Director of Public Prosecutions v James (a pseudonym)
[2022] VCC 1306
•11 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LENNY COLE JAMES (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 August 2022 | |
CASE MAY BE CITED AS: | DPP v James (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1306 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Mr Fitzgerald | Michael Benjamin & Associates |
HIS HONOUR:
1 Lenny Cole James[1], you have pleaded guilty to one charge of rape and one rolled-up charge of sexual assault. Those crimes carry maximum penalties of 20 years and 10 years respectively.
[1] A pseudonym.
2 You have pleaded guilty to a settled indictment, and whilst you have denied the offending in the past, you have ultimately accepted responsibility. I will be reading briefly from your record of interview shortly about that.
3 You were 19 years of age at the time of the offending, now some four years and nine months ago. Three years was taken up with there being no reporting of the crime and you are now 23, as I understand it. The situation here is that had this matter been dealt with back at that time, I would have given Youth Justice as a disposition. Because of the delay, that disposition is no longer available, and unfortunately I am left with no alternative but to sentence you even now with no priors and nothing subsequent to an adult term of imprisonment to be followed by a Community Corrections Order.
4 Your plea of guilty is, I accept, because of the nature of your record of interview accompanied by appropriate remorse. You must also get they utilitarian benefit of that plea of guilty. In these times of Worboyes, the courts must give significant discounts for pleas of guilty to encourage people to relieve the system of all the trials that are outstanding.
5 Your sentence of imprisonment, which I have no choice but to impose upon you, will be served under COVID conditions and I am aware that that means there is a difficulty of doing programs and there all sorts of problems. As I have already indicated, you have no prior convictions of any description. You have been on bail now for a significant period of time and you have no subsequent matters.
6 A brief summary of the offending is that you were part of a group of young people in Korumburra and were 19 years of age. The victims were – that is Monique[2] was 18 years of age and Kelly[3] was 22 years of age. You all knew each other. There had been a function at the Austral Hotel and the three of you continued drinking after that. You had been at the hotel for a few hours and left the hotel with Dean Stephens[4], your now boss and then partner, as I understand it, of one of the victims, and went to Kelly's house. Whilst there, you continued to drink, and around about midnight, the three of you went to bed as you had to work the following day. I accept that you would have all been intoxicated, and that just puts it into a scenario of young people making verry, very silly decisions.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
7 In any event, there was one bed. The three of you were in that bed in Monique's room watching TV. She recalls turning the television on and putting a movie on. She was in bed in her undies, as was effectively Kelly. Her last memory is she was watching the movie and the deal was that you were going to return to a mattress on the floor to sleep. Kelly does not recall you being in the bed with her at the time before she went to sleep.
8 In any event, the three of you were in the bed. During the night, Kelly woke up and felt a hand running over her body, including her thighs and breasts. She could see that you were not on the mattress of the floor. She initially froze in fear and pretended she was still sleeping. You moved her underwear to one side. She felt something hard pressing on the outside of her vagina and assumed it was your penis pressing against her. She moved away and rotated to her elbow into you. That give rise to the second charge of sexual assault on this indictment.
9 Monique woke during the night to you sexually penetrating her. She felt your forearm across her back, the front of your legs pressing her buttocks and your penis inside her vagina moving in and out. She froze and was in shock and did not move until you stopped. She was not sure if you ejaculated or not.
10 During the next day, there was conversations between the two about what might have occurred or what did occur during the night. Ultimately at that point, no formal complaints were made, but the victim impact statements that I have heard this morning clearly indicate the effects of what you did had on each of these two young women.
11 Eventually Monique was not coping with what happened to her, consulted a doctor and was put on a mental health plan, and also discussed the events with a psychologist. After talking to those people, she decided she was ready to report the rape to the police and called Pakenham police station in January of 2020. That is some two years or so after the event.
12 As I indicated during the course of the plea, that is not a criticism of anybody. The main effect it has on me as a sentencing judge is it removes the much preferred disposition of confinement that I would imposed upon you.
13 In any event, you were subsequently interviewed by police and you remembered – you accept that you were heavily intoxicated. You can remember being in the bed watching the movie with the girls on either side of you. You recall, you said, cuddling Monique before falling asleep. You recall getting up in the middle of the night and that was about it.
14 After the – and this is to your credit despite what you have done – after the police outlined the allegations, or facts as they really are, to you of Monique and Kelly, you said to the police, 'I just – I want to say it's not true but I'm – I'm not calling them a liar, I just – I – I – I blacked out and I just, oh, it's disgusting. It's not me'. You told the police it is possible that it happened, but you just could not genuinely believe that you would do such a thing.
15 In this situation with a plea of guilty is to a settled indictment, I accept that there is remorse based largely on that answer in the record of interview, and as much as the fact of the plea of guilty. So I take all those matters into account on your behalf.
16 Read to me this morning by the prosecutor and one of the young ladies involved were the victim impact statements. Those victim impact statements articulately, and courageously, if I might say so, outline the consequences of offending such as this. I understand that it is people in formative years – in their late teens and early 20s, but young men just have to simply understand that this sort of behaviour is not only unacceptable, but has a long, long term effects on the victims of it.
17 It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment. I do not propose to read from either of the victim impact statements. They have been read this morning already, and again, it is not going to add – I think everybody in the room understood how powerful and how eloquent they were; the damage that this young man has caused to each of you.
18 I then look at matters personal to you, Mr James. The first thing I have already indicated is the question of delay, and that has to be taken into account here, also the other matters such as no priors, everything along those lines. Your record of interviews was virtually apologetic.
19 The Crown's submission is that a head sentence with a non-parole period is the appropriate disposition. I am well aware of the principals involved in Boulton and Bradshaw and now in the decision of McInnes which was given to me just during the course of this proceeding which I had not read before, where for very, very similar offending, a accused was given a total CCO with a no custodial component. One has to be very careful of comparative cases. In these circumstances, gaol is the usual – very much so the usual disposition, and often of significant proportions.
20 But here, bearing in mind your age, the fact that Youth Justice cannot now be applied and what you have done since the offending and before it, I have determined that a combination sentence is, as I said to your counsel on the cusp but within range.
21 You grew up in Outtrim after your parents separated when you were very young. You went to Korumburra Primary School. You left secondary college in Year 11 to do an apprenticeship. You completed that apprenticeship as a glazier when you were 19 years of age. You were in a relationship that lasted for two years but ended prior to this offending.
22 You then began a relationship with Anna[5] in 2018, and after she became pregnant the pair of you bought a house together. You had a daughter born of that relationship. I accept that you have very good contact with that child, and as your counsel pointed out, one day you are going to have to tell that daughter what happened.
[5] A pseudonym.
23 She is young, so it obviously would have an effect on her, though it is not put that gives rise to exceptional circumstances. I do take into account the fact that you are going to have to spend an extended period of time in custody. It is a matter where you will have no contact with her. You have a current partner who is supportive of you, and if possible, there will be visits, but with COVID that is not always known. I accept that that will weigh heavily upon you over the next period of time whilst you undergo that sentence.
24 There is no pre-sentence detention. This is your first gaol sentence obviously.
25
I have taken into account all the other matters that have been put, and it simply seems to me that your prospects of rehabilitation in this situation, bearing in mind that that was a situational matter and not predatory, or anything along those lines, it should be very good. The risk of you
re-offending where you have got no priors, nothing subsequent and a stable family situation, the risk of you re-offending should be very low indeed.
26 Bolton clearly outlines what Community Correction orders are about, and as I already indicated, I do not propose to go down that path. This is the sort of situation where as a judge, one is quite reluctant to impose custodial sentences, but the fact of the matter is, as you have heard this morning, Mr James, the consequences of what you have done is very, very serious indeed for two young ladies, and hopefully while it does not persist over the years, they are both trying to get assistance, hopefully that can be rectified to some extent, but you just have to go to gaol for it, it is as simple as that.
27 Accordingly, taking all those matters into account, and I have indicated if I have left anything out I will revise it, on the two charges, you are sentenced to be imprisoned for an aggregate period of 12 months. I direct that if you agree, you will then be placed on a three year Community Corrections order; that will be with conviction. It will involve supervision.
28 In these circumstances, I think that to make you do community hours would be gratuitous. You will be on the program to reduce re-offending which will undoubtedly involve the sexual offenders program, which I know is onerous. And if you breach this Community Corrections Order by not complying with that program, or re-offending in any way, shape or form similar to this, you will be breached and brought back before me and I will re-sentencing. You can take it as done, that if you are brought back for re-sentencing, subject to what any barrister might have to say to me, the odds are you will be put back in gaol.
29 Do you agree to that? All right. It's just getting printed, Mr Fitzgerald.
30 MR FITZGERALD: Thank you, Your Honour.
31 HIS HONOUR: And the SOR order as well, yes. Because of the nature of the offending, you will be placed on the sex offenders register, and I advise you that the reporting conditions of that sex offenders register will last for 15 years. All right. If you wouldn't mind accompanying the associate for me, Mr Fitzgerald to get the SOR signed for the CCO entered into.
32 MR FITZGERALD: Thank you, Your Honour.
33 HIS HONOUR: All right. There's no other orders I need I make?
34 MR MOORE: No, Your Honour.
35 HIS HONOUR: No. No, all right. You can take him now, thank you, gentlemen.
- - -
0
0
0