Director of Public Prosecutions v Hulten

[2014] VCC 1790

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00966

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOAKIM HULTEN

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2014
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	DPP v Hulten
MEDIUM NEUTRAL CITATION:	[2014] VCC 1790

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP (Plea)	Ms A. Moran	The Office of Public Prosecutions
(Sentence)	Ms F. Coppini
For the Accused (Plea)	Mr J. Kelly	Victoria Legal Aid
(Sentence)	Ms T. Kenny

HIS HONOUR:

1Mr Hulten, you have pleaded guilty to one charge of common law assault.  You are currently 42 years old.  At the time of the offence in question you were aged 40.

2At the time you were living in a rented home.  Relatively nearby, the complainant's family lived. You had been neighbours for approximately 18 months.

3The complainant was a regular visitor to your home, which you shared with your partner, and on regular occasions with your children.  You had become friendly with the complainant and other members of her family.

4On 19 April 2013, you, the complainant and a friend of hers had spent time riding motorbikes owned by you on the property.  Later, whilst the two of you were on your own, you had ridden as a pillion passenger on a motorbike driven by the complainant.  The summary of the offence, as contained in the prosecutor's plea opening, reads as follows:

"Later on the complainant rode back to the house with the accused behind her on a motorcycle.  Whilst behind her on the bike the accused briefly touched the complainant's chest area.  The complainant rode quickly to the accused's home, got off the motorbike and went home."

5The elements of the offence of common law assault are as follows; they are threefold.  Firstly, there has to be an application of force to the complainant's body.  Secondly, that the application of that force was intentional or reckless, and thirdly, the application of that force was without lawful justification or excuse.

6Your plea of guilty to the offence involves an admission that those three elements constituting the offence are satisfied.  With regard to the second of those elements, that is that the application of force was intentional or reckless, counsel for the Director of Public Prosecutions submitted that your plea

amounted to an admission that your application of force had been, at least reckless, in the sense that it was reckless as to the outcome of that conduct.

7Here, the reference in the prosecution summary was a contact to the complainant's chest area.  The complainant was a teenage girl.  She was riding a motorbike at the time and in a position where she could little about where you had touched her.  To take one or both of her hands off the handlebars of the motorbike would have been plainly dangerous.  A pillion passenger would normally be expected to take hold of the rider's waist.  It would not be anticipated that this would involve any touching of the area of a female's chest, or in the vicinity of her breasts.

8Your plea of guilty to the offence makes it clear that you do not suggest that such contact was accidental or inadvertent.  It was either deliberate, or at the very least, reckless.  In that sense such conduct was carried out in the knowledge that it would probably result in force being applied to that part of the complainant's body.  Such recklessness would necessarily involve a disregard, on your part, of the foreseen, probable consequences of your conduct.

9I have taken into account the provisions of s.5 of the Sentencing Act 1991, and in particular the provisions of s.5(1), setting out the purposes for which sentences may be imposed, and sub-section 2, setting out the matters which I am obliged to have regard to. I shall not repeat either of those sub-sections in full here.

10I have come to the conclusion that the nature and gravity of your offence is towards the lower end of assaults.

11No physical injury was suffered by the complainant.  However, clearly non-physical consequences were suffered by her.  There was a victim impact statement tendered on her behalf, which makes that clear.

12You have got no prior convictions, and as such, I should assume that your previous character was good.

13There was a victim impact statement from both the complainant and her mother, and it was plain from the complainant's statement that she was extremely upset by your conduct.  In it, she describes her loss of trust in persons, her anxiety and her depression, and difficulties at school.  She and her family moved away from the area soon after your offence to live in a different locality.

14Your counsel submitted to me that there was some tension between the facts alleged by the prosecution, to which you have agreed were accurate and the apparent response of the complainant and her mother, as outlined in their statements.  It may well be the case that the complainant had assumed that your conduct was of a far more serious and indecent nature.

15In sentencing you, I am required to accept the prosecution's summary to which you have agreed, and I do sentence you on that basis.

16Notwithstanding that this is not a charge involving any indecent assault, it is a charge that involves an admission on your part that you acted, in the least, recklessly in allowing your hand or hands to touch the complainant's chest area.  On any view, the chest area of a female must have been seen or appreciated to be at, or at the very least, very close to her breasts.  It was obviously foreseeable that such actions might well result in extreme upset on her part.

17Your counsel submitted to me that it would be appropriate to dismiss the charge pursuant to s.76 of the Sentencing Act.  I have reached the conclusion that it would be inappropriate to do so.  Your actions were not inadvertent or accidental.  They were, at the very least, reckless and the related to a vulnerable girl.  I use the expression vulnerable having regard to her age and the fact that she was in the process of riding and attempting to control a motorbike and in no position to move away from you.  It is not difficult to see how she would have been alarmed and fearful.

18In all the circumstances, I have concluded that it is appropriate that you be convicted of the offence of common law assault and I impose a fine of $1,000.  In respect of that fine, I have specifically noted that although you have a good work record, you have been out of work for some time following an injury to your shoulder.  Initially, you were in receipt of WorkCover benefits, but these have been terminated now for some time.  You have unsuccessfully attempted to find work and the reality is that you are probably going to be restricted to light duties.

19I have taken into account that your financial position is not strong, although there was no evidence put before me as to what money or assets you do have at your disposal.  Accordingly, you will be convicted and fined the sum of $1,000.

20Now are there other ancillary orders that are sought in this matter?

21MS COPPINI:  No, Your Honour, there were not.

22HIS HONOUR:  Any other matters?

23MS KENNY:  Just in relation to payment of the fine, Your Honour.  I have sought instructions if Your Honour's minded to make an instalment order.

24HIS HONOUR:  What is the financial position of Mr Hulten?

25MS KENNY:  He is in receipt of the NewStart Allowance and he says he receives about $1,500 per fortnight.

26HIS HONOUR:  Approximately $1,500 per fortnight?

27MS KENNY:  Yes, and the rent is approximately $1,000 per fortnight.

28HIS HONOUR:  Yes.

29MS KENNY:  So he instructs that he could pay instalments monthly of about $50.

30HIS HONOUR:  Fifty dollars per?

31MS KENNY:  Month.

32HIS HONOUR:  Who's he residing with at the present time?

33MS KENNY:  His partner and their children.

34HIS HONOUR:  Is the partner employed?

35MS KENNY:  No, she's in receipt of the NewStart pension also.

36HIS HONOUR:  Does she receive an amount approximately equivalent to his?  About 1,500?

37MS KENNY:  I believe she receives $450 per fortnight, Your Honour.

38HIS HONOUR:  Four hundred and fifty dollars?

39MS KENNY:  Yes.

40HIS HONOUR:  So you seek a specific order that the fine be paid by instalments of $50 per calendar month?

41MS KENNY:  Yes, Your Honour.

42HIS HONOUR:  Commencing, presumably on 1 December?

43MS KENNY:  Yes, Your Honour.

44HIS HONOUR:  All right.  Just let me hear from Ms Coppini.  Do you have anything to say about that Ms Coppini?

45MS COPPINI:  Your Honour, the prosecution has nothing to say about how the fine is paid.

46HIS HONOUR:  Well I will make an order in those terms, Ms Kenny, that the fine be paid by instalments of $50 per calendar month commencing 1 December 2014.

47MS KENNY:  As Your Honour pleases.

48HIS HONOUR:  Anything else?

49MS KENNY:  No, Your Honour.

50HIS HONOUR:  All right, thank you.

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