Director of Public Prosecutions v Hart

[2025] VCC 1009

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

  Not Restricted

Suitable for Publication

Case No. CR-24-01651

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL HART

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2025
DATE OF SENTENCE:	16 July 2025
CASE MAY BE CITED AS:	DPP v Hart
MEDIUM NEUTRAL CITATION:	[2025] VCC 1009

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing.

Catchwords:              Plea of guilty – Sexual assault – Prior criminal history – Verdins – Complex psychological profile – Reasonable prospects of rehabilitation – Serious offender.

Legislation Cited:      Crimes Act 1958 s 40(1); Sentencing Act 1991 ss 6AAA, 6D, 6E, 6F, 18 44.

Cases Cited:

Sentence:                  Imprisonment for a period of 391 days with a Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Teo (Plea) Mr A Taghar (Sentence)	Office of Public Prosecutions
For the Accused	Mr J Blackley (Plea) Ms S Gaunt (Sentence)	SLKQ Lawyers

HIS HONOUR:

Introduction

1Daniel Hart you have pleaded guilty to three charges of sexual assault contrary to s 40(1) of the Crimes Act 1958 (‘Crimes Act’), as amended by the Crimes Amendment (Sexual Offences Act) 2016 which carries a maximum penalty of 10 years imprisonment.

2You have also admitted your Criminal Record. 

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of the offending you were 45 years of age.

5The victim in this matter, who usually resides in Queensland, was 52 years of age. He arrived in Victoria in March 2024 to visit family. He battles with alcohol addiction and every few months he binge drinks for a few days at a time.

6A few days prior to this offending you met the victim outside an Aldi supermarket in Springvale South and had a general conversation.

7On Friday 10 May 2024, the victim attended the Springvale Plaza again. He attended Springvale Plaza Cellars, purchased two 750ml bottles of Trivoski Vodka and placed them in his backpack. He also attended 'Hoi An Village' and had dinner. You sat with the victim at his table for approximately half an hour. You engaged in conversation, but the victim cannot recall what you spoke about. The victim left the restaurant alone.

8The victim then sat on the ground next to a pharmacy in Heatherton Road, Springvale South, drinking the vodka he purchased. He does not recall how long he was drinking for or how much of the two bottles he consumed. He does not recall drinking or having any other interaction with anyone. The victim has no further recollection of that night.

9At some point, the victim went to sleep in the alcove next to a restaurant. He woke up when it was still dark outside and could not find any of his belongings. By his own account, he was still drunk but able to walk. He left the area and arrived home around midnight on 12 May 2024. The victim’s movements between the time he left the Springvale Plaza and arriving home are unclear.

10When the victim arrived home, he told his parents, Ken and Linda Nicholson, that his belongings were missing. He returned to the area and attempted to search for his things. He also approached the pharmacy nearby to where he had slept to ask whether CCTV footage might show what happened to his belongings.

11At 5:25pm on Sunday 12 May 2024, the victim attended the Springvale Police Station and made a report to First Constable Carlyon in relation to his belongings being stolen.

12On Wednesday 15 May 2024, First Constable Carlyon attended the pharmacy to review CCTV footage in relation to the victim's report.

13The CCTV footage showed you committing sexual acts on the victim while he appeared extremely intoxicated. First Constable Carlyon notified Dandenong SOCIT of the incident.

Summary of the CCTV Footage

14The CCTV of the incident that depicts the offending conduct was tendered on the plea. The prosecution opening provides a detailed summary of the CCTV footage which I will not reproduce in these reasons for sentence. The footage covers a timeframe between approximately 10:42pm till approximately 7:44am the next day. The offending in relation to Charges 1 and 2 occurs at approximately 11:45pm. In relation to Charge 3, once you had left and then returned to where the victim was sleeping, the offending occurs at approximately 12:46am.

15In relation to Charge 1, at approximately 11:45pm you placed your right hand on the victim's penis and fondle it for about 15 seconds, over his shorts. The victim's eyes are closed for the duration of this and he does not react in any way. Eventually, the victim raises his hand and says something to you. He then lays his head back down and you continue fondling his penis.

16At approximately 11:46pm, you lay down next to the victim's legs, pull his shorts partially down and put your mouth on the victim’s penis giving rise to Charge 2. The victim draws his left leg towards himself and puts his left hand up towards you. You say something to him and then you put your mouth on the victim’s penis. The victim then lays his head back down. These interactions continued for about 50 seconds.

17At approximately 12:46am, you return to the alcove with a blanket. You place the blanket down, lay down in between the victim’s legs and push him to the stomach area, causing him to fall backwards. You place your mouth on the victim’s penis while the victim struggles to push himself back up giving rise to Charge 3. The victim appears to push your shoulder and eventually rolls over onto his side. You continue to place your mouth on the victim’s penis until he pushes your head away with his right hand. The victim then curls his legs up towards his stomach.

18Between this time and approximately 7:26am, the victim continues trying to sleep on the ground. He tosses and turns throughout, has some more of the alcohol and stumbles to the nearby bushes to urinate. You return a number of times but there is no significant interaction between the two of you.

Complaint, Arrest and Interview

19On 17 May 2024, Detective Acting Sergeant Shaun Matthews attended the victim’s home address. The victim had no recollection of the incident and stated that he did not give anyone permission to perform a sexual act on him and that he would not have consented to the act even if he was sober due to his sexual orientation.

20On 20 June 2024, police attended the Springvale Plaza, where they located you. You were arrested and transported to the Dandenong Police Station where you were interviewed.

21You stated ‘no comment’ in response to all questions put to you in the interview.

Nature and gravity of offending

22Sexual assault is an offence carrying a maximum penalty of 10 years imprisonment thereby reflecting the inherent seriousness of the charge. In this instance the three offences to which you have pleaded guilty occurred over approximately one hour commencing in the evening of 10 May 2024 (Charges 1 and 2) extending into 11 May 2024 (Charge 3). The complainant was sleeping rough and was extremely intoxicated – so much so that he has no memory of the incident. The evidence relied on to establish the charges is CCTV footage which clearly captures your conduct.

23It was submitted on your behalf that your offending was spontaneous and opportunistic, and without violence, threats or coercion. While I accept that characterisation of your conduct, the victim was particularly vulnerable due to his level of intoxication and it is clear from the footage, that he was unable to resist your advances. While on your own admission you had consumed methamphetamine and alcohol and were also intoxicated, in my view the CCTV depicts your actions as purposeful and deliberate.

24In the circumstances in my view your offending falls towards the mid range of offences of this nature.

Personal circumstances

25You are now 46 years old, you were 45 at the time of offending.

26You were born in Aotearoa, New Zealand and have resided in Australia for most of your adult life.

27Your parents separated shortly after you were born and your mother experienced significant post-natal depression. She was unable to care for you and you were placed into the care of your grandparents. You returned to your mother’s care when you were approximately six months old and have maintained contact with both of your parents.

28You experienced a turbulent childhood characterised by experiences of sexual abuse and trauma. The details of some specific traumatic events are outlined in the report of neuropsychologist Dr Laura Anderson, dated 9 April 2025 which I have read and taken into account.

29You report that growing up you were ‘socially awkward’ and found it hard to speak to anyone or make friends. You completed mainstream school in New Zealand with no significant academic or behavioural difficulties and commenced stable employment. You were last employed as an events coordinator for a large university in Melbourne which you remained in for several years.

30In your early thirties, you commenced further study to gain qualifications as a counsellor. You report that you were working full-time at the same time as completing your studies, which contributed to compounding stress. You identify that this period of stress was a catalyst for a significant deterioration in your mental health. You began engaging in maladaptive coping behaviours, such as excessive alcohol consumption, illicit drug use and attending ‘gay saunas’ to pursue extra-marital homosexual relationships. You were introduced to methamphetamine and commenced using ‘meth’ daily.

31Prior to this period you were in a relationship with your ex-wife whom you were with for 17 years and together you share three children. Your relationship deteriorated when you began engaging in extra-marital homosexual interactions and illicit drug use and you moved out of the family home in 2017. You have had limited contact with your children since the breakdown of your marriage. 

32Dr Anderson’s report details that throughout your childhood development you have reported and presented with traits associated with neurodevelopmental divergence, including traits associated with Asperger’s Syndrome, Autism Spectrum Disorder (ASD), and Attention Deficit Hyperactivity Disorder (ADHD). Dr Anderson opines that your adverse childhood experiences, namely experiencing multiple forms of childhood sexual abuse, further complicated your neurodevelopmental trajectory. Dr Anderson states that from a mental health perspective you demonstrate clinically significant levels of anxiety, stress and depression.  

33From a cognitive perspective, Dr Anderson explains that you have experienced a considerable decline in your cognitive functioning when compared to your pre-morbid level of functioning most likely attributed to two hypoxic episodes of drug overdose. Dr Anderson asserts that a deterioration of this nature would be extremely functionally disabling.

34Your current profile is also consistent with patterns of cognitive deterioration often demonstrated by individuals demonstrating enduring psychotic presentations. Your ten-year history of significant substance use has further coincided with the emergence of significant ongoing psychotic symptomology, and significant multifaceted psychosocial and behavioural dysfunction. Dr Anderson opines that your psychotic symptomology is attributable to ongoing episodes of drug induced psychosis or an underlying mental illness, such as schizophrenia or schizoaffective disorder.

35You are a recipient of NDIS funding in relation to your schizophrenia diagnosis and are prescribed depot injections to deal with your symptoms. You have been receiving this treatment in custody but are interested in trialling other treatment methods.

36A letter was tendered from Lauren Hyde of the Bridge Centre which is a group whose purpose is to provide support to men who are released from prison. The letter confirms that the Bridge Centre will provide you with a post release worker to assist you with housing and mental health support.

Sentencing considerations

37I first take into account your plea of guilty. This matter was listed for trial to commence on 30 July 2025. Nonetheless the history of the matter demonstrates that there have been ongoing discussions with a view to resolution. Ultimately the matter resolved following a sentence indication before me. While the plea is not early, it has still saved the court the time and expense of a trial. I also note that the matter proceeded to this court by way of straight hand up brief and as such no witnesses have been cross examined. As such your plea has advanced the course of justice for which you are entitled to a sentencing discount.

38It was submitted on your behalf that Verdins principles 1, 2, 3 and 4 are enlivened. While I accept the evidence of Dr Anderson that at the time of the offending your cognitive dysfunction was ‘at or above the low average range’ she states that it is beyond her expertise to opine whether or not you were experiencing any acute psychological symptoms.  I also note that on your own admission, at the time of the offending you were intoxicated having recently used methamphetamine and alcohol. On that point, Dr Anderson is of the view that your intoxication level indicates that it is highly likely you were experiencing ‘psychotic symptoms’ at the time of the offending. In the circumstances the evidence is that your conduct was influenced by your level of self induced intoxication, and while I accept that you also have developed a degree of cognitive dysfunction over recent years,  I am not satisfied that the evidence supports a causal or realistic link between your psychological condition and the offending. Nonetheless I do take into account as part of your personal circumstances, your complex psychological profile including that you suffer anxiety, stress and depression.  

39Turning to your prospects of rehabilitation. I note that while you have a relevant criminal history that includes a number of family violence related offences, you do not have any prior convictions for sexual offending. Clearly you have a number of mental health issues to contend with, together with a long term drug and alcohol addiction. However, I note that you have acknowledged to mental health practitioners that at the time of this offending your substance and alcohol use negatively impacted your judgement. You will require structured support and supervision on your release from custody and if you embrace the supports that will be offered to you in my view your prospects can be assessed as reasonable.

40General deterrence and denunciation of your conduct are prominent sentencing considerations in this instance. You sexually assaulted a person on the street who was extremely intoxicated and therefore extremely vulnerable. Your conduct must be denounced in the strongest of terms. As to specific deterrence while you have no priors for offending of this nature you nonetheless have a significant criminal history and specific deterrence still must carry some weight in the sentencing discretion.

41Pursuant to s 6F of the Sentencing Act 1991 (‘Sentencing Act’), you fall to be sentenced as a serious offender. As such, any sentence of imprisonment imposed on the charges you have pleaded guilty to attracts a presumption of cumulation pursuant s 6E, requiring the court to consider protection of the community as the principal sentencing purpose, pursuant to s 6D. However, the prosecution does not seek a disproportionate sentence to achieve these ends, and the overarching principle of totality therefore continues to apply.

42You have served just over 12 months in custody as a result of this offending and it was submitted on your behalf that a combination sentence pursuant to s 44 of the Sentencing Act is an appropriate disposition. The prosecution submitted that in all the circumstances a combination sentence is within the sentencing range.

43I had you assessed for a community correction order and you have been found suitable. In my view in the circumstances a combination sentence is able to meet the applicable sentencing considerations.

Sentence

44Mr Hart would you please stand.

45Daniel Hart, on Charges 1, 2 and 3, sexual assault, you are convicted on each charge and sentenced to 391 days imprisonment as the prison component of a combination sentence pursuant to s 44 of the Sentencing Act.

46In addition to the term of imprisonment, upon your release you will be placed on a community correction order for a period of 2 years. While all community correction orders are punitive in nature, in addition to the standard conditions, you will be subject to treatment and rehabilitation conditions in relation to drug use, alcohol use, mental health and programs to reduce reoffending. You will also be subject to supervision for the period of the order.

47Pursuant to s 18 of the Sentencing Act, I declare that 391 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

48Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 2 years and 6 months imprisonment with a non parole period of 1 year and 6 months.