Director of Public Prosecutions v Harris (a pseudonym)
[2023] VCC 20
•20 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL HARRIS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 20 January 2023 | |
CASE MAY BE CITED AS: | DPP v Harris (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 20 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act1991 (Vic); Sex Offender Registration Act 2004 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169;
Sentence:3 months imprisonment; 18 months community corrections order upon completion of the period of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Mr M. Turner | Irvine Lawyers |
HIS HONOUR:
1 Samuel Harris,[1] you have pleaded guilty to two charges of sexual assault pursuant to s40 of the Crimes Act 1958.[2] These offences carry a maximum of 10 years' imprisonment each.
[1] A Pseudonym.
[2] (Vic).
2 Sexual assault is a Class 4 offence pursuant to the Sex Offenders Registration Act 2004,[3] the Court has a discretionary power to make a sex offender registration order. The Crown has not made an application for registration and no order for registration will be made.
[3] (Vic).
3 You have admitted your prior criminal history. You will be sentenced as a person with virtually no criminal prior history; I consider it irrelevant to these matters. You have a subsequent matter, which I will refer to in the course of these remarks.
Circumstances of Offending
4 The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
(a) At the time of your offending you were 24 years of age. The victim in this matter was 31. You were acquaintances and lived in the same district;
(b) On 26 June 2020 the victim was at home with a friend. They ordered takeaway food and the victim drank a considerable quantity of wine;
(c) You and the victim were texting each other through the evening. You had previously communicated to the victim that you were interested in her, but she repeatedly told you that she had a boyfriend and was not interested in a romantic connection;
(d) You spoke to the victim during the course of the evening and she asked you to bring some further takeaway food over to her. When you arrived the victim was home with her friend and her housemate. The friend left at about 11 pm and the housemate went to bed. You remained;
(e) The victim got some throw pillows and laid on the floor in front of the heater, something she did on a regular basis. She soon went to sleep;
(f) At some point in the night the victim woke to you lying on top of her. By your plea of guilty you admit that during the course of the night you touched the outside of the victim's vagina with your penis and that you touched her breasts with your hand;
(g) The victim woke at about 5 am and found semen on her leg;
(h) The victim called you through the course of the day. You admitted to her that you had had sexual contact. You expressed some regret for your actions, and stated that you wished you had a ‘time machine’;
(i) The victim spoke to the friend with whom she had had dinner before you arrived. She stated that she was intoxicated but she remembered telling you to stop and that she had a boyfriend who she loved; and
(j) It is agreed by the parties that you committed the charged offences against the victim while she was asleep.
5 You were interviewed by the police on 27 September 2020. You admitted to police that there was sexual activity that you stated was consensual.
6 The plea of guilty to two charges of sexual assault was finalised on the first day of the trial, 17 January 2023. I accept that the plea resulted from negotiations with the Crown. The plea was therefore made to two lesser and different charges to that charged on the indictment.
7 I accept that the plea has utilitarian benefit, as it has spared civilian witnesses, and especially the victim survivor the emotional ordeal of a trial process.
Objective Gravity and Moral Culpability
8 I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability. Your offending constitutes a serious example of this charge.
9 The victim was vulnerable in that she was intoxicated after consuming a considerable amount of wine. That is not a slight on her; she was in her own home where she was entitled to feel safe and inviolable.
10 The prosecutor, Mr Pirrie, submitted that you took advantage of the victim and her circumstances. I agree. You committed the offences against the victim when she was in her own bed and asleep.
11 Mr Turner, who appeared on your behalf, submitted that the objective gravity of the offending must be seen in light of the factors that you were invited to the victim's house to bring food; that was the initial premise of the visit, and you initially socialised with her and her friend. Your actions were unpremeditated and were, in that sense, committed opportunistically.
12 Finally, it was admitted that you stopped at the moment the victim spoke to you. I note that at some point you either ejaculated or at least discharged an amount of semen in the course of your contact with the victim, such that she found semen on her leg when she awoke.
13 Through the following day you readily admitted to the victim that there had been sexual activity and you expressed, at least, a form of apology.
14 The Victim Impact Statement was read to the court by the victim herself. I commended her for her courage and integrity in doing so. I again commend the victim for her dignity and composure in what was obviously a difficult experience.
15 The statement speaks of the violation of her senses and boundaries. Since that time the victim has been diagnosed with post-traumatic stress disorder, anxiety, and depression. These conditions have detrimentally affected her ability to perform leadership roles within her work, and caused her to relocate. Your victim has even experienced bouts of suicidal ideation which thankfully she has been able to resist through the support provided by her family and friends.
16 In short, Mr Harris, your callous and selfish decision to act out on your desires and your interest in the victim has had an enormous adverse impact on her life, from which it seems it will take a long time yet to recover. Our community will not tolerate men who cannot respect women as equals. Your moral culpability is high. You were not affected by alcohol, not that that is ever an excuse.
17 In this case you did not respect the boundaries that she had set, that she was not interested in an intimate relationship with you, that she had a partner to whom she was committed. Your professed interest in the victim gave you no right to impose your desires on her; moreover, it is despicable that you did so (as I have said) when she was entitled to feel safe in her own home and when she was vulnerable, having consumed alcohol and was asleep when you acted.
18 Your offending attracts principles of deterrence, denunciation, and just punishment. In all these circumstances Mr Pirrie submitted that your offending falls at the mid-range of this type of offence. My assessment of the objective gravity of this offending is that it is sufficiently serious that it should be met, in part, by a custodial sentence.
Personal Circumstances
19 You are 27 years of age and you were born in September 1995.
20 You grew up in western Victoria. Your family constellation was a law-abiding and normal family. Your parents separated when you were approximately 12 years old. You grew up with two older sisters, although one passed away in 2016.
21 Your father resides in Rainbow and your mother has remarried and currently lives in Adelaide. You report having a close relationship with your father; however you maintain contact with both your parents.
22 You attended Dimboola Memorial Secondary College and completed your schooling before you finished Year 10.
23 In 2011 you commenced a boilermaker apprenticeship. In 2014 you completed that apprenticeship with Grampians Homes in Horsham. Whilst in Horsham you were a volunteer firefighter with the CFA for approximately four years. Since completing your apprenticeship you have maintained steady employment.
24 You stayed working for the Horsham company until 2017, when you relocated to another town in western Victoria with your former partner.
25 You have a young daughter with your former partner. The relationship ended on a final basis in January 2021, following a family violence incident. I was provided with details of the incident.
26 On 12 January 2021 you had an argument with your partner. In the course of the argument you threatened to burn her clothes and you threw a computer at her, which hit her leg and caused bruising. As a result of that you were charged with the family violence offence and placed on a CCO for a period of 18 months. That CCO expires in April 2023.
27 Although you have permanently separated from your partner, you still have regular contact with your daughter and you are an active father. You have custody of your child every Tuesday and Thursday night, and every second weekend from Friday until the Sunday.
28 Your former partner, Ms Jacobon,[4] gave impressive evidence at your plea hearing of you being a responsible, caring, and present father. In addition to caring for your daughter on a part time basis, you also pay child support.
[4] A pseudonym.
29 You currently live in a rental property on a farm. You have been employed on a full time basis as a plant operator since August 2022, and often work overtime.
30 You report being a social drinker of alcohol and you do not use drugs. You have previously been prescribed medication for depression, however I have no current diagnosis relating to mental health issues, and you stopped taking the medication due to side effects.
31 I have read the references presented on your behalf. The reference from Ms Jacobson (in conjunction with her evidence and the reference from her mother) emphasise the bond between you and your daughter and how seriously you take your responsibilities as a father.
Sentencing Submissions
32 Mr Turner, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:
(a) The plea of guilty, although late, has utilitarian benefit. For the reasons I have already expressed, I agree with this submission and the sentence should be mitigated as a result;
(b) You expressed remorse through your plea of guilty and at least to a limited extent, through your acknowledgement of sexual activity and your acknowledgment of some wrongdoing in the text to the victim the following day;
(c) You were, at the time of the offending, a relatively young man at only
24 years of age with relatively limited life experience;(d) Next, it was put that your prior criminal history is irrelevant and I agree with that;
(e) It was submitted that your prospects for rehabilitation are very good, if not excellent. You have a strong work ethic; you have the support of your former partner. You had a limited prior criminal history at the time of the offending. You have a subsequent matter which should be viewed, it was submitted, as an isolated incident, and you have resolved that to the extent that you and your ex-partner are able to co-parent your child together amicably, and you have no drug or alcohol issues;
(f) It was put that your experience of the criminal justice system has provided a specific measure of specific deterrence already. Mr Turner conceded that general deterrence and denunciation still have a role to play. It was submitted that there were sufficient indicators that you do not have any underlying mental health issues or history, notwithstanding the absence of a psychological report. It was submitted that I could conclude that you do not pose an ongoing risk to the community; and
(g) Finally, it was conceded that the detrimental effect of your actions upon the victim has been significant.
33 Ultimately Mr Turner submitted that the principles of sentencing could be met by the imposition of either a community corrections order or a combination sentence with a community corrections order.
34 Mr Pirrie who appeared for the Crown, submitted that due to the objective gravity of the offending the only appropriate sentence in this case is the imposition of a combined sentence of imprisonment with a community corrections order.
Analysis
35 As I have stated, I am satisfied that your plea of guilty has a utilitarian benefit and the plea is attended by real remorse for your actions. The assessing officer on the community corrections order also indicated your expression of remorse to him.
36 I do not consider that the sentence in this case should be much mitigated for the fact that you were 24 at the time of your offending. You had been working full time for a number of years in various roles and you were also, at the time of the offending, a father and partner in a committed relationship.
37 Whilst I do not consider that your offending was the result of the rash decisions of you, I do consider that your relatively young age presents you with good opportunities to rehabilitate. That is, to not commit further offences in the future and to return to being a productive member of your community.
38 Your work record, the prosocial supports available to you, the fact that you have no drug, alcohol, or mental health issues, and your commitment to parenting all impressed me that you have very good prospects for your rehabilitation.
39 I also take into account the sentence that I am about to impose will be your first time in custody. It is likely that you will be required to isolate and comply with other COVID prevention measures upon entering custody. As COVID numbers rise in the current wave, there may be restrictions on visits, courses, movements around the prison, work opportunities and you may be forced to spend prolonged periods in your cell. I will take these matters into account in the sentence I impose.
40 The CCO assessment report is favourable. You were assessed as only low risk of reoffending, and it is apparent that in the assessment you took responsibility for your offending and you expressed insight into your wrongdoing. The report considers that the CCO imposed should run for not less than 18 months to ensure that there is sufficient time for you to undertake offender reduction programs.
41 Taking into account the length of the CCO proposed by Corrections, the conditions that Corrections proposes and all of the factors raised on your behalf in mitigation, I have decided to reduce the period of imprisonment considerably.
42 Before I do that, Mr Harris, I need to ensure that you understand the conditions of the CCO and the consequences of breaching it, so I am going to ask you a number of questions. There is no need to stand up at the moment; I am happy to take your answers from where you sit.
43 Attendant to every CCO imposed by a court in this state are a number of general conditions, and I am going to read those conditions to you. I am going to ask you if you understand those conditions, all right?
44 The first is that you must not commit another offence for which you could be imprisoned during the time that the order is in force. An offence punishable by imprisonment can be theft; it can be stealing a chocolate bar from a service station, is an offence punishable by imprisonment even though that is the unlikely outcome of the offence. Do you understand what that means?
45 OFFENDER: I understand.
46 HIS HONOUR: Thank you. You must comply with any obligation or requirement prescribed by the regulations imposed under the Sentencing Act. They are regulations to ensure that you comply with the community corrections order. Do you understand that you must comply with all rules and regulations to do with the order?
47 OFFENDER: Yes, I do.
48 HIS HONOUR: Thank you. You must report to and receive visits from the Office of Corrections. That is, you must report to the Office of Corrections, and they can come and visit you at your home. Do you understand that?
49 OFFENDER: Yeah.
50 HIS HONOUR: You must report to the Community Corrections Centre at Warrnambool within two clear days of the order commencing, which will be within two clear days of your release from prison. Do you understand that?
51 OFFENDER: Yes.
52 HIS HONOUR: You must let Community Corrections know within two clear days if you change your address or your job. Do you understand that?
53 OFFENDER: Yes.
54 HIS HONOUR: You must not leave Victoria without first getting the permission of the Office of Corrections. Do you understand that?
55 OFFENDER: Yes, I do.
56 HIS HONOUR: And you must obey all lawful instructions given to you by the Office of Corrections. Do you understand that?
57 OFFENDER: Yes.
58 HIS HONOUR: In addition to those general conditions, I propose two further conditions and I have got to explain both of them. The first is that you will be under the supervision of a community corrections order for the period of the order which I propose to be 18 months. Do you understand that?
59 OFFENDER: Yeah.
60 HIS HONOUR: All right. The second is that you must participate in programs or courses that address factors relating to offenders. They are called the offender reduction programs, for which you will be assessed by the Office of Corrections and that could include matters such as men's behaviour change and it could even include a sex offender reduction program. Do you understand the types of programs that you may be asked to undertake?
61 OFFENDER: Yes, I do.
62 HIS HONOUR: I take it from the report you have already been advised that one of the courses that you may be asked to undertake, or required to undertake could require travel to Melbourne. Are you in a position to do so?
63 OFFENDER: Yeah.
64 HIS HONOUR: Thank you. They are the conditions. There are two further things that I must tell you, and that is that you can breach the community corrections order in one of two ways and there are significant consequences for breaching the order. The first is by committing a further criminal offence during the course of the order, and the second is by not complying with the order; that is, either not completing the programs without a satisfactory explanation or by not submitting to supervision. Do you understand how it is that you can breach the order?
65 OFFENDER: Yes, I do.
66 HIS HONOUR: The consequences of breaching the order are that you will be brought back for sentence before me, and I have the power to re-sentence you on the original offences; that is, the two counts of sexual assault and you can also be charged with a further separate offence of contravening a community corrections order. A breach of the order by either committing further offences or non-compliance in leading to re-sentence could expose you to a period of imprisonment. Do you understand that?
67 OFFENDER: Yes.
68 HIS HONOUR: In those circumstances, and knowing the conditions of the order and the consequences of breaching the order, Mr Harris, I ask you, are you prepared to undergo a community corrections order?
69 OFFENDER: Yes.
70 HIS HONOUR: Thank you. The orders I make then are as follows. On Charge 1, a charge of sexual assault, you are convicted and sentenced to a sentence of three months' imprisonment.
71 On Charge 2, a charge of sexual assault, you are convicted and sentenced to one month imprisonment. Those terms run concurrently. The total effective sentence is three months' imprisonment.
72 On both charges I then order that at the expiration of the sentence of three months you undertake a community corrections order for a period of 18 months. The order commences upon the completion of the period of imprisonment. You must attend at the Warrnambool Community Corrections Centre within two clear working days of completion of the period of imprisonment.
73 In addition to the mandatory terms that I have read to you, I order that you be under the supervision of the Community Corrections officer for a period of
18 months and that you must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager. They are the orders.
74 The 6AAA declaration is that but for the plea of guilty I would have sentenced you to a period of 14 months' imprisonment on the two charges. There is no pre-sentence detention. Just bear with me.
75 Mr Harris, I'm going to provide to you a copy of the community corrections order. I just need that order signed.
76 Any other matters, Mr Pirrie?
77 MR PIRRIE: No, Your Honour.
78 HIS HONOUR: Ms Savage?
79 MS SAVAGE: No.
80 HIS HONOUR: Thank you. I'll stand down.
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