Director of Public Prosecutions v Jefferson

[2019] VCC 2233

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01836

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE JEFFERSON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2019
DATE OF SENTENCE:	20 December 2019
CASE MAY BE CITED AS:	DPP v Jefferson
MEDIUM NEUTRAL CITATION:	[2019] VCC 2233

REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords:  Plea of guilty to one charge of sexual assault – family and friends weekend away – alcohol consumption – complainant asleep in bed with infant – touched under shorts over underpants – complaint made soon after – charges laid 1 year 9 months after incident – hearing almost 4 years since offending – vulnerable sleeping woman – defendant involved in serious motorbike accident – induced coma brain injury – multiple injuries – now in chronic pain – major depressive illness – unrelated criminal history – serving sentence – parole application suspended due to this hearing – good family support – significant delay mitigating factor.
Sentence: 4 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	OPP
For the Accused	Ms D. Price (Plea) Mr T. Bell (sentence)	Galbally Parker

HER HONOUR:

1Shane Jefferson, you have pleaded guilty to one charge of sexual assault, which took place on 1 January 2016.  You were staying in a motel in Victoria with a group including your girlfriend at the time, her friend the complainant, with her one year old son, and others.

2As part of the group you had attended local New Year's Eve celebrations.  During the evening you made admiring comments about both women.  At about 12.30 am the group returned to the motel and the complainant put her son to bed in the bottom of a bunk bed.  She then returned to the lounge room where the rest of the group was drinking and playing cards.

3At about 3.30 am the complainant went to bed in the bunk bed with her son.  She fell asleep and woke up where she felt something moving on her vagina under her shorts but over her underpants.  She was lying on her stomach and looked behind her when she felt whatever was touching her vagina being removed.  She saw you sitting on the bed.  You said to her, 'I thought you were awake'.  Her son then woke up and she said to you, 'Can you just fuck off?'.

4Later that morning you attempted to have a conversation with the complainant and as a result your girlfriend became aware of the incident.  During the conversation you said that you had touched the complainant.  You told your girlfriend that you had gone into the complainant’s room and that she was lying on her stomach.  You said you had, 'Touched her bum and her fanny over her undies'.  After this you left the motel.

5The complainant made a complaint to the police soon after this and statements from those concerned were completed by 19 January 2016.  You were not interviewed by the police until 8 September 2017, one year and eight months later.  You denied the allegations although you admitted being at the motel.  Charges were laid on 4 June 2019, one year and almost nine months after being interviewed; hence almost four years have passed since the offending.  The only explanation offered for this extraordinary delay was the informant's high workload.  It has had serious ramifications for you, which I shall come to in more detail later.

6The complainant provided a victim impact statement in which she described problems with intimacy caused by your offending, and a feeling of guilt that her infant son was with her at the time.  She became self-conscious about her body afterwards and she lost confidence.  She was made to feel that it was her fault and she wonders how she could have prevented it.  She was vulnerable as a sleeping woman who should have been safe in her bed with her infant son in a household of friends.  You were her best friend's boyfriend and she was entitled to assume that predatory behaviour such as yours would not occur.  The offending caused a rift between the complainant and her friend which has since improved with the passing of time but she said their friendship will never be what it was.  In fact she said that nothing has been the same since then.

7Turning now to your personal circumstances and background, you are a single man aged 27.  A motorcycle collision in February 2012 at the age of 19 has had a major impact on your adult life.  Your parents separated when you were about 12 and you lived variously with each parent but moved out to live with friends when you were about 16.  You left school in Year 9, having struggled academically due to a learning disorder, and then worked in various unskilled jobs until the collision.

8Your motorbike was struck by a stolen vehicle and the driver absconded and was never caught.  You were in an induced coma for two weeks and remained in intensive care for some time before commencing rehabilitation.  You suffered a brain injury, a fractured vertebra, a fractured finger, punctured lung and internal injuries.  You recovered but you are still kyphotic, meaning you are hunchbacked, and you suffer from chronic pain for which you were medicated with opioid drugs.  You struggled with mental illness after the collision, diagnosed with major depressive illness with suicidal ideation.  Having been a user of alcohol, cannabis and methamphetamines during your teenage years, you then misused prescription medication.  The over-consumption of alcohol on New Year's Eve may well have contributed to your offending in the context of your apparently deteriorating relationship with your girlfriend at the time.

9The brain injury you suffered led to cognitive impairment and, additionally, you suffered chronic pain syndrome from your spinal injuries and chronic depression and anxiety, all of which were the subject of a report by your general practitioner for the purposes of your TAC case in 2015.  A psychiatrist,
Dr Nathan Serry, also reported on your depressive symptoms and noted a head injury which he described as not insignificant, although he suggested referral for a neurological evaluation.  There is no further evidence as to that except that your TAC payment is managed by the Supreme Court and all requests for money must be approved.

10You have a criminal history which commenced in the Children's Court and on the day of the collision you had been charged with several driving offences including reckless conduct endangering serious injury, resulting in a non-conviction adjournment at the Magistrates' Court on 26 November 2013.  Indeed, that type of disposition was the only one you had had imposed in the past for a variety of relatively minor offending, none of which involved sexual offending.

11However, on 27 July 2016 you were sentenced for armed robbery and some other offences by Her Honour Judge Pullen of this court.  That offending had occurred in February and March 2016.  You were convicted and placed on a Community Correction Order for four years.  You offended again in 2016, committing an armed robbery and making a threat to kill and so you were breached on the CCO.  You were convicted and sentenced on the newer offences and resentenced for the earlier offences, resulting in a total effective sentence of four years and four months' imprisonment with a non-parole period of two years and four months.  Three hundred and thirty-seven days were declared by way of pre-sentence detention.  You were still serving this sentence but had applied for parole in April this year.  While that application was pending you were charged with the current offences in June, as I said before, and the application for parole was suspended.  Your sentence expires in April 2021.

12Initially you were held at Port Phillip where the position of kitchen billet was entrusted to you and later you moved to Marngoneet Correctional Centre, a less secure facility, where you were also given work.  Your good behaviour was such as to warrant your move to a low security prison at Beechworth where you worked as a floor polisher.  However, when the current charge, or more serious charges as they were then, were filed, you were reclassified and placed in protective custody at Ravenhall, where you now work as a laundry billet.  In other words, you lost the advantage of the low security imprisonment which you had earned by your good behaviour.

13Whilst incarcerated you have gained a white card and a number of professional qualifications relating to traffic control and cleaning operations.  You attend the gym daily and you are prescribed one medication rather than many, which assists with the nerve pain associated with the injuries from the collision.  You have completed a number of courses dealing with drugs and alcohol and with violence and your good progress has earned you a commendation.  You attend AA and NA meetings and have found them particularly helpful, with plans to attend meetings when you are released.

14Your mother and partner visit you weekly and you are in daily telephone contact with your family.  Your mother has some health problems and you wish to be able to help her rather than cause her stress.  All these measures have brought about positive results in that your experience of pain has been reduced through exercise and you have accrued work experience which you can build on when you are released, whereas before you were unable to work at all.

15You believe that all of this has contributed to your increased maturity and that you have learnt from the experience of prison.  References from your now partner, from your mother's friend, and from your mother, all speak of you as a good person.  These letters have all the appearances of carefully written reflections of your personal attributes and the hope that they convey for your future is consistent with the progress you have made in prison.

16You are planning to live with your mother and stepfather and to resume your relationship with your partner.  You would like to work in a field where you could help people with physical training or perhaps become a courier.  You are strongly motivated to avoid substance abuse when you are released.  These are indications that your prospects for rehabilitation are good and your progress is a significant mitigating factor, as is your very early plea of guilty, which has avoided a trial and therefore spared the witnesses from having to give further evidence.  You are entitled to a discount on your sentence for that.

17The complainant has also had to endure delay until finalisation of the case, and that has not been due to any fault of yours.  Rather, through your plea you have expedited its closure.  The exceptional delay which has occurred is a significant mitigating factor, not only because you have had the matter hanging over your head for a long time but, importantly, because your application for parole has been suspended for the last six months.  If this case had been heard many months, if not years earlier, as it should have been, there could have been an element of concurrency and you may well have had your liberty restored by now.

18These mitigating factors also lead to the conclusion that there need be little focus on specific deterrence, as it seems unlikely you will offend in this way again.  However, general deterrence is important because others should be deterred from opportunistic sexual offending, which generally has serious effects on the victim and which bespeaks a sense of entitlement being acted upon.

19I have also had regard to the principle of totality, taking into account the time you have spent in custody serving your current sentence.

20The maximum penalty for sexual assault is 10 years' imprisonment.  In this case the offending was brief although predatory and you quickly admitted the touching and have expressed your remorse.  Its gravity lies in the fact that you exploited a sleeping woman by assaulting her, as I said earlier.  Were it not for the long delay and the suspension of your parole application in the very unusual circumstances of this case, I would have imposed a considerably longer sentence than the one I shall impose now.

21Would you stand now, please, Mr Jefferson. 

22I sentence you to four months' imprisonment. 

23Pursuant to s.6AAA of the Sentencing Act I am required to state the sentence I would have imposed if you had pleaded not guilty. In that case I would have sentenced you to nine months' imprisonment.

24Are there any other matters?  First of all, Mr Triandos?

25MR TRIANDOS:  No, Your Honour.

26HER HONOUR:  No.  Mr Thomas?

27MR THOMAS:  No, Your Honour.

28HER HONOUR:  In that case, Mr Jefferson, officers, you may take Mr Jefferson now, thank you.

29MR THOMAS:  Thank you, Your Honour.

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