Director of Public Prosecutions v Hayden (a pseudonym)

[2022] VCC 772

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL HAYDEN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2022
DATE OF SENTENCE:	26 May 2022
CASE MAY BE CITED AS:	DPP v Hayden (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 772

REASONS FOR SENTENCE

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Subject:Trial - sentencing

Catchwords:          Sexual assault

Legislation Cited: 

Cases Cited:

Sentence:$3000 fine without conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Mario Vaccaro

HIS HONOUR: 

1Russell Hayden[1], you were found guilty by a jury on Charge 6 of an eight-charge indictment of the offence of sexual assault contrary to s40(1) of the Crimes Act (Vic) 1958, which carries a maximum term of imprisonment of 10 years.  I note that the jury found you not guilty of each of the other seven offences which were of a much more serious nature and I do not draw any inferences against you as to those alleged offences. 

[1]Russell Hayden is a pseudonym

2The history of the relationship is of some relevance.  This offence occurred towards the very end of the relationship which had by then become somewhat fractured.  It disintegrated about three weeks later with a good deal of acrimony ongoing for some considerable time.  I have to see this offence in the context of the stage of the relationship that had been reached. 

3I have no doubt at all that there was a good deal of alcohol involved and it is in that context that this offence occurred.  However this was, as Mr O'Doherty points out, conduct that was intended to insult, disrespect, embarrass and humiliate your then partner.  It took place at the tail end of the relationship, in a pub, in front of a number of other people, some of whom were known to you and your former partner (including an employee of the business you were still running), and other people who were not previously known to you or your partner.  It seems to me that it was motivated by that intention to humiliate and the various other intentions that Mr O'Doherty spoke of.  No doubt it led to the result that you intended.

4Even though the motivation might not have been sexual, the jury found that your conduct had a sexual connotation.  Therefore, I have to sentence you for this particular offence. 

5As to precisely what happened, you made a number of admissions between Questions 446 and 503 in the interview. It seemed to me that you were being deliberately evasive and whilst the admissions went so far, they did not clearly admit what I find occurred, namely that you deliberately exposed one or more of the breasts of your former partner in front of a number of other patrons of the hotel. 

6I am satisfied that that occurred substantially as the complainant described it.  I am satisfied of those facts beyond reasonable doubt.  I therefore proceed to sentence on that basis.

7I take into account of course that you have now reached the age of 45 years and that you have a clean criminal record.  You are in a de facto relationship, and have been for some years now, which seems to be ongoing and happy.  Your prospects of rehabilitation appear to be good.

8There was an arrogance about your conduct, and indeed an arrogance about the way in which you described the events in the interview, which is concerning in terms of whether you might offend again in a similar way in similar circumstances.  But I am told that you have cut down on your alcohol intake and I have no reason to doubt that although there is no admissible evidence before me. 

9I am inclined to give you the benefit of the doubt and to regard you as a person with excellent prospects of rehabilitation.  You are well able to work, you are working and it is to be hoped that that will continue. 

10I was concerned as to whether or not it was appropriate to impose a conviction.  There are arguments both ways.  However, your counsel has urged me to take the view that your future may be affected by imposing a conviction, particularly your capacity to work.  Looking at the nature of this particular offending, the risks of a repeat and given what you have been through in the last few years, defending not just this charge but the other seven charges on the indictment, I am inclined to think that you have learnt your lesson and that it is appropriate to proceed without convicting you. 

11I note that the Crown has urged me to impose a community correction order.  I see no good reason to do that.  I think that you are well on the path to rehabilitation without a requirement for an order that involves rehabilitative programs.  To the extent that it would impose a burden of unpaid community work upon you, I think it is more likely to interfere with your capacity to work than to produce any good result.

12In the circumstances, I am persuaded that I can deal with this matter by way of a fine.  Even though it is an unusual circumstance in which a sexual offence has been found to have been committed, it is a serious offence and I have to take into account the fact that the maximum term of imprisonment is 10 years.  I understand the argument of the Crown but I think, in all the circumstances, the justice of this case can be met by way of a fine.

13Russell Hayden, on the offence of sexual assault for which you were found guilty by the jury, you are fined $3000 and I decline to order a conviction.  Are there any other matters?

14MR O'DOHERTY:  No, Your Honour.  

15MR KOZLOWSKI:  No, Your Honour.  

16HIS HONOUR:  Thank you. 

17MR KOZLOWSKI:  I think he gets a letter from Fines Victoria.

18HIS HONOUR:  I think the draft order that I have kindly been given by my associate suggests that it would be open to me to grant a stay ‑ ‑ ‑ 

19MR KOZLOWSKI:  Yes.

20HIS HONOUR:  ‑ ‑ ‑ and I am inclined to do that if you apply for one.

21MR KOZLOWSKI:  I will seek a stay, Your Honour.  Can I just briefly - I can do this on the video link - just to ask my client if six months would be sufficient for him?  Because that's what I'm inclined to ask for.

22OFFENDER:  That would be fine, Martin.

23MR KOZLOWSKI:  Yes, I will seek six months, Your Honour.

24HIS HONOUR:  Yes, all right.  Well, I will grant him six months.  What is the date in six months' time?  25 November.  All right. 

25So I order that you pay a fine of $3000.  The amount outstanding is to be paid to the Registrar of the County Court and I grant a stay until 25 November 2022.  If the fine is not paid to the Registrar of the County Court or by the end of that period, the fine will be referred to the Director, Fines Victoria for collection and management under the Fines Reform Act 2014 and the Director may collect and manage the fine as determined by the Director under that Act including by way of payment arrangement on terms proposed by the Director.

26Well, I think that completes the sentencing.  Close the court please.

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