Director of Public Prosecutions v Henderson
[2012] VCC 888
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-00956
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN HENDERSON |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2012 | |
DATE OF SENTENCE: | 4 September 2012 | |
CASE MAY BE CITED AS: | DPP v Henderson | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 888 | |
REASONS FOR SENTENCE
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Catchwords: Plea – sentencing - indecent assault
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Slim | Office of Public Prosecutions |
| For the Accused | Ms I. Bolger | Balmer & Associates |
HIS HONOUR:
1 Brian Henderson, you have pleaded guilty to one charge of indecent assault. This offence carries a maximum penalty of ten years’ imprisonment.
2 You are now 48, having been born on 7 October 1963. At the time of the offending you were aged 45.
3 You have no particularly relevant prior convictions, with one appearance before the Magistrates' Court in 2002 without conviction for recklessly cause injury and one conviction and fine for indecent language and drunk in a public place in 1995.
4 The circumstances of your offending on this occasion are as follows.
5 The victim, her boyfriend and another friend of hers were invited by you for dinner at your home in St Kilda on 11 March 2009. At the time you were a friend of the victim's boyfriend. You and the others were drinking alcohol throughout the night. After dinner you all smoked cannabis. On the evidence it was principally you and the victim's boyfriend who had most of the cannabis.
6 The victim eventually fell asleep on the couch some time after 2am in the early hours of the morning. She later awoke on the floor with her underwear down below her knees and her skirt around her waist. She felt you licking her vagina. She kicked up with her leg and yelled, "What the fuck are you doing" before gathering her clothing and running out of your apartment. The victim was very distressed and after contacting her friends, reported the incident to police later that evening.
7 In a subsequent telephone conversation between you and the victim which was recorded by police, you admitted that you had been drunk and apologised and said you were ashamed. Because of your subsequent plea of guilty to this matter, I do not accept your further assertions made at the time of the call that you could not remember or know what you were doing.
8 The victim was medically examined on 13 March 2009 at the Monash Hospital and there were no injuries. The police interviewed you on 20 March 2009 at which time you made a “no comment” interview.
9 A contest committal proceeding was heard on 1 and 2 June 2010 and the matter first came to trial before His Honour Judge Hicks in December last year on the single court of rape. After pre-trial argument and a ruling excluding the admission into evidence at trial of a pretext telephone call between you and the victim, the trial was adjourned to be heard in 2012.
10 The matter came before me yesterday, and after some further discussion resolved to a plea of guilty to the present charge. A plea in mitigation was made this morning.
11 Your personal circumstances may be briefly stated for the purposes of this sentence.
12 As I noted earlier, you are now aged 48. You have been fully employed in various capacities since arriving in Australia at around the age of 18. You have worked principally as a sound engineer, but later in construction and most recently as a shipwright. You are currently employed on light duties as a shipwright with a company constructing naval vessels in Williamstown. The lighter duties have come about as a result of damage or deterioration to your hand tendons.
13 You have one child, a son, now approximately 21, from an earlier de facto relationship. Otherwise you have not been in a close relationship for many years and live alone. No others in your family have been in any trouble with the criminal law.
14 Indecent assault is a serious offence which is reflected in the penalty imposed by Parliament, and this is a relatively serious example of that offence. Your act was predatory and perpetrated on a young woman when she was asleep and at her most vulnerable. She was fully exposed, her boyfriend was nearby and your act was of the most deeply intimate. It amounted to a gross violation of her basic freedom of choice. The emotional effects of this on the victim are well documented in the victim impact statement tendered.
15 I accept your plea of guilty as an indication of your remorse. You have spared the complainant the anxiety and stress of having to give evidence, and the community the cost of engaging in a contested trial. It was also entered in circumstances where it is likely that you are still unclear of all the precise circumstances that led to the incident because of your intoxication at the time through a combination of alcohol and marijuana.
16 I regard the entry of the plea of guilty in those circumstances as a significant indication of your otherwise good character and genuine remorse. Furthermore, by your plea of guilty you have afforded the victim some dignity by your public acknowledgement of her violation. In my experience, that is also a significant step for the emotional recovery of the victim. I also accept that you had a legitimate forensic reason to engage in the committal proceedings.
17 You have no, as I say, particularly relevant prior convictions and there is independent evidence of your otherwise good character from the statement of referee tendered.
18 At 48 years of age you are approaching middle age and have been of generally good character. You have maintained a good employment record and are still gainfully employed. I accept that had you not been so intoxicated by the combination of alcohol and marijuana, this event would most likely have not occurred. That is not a mitigating factor in the circumstances of this case, however I am satisfied that it caused you to act out of character and that having experienced the process of being publicly charged, prosecuted and sentenced, it is unlikely that you will re-offend in this manner again. Whilst not being completely open with the victim at the time of the pretext call, you nonetheless expressed remorse and shame to her.
19 The offence to which you have pleaded guilty is a registrable offence pursuant to the provisions of the Sex Offenders Registration Act 2004. It is a Class 4 offence and pursuant to s.11 of that Act I have discretion as to whether you are placed on the Sex Offenders Register, should the Crown so apply. I note that the Crown has not so applied.
20 Your counsel submitted that whilst a sentence of imprisonment was not inappropriate given the level of offending, under the circumstances a wholly suspended sentence was the appropriate disposition.
21 The Crown agreed that a sentence of imprisonment was warranted but stated that the way in which it was to be served was a matter for my discretion and that a wholly suspended sentence would not be outside the appropriate sentencing range.
22 In my view the objective gravity of the circumstances of this offence calls for a sentence of imprisonment, principally for the need to give appropriate consideration to principles of denunciation and general deterrence. Because of your personal circumstances and other mitigating factors, I consider that your rehabilitation, specific deterrence and punishment can be achieved without a sentence requiring your immediate confinement.
23 Mr Henderson, would you please stand.
24 I propose to sentence you to a term of imprisonment which I intend to wholly suspend for a period of 15 months. The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next 15 months. If you commit such an offence in that period you will be liable to again attend court, and if necessary that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve that sentence. Do you understand that?
25 PRISONER: Yes Your Honour.
26 HIS HONOUR: On Charge 1 of indecent assault, you are convicted and sentenced to 12 months’ imprisonment.
27 Pursuant to s.27 of the Sentencing Act, I order that the sentence be wholly suspended and I declare that the operational period of the suspended sentence is 15 months.
28 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is 24 months’ imprisonment with a non-parole period of 18 months.
29 Is there anything else from either counsel?
30 MR SLIM: No Your Honour.
31 HIS HONOUR: You may be seated Mr Henderson.
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