Director of Public Prosecutions v Jones
[2014] VCC 168
•20 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-13-02010
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL JONES |
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JUDGE: | HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2014 | |
DATE OF SENTENCE: | 20 February 2014 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 168 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – Indecent assault – Unauthorised supply of cannabis to a child – Introducing methylamphetamine into a person’s body – no intention to overpower victim’s will or render her incapable of resistance – Victim 16 years old – Victim and accused both homeless –Significant criminal history including one previous child sexual offence – Indecent assault on 16 year old a child sex offence for purposes of Sex Offender Registration Act – Mandatory extension of reporting period under Sex Offender Registration Act – Cannabis offence trifling – Proven and discharged – History of significant disadvantage – Moderation of general deterrence
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Livitsanos | |
| For the Accused | Ms J. Garner |
HER HONOUR:
1 Russell Jones, on 15 April last year, you were released on CISP bail by a magistrate, pending resolution of a contested plea hearing on a range of summary offences. Although through CISP had arranged accommodation for you at a hostel in Glen Iris, and other supports you were clearly at a low point in your life. On the night of Friday the 19th and the early hours of the morning of Saturday 20 April, you were sleeping out in central Melbourne. You were abusing alcohol, cannabis and ice.
2 You met a 16 year old girl at a McDonald's in Swanston St. I will refer to her as Hannah.[1] She was a runaway from Western Australia who was also homeless and sleeping on the streets. Although you did not tell each other how old you were, she was clearly young, and you, to the eyes of the 16 year old that she was, clearly a grown up, an adult much older than her. You were 33 and look your age.
[1] Pseudonym used.
3 The two of you went to a nearby lane and sat in a doorway. You rolled a joint of cannabis and shared it with her. It was a windy night and the two of you moved to a more secluded and better sheltered alcove further down the laneway. You placed a sheet of MDF at the entrance of that alcove. I am satisfied you did that to provide shelter for the two of you against the wind and not for any other purpose. It did, however, have the effect, an unintended effect, of shielding you from view from passers-by.
4 You had a number of water bottles in your bag, and Hannah asked you for a drink of water. She selected a bottle and drank it. You were aware, as she drank it, that it was a bottle into which you had previously crushed some ice, that is methylamphetamine, intending, I assume, for you drink it later. In any event she took it and drank it. You, knowing that it contained ice, did not tell her of that or try to get it back from her.
5 Although Hannah had willingly shared that joint with you, she was unaware the water was spiked with the ice and she had not wanted, or intended to ingest ice. She had not taken it before and having seen the effect of it on other people, said that she did not want to take it.
6 The combination of drugs, the marijuana and the ice, affected her and she felt “scattered” in her head, or disoriented, and she said it was as if she could not move or make the effort to move or have the energy to move.
7 She lay down on her blanket, and you lay down beside her. You started to touch her. She told you not to and tried to move your hand. Over her continued verbal and physical resistance, telling you no, saying "stop, its not going to happen" and moving your hand away, you kept touching her, over and then under her clothing. Eventually you put your hand under her underwear and touched her breasts and then put your hand down her pants and touched her on the outside of her vagina.
8 In her drug impaired state she took some time to take more decisive action but after you rolled her over and tried to pull her pants down, she pushed you away and walked away. She hid in the doorway that the two of you had first taken shelter in. After about 20 minutes she saw you leave the lane, and once satisfied you had really left, she left the lane also.
9 She went straight to a payphone and rang her mother in Perth. The call was emotional but she did not disclose to her mother what had just happened. However she went straight to a café, was seen there to be distressed and when asked what was wrong, revealed what had happened and was told to go to the police. She did so, and so, a police investigation began.
10 A toxicological examination revealed the presence of cannabis and methylamphetamine in her system.
11 It was not long before you were arrested. When questioned, you admitted touching Hannah and volunteered an account of the sharing of the joint, of the lying down beside her and of the touching her that was largely consistent with hers. You agreed she had said no, but you persisted. You admitted sharing that joint with her. When you were asked whether you had any other drugs on you, you said "no comment".
12 It is these circumstances which give rise to your guilty pleas to two charges of indecent assault, both relating to touching under her clothing and on her skin. The first to touching her breasts, the second to touching her vagina. One charge of unauthorised supply of a drug, namely cannabis to a child (for this purpose a child means a person under 18), and one uplifted summary charge of introducing a drug, namely ice or methylamphetamine into a person’s body. You pleaded guilty and did so at an early stage. Your admissions to the police and your early plea of guilty, I take into account in your favour. In the circumstances that not only has utilitarian value but also is an acknowledgement when you had sobered up that you had done the wrong thing and wanted to take responsibility for it.
13 So far as the supply cannabis to a minor is concerned, I accept you did not know Hannah’s actual age but that, by your plea of guilty, you acknowledge she was, and appeared to be, young, that is under 18 and that you failed to satisfy yourself of her true age or that she was over 18 or were reckless as to the true age before sharing that joint with her.
14 I consider it a trifling offence in the circumstances. Unlike the offence relating to Hannah drinking the water with the ice in it – she not knowing there was ice in it but you knowing that to be the case – sharing the joint was a case of sharing a single joint with a willing recipient. It was not supplied with a view to overpowering her will or rendering her incapable of resistance. It would appear she knew exactly what she was taking and what its likely effect would be on her.
15 It follows from the basis upon which your plea of guilty has been entered to the charge of introducing a drug into a person's body, relating to the ice, that I do not make any finding that you supplied that to her, or introduced it to her, with any view to overpowering her will or rendering her incapable of resistance.
16 Coming back to the charge of supplying a drug of dependence to a minor, that is the sharing of the joint with Hannah, having regard to s.70 of the Sentencing Act1991 and in particular s.70(1)(b) I consider it to be a trifling offence and I propose, pursuant to s.76 of the Act, to dismiss the charge without recording a conviction although I am satisfied that your plea of guilty is a proper one and that the charge is made out on the evidence before me.
17 Hannah was a vulnerable young person. She was obviously young, and alone. She was, like you sleeping out and she was a long way from the home that she had run away from. Keeping safe is an ever present concern for those who find themselves homeless and who take what shelter a doorway in a lane can offer. Personal safety and safety from sexual assault is perhaps an ever greater concern for a homeless young woman than for other homeless people. Hannah should have been able to trust that, in sharing a doorway with you, a person who to her eyes was an older, more streetwise adult, somebody who like her was also alone and without a home to go to, she would be safe. Safe from assault, safe from sexual assault, safe from people taking her goods away from her when she went to sleep.
18 Although you too were alone and vulnerable for other reasons, particularly because of your substance abuse, you took advantage of her youth, her intoxicated state and the fact that she was alone.
19 In her victim impact statement, she gave a sad and heartfelt description of the effect of this on her. She is only too aware of her vulnerability now, and has lost the confidence she used to have around people and in public. Whatever the circumstances which led her to run away and all the way across the country, this has obviously made the efforts to reconcile with her mother, to return to school and to reconnect with friends harder. Maybe she was too full of the confidence of youth or too immature or inexperienced to have foreseen that running away and sleeping rough were dangerous activities for a teenage girl. It is a hard way for her to discover the risks of being homeless when so young.
20 Her mother's victim impact statement supports what Hannah has said about her vulnerability, about the effect on her and about the difficulties she is now facing in trying to move back into a more settled and stable life.
21 Your life has been a difficult one. At 33, you have a long criminal record and have experienced imprisonment on a number of occasions.
22 You are an aboriginal man. You spent your early childhood on a mission in the Northern Territory. Your parents separated when you were young, and you and your siblings were split between them, or other family members, you were split, some of you from each other. You came to Melbourne with your father when you were a child and went to primary school here for some time before you were taken back to the Northern Territory. According to the report of Mr Simmonds, the psychologist, you report an uneventful schooling where you achieved well and a good early work history after leaving school. By the age of 18 your use of drugs and alcohol was getting out of control. You had been introduced to drugs, initially cannabis and then substances like petrol when you were still a teenager but by your late teens your abuse of drugs and alcohol had led you, already, into a bad cycle of getting into trouble with police. You had fallen completely out of the workforce by your late teens.
23 Since then, you have amassed that significant criminal history and have experienced the imprisonment to which I have referred. Your family relations are tenuous and your own relationship history too is marked by instability.
24 Three years ago, in the County Court in Mildura, I sentenced you for a theft. At that time, you were living in Mildura and you appeared to have some stability in your life. The birth of a daughter 5 months before that last sentence had given you great joy and purpose in life. By the reports that were placed before me then you were a very active, caring and loving father of your daughter and intimately involved in her life and care. You appeared set on a better life, your substance abuse seemed to be, whilst not completely absent, under control. You had hopes of obtaining employment and the cycle of offending seemed to have been, if not broken, at least significantly slowed and moderated.
25 Unfortunately things have not gone well since then. You have been before courts on a further seven occasions and received sentences of imprisonment on most of those occasions. Although breach proceedings of the community based order I placed you were on were not instituted, you were placed on a Magistrates' Court community based order not long after I had sentenced you which ran parallel with the order I had made and you were breached on that. From the material before me it appears that you were on bail and only out of gaol for a few days before the commission of these offences.
26 Your offending history is wide ranging: you have multiple convictions for driving and dishonesty offence. multiple convictions for violence, threats to inflict violence, weapons possession, and possession and use of drugs. You have also been convicted of one charge each of armed robbery and false imprisonment.
27 In addition, and perhaps more concerningly, for the matters I have to sentence you for today, you have two convictions that are sexually related. One for obscene exposure and one for indecent act with a child under 16. This last conviction, the indecent act one, was recorded in November 2005. Like these offences, it too was an opportunistic offence, committed by you when intoxicated and when somebody was present. You were disinhibited and you took advantage of the situation you were there presented with.
Because of that previous conviction for indecent act with a child under 16 and because I consider no sentence other than imprisonment is appropriate for the two indecent act charges I have to deal with, you fall to be sentenced as a serious sexual offender in respect of the second indecent act charge here. The Sentencing Act 1991 prescribes that, or says, there is a presumption for cumulation for any sexual offence for which you are sentenced as a serious sexual offender and that protection of the community should be the paramount concern.
28 I do not consider it is necessary to impose a disproportionate sentence in respect of that second indecent act charge and although there is a presumption of cumulation I consider only a very modest cumulation with the sentence on the other indecent act is appropriate. I must declare in respect of Charge 3 that you are sentenced as a serious sexual offender and I make that declaration.
29 Another consequence of your previous conviction for indecent act with a child under 16 is that you were required to be placed on the sex offender register for 8 years. That was an automatic, mandatory, operation of law triggered by that particular conviction. The period of eight years has to run for longer than eight calendar years because you have served terms of imprisonment and the reporting conditions are suspended whilst you are in gaol. I am told that the fact that you are registered has significantly impeded your ability to have contact with family members because many of them have young children and the reporting obligations make contact with those families difficult if not impossible. So, your ability to obtain support from family has been significantly impeded.
30 The Sex Offender Registration Act is a very blunt instrument for achieving its stated aims and in your case the previous order, I accept, may well have been counterproductive to your capacity to address your substance abuse and remain offence free.
31 By reason of these indecent act charges, you fall to have your period of registration extended. Ms Garner submitted the offences should not be regarded as a single class two offence and under Item I of the second Schedule and so operate, by reason of your previous registration, to require registration for a period 15 years. She, in her written outline of submissions, advanced arguments which, with respect, I describe as ingenious. They, I am afraid, fly in the face of the very clear words of the Sex Offender Registration Act and the clear legislative direction. In my view there is no interpretation available to me other than to accept that those two charges are, indeed, within the terms of Item I of the second Schedule, offences of indecent assault against a child, that is a person under 18 as defined in the Sex Offender Registration Act. Therefore, s.34, having regard to the fact that you have a previous conviction for a Class II offence, mandates that period of 15 years' registration.
32 I should say that if I had any discretion in the matter I would not make any further order under the Sex Offender Registration Act. I consider the order that currently exists, and has still time to run, is more than adequate to provide for any protection of the community but I regret to say that I have no option. Parliament has tied my hands.
33 Your background of chronic disadvantage and your sad history in my view means the sentences to be imposed upon you for these offences should be significantly moderated. But nonetheless they must still reflect denunciation, because as I have said, you took advantage of a vulnerable child. This is a case where your substance abuse and homelessness produced the circumstances where, disinhibited, you took advantage the circumstances you and Hannah found yourselves in. Your substance abuse can be traced back to your background of instability and chronic disadvantage and to the effects of being exposed far too young to substances that were always going to be addictive and always going to make it difficult for somebody with your youth and disadvantages for you to be able to overcome.
34 For these reasons also, denunciation and just punishment must, whilst having weight, also be sensibly moderated but they must be directed to the fact that you, as a chronically disadvantaged person with a long history of substance abuse, took advantage whilst disinhibited of somebody who was vulnerable. General deterrence also applies but again, in my view, is significantly moderated because of your background and circumstances. There is clearly a need in the sentence to impose it in a way that does deter you personally and there is a very clear need to impose a sentence that, as best as possible, encourages your rehabilitation.
35 Your presentation 3 years ago before me in Mildura showed you were capable, with help and hope, of leading a better more fulfilling life. You still express great affection towards your daughter and she clearly is a beacon of hope for you. Encouraging and reminding you that you are capable, with help and hope, of leading a better and more fulfilling life is an important part of ensuring that the community is protected and that you are deterred from further offending and encouraged into rehabilitation.
36 You have been in custody since your arrest on these charges. You have since been sentenced for the matters which were before the Magistrates' Court and in respect of which you were released on CISP bail at the time of committing these offences.
37 Again the law provides for a presumption of cumulation of sentences for offences committed whilst on bail if serving another sentence.
38 Ms Garner submitted that these sentences should be concurrent with your current sentences and that I should take into account, in accordance with the principle in Renzella, the time which you have spent in custody undergoing sentence for those other offences and which therefore does not count as pre-sentence detention for these offences, although you have, at the same time, been on remand.
39 I do not consider it to be appropriate in the circumstances I have outlined to make orders which would have the effect of completely subsuming the sentence that you are currently serving . You were on CISP bail and you were offered supports that you did not avail yourself of. Had you done so, this offending for which I have to sentence you would not have occurred. In the circumstances what I am going to do though is declare that the sentence that I pronounce today runs concurrently with the sentence that you are currently undergoing and to direct, of course, that the pre-sentence detention attributable to your remand for these offences be counted and reckoned as part of that sentence already served. But I am not going to make allowance for the time in custody which has been counted as time served in respect of the other sentence.
40 Although, through Ms Garner, you have asked for a straight sentence to be imposed, I do not consider that appropriate. In my view you should be given the opportunity for release on parole, and importantly, provided with support and assistance on release from imprisonment to help address the problems that have led to your chronic cycle of offending. Could you now please stand, Mr Jones.
41 On Charge 1, that of supply a drug of dependence to a minor, without conviction, although having found that charge proven, it is dismissed.
42 On Charges 2 and 3, you are convicted. On Charge 2, the first charge of indecent act, you are sentenced to be imprisoned for a period of 18 months. On Charge 3, the second charge of indecent act and the one which activates the serious sex offender provisions, you are sentenced to be imprisoned for a period of 18 months and I direct that three months of that be served cumulatively upon the sentence on Charge 2.
43 On the uplifted summary charge relating to the ice and the water taken by Hannah, you are sentenced to be imprisoned for a period of three months and I direct that that be served cumulatively upon the sentence on Charge 2 and the partial cumulation order that I have made on Charge 3.
44 That makes a total effective sentence of two years. I fix a period of 12 months as the time that you must serve before being eligible for parole.
45 I declare that you have spent 241 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to be imprisoned for a period of three years and I would have fixed two years as the non-parole period.
46 I have made the serious sexual offender declaration in respect of Charge 3 and pursuant to the Sex Offender Registration Act I declare that you are to be registered for a period of 15 years. I make the disposal order sought.
47 MR LIVITSANOS: As Your Honour pleases.
48 HER HONOUR: Are they all the orders that are required to be made?
49 MR LIVITSANOS: They are, Your Honour.
50 MS GARNER: Yes.
51 HER HONOUR: Now, Mr Jones, I must now give you a notice of the reporting conditions under the Sex Offender Registration Act. The form we have makes provision for you to sign a receipt saying that you have received it. You do not actually have to sign the receipt but our court record will show you have been given a copy of those conditions. What I am going to do is ask Ms Garner to accompany my Associate down to the dock to give you those provisions and then if you want to sign the receipt you can do so.
52 MS GARNER: Yes, Your Honour.
53 HER HONOUR: Thank you, Mr Jones, I note that you have signed the receipt for that and you have those conditions with you. I sincerely hope, Mr Jones, that things get better for you and that you will not come before courts again so often in the future and that you will be able to look forward to a happier and more fulfilling life upon release. Could you remove Mr Jones please.
54 Ms Garner, he's left the reporting conditions in the dock. Will you take them down to him?
55 MS GARNER: I'll take them. Thanks, Your Honour.
56 HER HONOUR: Thank you.
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