Director of Public Prosecutions v Jones (a pseudonym)

[2019] VCC 622

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

EDMUND JONES (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2019
CASE MAY BE CITED AS:	DPP v Jones (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 622

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. D. Mandie	Office of Public Prosecutions
For the Accused	Ms. F. Todd	Rogers & Gaylard Lawyers

HIS HONOUR:

1Once again this court is required to impose punishment on a perpetrator of child sexual abuse and, as the courts have come to keenly appreciate, here again the impact on the victim of that sexual abuse has been enduring, affecting the victim from the days when the offences were committed on her to this day. 

2The psychological scars on the victim are deep.  Her eloquent victim impact statement made clear how so many aspects of her life and that of her husband have been, and are still adversely affected.

3Your sexual offending, Mr Jones[1], occurred first when you were entrusted to do some chores in a cottage on a property you and your family had moved to in 1989.  That is, the blended family moved to Benalla in 1989.  The victim was about eight and you were about 14 or 15 years old at the time.  She was vulnerable.  You were immature.

[1] This is a pseudonym name.

4As I said, sexual offending first occurred when you were entrusted to do some chores in a separate cottage on the property.  The victim innocently came to the cottage, curious as to what it was like.  You took the opportunity to pin her down and simulate sex with her.  Both of you were clothed.

5You repeated this sort of behaviour a short time later in the same cottage.  At another time, you enticed the victim to an elevated room or space in a shed on the property.  On this occasion, you removed her pants and underwear and your own.  You rubbed your penis on her vaginal area until you ejaculated. 

6On another occasion, this time in the family home, you exploited the opportunity when she was simply lying on the floor on a hot day, watching television.  You took the opportunity to rub her vagina with your toes as you sat on the chair above her. 

7This conduct, these four separate incidents, were charged as a single, but representative charge of an indecent assault.

8Some time after that, your perverted conduct escalated.  You took the victim to an old dairy on the property and put her up on a bench and covered her eyes with a jumper.  You put your erect penis in her mouth.  She was shocked and bit down on your penis, which you then withdrew, swore at her as she ran off.  This offending was particularly concerning and serious.  Sexual penetration of a child under the age of 10 has a maximum term of 20 years' imprisonment. 

9The next charge was again representative, being two occasions of exposing your erect penis to the young victim, once in the house after a shower, and once outside, when she was riding around on a trail bike.  On this latter occasion, you were masturbating. 

10Finally, you again, on the last occasion, the last charge, lay the complainant down and simulated sex upon her, but this time you went into her bedroom and got on top of her on her bed. 

11Sometime after that, when she was in Grade 5, the victim told her mother what you had done.  Her father was told and he meted out some corporal punishment, but much more importantly was that you were referred to a child or adolescent psychologist. 

12It was said by your mother that the psychologist was able to get you to understand the dreadful effect of such offences on the victim.  There are no records of the psychologist that have survived. 

13But in any event, you did not repeat your sexual offending with the victim or any one else.  As I have made clear, you were at the time between the ages of 14 to 17 years old. 

14What needs to be understood, is that youth do not always understand and appreciate the consequences of their acts.  In an important statement regarding this matter, in dealing then with young offenders, the Court of Appeal, indeed the very experienced Court of Appeal judge, Vincent JA, said the following:

'When youth is raised for sentencing considerations, the focus is usually placed upon the offender's prospects of rehabilitation but this is, by no means, the only basis upon which it assumes relevance. 

For at least a century, the attribution of criminal responsibility and the response in terms of dispositions handed down upon offenders has increasingly reflected developing ideas and understandings concerning personal responsibility, moral culpability and accountability. 

In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity.  By reason of the stage of development an offender may have reached, he or she may not fully appreciate the seriousness and the real consequences of offending actions.'

15What must be understood, however, is that all sexual abuse of children is grave offending.  Of course, the circumstances of the offending in each particular case differs.  However, the oral penetration of a child under the age of 10 is, as I have said, particularly concerning.  Simulating sex on a child to the point of ejaculation is likewise very troubling. 

16However, my assessment of your moral culpability must be guided by what the appellate courts have said in dealing with cases such as this; that is, where an adult is to be sentenced for sexual crimes against a child, committed by the offender decades earlier when the offender was also a child.  What was said by Nettle JA and has often been repeated in these sorts of cases, was the following.  I intend to repeat what I have said earlier this morning in a sentence indication hearing because the community must understand, or we must help the community understand, that as a sentencing judge, I must apply the law.  Nettle JA said in the matter of Boland, the following:

'Decisions of this court in R v Nutter and R v Better recognise that where offences which are then committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. 

Although such an offender falls to be sentenced as an adult, common sense and fairness dictates that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or a person of immature years and not as an adult or person of greater maturity.'

17As I said, these words have been adopted and repeated in a number of cases that have gone to the Court of Appeal, in Sherritt in 2015, Hutchinson in 2018.  There are other cases, such as Fleming in 2016 and Rootsey in 2018, where the principles have been called in aid.

18There are many other examples where offending of this kind has not always seen sentences of community corrections orders or suspended sentences as opposed to actual imprisonment.  What is also important and referred to by Nettle JA is:

'That general deterrence, which ordinarily plays a lesser role in sentencing in children than it does in the case of mature adults, must also apply in these cases.  That is, general deterrence which is an important sentencing purpose must be moderated in these cases.' 

19But as I said, I must also consider the impact on the victim and I have done that, but I assure you Mr Jones that I have not been overwhelmed by the victim impact statements.  Rather, I have considered them judicially in the overall synthesis of all relevant matters. 

20What the victim said in her victim impact statement was that while on the surface it may look like she has been able to move through these matters and have a life that looks like she has it all with a successful career and broad circle of friends, supportive husband and now her own two children, but what is underneath all that is the extraordinary effort that is required each day to rise above what happened to her and overcome the major effects upon her of your crimes. 

21So she outlines the very many things.  I do not intend to use my own words to try and summarise her own eloquent words in respect of this matter, but she has indicated the very many emotional, psychological, financial, workplace, career, the very many things that have been affected. 

22What she said was particularly insightful at the end of her victim impact statement to try and make clear in a tangible way, the impact on her psychology of crimes of this kind.  She says:

'Perhaps the impact of Edmund's crimes has been a bit like losing a leg.  I lost my self-confidence and my balance, my ability to run through life.  I've learnt to walk and move in the world on my own, albeit falling often and finding it difficult to get up.  I probably appear fine to most, like having a prosthetic beneath the trousers.  I limp a little, but get on with the job.  I am aware of my injury and its effects on the everyday.  It impedes my relationships, my sleep, my health, my career, my family, my finances, my life.  I am broken, but I am not weak.'

23Her brother also provided a victim impact statement and I have taken his sentiments into account as well. 

24As to your own personal circumstances, you are now 44.  After attending school you secured an apprenticeship as a painter.  You moved then into rendering and ultimately into building and construction. 

25You took over your father's business and you now operate a successful building business in the Benalla district.  You directly employ 15 or so workers and sub-contract to many, many others.  You have a good reputation as a businessman in the Benalla area.  You are hardworking and your work history is very much to your credit.  A number of your work colleagues have become friends as well and in their testimonials, they set out your good qualities.  These were impressive documents and I have taken them into account. 

26You are a married man, marrying in 2007.  Your wife stands by you and her letter also was insightful and helpful, as was the letter of her parents, your in-laws.  What your wife said was the following:

'I did not know Edmund as a child, but as an adult, he is a well respected family man, businessman and the first person a lot of people would call on for help or advice.   He has a good group of mates and we spend a lot of time with them and their families.  I don't think anyone would ever think twice at Edmund as a threat to anyone in the community.' 

27She goes on to say:

'Since these accusations and charges have been made, it has affected Edmund and I in many ways.  This is a very stressful situation for Edmund and has caused feelings of tension, irritability, restlessness, worry, inability to relax and he finds it hard to sleep.' 

28She concludes: 

'We have a happy marriage and I trust Edmund implicitly and know that he will always look after our boys and I.  I will support Edmund through his current ordeal and I'm confident that he understands the serious nature of the charges he is facing and I know that the man I know today is both socially responsible and an asset to the society.'

29You and your wife, as it is made clear, have and are raising two young boys.  You did go to court in 2001 as a result of an altercation in a hotel.  You were put on an adjourned undertaking without conviction for the offence.  That, and your earlier drink driving matter before the Magistrates' Court in 2000 have no relevance here.

30The assessment of Mr Watson-Munro who saw you at the request of your lawyers, confirms that you have no aberrant sexual interest in children.  You are not a danger to the community.  There is no warrant for any weight to be attributed to specific deterrence to you, nor is there much weight to be attributed to protection of the community from you.  You have, as an adult, conducted yourself appropriately. 

31You have rehabilitated, thus there is no particular reason for me to establish conditions to further facilitate your reform. 

32I heard and was persuaded to grant in your favour your sentence indication application.  Thus I have made clear to you that I do not consider immediate imprisonment is the just and appropriate sentence for these serious crimes. 

33In this regard the prosecution made a submission that was to the effect that no gaol was required for these offences committed by you as a 14, 15, 16 and 17 year old. 

34In my view, the important sentencing purposes in this case or in cases of this kind, are denunciation, but that is to be moderated by reason of your youth at the time; meaning that your moral culpability is to be regarded as low. 

35Also, the very important sentencing purpose in sexual assault matters is general deterrence.  The community must understand that if you commit sexual offences against children, then ordinarily, stern punishment involving immediate imprisonment awaits. 

36But, as I have indicated through the words of Nettle JA, general deterrence is also in this case, to be much moderated.  This is not like the ordinary cases where the offences were committed by an adult on a child. 

37In my view, all sentencing purposes can be met by the imposition of a community corrections order and by fines.  I have considered whether suspended sentences are appropriate and put that to one side, as I consider that the modern approach to community corrections orders as articulated in Boulton v The Queen & Ors is the appropriate outcome in this case.

38A community corrections order, Mr Jones, needs to one involving unpaid work.  It needs to be lengthy to properly denounce the crimes that you committed.  Your plea of guilty after the sentence indication hearing is of real value.  I take it to be an expression of your remorse. 

39But more importantly, it relieved the victim of being challenged in an adversarial court setting.  It provides the victim with vindication.  She is believed, because what she said is true.  It happened, and you were the one responsible.  The plea of guilty means that a much different sentence and one much more lenient can be imposed. 

40In respect of Charge 1, I impose the following penalty.  You are convicted and fined $1500; 

41In respect of Charge 2, the oral penetration, you are convicted and placed on a community corrections order for 30 months, two and a half years.  You will be required to do unpaid work of 300 hours in that period of time; 

42In respect of Charge 3, the representative charge, you are convicted and fined $750; 

43In respect to Charge 4, the single indecent assault, you are convicted and fined $250.

44Had you pleaded not guilty to these offences, taken it to trial and being found guilty by a jury, I would have imposed a sentence of three years' imprisonment with a minimum term of two years. 

45The final matter that needs to be dealt with is the prosecution has sought or has made application that you provide a forensic sample.  That is the taking of a swab from your mouth, the extraction of DNA so that it can be put on a data base. 

46I have considered that application and notwithstanding the fact that you have been a law-abiding person since these offending, or at least since 2000, the seriousness of the offending and, given that I think it is in the interests of justice, I will grant the application and require you to provide a forensic sample.  I note that you did not oppose the application. 

47So what I need to explain to you is that there will come a point when a window will open up when you have to get down to a police station and have the forensic sample taken.  That window opens up four weeks from now and it remains open for four weeks and you must go within that time. 

48What you have to understand is that when you go there, that if you do not cooperate, the persons that are authorised to take the sample from you, are further authorised to use reasonable force to secure the forensic sample.  The way through it, of course, is, as you have said through your counsel, not to oppose it and to cooperate with it.  You will get documents about all that. 

49In respect to the community corrections order, that will be explained to you in more detail when a document is provided, or is printed and provided.  A Shepparton community corrections order?

50MS TODD:  For work reasons, Your Honour, my client requests that he might be allocated to a metropolitan community corrections office in Broadmeadows if there is no difficulty with that.

51HIS HONOUR:  It doesn't - it's no trouble to me where he's going to be.  

52MS TODD:  We've discussed it and that's his strong preference if there's no ‑ ‑ ‑ 

53HIS HONOUR:  Do you have any difficulty with any of that, Ms Mandie?

54MS MANDIE:  Sorry, Your Honour.

55HIS HONOUR:  You don't have any difficulty with that, I'm sorry.

56MS MANDIE:  No, no Your Honour.

57HIS HONOUR:  All right, thank you.

58MS MANDIE:  And those draft orders to the forensic sample will be provided by my instructor tomorrow.

59HIS HONOUR:  Thank you very much.  So Mr Jones, what is involved in a community corrections order is the following.  The many matters that apply to everyone on a community corrections order and they apply to you.  Most of them are about cooperation with the community corrections people and communication with them. 

60But the first one that I am going to explain to you is of exactly that, but it is very important and you have got to understand it.

61Firstly, you must not commit another offence for which you could be imprisoned during the time the order is in force.  That is almost every offence you can think of, is one that would be capable of imprisonment, that a Magistrate might impose imprisonment for whatever it is that you do.

62But if you commit an offence for which you could be imprisoned, then you will breach this order, you will come back before me and the mercy that has been shown will not be repeated.  You should imagine that you will go directly to prison. 

63The other obligations that are mandatory.  You have got to comply with any requirements or obligations as set out in sentencing regulations. 

64They have got to know at the Office of Corrections who you are and identity and that, and they will need to take photographs.  You have just got to cooperate with all that. 

65You must report to, and receive visits from the Office of Corrections.  You must report to the community corrections centre that you nominated at Broadmeadows, the address is here, within two clear working days of the order starting. 

66You have got to let them know at the Office of Corrections if you change your address or your job.  You cannot leave Victoria without first getting permission to do so.  That is anywhere over the border, going up to Albury for whatever reason.  You have got to tell them, I am sure they will sort that out, but you have got to tell them. 

67You must obey all lawful instructions from the Office of Corrections.  In respect of the - those are the mandatory terms.  In addition to that, the conditions that apply to you are that you must perform unpaid community work.  It is 300 hours over the 30 months that this order goes for.  It starts today of course, and ends on 1 November 2021. 

68You must do the 300 hours; that is, turn up every single time that they ask you to turn up and stay until it is over and it is not a matter of going when work programs suit, but rather, going when they require you to be there.  If you sign that, as far as the County Court is concerned, then the matter is at an end. 

69MS TODD:  May I approach the dock, Your Honour. 

70HIS HONOUR:  Someone can.  If you want to, that's fine; or your instructing solicitor.  I have signed that document.  Is there anything else required?  You said you will send the ‑ ‑ ‑ 

71MS MANDIE:  The draft orders through tomorrow.

72HIS HONOUR:  All right.  They had better be orders? 

73MS MANDIE:  Sorry?

74HIS HONOUR:  Don't worry about draft ones.

75MS MANDIE:  No, the final orders.

76HIS HONOUR:  Yes, all right.

77MS MANDIE:  Sorry.

78HIS HONOUR:  Just one copy, send that and that will be provided to ‑ ‑ ‑ 

79MS MANDIE:  Yes, my instructor.

80HIS HONOUR:  ‑ ‑ ‑ to Mr Jones's instructor, and then to him.  He has got a period of time to sort them out.

81MS MANDIE:  Yes.

82HIS HONOUR:  But if there is any confusion, just call it back on.  There is nothing else required?

83MS MANDIE:  No, Your Honour.

84MS TODD:  No, Your Honour.

85HIS HONOUR:  I thank counsel for their assistance, to the parties for their approach to the matter.  Thank you. 

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