Director of Public Prosecutions v Jason Cassar
[2012] VCC 885
•5 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-01765
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON PAUL CASSAR |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2012 | |
DATE OF SENTENCE: | 5 September 2012 | |
CASE MAY BE CITED AS: | DPP v Jason Cassar | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 885 | |
REASONS FOR SENTENCE
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Catchwords: One charge of indecent assault; jury finding of guilt; acquitted of more serious charges, and others; charge committed in context of frightening and violent behaviour by accused; victim suffered stress as a consequence, with some physical manifestations; no history of violence; history of unstable personal relationships; CCO 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Miss S. MacDougall | |
| Ms G Coghlan (for sentence) | ||
| For the Accused | Mr I. Polak |
HER HONOUR:
1 Jason Paul Cassar, you have been found guilty by the jury of one charge of indecent assault. You had pleaded guilty to one charge of criminal damage and one charge of recklessly causing injury. All these matters occurred on the one occasion on the night of 22 and 23 January 2011. At the time you were in a relationship with your then partner, to whom I shall refer as WK. You had begun to live with her and her two small children about five months earlier. It is necessary that I give a detailed summary of some of the evidence of the trial.
2 WK gave evidence that you had tended to be controlling of her during the relationship, and indeed this attitude proved to emerge as a problem on the night in question. She also said that when you moved in to live with her, she had had a car which she described as perfectly good but you had persuaded her that a better car was necessary and so her car was sold. The proceeds of about $1,000 were put towards the purchase of another car. That car was then sold, and a Commodore was purchased largely with funds provided by you, but thus depriving her of the ownership of the car.
3 This matter emerged as an important background factor during the trial, because it suggested a motive for WK to have made up the charges. On 22 January, a Saturday, the two of you and the children went to a birthday party during the evening. She saw a man there whom she knew, and you became jealous and wanted to leave the party early. She was upset about this, and later at home, she chose not to come to bed with you despite your requests that she do so.
4 You apologised to her, and eventually she came to bed, but resisted your attempts at intimacy. She told you that she did not want to make love, she wanted to sleep and that she had to get up to the children in the morning. Her version of the sequence of events and what happened differed from the account you gave in your record of interview. Her evidence was that you raped her by inserting your finger in her vagina, and that you attempted to rape her by trying to insert your penis. She also gave evidence that later, after you both struggled over the possession of her mobile phones, you threw her onto the bed, ripped her pyjama pants and raped her again by inserting your fingers.
5 You were charged with two charges of rape, each with an alternative charge available to the jury of indecent assault. You were acquitted of the rape charges, and found guilty of the first only of the two indecent assault charges, the alternative to the first rape charge. That charge was put to the jury as touching of the vaginal area. Although you admitted in the record of interview to touching, it was not specifically an admission to vaginal touching. You were also charged with attempted rape and the jury was unable to reach a verdict, therefore they were discharged without verdict in relation to that charge.
6 You were further charged with two charges of theft in relation to the two mobile phones, WK's house keys and her driving licence. You were acquitted of each of those charges. The charge of criminal damage to which you pleaded guilty related to the telephone that you ripped out of its connections on the wall in her house. The charge of recklessly causing injury to which you also pleaded guilty related to pain caused to her leg when you threw her onto a wooden structure which was part of the couch in the lounge room. This occurred when she was trying to get one of her mobile phones from you. These were charges four and five on the indictment.
7 You stand to be sentenced in relation to charges much less serious than those with which you were charged. Nonetheless they are far from trivial and two of them involved violent and frightening behaviour. You ignored being told in clear terms that she was not interested in having sex and in your record of interview, you admitted that you knew she did not want to, and yet you persisted. Hence the jury's finding of guilt.
8 The relationship between you and WK ceased at that time and the police took out an intervention order prohibiting you from contacting her.
9 She has provided a victim impact statement in which she refers to bruising and pain she suffered from the incident, and from stress which caused psoriasis, a painful and disfiguring skin condition. It seems she is now vulnerable to recurrences of this condition when undergoing further stressful periods. Just before this incident, you had seen your general practitioner who referred you to a psychologist, Mr Graeme Miller. His report stated that you first saw him on 2 February, after the incident and have had ten sessions, which has resulted in an improvement in your capacity to deal with anger and conflict.
10 However, your present partner gave evidence and agreed under cross-examination that there had been an instance of conflict between the two of you in July this year when you were both intoxicated and the police were called. She said the incident was her fault and that you had only tried to prevent her from driving the car when she had been drinking. Otherwise, her evidence was that you got on well together and had been living together for 16 months. Your background is that you grew up as the eldest child in a family where violence was prevalent, passed down from one generation to the next. You experienced having to protect your mother from your father's violence, and that caused strain between you and your father.
11 You are now aged 34, you attended school until Year 9, and left aged 15 unable to read or write effectively. Despite that, you had no trouble finding work over the years in unskilled positions, but developing skills as a motor trimmer. In recent times, you have worked in a wrecker's yard and have been unemployed whilst waiting for the outcome of the trial. As a boy you played football and were never reported for violence, and have no criminal history involving violence. Indeed your only prior court appearance is for burglary and theft as an 18 year old and you were placed on a community-based order which you completed. You were not generally predisposed towards antisocial behaviour, nor do you use illicit drugs, and it seems that any behavioural problems that you have stem from difficulty in handling conflict although there is some concern raised by possible abuse of alcohol as suggested by the recent incident in July. Although, I understand that you do not perceive that to be a problem.
12 You have had a number of relationships with five children having been born to three different mothers. You presently have regular fortnightly access with your daughter Jasmine who is about nine and you are hoping to resume access with your three youngest children.
13 The prosecution submission made by Miss MacDougall as to sentencing is that the charge of indecent assault dealt with in aggregate with the other two charges warrants a sentence of imprisonment, but whether I should wholly suspend the sentence is a matter for me. In response to my own tentative view that a community corrections order could be considered, Miss MacDougall agreed that that was not inappropriate.
14 Mr Polak submitted a range of possibilities but said that you were prepared to abide by the conditions of community corrections order, although commitment to unpaid work on weekends would prevent you from having regular access with your daughter. That would be unfortunate but must be weighed against the advantages of such an order, which would offer opportunities to deal with some of the issues that I have heard about. Additionally it is a penalty which would satisfy the need for general deterrence and denunciation by the court.
15 Denunciation of non-consensual sexual acts on this occasion, followed by violent behaviour in a domestic setting, which is very harmful to family members and the community at large. It is clear that that lesson needs to be learned by you. Mr Polak strongly urged me to exercise particular leniency in regard to the charge of indecent assault, because of the flow-on effects of a conviction for such a charge. He urged me consider an adjourned undertaking, which would avoid the need for a conviction to be recorded, and could therefore protect you from being identified as a sex offender where the charge arose from circumstances which many people in the community might find themselves in. I have carefully considered those submissions, but ultimately my view is that it was clear to you that there was no consent on this occasion. Accordingly, a conviction will be recorded and the charge will be dealt with in an aggregate manner by the imposition of a community corrections order.
16 You have been assessed as suitable for that order. It will begin today, and it will last for two years. I will ask you to stand now please, Mr Cassar, while I explain these terms.
17 You will be under supervision, and you must perform 120 hours of unpaid community work over six months. You must submit for alcohol testing, if necessary, and for any treatment that is considered necessary. You must take part in any other program as directed, such as a literacy program and an anger management program. You must have psychological counselling if that is considered necessary. You must attend the Werribee Community Correctional Services Office, at 75 to 79 Watton Street Werribee, at 11.30 am tomorrow, which is 6 September.
18 Of course you pleaded guilty to the charges of recklessly causing injury, and criminal damage, and you are entitled to a discount on your sentence for that plea and I take that into account. If you had pleaded not guilty to these charges, I would have sentenced you to three months imprisonment on each charge wholly suspended for six months.
19 The prosecution seeks an order under s.464ZF of the Crimes Act, for a forensic sample of saliva to be obtained. That was opposed by you through Mr Polak. In Clause 7 of Schedule 8 of the Crimes Act, indecent assault is a forensic sample offence, subject to the commission of serious personal violence by the offender. Recklessly causing injury, does not, by definition include a serious injury. It is not clear to me whether this is the definition applicable to Clause 7, and accordingly I shall give you the benefit of the doubt and will make no order.
20 A compensation order is sought for the payment of $140 to fix the telephone. Mr Polak, I think you formally oppose that. I am not sure whether your comments this morning - - -
21 MR POLAK: Originally - it's not opposed, no opposition.
22 HER HONOUR: No opposition? Thank you. I will note that it is not opposed, and I am satisfied that that order should be made.
23 Are there any other matters that I have neglected? The corrections order - perhaps Mr Polak might have to have a look at it first.
24 MR POLAK: Did Your Honour deal with Count 2, and the excuse?
25 HER HONOUR: Yes, I will make that order. That is adjourned until 20 September at 9 AM, and Mr Cassar need not attend on that date.
26 MS COGHLAN: Your Honour, there are otherwise no outstanding matters.
27 HER HONOUR: Thank you.
28 MR POLAK: Thank you, Your Honour.
29 HER HONOUR: Thank you, Mr Polak. I think I have already thanked counsel for their assistance during the trial, and I extend my thanks to include the plea hearing as well.
30 MS COGHLAN: May it please the court.
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