Director of Public Prosecutions v Greene (a pseudonym)

[2019] VCC 438

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON GREENE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2019
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Greene (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 438

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual assault of a child under 16; No prior criminal history; Family support; Standard sentencing scheme not dominant consideration rather part of number of considerations that formed instinctive synthesis

Legislation Cited:                   Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:  The Queen v Brown [2018] VSC 712
Sentence:  18 month Community Correction Order without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Siggins	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown

HIS HONOUR: 

1Jonathon Greene[1] you have pleaded guilty to one rolled up charge that on 10 May 2018 you sexually assaulted a child under the age of 16. The charge encompasses two criminal acts; the first being the touching of the complainant on her buttocks and the second being the touching of the complainant on her vagina under her clothing. The victim of this assault was 14 years of age at the time.  To ensure that the victim of this offence is not in any way identified I will refer to her as AB for the purposes of these sentencing remarks and given the close family-like relationship you had with the victim I will refer to you as Jonathon Greene to ensure that the identity of the complainant is protected.

[1] Jonathon Greene is a pseudonym.

2On the plea. the prosecutor, Mr Siggins tendered a Summary of Prosecution Opening which sets out the detail of your offending.  According to that summary, the complainant had known you since she was born and considered you as part of her family.  Your father and her mother had been in an intimate relationship between 1998 and 2001 and after they separated, they remained in contact and when the complainant was born she would go to your home for dinner on a weekly basis.  Over the years she would also attend your home every second weekend and would visit you and your sister every Monday.

3On Thursday, 10 May 2018 your father picked up AB from her home and took her back to his home where you also lived.  During the evening you and the complainant sat next to each other on the couch in the lounge room whilst your father sat on the floor in front of you doing a puzzle.  Whilst on the couch AB used her mobile phone to text a friend.  You tried to see who she was texting and when the complainant attempted to stop you, you both began to wrestle over the phone. In so doing you used your right hand to tickle the right side of the complainant’s waist.  You then slid your right hand underneath her right buttock cheek on the outside of her clothing and squeezed her buttock.  In response the complainant stood up and glared at you.  You moved your hand away from her seat but when she went to sit back down you quickly replaced your hand so that she again sat on it.  You then slid your left hand down underneath her track suit pants and underpants, touching her on the vagina.

4AB told police that you touched her intermittently over a period of half an hour or so.  During that time she was fearful of what would happen to her if she told you to stop or call out to your father.  Eventually she did call out to your father, asking him to take her home, at which time you removed your hand.  Immediately after returning home, AB sent a text message to a friend telling him that she had been sexually assaulted by you.  At school on the following day she confirmed to that same friend what had happened.  As she did so she was visibly distressed.  AB subsequently disclosed what had happened to a teacher who then notified police and her mother.

5Later that day AB’s mother confronted you and in response you stated “last night AB and I were mucking around as normal but then things got a bit out of hand”.  You also said, “I suppose things went to an inappropriate place”.  Later you explained to your sister that you had been play fighting with the complainant and that you had placed your hand down onto the couch to prevent her from sitting as an “annoyance play thing”.  You said that you had left your hand underneath the complainant’s bottom for around five minutes.

6After a request from police you attended Knox police station on 14 May 2018 where you participated in a record of interview with police making partial admissions.  You admitted that you had placed your hand under AB and squeezed her on the bottom “the lower part of her bottom where it joins the leg, to the inside”.  You claimed that you had left your hand on the complainant’s buttocks for over five minutes, maybe even eight minutes.  You denied putting your hands underneath her clothing.

Impact of offending

7AB provided a victim impact statement that describes the substantial impact your offending has had on her.  Her academic performance has suffered, she feels alienated from family and friends and the thoughts of what you did constantly intrude into her daily life.  She has sought professional assistance to help her cope. 

8AB’s mother also made a victim impact statement in which she describes how her and her daughter’s life has taken a turn for the worse since this offence.  It has resulted in hurtful divisions within the extended family.  She also feels isolated from the family support that she would otherwise rely upon.  Her, once close, relationship with her daughter has deteriorated and she feels the loss of trust caused by your actions acutely. 

9You should understand that because your offending has had a substantial impact on AB and her mother, that impact will be an important consideration in the formulation of the sentence that must be imposed.

Personal circumstances

10You were born in 1991 and are now 28 years of age.  You were 27 years of age at the time of this incident. Importantly you have no prior or subsequent convictions.  You grew up in the Dandenong Ranges area until your parents separated when you were around six years of age.  Following that separation you and your two younger sisters lived primarily with your mother but your father took an active role in your parenting.  You completed your secondary schooling at a local secondary college, completing Year 12 in 2008.  At that time were 17 years of age.

11Mr Tiwana, who appeared on your behalf, submitted that you had an impressive work and study ethic.  He supported that submission by reference to your extensive tertiary education which involved completing a Certificate IV in Multimedia, qualifying as a personal trainer and completing a Diploma in Health Sciences.  You then went on to complete a Bachelor Degree in Health Sciences majoring in Psychology and a Graduate Diploma in Psychology.

12So far as work is concerned, since the age of 15 you worked on a casual basis with Red Rooster and after some years of service you were appointed a manager.  You also worked as a fitness instructor, at times working with children aged in their teens.  In 2017 you worked casually as an applied behavioural analyst therapist assisting an autistic child.  In 2017 you also joined a well-known restaurant group working initially as a waiter and as a barista and since October 2018 you have been employed by that group to run their flagship café in the central business district.  As things stand presently, although you have impressive qualifications in the field of psychology, you are now hoping to develop a career in hospitality management.

13Turning to your offending, Mr Tiwana submitted that I should regard your offending on this occasion as a one-off aberration.  He said this incident arose out of the usual play fighting that you would engage in with the complainant.  It was a spontaneous offence that did not involve any element of planning or grooming.  It followed, he argued, that I should characterise the relative seriousness of your offending as falling at the bottom of the range of seriousness for this offence. 

14He also relied on your otherwise excellent character supported by the five impressive character references that were provided on the plea.  I note also that you were supported in court by numerous members of your family and friends.  I should say that in my view the high level of support that you obviously have from your family and friends enhances your prospects for rehabilitation, as does the fact that that there are no concerns with respect to drug or alcohol abuse.

15Although your plea of guilty was not entered at the earliest opportunity I accept that the attitude you have displayed overall in respect of this matter, demonstrates that you are very remorseful for what you have done.  Importantly, your plea saved the complainant from having to go through the ordeal of cross-examination.  In all of those circumstances Mr Tiwana submitted that I should not impose any conviction in respect of this offence and impose a monetary penalty.

16In his submissions, the prosecutor, Mr Siggins acknowledged that your offending did not bear the hallmarks of predatory conduct or grooming and appeared to be isolated.  However, he submitted that the relative seriousness of your actions should be viewed as falling somewhere in the middle of the lower range of seriousness.  He referred to the fact that your offending involved a breach of trust, that the touching was not fleeting and to some extent could be viewed as brazen given the presence of your father.  He also submitted that the second part of your actions in touching the complainant under her clothing, elevated the seriousness of what was done.  He did not submit that a financial penalty would be outside the range of appropriate penalties available.  As I understood him, he did not submit that a non-conviction disposition was inappropriate

17Before indicating my findings I need first to say something about the fact that this offence now carries with it a standard sentence.  The maximum term of imprisonment that might be imposed is 10 years.  As a result of amendments that were made to the Sentencing Act 1991 on 1 February 2018 I am required to have regard to the standard sentence for this offence. Section 5A(1) of the Sentencing Act provides:

(1)     If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—

(a)     the offence is a standard sentence offence; and

(b)     the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

18The prescribed standard sentence under s 49D (2A) of the Crimes Act 1958 (Vic) is four years. In s 5B(2)(a) of the Sentencing Act pursuant to that provision, the court ‘must take the standard sentence into account as one of the factors relevant to sentencing’.

19According to s 5B(2)(b), when considering current sentencing practices for a standard sentence offence, a court may only consider sentences previously imposed where the relevant offence was the subject of a standard sentence scheme. Given that this legislation is now only beginning to be applied there are no previous sentences available to me for the purposes of comparison. However, I am not precluded from having regard to previous sentencing principles. Section 5B(5) further requires that as part of its reasons, the court must ‘refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence’

20As to the approach to be adopted in taking into account the standard sentence, the Explanatory Memorandum to the amendments to the Sentencing Act states that:

“The standard sentence is not the starting point for sentencing, nor does it require two-stage sentencing. Rather, the standard sentence is intended to provide the courts with a legislative guidepost of objective offence seriousness that is compatible with the instinctive synthesis approach to sentencing, which has been affirmed as part of the common law in Victoria'

21I should say that in seeking to adopt this approach I have been greatly assisted by the reasons of Champion J in The Queen v Brown [2018] VSC 712. As is required by s 5A(3), I have examined the relative seriousness of your offence without reference to matters personal to you and wholly by reference to the nature of your offending.

Findings

22Turning to my findings, as to the objective seriousness of your offending I accept the prosecutor’s submissions that the relative seriousness of your conduct is not at the very bottom of the range of seriousness.  The breach of trust, the fact that the touching was not momentary, and in part involved touching the complainant intimately on the vagina inside her underpants, elevates the gravity of what you did.  That said, there is much that is personal to you that mitigates your position, not least of which includes the fact that you’ve taken responsibility for this offending, your remorse, your otherwise excellent character and your likely prospects for rehabilitation.

23In my view however, there are four matters which tell against the imposition of a simple financial penalty in respect of this offence. 

24The first is that whilst overall it does appear that this offending was an isolated event, I have some reservations in the sense that I am less than clear as to why you committed this offence.  It may be that on this occasion your sense of appropriate boundaries became distorted and as you told the complainant’s mother, you went to an, “inappropriate place”.  However, there is no expert material before me that provides any comfort that that is an adequate explanation for what you did.  In those circumstances it is difficult to be affirmatively satisfied that your prospects for rehabilitation are excellent.  They may well be, but as I have indicated I have some reservations about that.

25Second, as I have found, the objective seriousness of your offending is not at the lowest end of the range.

26Third, the impact of this offending on the victim and her mother has been substantial.

27Fourth, I need to be consonant of the fact that the standard sentencing scheme is directed to increasing sentences for standard sentence offences and is directed to ensuring that sentencing outcomes are more consistent with community expectations as expressed through Parliament.  It follows in my view that a fine for a sexual assault upon a 14 year old child will likely be a rare outcome.

28To conclude, whilst I am well satisfied that the circumstances of your offending taken together with your personal circumstances do not justify the conclusion that a term of imprisonment is the only option available, I am not satisfied that a financial penalty alone would adequately reflect the sentencing purposes of general deterrence, community protection and denunciation to which I must have regard.  With those considerations in mind you were assessed as to your suitability for a community corrections order.  By a report of 28 March 2019 from the assessing corrections officer it was said:

"Mr Greene engaged well throughout the assessment process, answering all questions put to him, to the best of his ability and recollection.  He was open and forthcoming with information and demonstrated some insight into his offending behaviour and the pre-cursors to his offending.  [The author of the report goes on]  It was explained to Mr Greene that the requirements of a CCO could be co-managed with his employment and Mr Greene elected to report to the Melbourne Justice Centre, as he would find it more convenient to attend appointments immediately after work, as opposed to risking public transport delays.  Mr Greene advised that he has a positive relationship with his parents, sister and aunts, all of whom were present to support him in court today.  He noted that whilst his parents are separated and he resides with his father, he still has frequent contact with his mother by way of telephone calls.  [The author goes on]  In light of the nature of the offending, a condition for assessment of participation in the Sex Offender Advice and Treatment Services is recommended.  To facilitate this a community correction order of at least 18 months' in duration is recommended.  It is further noted that the risk level outlined above, relates to a general offending risk.  [That risk level was assessed as a low risk of reoffending]  An assessment by Sex Offender Advice and Treatment Services will determine a risk of sexual reoffending".

29According to the author of that report, you have been assessed as suitable to be placed on a community corrections order.  Accordingly, with your consent, I have determined that I will place you on an order for a period of 18 months with two special conditions: (1), that you be subject to supervision from the Office of Corrections; and (1), that you undertake treatment and rehabilitation, specifically directed to a Sex Offender Treatment Program.  I must explain, the effect of this order and after doing so, ask you whether you consent to undertaking that order. 

30Now it is important that you understand that, so far as this order is concerned you will be required to follow the directions and instructions from the authorised people from the Office of Corrections; that you will not be able to leave the State without their permission; that you are not to commit an offence punishable by imprisonment during the currency of the order; and that if you do, you can be brought back before me on a contravention of the order and that my powers at that time, would include resentencing you for this offence.  Accordingly, if you were to breach the order by a further commission of offence, or indeed by not complying with the conditions that are set out in the order, then you are liable to be sentenced to a further term of imprisonment, in respect of this matter, as well as the contravention itself.  Now, do you understand all of that, Mr Greene?

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  And bearing all that in mind, are you prepared to consent to undertake such an order?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR: All right. Just take a seat for a moment while I explain some other matters, Mr Greene. Having regard to the criteria set out in s 8 of the Sentencing Act and in particular the social and economic impact of a conviction on your future, I have determined that no conviction will be recorded with respect to the imposition of that penalty.

35As I have indicated, s 5B(5) of the Sentencing Act requires I must ‘refer to the standard sentence for the offence, and explain how the sentence imposed by it relates to that standard sentence offence’.  I should say that I have not accorded the standard sentence dominant or determinative weight, it is but one of a complex of considerations that form part of the instinctive synthesis.  The sentence I have imposed is less severe than the standard sentence.  I consider that is justified by reference to the principle of parsimony and the strong subjective features of your position, particularly your remorse, your otherwise excellent character and the impressive level of support from family and friends available to you.

36I will further declare pursuant to s 6AAA of the Sentencing Act, that but for your Plea of Guilty I would have sentenced you to a term of imprisonment of 9 months.  And I will cause that declaration to be noted in the records of the Court.  Further, Parliament also requires that you, by reason of the commission of the offence, be registered under the Sex Offenders Registration Act 2004 (Vic) and liable to comply with its reporting requirements. Because the offence to which you have pleaded guilty is a Class 2 offence under that Act, the prescribed period of registration is 8 years as the Act has determined and I will cause that fact to be noted in the records of the court. Ms East, would you mind providing that Order. Mr Tiwana, if you would not mind assisting Ms East, there are two documents that your client will be required to sign.

37MR TIWANA:  Yes, Your Honour.

38HIS HONOUR:  The first relates to the community correction order.  Just check that, if you would not mind, before your client signs it.

39MR TIWANA:  Yes, Your Honour.

40HIS HONOUR:  To make sure it accords with what has been discussed.  The other is the Sex Offender Registration notification details.

41MR TIWANA:  Yes, Your Honour.  Yes.  Thank you, Your Honour.

42HIS HONOUR:  Any other matters arising from those sentencing remarks?

43MR TIWANA:  No, Your Honour.  Thank you.

44HIS HONOUR:  Mr Siggins?

45MR SIGGINS:  Nothing arising, Your Honour.  Thank you.

46HIS HONOUR:  I will stand down.  Thank you.

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