provided on your behalf, and can only sentence you as follows, I think.

20On the breach matter of Judge Stuart's, I sentence you to imprisonment for a period of six months.

21On appeal 462, I will restore the magistrate's 12 months.

22On appeal 363, I will restore the magistrate's 9 months.

23And on this particular charge, on the indictment, you are sentenced to be imprisoned for a period of 18 months.

24I direct that in this situation - these will have to be done individually, unfortunately - one month of the sentence imposed on the breach, three months of the sentence imposed on appeal 462, two months of the sentence imposed on appeal 633, be served cumulatively upon each other and upon the sentence imposed upon the indictment.

25That may need to be expressed differently in terms of how the orders are made, but I will worry about that later.

26That gives an effective head sentence of two years

27I direct that you serve a minimum term of 14 months before becoming eligible for parole.

28I direct that 157 days be reckoned as having been served under this sentence.

29And whilst it is a bit ridiculous in this situation because it is a conglomeration of matters, pursuant to s.6AAA I say that but for your plea of guilty, you would have been sentenced to an overall sentence of three with a two.

30There are no other orders - I think there is a disposal order I have to make?

31MR HAMMILL:  Yes, Your Honour. 

32HIS HONOUR:  A disposal is made and handed down.

33MR HAMMILL:  Thank you, Your Honour. 

34HIS HONOUR:  I will just leave you for a second to talk to him. 

35MR THYSSEN:  Yes, Your Honour. 

36(At this stage the court proceeded with another matter.)

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