Director of Public Prosecutions v James

[2023] VCC 2263

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00531

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON JAMES

---

JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2023
DATE OF SENTENCE:	9 November 2023
CASE MAY BE CITED AS:	DPP v James
MEDIUM NEUTRAL CITATION:	[2023] VCC 2263

REASONS FOR SENTENCE
---

Subject:Criminal Law – SENTENCING

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins & Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Boulton v DPP [2014] VSCA 342

Sentence:                  Total Effective Sentence 14 months’ imprisonment and a 12-month Community Correction Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Gray	Office of Public Prosecutions
For the Offender	Mr W. Barker	Tyler Tipping & Woods

HER HONOUR:

1Jason James, you have pleaded guilty to:

·        1 charge of sexual assault which carries a maximum penalty of 10 years' imprisonment.[1]

[1]Crimes Act 1958 (Vic) s40 (‘Crimes Act’).

Circumstances of Offending

2The circumstances of your offending are set out in the summary of prosecution opening for plea dated 5 September 2023, the accuracy of which you accepted through your counsel.  

3On Saturday 5 November 2022 at approximately 12:39am the victim, who was significantly drug affected, was outside the loading bay of St Vincent's opportunity shop on Graham Street, Wonthaggi.

4The victim began rummaging through the skip bin outside the shop before passing out inside the bin.

5At approximately 1:33 am, a passer-by, Mr Klippel, discovered the victim laying semi-conscious in the bin. He attempted to rouse the victim however she was only able to respond to him with a murmuring sound.

6Unable to further rouse the victim, Mr Klippel left and walked further along Graham Street where he encountered you. Mr Klippel told you about finding the victim in the skip bin nearby.

7At approximately 2:09am, you and Mr Klippel went back to the skip bin where you tried unsuccessfully to further rouse the victim. You remarked to Mr Klippel, '[s]he looks like she's on the needle, not the shard, as she's asleep'.

8Unable to wake the victim, you and Mr Klippel parted ways and Mr Klippel returned to his accommodation.

9You returned to the skip bin at approximately 2:34am where you reached into the bin and began touching the victim's body.

10You then climbed into the bin with the victim, unbelted your pants and removed the victim's pants and underwear. Both yours and the victim's pelvic areas were not clothed.

11Whilst lying on top of the victim, between her legs you began thrusting your body against the victim's This forms the basis of the charge, to which you pleaded guilty, of sexual assault.

12At approximately 3:02am, Mr Klippel returned to the skip bin to check on the victim. He saw you lying on top of the victim thrusting your pelvis against her. He asked you, '[w]hat the fuck are you doing?'. You did not respond to Mr Klippel but gave him an angry look. Mr Klippel could not see the victim move and she did not say anything or make any sounds.

13Mr Klippel then left the scene and later reported the matter to police.

14At approximately 3:13am, a witness, Ms Peters, was walking home and stopped at the rear of the St Vincent's shop to use the light from a streetlamp to look through her bag for her phone.

15You startled Ms Peters when you looked over the top of the bin and asked her '[w]hat are you doing here?' in an aggressive tone. The victim also briefly raised her head up over the top of the bin. Ms Peters later said to police that the victim seemed drowsy and '[k]ind of out of it.

16Afraid by your aggressive tone, Ms Peters immediately left the area.

17You and the victim exited the bin shortly thereafter and you walked together along Hefford Lane before parting ways.

18After Mr Klippel had reported his concerns to the police, at approximately 3:45 am, police attended the rear of the St Vincent's shop and took a statement from him.

19Ms Peters also made a statement to police later that day and said that she had seen a male and a female inside the bin earlier that morning but had not seen them having sex.

20Mr Klippel contacted police again later that morning to inform them that he had seen you walking in Wonthaggi.

21Police located you at approximately 6:44am on Murray Street in Wonthaggi. You told police you had been inside the bin with an unknown female but that you did not ask her name and you had not been intimate with her.

22When the victim woke up later that morning, she realised that the material belt she was wearing was in between her legs with her underpants and pants pulled up over the top of it. The victim was sore on her sides and her mascara had run all over her face.

23The victim told her mother and her mother's housemate that she believed she had been sexually assaulted.

24The victim returned to the St Vincent's shop and disclosed to staff there that she believed that she had been sexually assaulted inside one of their skip bins. From there the police were notified and the victim was medically examined.

25On Thursday 17 November 2022, you attended the Morwell police station where you were arrested and interviewed. You gave a 'no comment' interview.

Nature and Gravity of Offending

26Your offending was committed against a vulnerable, intoxicated woman who was asleep or unconscious in the middle of the night in a public location. She was already in a risky situation by virtue of being in this state in a skip bin. While opportunistic and of relatively short duration, you brazenly took advantage of the victim who was previously unknown to you. The fact that you discussed her state with a witness before you acted, shows a degree of premeditation in your actions.

27The gravity of your offending must also be considered in light of the extent of those actions. You took off the victim's pants and underwear, and when discovered, both you and the victim had your pelvic regions exposed. You were seen thrusting on top of her. I consider your offending to be a moderate to high level sexual assault.

28Denunciation, general and specific deterrence are relevant sentencing purposes for this type of offending.

29You were affected by alcohol at the time of your offending, following a dispute with your mother which saw you removed from her home under an intervention order. You had just been released from police custody. This is no excuse at law for your actions.

30You significantly minimised your offending during your assessment with psychologist, Ms Sandra Cokorilo, on 25 September 2023.[2]

[2]Exhibit 1 – Report of Sandra Cokorilo dated 25 September 2023 [32]-[37] (‘Exhibit 1’).

31I have had regard to your personal circumstances, helpfully set out by Mr Barker in his written submissions,[3] and also by Ms Cokorilo in her report. You did not know your father as a child and felt feelings of rejection throughout your life due to his absence, but your childhood was otherwise relatively unremarkable. You successfully completed year 11 at school and subsequently a chef's apprenticeship. You enjoyed a successful career as a chef and in various other roles.

[3]Outline of Plea Submissions on behalf of the Accused dated 27 October 2023.

32Ms Cokorilo chronicles your 'conflict with [your] mother due to issues relating to [your] biological father'[4] and infers that an 'insecure parental attachment' during your upbringing may have impacted your social functioning ability.

[4]Ibid [40].

33While I accept as a general principle that the presence of an 'insecure parental attachment' may result in poor social functioning, you have never been diagnosed with a mental health disorder. I simply do not accept that Ms Cokorilo is able to conclude, based solely on your self-report, that poor parental attachment has played a significant role in the causation of your offending.

34I do, however, accept Ms Cokorilo's recommendation that mandated psychological counselling is necessary to address your poor insight and cognitive distortions.

35You have minor haemophilia but do not otherwise suffer from any physical medical impediments.

36Whilst you were affected by alcohol on the night of this offending, you do not otherwise report problematic use of drugs or alcohol.

37Your counsel does not seek to advance that the principles in either Bugmy[5] or Verdins[6] case have any application in your situation.

[5]Bugmy v The Queen (2013) 249 CLR 571.

[6]R v Verdins & Ors [2007] VSCA 102.

38Now aged 50, without significant diagnosed mental or physical impairments, you have enjoyed consistent employment and stable accommodation throughout life and report a strong friendship network. I accept the prosecutor's submission that your moral culpability is high, and you are an appropriate vehicle for general deterrence.

39The victim has not made a victim impact statement.

40Mr James, you have admitted your prior criminal history.[7] You do not have any prior convictions for sexual offences. You do, however, have three prior convictions for stalking, which resulted in sentences of imprisonment. You have previously been sentenced to community corrections orders which you breached on two occasions. In 2018, you were convicted for driving under the influence of a drug, which I note is contrary to your report of abstinence from drugs since the age of 21. Your priors also include dishonesty and driving offences and behaving in an offensive manner in a public place.

[7]Exhibit A – Criminal History.

41You have spent 357 days on remand which is far longer than your previous stints in custody. You have used your time in custody productively, working in the prison kitchens and working towards completing the 10 modules of the Atlas Remand Program.

42Your time in custody has been spent in prisons for sexual offenders, with the majority of your time in protection units. I accept that this experience is a more onerous one than one spent as a mainstream prisoner.

43Ms Cokorilo describes your offending as an 'isolated instance of misconduct resulting from a combination of poor insight, acute distress and alcohol intoxication, rather than predatory sexual or violent orientation'.[8] She consequently opines that you pose a low risk of sexual recidivism.[9] She further opines that you pose a moderate general risk of reoffending given your relatively limited prior criminal history, but noting your pattern of escalation and the frequency of your offending in the past six years.

[8]Exhibit 1 [53].

[9]Ibid [58].

44While technically you do not have any prior convictions for sexual offending, regard must be had to the broad nature of your conduct in your prior stalking offences. Your past offending displays multiple examples of demonstrations of unrequited and obsessively inappropriate romantic approaches to much younger women, which caused such distress that one victim had to relocate from the district in which she lived. These matters suggest a heightened risk of future offending given that whilst the offending was of a different nature, you have made physical contact with the victim in this case. Given your age and long-standing issues, your prospects of rehabilitation must be properly assessed as guarded.

45For these reasons, the sentencing purposes of community protection and specific deterrence are apposite. Ms Cokorilo's recommendation of ongoing therapeutic intervention is an appropriate intervention to address these factors.

46Your plea was made after a contested committal and prior to the County Court case assessment hearing. You entered a plea after the present resolution. In doing so, you avoided the need for a trial, saved the complainant and other witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. I take the utilitarian value of your early plea of guilty into account.

47While the trial backlog in the County Court has now been reduced to pre Covid-19 levels, I accept that your plea has contributed to assist the justice system to recover from the effects of the pandemic. Accordingly, you will receive a further sentencing discount in accordance with the principles in Worboyes’ case,[10] in so far as they are relevant at this point in time.

[10]Worboyes v The Queen [2021] VSCA 169.

48Counsel were not able to point to any directly comparable cases to yours, Mr James. They referred to a range of cases where offenders charged with sexual assault had been sentenced to an adjourned undertaking without conviction through to a term of imprisonment with a non-parole period. I have regard to the general sentencing jurisprudence for this offence.

49The prosecution urges the court to impose a head sentence with a non-parole period in your case, whilst your counsel urges the imposition of a sentence combining a term of imprisonment followed by your release onto a community corrections order with therapeutic conditions.

50Despite your history of breaching orders, Mr James, you have now been assessed as suitable to be placed on a further community corrections order.

51Pursuant to s 44 of the Sentencing Act1991,[11] it is open to the court to sentence you to a further maximum of 12 months' imprisonment together with a community corrections order. In accordance with the principles in Boulton's case,[12] I consider that the relevant sentencing principles set out in s 5 of the Act, to which I have referred, including the principle of parsimony, can be met by the imposition of such a sentence.

[11](‘Sentencing Act’).

[12]Boulton v DPP [2014] VSCA 342.

Sentence

Imprisonment

52Jason James, I sentence you as follows:

53On Charge 1 of sexual assault, you are convicted and sentenced to 14 months' imprisonment together with a community corrections order of 12 months' duration.

Community Correction Order

54The community correction order will commence upon your release from custody.

55The conditions of the order are that:

(a)   You must attend at Melbourne Justice Service Centre within two clear working days of your release from custody.

(b)   You will be under the supervision of a Community Corrections Officer for 12 months, which means that you are required to be supervised, monitored and managed as directed;

(c)   You must undergo assessment and treatment (including testing) for:

·Alcohol abuse dependency as directed; and

·Offending Behaviour Programs, including the Forensicare Problem Behaviour Program.

(d)   You must not commit an offence punishable by imprisonment during this order.

(e)   And you must not leave Victoria without permission of Community Corrections.

(f)    You must let your Community Corrections Officer know within two clear days of changing any address or a job.

(g)   You must comply with all lawful directions given by any Community Corrections Officer that is necessary to ensure you comply with the order.

(h)   If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before this court, fined and resentenced. That means you may go to jail for a further period for these offences should you breach this order.

Pre-Sentence Detention

56Pursuant to s 18 of the Sentencing Act, the period of 357 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court records.

Section 6AAA Declaration

57Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of three years' imprisonment with a non-parole period of two years.

Community Correction Order

58Mr James, do you have any questions about the community correction order that I have imposed?

59OFFENDER:  No, Your Honour.

60HER HONOUR:  Do you consent to being placed on this order, Mr James?

61OFFENDER:  Yes, absolutely.

62HER HONOUR:  You have indicated your oral consent to this order which I direct to be entered onto the court record.

- - -