Director of Public Prosecutions v Greene (a pseudonym)

[2019] VCC 11

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM GREENE[1]

[1]A pseudonym.

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 January 2019
CASE MAY BE CITED AS:	DPP v Greene (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 11

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	Ms E. Margaronis	OPP
For the Accused	Mr S. Cash

HIS HONOUR:

1Malcolm Greene[2], you pleaded guilty to one charge of sexual assault of a child under the age of 16, committed on 18 February 2018. Touching the child in circumstances where the touching was contrary to community standards of acceptable conduct, contrary to s.49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016.

[2]A pseudonym.

2You also pleaded guilty to a related summary offence, in that you committed the above stated indictable offence whilst on bail.

3The circumstances of the offence are outlined in a detailed prosecution opening prepared for the plea and exhibited.  For the purposes of this sentence I will summarise the circumstances.

4At the time you were 45 years old.  The victim, to whom I shall refer to as 'A', and to her mother as 'K', for anonymity purposes, was 15 years of age at the time of the offence.

5On Saturday, 17 February 2018, the White Night Cultural and Arts Event was being held in Melbourne Central Business District between the hours of 7 pm and 7 am the next day.

6'A' and her mother arrived in the Melbourne CBD for the event at approximately 2.40 am on Sunday the 18th.  At about 4.39 they entered the KFC restaurant on Elizabeth Street and joined the queue to order food.  This was captured on CCTV footage from the KFC store, as was the rest of their stay.

7At approximately 4.41 am you entered the restaurant and joined the queue behind the victim and her mother, and almost immediately tapped the victim on the shoulder and said, "Hi".  The victim said "Hi" back.  You began to compliment the victim, repeatedly telling her that she was very pretty, very beautiful, that she had a very nice face.  You told her that, "I respect you and I adore you".

8You asked 'A' if you could give her a hug and she said, "Okay", she did not think any of it at the time.  You then hugged her and tightly held her close to you, refusing to let go.  She was trying to remove herself from the hug, you had locked your hands around her waist.  She put her arms on her shoulders to push herself back, but she was unable to push herself away from you.  She could feel you pull her closer to her waist, moving your hands lower to her waist.  Her mother saw you, and saw you move your groin towards the victim and CCTV footage shows your hands touching her buttocks.  This was the basis for sexual assault of a child under the age of 16.

9'A's' face was very close to yours, and she believed you were trying to kiss her.  When the victim realised she was unable to remove herself from your hold she started to panic.  Her mother intervened and pulled your hands apart to free her.  The victim's mother asked you how old you thought the victim was and you said, "I think she's 18".  You were told she was 15, you then told her mother, "I respect you, Mum", whilst stroking both of her arms with your hands.  She told you to stop and you apologised.  They could both smell alcohol on you.

10Another customer also waiting in the queue heard the victim's mother say something like, "Don't do that to my daughter", and saw you trying to apologise to the victim's mother by making kissing faces at the victim.  He saw that 'A' was in a shocked and shaken state.  The victim's mother told the witness that her daughter had just been sexually assaulted, and later the witnessed told police he had just witnessed a man rubbing himself against a girl in the queue.

11As the victim's mother moved forward in the queue you continued to talk to the victim.  You asked her, "Can I meet you outside?"  You then left the restaurant.

12When the victim and her mother exited the restaurant you were outside.  The victim and her mother went to another food outlet and then reported the matter to police members who were patrolling the area.  You were on bail at the time of the offence, having signed an undertaking of bail at the Moonee Ponds police station on 30 January 2013 in relation to a charge of being drunk in a public place, and this was the second charge, the related summary offence.

13You were arrested at the scene.  You told the arresting police member that you had not touched anyone.  The record of interview commenced on the 18th, that evening, but was suspended shortly thereafter for police to make further enquiries and then recommenced in the morning, some three hours later with an independent third person assisting you through the remainder of the interview.  You told police that 'A' and her mother hugged you on
Elizabeth Street outside the KFC, they gave you a hi-five and you denied touching the victim while in a queue.

14There are no victim impact statements in this case, but I can reasonably conclude from the circumstances of the offence that these events would have caused some consternation and distress to the victim and her mother.  Such events normally caused traumatic impact upon victims, trauma which causes fear impacts on social, educational and health of victims.

15Without overstating the impact of such unwanted contact, the unwanted physical interference of a young person by a stranger is a violation of physical integrity, which does have a negative impact, which I will take into account, as well as the impact on her mother.

16As I have indicated, there is a standard sentence for the offence of sexual assault of a child under 16, and that sentence is for a number of years, pursuant to s.49D(2A).  Being a standard sentencing offence means that the provisions of s.5A and s.5B, and s.11A of the Sentencing Act apply to your case, as well as s.5 of that Act.  All other relevant and applicable sentencing principles also clearly still apply.

17In sentencing you for this standard sentence offence I must take into account the four year standard sentence as one of many factors relevant to your sentence.  As far as I am aware no other sentences for this particular offence has been imposed since the above provisions were introduced.

18I have referred to the decision of His Honour Champion J in R v Peter Brown [2018] VSC 742, and received succinct submissions regarding this aspect of the sentence.

19The prosecution provided written submissions, and I agree with the propositions contained therein.  Particularly the reference of the sentencing exercise referred to in Muldrock in the High Court decision (2011) 244 CLR 120, so that I have not used the standard sentence in any way as a starting point from which to add or subtract time. Standard sentence, firstly, must apply to an offence that is in the middle of the range of seriousness, having taken into account only the objective factors which affect the relative seriousness of the offence to be determined, without reference to matters personal to a particular offender or class of offenders, and wholly by reference of the nature of the offending. And secondly, act as a guide post, together with the standard non-parole period, of which the court will be mindful.

20Having considered the objective gravity, that is the relative seriousness of the offence, by taking account only the objective factors which affect that aspect, I concluded this offending is in the low range.  These factors are the age of the victim; the public nature of where the offending took place; the short duration of the touching over clothes; the nature of the touching, which would once in this court been called an incident of frottage.

21In this sense, though cognisant of the existence of the standard sentence, in my view, the provisions of s.A(1b), with its specific reference to the middle range of seriousness, being the range to which the standard sentence period specified applies, takes this offence for which I am to deal with outside of the scope of these provisions, as far as the specific sentence is concerned.

22Although in the circumstances a standard sentence can in no way be a dominant consideration, I consider that when looking at these provisions I can be cognisant of the fact that such an offence, which does lie in the middle of the range of offending, is said to attract the sentence of four years.  Once the factors effecting its exclusive, serious place, place it there within that range.

23I give that indication as part of the obligation which arises out of s.B(4) and (5), in that sentencing an offender for a standard sentence offence.  And though I am not imposing that sentence referred to in sub-s.a, the awareness to which I have referred is an explanation as to how the sentence imposed "relates" to that standard sentence, as referred to in sub-s.5.

24I should note that the defence in the light of R v Brown took no issue with the prosecution's submissions as to the application of the standard sentencing regime, but argued that the mental health of the offender should be considered.  This argument appears to conflate the need to take into account such an aspect shown to be relatively connected, causally or otherwise, to the offence, with the objective factors to be considered when placing the offence in the middle range of seriousness.

25It may be on one view that the standard sentencing sentence appears to exclude such matters personal to a particular offender for consideration by s.5(A3), sub-ss.a and b.  But I do not need to decide this issue for purposes of this sentence.  I have already found that the offence is in the low range and not in the middle range of seriousness.

26Whether His Honour Champion J is correct in distinguishing the mental illness of an offender that can have a relevant causal connection to the offending, when considering the fundamental qualities of the offence, in the context of s.5A(1d), it is again an issue I do not need to decide here.  He may have been considering a wider issue of the moral culpability, or as he described it the "fundamental qualities of the offence".

27In my view my conclusions as to your mental state, its causal connection to the offence or otherwise is a matter I should explore and take into account as appropriate, as part of the synthesis of matters which I should consider when I look at your circumstances.

28I should note before proceeding any further that you were remanded in custody and bail was refused on 28 February, when you made application to be bailed.  The matter was uplifted to this court and then proceeded in the indictable stream, and on the date of the committal in late August 2018 the matter was resolved to a plea once summary jurisdiction was refused.  Bail was also again refused.

29The maximum penalty for Charge 1 is ten years' imprisonment, while the bail offence carries 30 penalty units, or three months' imprisonment.  And as I have said, the offence was committed after 1 February, so that as a consequence the standard sentencing regime I have mentioned applies.

30It was submitted that your circumstances would suggest that an impaired mental functioning had a relevant causal connection to the offending, and therefore reduce the objective gravity of the offence and your moral culpability.  As to this aspect two supporting documents were tendered in evidence from
Mr Bernard Healy, was heard by the court.  I shall refer to this in a moment.

31You were born in South Sudan.  You arrived in Australia in 2003 and you are now 46 years old.  You have a complex history, which can be gleaned from a combination of the evidence, and the 2018 report of Mr Healy; the earlier report of Professor Davis, of March 2011 and your prior criminal history.  I will summarise it for this sentence, but I have taken all of this material into detailed consideration.

32You remained in the Sudan until age 18, when you escaped the insurgency there and as a displaced person ultimately found your way to a refugee camp in Egypt.  Your family was poor and further disadvantage followed because of the civil war during the 1990’s.  Both of your parents and four siblings were killed, a devastating loss.  The grief and trauma of which cannot be imagined.

33You came to Australia as a refuge after some 12 years moving from various camps, to five years in Egypt.  You remained in contact with a surviving brother-in-law and three children of your late sister, his wife, as well as your younger sister and her two children.  This above mentioned brother-in-law died in early 2018, and your younger sister was left to fend for his three children.

34Your inability to assist them further distressed you and exacerbated your post-traumatic stress disorder and its symptoms.  You are the eldest surviving male.  The expectation of providing for the surviving family would not be able to be fulfilled, leaving you in grief, both angry and despondent.

35You continued to seek solace in drinking alcohol, which you had taken in order to deal with the post-traumatic stress disorder of your life in Sudan.  Your emotional and physical state was further compromised by the effects of the head injury you suffered in 2004 when a car struck you as a pedestrian.  You had serious injuries to your knees and legs, and you were rehabilitated over six months.

36However, in 2006 you received a substantial gaol sentence.  In 2005 you committed an assault whilst drunk, as well as offensive behaviour in a public place and an indecent assault.  You were placed on a community based order, which you ultimately breached.  In December 2005, you were sentenced to
19 months, with 12 months non-parole period, for being drunk in a public place, driving offenses, stalking, and two aggravated assaults; one on a female and one on a male under 15.  An intellectual disability and psychiatric history was noted as custody management issues at that time.

37That sentence was appealed on 21 March 2006 to this court, and although the appeal was allowed it was heard with another matter, of aggravated burglary with a person present and an assault with intent to rape.  The two matters together resulted in a new total effective sentence of five years and three months and a non-parole period of two years and nine months.

38In July 2006 another month was added on the breach of the earlier community based order.  Then in October 2006, you received two months for the earlier assault and indecent upon being resentenced, concurrent with the sentence being undertaken.

39I note also that in 2011 a supervision order for five years, pursuant to the Serious Sex Offender (Detention and Supervision) Act 2009 was made, which in 2016 was extended for a year to 2017.

40It can be reasonably surmised from this prior history that your drinking; your general behaviour, including acts of violence and indecency have beset your for some time.  This raises the need for specific deterrence, general denunciation and punishment, and general deterrence.  Your prospects based on this history must be viewed as poor.

41It is important to understand the impact of the 2004 trauma, which you suffered.  Professor Davis, a consultant neurologist wrote a report in March, which was tendered to the court.  It was a report written for the TAC claims division.

42It is clear that you suffered major head injuries, you were struck by a car travelling at 70 kph and thrown over the vehicle, landing on the road.  You had been drinking.  Apart from the knee and leg injuries you had injuries to your neck and jaw.  You have a comminuted fracture of the lateral tibial plateau and right temporal lobe contusion.  You required internal fixation of the fracture and wore hinge splints on both knees, with tears of the anterior cruciate ligament and complex tear of the medial meniscus.

43You experienced post-traumatic amnesia for at least three weeks; a clear indication of extremely severe brain injuries.  Professor Davis found you then to be cognitively rigid, with marked reductions in reasoning, processing speed and significant compound, cognitive deficits, exacerbated by continued alcohol use.

44Apart from this you were significantly depressed, frustrated and very angry.  He opined you were undoubtedly substantially neuropsychological impaired and likely neuropsychiatric sequelae.

45Mr Healy, a very experienced clinical psychologist reported that he had ongoing contact with you.  In his report he outlined his assessments over a significant period and occasions.

46After being released in July 2010 on parole, you underwent drug and alcohol counselling as a sexual offender with cognitive impairment, and individual counselling once a week at a specialist unit, which according to Mr Healy ended prior to 2013.  You had served five years at Port Phillip Prison and completed a sexual offenders program for those with cognitive impairment.

47You were referred to Mr Healy in coordination with correctional services and you consulted with him in August, September, October and November 2016, on five occasions.  In January and February 2017 ending with the completion of the extended supervision order in March 2017.

48During this period Mr Healy noted your cousin, Mary, is concerned that your increasing alcohol indicate was having a devastating effect upon your judgement and mental health state, with marked disinhibition.

49You then saw Mr Healy in September 2017, because your neighbours had obtained an intervention order against you.  This arose again out of events when you were intoxicated.  It appears that your family situation was still a compelling reason for you to seek work, and you worked with Kitchens On The Run, as well as receiving a disability support pension.  However, drink was still a major problem and appears in 2013 you had two admissions to the
Royal Melbourne Hospital with serious alcohol poisoning.

50You saw Mr Healy again in October 2017, in order to attempt to put in place strategies to reside with family and reduce your alcohol intake.  Unfortunately, this effort again proved unable to prevent you from drinking and behaving inappropriately.

51Mr Healy does confirm that upon reflection, and when sober, you express much shame for your behaviour and for the fear caused to the victim.  Mr Healy has reviewed the material available, including some medical reports unavailable to the court.  He refers to the report of Dr Reeves, of November 2009, who indicated that the most likely contributing factors to your sexual offending at that time were the acquired brain injury, manifested impulsivity, poor internal controls, compromised judgement, consequential thinking and disinhibition due to alcohol intoxicated.

52Mr Healy agreed with this opinion, in effect.  He referred to two admissions at the psychiatric unit at the Royal Melbourne Hospital, again related to the debilitating effects of alcohol in more recent times.

53The work that you have desired and engaged in to attempt to provide support for your remaining family has been sporadic, and you have been unable to do it because of your psychical and mental and alcoholic problems, which has caused you disabilities.

54This history creates a paradoxical situation.  This initial trauma in your life, and then the next suffered in this country, compounded by alcohol abuse, can excite reasonably enough a merciful response to your predicament.

55Sentencing and justice in my view must remain a deeply human exercise, imbued with fairness and compassion.  At the same time, proper and reasonable sentencing principle must offer the community protection and endeavour to deter, denounce and punish justly those who continue to commit criminal offences.

56In your case the matters that go to your mental state are significant.  Although your alcohol use is voluntary, it is clear that you are in the thrall of an alcoholic addiction.  And though it provides no excuse some leniency can be extended, only because your offence on this occasion was at the low end of the spectrum of offending of this type.

57The synthesis of all the relevant factor in your case, as in most cases, is a difficult exercise.

58At p.6 of his report Mr Healy outlined the symptoms of post-traumatic stress disorder, many of which clearly apply to you.  Your results of the tests conducted place you at an IQ of 63, and he opines that your cognitive functioning is now at the level of a quite significantly impaired person intellectually who is depressed, often disinhibited and whose judgement is compromised.

59Mr Healy's final assessments were in September and October 2018.  And despite the fact that you have not had a drink of alcohol since your remand, your neuropsychological state was such that it would sound a distinct warning in relation to higher level cerebral impairment.

60Mr Healy's evidence reiterated much of his comprehensive report.  He added that your ability to perceive how others are reacting to you in interpersonal and social situations are compromised by alcohol, and your assessment and perception of others may be skewed.  Even without alcohol you labour with significant impairment in your judgement.  Lack of containment likely to have been operative at this time.

61Sexual behaviours in this framework of isolation, loneliness and depression may be perceived as other than inappropriate.  He did not diagnosis paraphilia.  The time already served, Mr Healy opined, had been efficient and somewhat therapeutic, but nevertheless difficult.

62You pleaded guilty after the matter was listed for a contested committal hearing.   I accept that your plea was entered at a reasonably early opportunity.  Your sentence will be reduced as a result.  I accept that your plea is accompanied by some shame and remorse for your actions as you expressed them to
Mr Healy and through your counsel.  Your plea of guilty has utilitarian value of having avoided a criminal trial, and I take all these matters into account in quantifying the reduction in your sentence.

63You fall to be sentenced as a serious sexual offender on Charge 1.  I have determined that a sentence of imprisonment is justified and in doing deciding upon its length I must have regard to the protection of the community from you as the primary purpose for which I impose the sentence, which I will announce.

64The prosecution does not seek a disproportionate sentence, and I will have that the fact that you are sentenced as a serious offender entered into the court's records.

65Sexual assault of a child under the age of 16 is a class two offence under Schedule 2 of the Sex Offender Registration Act 2004. You also have priors for three class four offences, being indecent assault, assault with intent to rape, and indecent assault. These class four offences are deemed to be class two offences for the purpose of calculating the length of the applicable reporting period.

66As a result you have been committed of four class two offences and must comply with the reporting obligation imposed by the Sex Offender Registration Act for the period of life.

67I note that my order will supersede and replace an order made on 6 April 2006, that you comply with reporting obligations for 15 years.  I will have my associate give you a written notice, which contains the reporting obligations to which you will be subject after you are released. 
His Honour's order of course also means that you were a registered sex offender at the time of the offence.  Although, you had previously no breached your parole or supervision orders.

68I am satisfied that your personal circumstances do enliven the Verdins principles and because of your mental health circumstances, I agree that your moral culpability is reduced.  There is a clear connection between your parlous mental health and your alcohol intake to make this case in which some mercy ought to be exercised, while still being satisfied that the sentencing principles, which I have mentioned before, are still met.  I am fortified in this view by the submission made by the prosecution as the proper course of the conduct for the court to adopt.

69However, I am again informed today by your counsel that you will not consent to a community corrections order, under any conditions.  I had intended, when considering this matter, to impose a combination sentence if it was available to me, with treatment and rehabilitation as well as appropriate offence specific program as directed without any community work.

70I declare for purposes of the sentence that you have served 336 days of pre-sentence detention, and direct that those days be reckoned as having been already served and that that number be entered into the records of the court.

71I declare that had it not be for your pleas to the charges I would have imposed a total of 20 months' imprisonment, with a non-parole period of 14 months.

72Please stand. On the sexual assault charge you are convicted and sentenced to 13 months' imprisonment, and on the summary offence you are convicted and sentenced to two months' imprisonment, wholly concurrent, making a total effective sentence of 13 months' imprisonment.

73Are there any other ancillary orders, madam prosecutor?

74MS MARGARONIS:  No, Your Honour.

75MR CASH:  No, Your Honour.

76HIS HONOUR:  Yes, thank you.  Yes, thank you.  Yes, you can take him down, thanks.  Thanks, Ms Margaronis.  Thank you, Mr Cash.  I will stand down.

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