Director of Public Prosecutions v Jones

[2024] VCC 119

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

Case No. CR-22-01254

Indictment No. M12639337

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCUS JONES[1]

[1] To avoid the possibility of identifying the victim of a sexual offence, this sentence has been anonymised by the adoption of pseudonyms in place of the name of the victim and witnesses.  

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JUDGE:

HER HONOUR JUDGE CARLIN

WHERE HELD:

Melbourne

DATE OF HEARING:

Trial: 24 October – 2 November 2023

Plea: 19 February 2024

DATE OF SENTENCE:

21 February 2024

CASE MAY BE CITED AS:

DPP v Jones

MEDIUM NEUTRAL CITATION:

[2024] VCC 119

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW

Catchwords:             Sexual assault; plea of not guilty; jury trial; guilty verdict; previous offending; intoxication

Legislation Cited:   Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004

Sentence:                 18 month Community Corrections Order and $2,500 fine.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. James	Office of Public Prosecutions
For the Accused	Mr J. Shaw	Victorian Aboriginal Legal Service

HER HONOUR: 

Introduction

1Marcus Jones, on 2 November 2023, a jury found you guilty of sexually assaulting Danielle Watkins by putting your tongue in her mouth without her consent.  On the same day the jury found you not guilty of sexually assaulting Ms Watkins by grabbing her breast, and not guilty of digitally raping her.  All charges arose from the same incident on 1 January 2019.

2A plea on your behalf was conducted before me today, 19 February 2024, and it now falls to me to sentence you for your conduct.  Your counsel, Mr Shaw, submitted that either a fine or an adjourned undertaking were appropriate and within range.  The prosecutor, Ms James, submitted that a community corrections order was warranted.

3In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2]  Some tend towards leniency, and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[2] Section 5(2) of the Sentencing Act 1991.

Circumstances of the offending

4Turning first to the circumstances of your offending.  The facts I find consistent with the jury’s verdict are as follows.

5On the night of 31 December 2018, you attended a New Year's Eve party at your then girlfriend, Leah Roth’s house in Watsonia.  Ms Watkins, who was best friends with Ms Roth at the time, was at this party as were Leah Roth, her sister Claudia, and friends Zach Anderson and Jack Harrington.
Ms Roth’s neighbours also joined the party for a while prior to midnight.  You had previously met Ms Watkins at a party at your house.

6During the party on this night you were drinking Jim Beam and Coke.  You told the jury that you had about 10 standard drinks over the course of the night and that you felt tipsy but not overly drunk.  Ms Watkins described you as being loud and stumbling around.

7Early in the night, Ms Watkins and Ms Roth were having a conversation about an occasion when Ms Roth had slept with Ms Watkins’s boyfriend, and it was suggested by Ms Roth that Ms Watkins have sex with you as a form of payback.  You told the jury that you 'didn’t know what to make of it'.

8Ms Watkins went to bed around 1 am and was sleeping in Ms Roth’s brother’s room.  She described herself at this time as tipsy, but not drunk.  You were in Ms Roth’s room with her when she became sick and went to the bathroom to vomit.  While Ms Roth was in the bathroom, you got up and went to Ms Watkins’s room and knocked on the door.  You looked in through the door and she said something to the effect of 'what’s up?'  You told her that you wanted to chat and then entered the room, closing the door as much as it could behind you.

9You kneeled beside the left side of the bed and Ms Watkins half sat up and told you to 'fuck off'.  You were not deterred and leant in closer.  Confused,
Ms Watkins asked if Ms Roth had sent you and if she, Ms Roth, needed her help.  You said 'no' and while still kneeling, leant in and attempted to kiss Ms Watkins twice but both times she moved her head.  You then firmly grabbed her face with your left hand and pulled it towards your face, kissing her and sticking your tongue into her mouth.  Ms Watkins did not respond to the kiss.  She pulled her head away and told you again 'Okay, fuck off'.

10You then left the room whereupon Ms Roth saw you in the hallway and accused you of cheating on her with Ms Watkins, which you denied.  The argument between you and Ms Roth became heated and at one stage you threatened to kill yourself by driving in front of a train.  Those present tried to stop you from driving and were concerned enough about your threat to call Triple 0.  As it happened, you did drive home intoxicated but without incident.

11When Ms Roth asked Ms Watkins what had happened, she simply said, 'He tried to kiss me and stuff' without providing further detail for fear of upsetting her friend.  She did not report the matter to the police until 16 July 2021.

12Ms Watkins made a pretext call to you on 14 August 2021, during which you apologised for the night.  You said you remembered kissing her, had no idea why you did what you did, and that Ms Watkins had not been putting out vibes, although you also referred to the conversation between Ms Watkins and Ms Roth about sleeping with you.

13You were arrested on 8 September 2021 and made a no-comment interview.

14In your evidence you admitted kissing Ms Watkins but claimed it was entirely consensual and that your tongue had not entered her mouth.  You said
Ms Watkins was smiling and kissing you back.  You explained your extreme behaviour on the night, that is after your confrontation with Ms Roth, and your apologies during the pretext call, as stemming from the fact you had cheated on your girlfriend, rather than because you had done something
non-consensual.  The jury clearly rejected your account in relation to the kissing. 

Your personal circumstances

15Turning to your personal circumstances.  These were outlined in defence submissions, a letter from your mother, a dated report of psychologist Gary McMullen who saw you on three occasions in 2017 and an Aboriginal Community Justice Report commissioned for the purpose of this matter. 

16Briefly, you are a Taribelang Bunda man.  You were born in Bundaberg, Queensland, in March 1983.  You are now 40 years old, almost 41, and you were 38 years old at the time of the offending.  You have two siblings and two half-siblings and are the second youngest.  You grew up in Bundaberg until 1997 and enjoyed your time there.  You recalled regular social gatherings and community events with the local Aboriginal community and learning about your cultural history and practices.

17This came to an end when you were aged 13, in 1997, because your mother and her three youngest children left Bundaberg, apparently to flee your father, who was abusive.  You found this very disruptive and you were somewhat resentful of the fact your happy life had been interrupted.  With your mother and two siblings, you moved to Cairns where you were reunited with your eldest sibling, Jason.  You and your mother and two siblings had a period of homelessness when you were living out of your family car until you found a two-bedroom unit to settle in.

18In Bundaberg you had been going very well at school, but after moving to Cairns, with all the disruption that entailed, you started expressing suicidal ideation which caused your brother Jason to become concerned.  You also began skipping school and started using alcohol as a coping mechanism.

19In the year 2000, your family moved to the Sunshine Coast, and you were able to re-engage at school and in fact successfully completed Year 11 and Year 12 and graduated in 2001.  After you left school, you obtained employment first as a trainee in administration at the Queensland Government's Department of Housing and later with the Department of Education. 

20In 2008 you moved to Melbourne where you met a woman by the name of Rachael Dodds.  The two of you began a relationship and moved in together in a house which you initially shared with your sister and your sister's partner.  You and Rachael had two children and you loved being a father.  Unfortunately, that relationship fell apart.  Legally, you have shared custody and responsibility for your two children; however, at Rachael's behest you currently have little contact with them.

21In Victoria you worked at an employment agency before, in 2014, joining the police force.  You were very proud of being able to join the police force, but unfortunately your time there came to an end.  That was because you were forced to resign in 2018 due to offences you committed in 2017 while under the influence of alcohol. 

22The circumstances of that prior matter were that you attended a Grand Final party where you consumed alcohol and planned to stay overnight at that premises. You entered the bedroom of your host's 13-year-old daughter and committed sexual offences against her, including kissing her and other unwanted sexual touching.  You repeatedly apologised for your offending and asked if the victim was traumatised.  You pleaded guilty to those offences, in particular two charges of indecent act with a child under 16, and were sentenced on 4 July 2017 to a community corrections order for a period of 18 months, which not only had a condition of unpaid community work but also treatment and rehabilitation conditions.  You were also placed on the Sex Offender Register.

23Your father died in 2014, which caused conflicting emotions for you.  You formed a relationship with your new partner Ebony in about 2020 and it became serious in 2022 and you moved in together.  Ebony has provided a character reference for you and talks about you being a kind, caring, respectful and gentle person towards her.  The two of you are expecting your first child in August this year.

24After your conviction for the previous offending, it appears you had a period where you were unemployed, but for the last year you have been working fulltime as a forklift operator and appear to be going well in that job.

25You told the author of the Aboriginal Community Justice Report that you had been previously diagnosed with PTSD, that is post-traumatic stress disorder; however, that diagnosis is not confirmed by the report of Mr McMullen who at that time, being 2017, did diagnose you with adjustment disorder with mixed anxiety and depressed mood.  It appears that the diagnosis of PTSD was told to you by your former general practitioner.  I am not sure what weight can be attributed to that given that he was a general practitioner rather than a psychologist or indeed a psychiatrist.

Objective Gravity of your offending and moral culpability

26The objective gravity of your offending and your moral culpability are two factors which are of central importance in determining any sentence.  If there was any doubt about the seriousness of the offence of sexual assault the maximum penalty of 10 years makes it clear. 

27That said, there is obviously a wide spectrum of seriousness within any offence and sexual assault is no exception.

28Mr Shaw submitted that your offending was at the lowest end of seriousness for the offence.  I do not agree that it is at the lowest end, although I do agree it is towards the lower end of the spectrum.  As the prosecutor pointed out, your offending was not fleeting.  It may have been of short duration, but you persisted in trying to kiss Ms Watkins in the face of her repeated refusals and you ultimately used force to get what you wanted by grabbing her face and sticking your tongue in her mouth.  You did this in what should have been the safety of her room and whilst she was lying in bed.  You did this despite being on the tail end of a community corrections order for similar offending and despite being subject to the requirements of the Sex Offender Registration Act.

Impact of your offending

29Ms Watkins provided a victim impact statement to the court which she did not wish to be read out.  To respect her wishes, I will not go into her victim impact statement in great detail, but I have read it and I note that she expresses feelings of grief, anger, shame and distress and also intrusive memories.  She also refers to the trauma of being required to give evidence in the trial.

30Whilst I have had regard to that victim impact statement, I am conscious that I must not take into account any impact which could be ascribed to the offending for which you have been found not guilty.

Current Sentencing Practices

31To promote consistency of approach in sentencing, particularly the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.

32The most recent Sentencing Advisory Council Statistics of the higher courts indicate that 75 per cent of people sentenced for sexual assault over the five years leading up to 30 June 2022 received an immediate term of imprisonment with the next most common sentence being a community corrections order at 19 per cent.  I accept that most of these matters would have been more serious than yours. 

33As Mr Shaw submitted, if you had only been charged with the offence you were found to have committed you would most likely, indeed almost certainly, have been dealt with in the Magistrates' Court.  For this reason, I have also had resort to those statistics which reveal that for the three years to 30 June 2021 the most common sentence for the offence of sexual assault was a community corrections order at 35 per cent, with imprisonment being the next most common sentence at 29 per cent, followed by an adjourned undertaking and then a fine.

34Of course, statistics are of limited assistance because they never tell you anything about the details of the case.  In that regard comparable cases are of more use, although no two cases are ever the same and nor are they binding precedents to be applied or distinguished.  Not surprisingly, I was not referred to any strictly comparable case to yours. 

Your character and risk of reoffending

35You have only the one prior matter, as I have previously discussed.  The similarities between that matter and this matter are very concerning, as is the fact that both offences were committed under the influence of alcohol.  You told the author of the Aboriginal Community Justice Report that you acknowledged struggling with recognising social cues and that you often felt overwhelmed in unfamiliar social settings, which led to you becoming introverted and retreating when possible.  You said that you had coped with these challenges previously by turning to excessive alcohol consumption which significantly impaired your judgment and led to behaviours that were out of character compared to when you were sober.

36Mr Shaw submitted that despite the prior matter your prospects of rehabilitation were very good as you are in a much better space now than you were back then in 2017 when you were sentenced, or indeed in 2019 at the time of this offence.  You now drink alcohol only sparingly, are in a loving and stable relationship and have the support of your partner and your mother, both of whom were in court today and for much of the trial.  You also have a stable job.

37I am not so hopeful about your future.  It is alarming that you would commit this offence during the currency of a community corrections order and whilst registered as a sex offender.  The fact you had almost completed the corrections order, indeed you only had two days to go, does not reduce my concern; if anything it heightens it, as obviously the treatment and rehabilitation condition of that order did not work.  Nor did the order have the effect of deterring you from further offending.  Further, you have not officially shown any remorse for this offending.  I say officially because you did apoligise during the pretext call but you subsequently sought to explain that away.  You maintained your denial of the offending even to the Corrections officer who assessed you today.  I make it clear that contesting the charge and lack of remorse is not an aggravating factor, but it is relevant to your prospects of rehabilitation.  Finally, a long-standing problem with alcohol is not an easy thing to get over.

38That said, you do appear to be on the right path at the moment.  You also have managed to rise above disadvantage and difficulties in your youth, which is a very promising thing.  For the most part you have been a good worker and a contributing member of society.  It is also to your credit that you completed all 250 hours of unpaid work that were ordered as part of your last corrections order and also, whatever effect they might have had on you, you at least completed the treatment and rehabilitative components of that order.  Although denying sexually assaulting Ms Watkins, you do at least acknowledge that alcohol is a problem for you.  All up, I consider your prospects to be reasonable.  If you can stay off the alcohol I think your prospects are very good. 

Other mitigating factors

39I take into account as a mitigating factor the delay in relation to this matter.  You have had it hanging over your head for quite some time, since you were first interviewed in relation to the matter.  Further, you have not committed any other offences since this offence, which is to your credit.  I have also taken into account that you have been on bail for a considerable period of time and have complied with your bail conditions.

Purposes of Sentencing

40I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.  A custodial sentence must only be imposed as a last resort, and I am satisfied it is not appropriate in this case.  However, as I explained earlier today, I consider anything less than a community corrections order would not satisfy all the sentencing purposes in your case given the seriousness of the offending, the fact it occurred whilst intoxicated, your lack of remorse, and the similarities with your prior offending including your intoxication at that time.

41Although it did not have this effect last time, a community corrections order in my view is the only way to satisfactorily address the risk factors to your offending, and to promote your rehabilitation and therefore to protect the community. 

42Taking into account your current work situation, the fact that you are the sole breadwinner and that you and your partner Ebony are expecting your first child, which will place a strain on your time, I have decided not to impose community work as part of the order but instead to fine you.  It is in your interest and the community's best interest if you can continue to work, because that will assist your rehabilitation and there will be enough interruption to your work by the other conditions of the corrections order that I am about to impose.

43I will ask you to stand up please, Mr Jones.  On that charge of sexual assault, I convict and fine you a total of $2,500 and I also impose a community corrections order on you.  That order will last for the period of 18 months.  It is necessary to go that long so that you can be assessed for and complete the condition relating to offending behaviour.

CCO

44The conditions of the order are that it commences today and will end on
18 August 2025.  You must attend at the Werribee Community Correctional Services Centre within two working days of today.  You are subject to the mandatory correction order conditions, so they apply to every corrections order, and you would be familiar with those given that you have already been on an order.

45In addition to those mandatory conditions, you must be under the supervision of a community corrections officer for that period of 18 months.  You must undergo treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.  You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. 

46They are the conditions of the order.  The fine gets referred to an authority which will ensure that you pay. 

47Do you understand the sentence that I have imposed?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  You know that this order and fine are intended both to punish you appropriately but also to address the other sentencing considerations, including your rehabilitation.  It is designed to try and assist you and to ensure that you do not offend again.

50OFFENDER:  Yes.

51Mr Jones, the last thing that I need to explain to you, and I am sure you know this, it is very important you comply with this order because if you do not, you will be charged with breaching the order.  That is an offence in itself and also you will be liable to be resentenced for this offence.

52OFFENDER:  Yes.

53HER HONOUR:  Unless there is anything else, I will adjourn the court.

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