Director of Public Prosecutions v Jordan ( a pseudonym)
[2015] VCC 1239
•3 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY JORDAN [a pseudonym] |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 28 August 2015 | |
DATE OF SENTENCE: | 3 September 2015 | |
CASE MAY BE CITED AS: | DPP v Jordan ( a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1239 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | Mike Wardell & Associates |
To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the accused and victims
HER HONOUR:
1 Timothy Jordan[1], you have pleaded guilty to one charge of indecent assault. The maximum penalty applicable to that offence is ten years’ imprisonment.
[1] A pseudonym
2 Your crime arises out of events which took place on 28 January 2012 between yourself and the complainant, Kelli Alston.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor (Exhibit A). I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most disturbing.
4 I turn to a brief summary of your offending. The complainant, Kelli Alston[2], was 16 years of age at the time of your offending and you were 19.
[2] A pseudonym
5 On 28 January 2012, you and Kelli Alston went to a 21st birthday party of a mutual friend, Mitchell House[3]. He lived in Ballarat with Adam Blackwell[4]. You and Kelli Alston were previously known to each other and had mutual friends.
[3] A pseudonym
[4] A pseudonym
6 At one stage during the evening, you and Kelli Alston sat outside together talking and you touched Kelli Alston’s leg. She told you on a number of occasions not to do that, before you eventually stopped. You told Kelli Alston you wanted to speak to her and went with her into the front room of the house. You said you had feelings for Kelli Alston and wanted to start a relationship with her. You tried to kiss Kelli Alston and again touched her on the leg. You tried to bring Kelli Alston closer to you by pulling at her clothing and kissed her on the neck and face. Kelli Alston rejected your advances. As a result you became angry and upset. Kelli Alston left the room.
7 About 30 minutes later, Kelli Alston decided to look for you to see how you were. You were then in a different room and you asked Kelli Alston to return to the front lounge room with you. You sat on a mattress on the floor and asked Kelli Alston to sit next to you, which she did. You apologised for becoming angry earlier in the night and asked Kelli Alston for a hug. She hugged you, however when she tried to pull her arms away, you would not let her go.
8 You said to Kelli Alston you wanted a relationship and tried to kiss her. You became angry when Kelli Alston again rejected your advances, asking, “Why am I not good enough for you?” You called her a “slut” and made other derogatory comments. In my opinion, you did not take "no" for an answer.
9 You pushed Kelli Alston onto a mattress and held her down with your arms. You said you would let her go if she kissed you. You tried to kiss Kelli Alston, but she kept turning her face away from you. Kelli Alston told you she wanted to leave the room and go back outside to join the party. Even that did not deter you. You told Kelli Alston she could leave the room if she touched your genitals. You were angry at that time and punched the bed next to her head.
10 You then put her hand into the front of your pants and made her touch your erect penis. You wrapped your hand around her hand on your penis, and moved it up and down. That constitutes the charge of indecent assault. You then fixed your clothing and left the room.
11 Kelli Alston stayed in the room for some time, and at about 11.00pm, called her mother to pick her up.
12 Some months later, Kelli Alston told her friends, Casey Thorley[5] and Ryan Colbert[6], she had been sexually assaulted. She had also told Adam Blackwell of the incident.
[5] A pseudonym
[6] A pseudonym
13 Kelli Alston wrote a letter to her parents, outlining this incident and gave it to them on 6 November 2012, after she had spoken with the school counsellor.
14 Kelli Alston made a VARE statement on 7 November 2012 and a sworn statement on 26 February 2014.
15 You were interviewed on 3 December 2012 at the Ballarat Police Station. You confirmed you attended the party on 28 January 2012, however maintained any sexual activity with Kelli Alston was consensual.
16 The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject shortly.
17 As has been pointed out by your counsel, there are, however, some mitigating factors.
18 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea of guilty, been spared the time and cost of a trial and witnesses, in particular Kelli Alston, have been spared the ordeal of having to give evidence upon your trial, although I note she was cross-examined at a contested committal.
19 The timing of your plea was at the door of the court with your trial due to start the same day. You indicated the same day your intention to plead guilty to this indictment. Nevertheless, I accept your plea of guilty indicates remorse for your offending.
20 You do not have any prior court appearances, nor is there anything subsequent or pending. I therefore sentence you as a person of previous good character. Your offending, however, before me is very concerning. "No" means "no" and sexual contact that is not consensual is regarded very seriously by the courts. Hopefully you have learnt that lesson.
21 I was told something of your personal history and circumstances by your counsel, Ms Swiney, who prepared a written outline of submissions for sentence (Exhibit 1).
22 You are at sentence 22 years of age and live with your mother, younger sister, and two younger brothers.
23 You attended High School and completed Year 12 in 2011. In 2012/13 you worked at Aldi, between 20 and 35 hours a week, ceasing that employment to focus on your study.
24 You applied to attend university, but as I understand it, initially failed the entrance exam, so instead completed a Diploma of Business (Exhibit 2).
25 You re-applied to the University and were accepted into a Bachelor of Business Studies, which you are currently undergoing.
26 You are in receipt of a youth allowance, as a student, of $288 per fortnight.
27 I am told you are keen on football and play on Wednesday nights through the Football Club.
28 Regarding your offending, you instructed Ms Swiney that you regularly attended that particular house at the time of this offending and were often drinking to excess. You instructed that on this night, this was the most you had ever been drunk. Ms Swiney submitted it was clear from the record of interview, and I accept, that your memory was affected by your consumption of alcohol on that night. Since then you had determined to only drink on special occasions and not to excess. Ms Swiney submitted you had maintained your resolve of minimal drinking and had focused on your studies.
29 Ms Swiney submitted you had pleaded guilty to this charge at the first opportunity and I accept that, prior to the plea being entered to this charge, the prosecution were pursuing additional charges, no longer before me.
30 At the time of this offending you were 19, a young offender, and at 22 you are still youthful and as such, rehabilitation is an important consideration when sentencing you.
31 I also accept in the time between this offending in 2012 and being sentenced, you have stayed out of trouble with no subsequent or matters pending. Since 2012 you have demonstrated an ability to be rehabilitated.
32 I accept your prospects of rehabilitation are good, providing you do not, in particular, drink to excess. Your prospects of rehabilitation will, however, greatly improve if you continue to desist from excessive consumption of alcohol. In fixing an appropriate sentence, I must seek to maximise your chances of rehabilitation, as they may be.
33 Ms Swiney submitted a community correction order in all the circumstances would adequately address all relevant sentencing considerations, including denunciation and general deterrence.
34 There was a victim impact statement from Kelli Alston which was read into the transcript by her. It is eloquent. It is very difficult in these brief sentencing remarks to do justice to that statement. I have, however, read it again.
35 There is no doubt Kelli Alston has suffered considerably in the manner described in her statement as a result of your offending. In her statement Kelli Alston stated, as a result of your offending, she was diagnosed with post-traumatic stress disorder. She had flashbacks of your offending and difficulty sleeping. She experienced periods of depression and was suicidal on a number of occasions, requiring hospitalisation. She was also anxious, had difficulty socialising and had mood swings. She felt you had abused her trust. She had difficulty maintaining friendships and relationships. The process of preparation for your trial was protracted and upsetting for her.
36 Also relevant to your victim is the notion of social rehabilitation. In that regard I refer to DPP v DJK[7].
[7] (2003) VSCA 109 [17] and [18]
37 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
38 Ms Swiney urged that I have you assessed for a community correction order and in doing so, she relied upon the decision of Boulton & Ors v R[8]. I have also read a number of authorities which have subsequently considered that decision, including DPP v Maxfield[9], Alam v R[10] and Hutchinson v R[11].
[8] [2014] VSCA 342
[9] [2015] VSCA 95
[10] [2015] VSCA 48
[11] [2015] VSCA 115
39 I did not, however, understand Boulton to mean that s5 Sentencing Act 1991 was no longer applicable, nor did I understand Boulton to say that statements previously made by the Court of Appeal, relevant to particular types of offences, now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
40 The Court has always proceeded on the basis that a sentence involving actual imprisonment must always be the last resort of the Court.
41 Mr Moore, who appeared on behalf of the prosecution, submitted a community correction order would be within the range of appropriate dispositions for your offending. The prosecution specifically did not urge an immediate term of imprisonment was required.
42 I arranged to have you assessed for a community correction order and received an Assessment Report prepared by Andrew Palmer, dated 27 August 2015.
43 You have been assessed as a low general risk of re-offending and assessed as suitable for a community correction order.
44 You expressed a willingness to Mr Palmer to comply with the conditions proposed and the order generally. You also signed consent to comply with such an order.
45 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
46 There is an element of specific deterrence required when sentencing you, although I note again, you do not have any prior court appearances and nor anything subsequent or pending. The need for specific deterrence need not loom large in the sentencing process.
47 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re‑offending. That troubles me to a degree. However, again I note, you do not have any prior history or anything subsequent or pending. My need to protect the community from you will be further reduced by your maintenance of abstinence, in relation to excessive alcohol consumption and/or drug use, if applicable. The transcript will reveal my discussion with both counsel regarding the latter.
48 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
49 In my opinion it is appropriate in the circumstances of this case, taking into account not only the gravity of your offending, but all matters in mitigation of sentence, to impose a community correction order. I can, however, only impose such an order if you consent to such an order being made. I therefore need to tell you something about this order. So I ask you to listen very carefully to this.
50 The order will be with conviction and it will be for a period of 2 years and 6 months from today’s date.
51 I propose the following conditions will apply to that Community Correction Order and I ask you to listen carefully to these conditions.
52 First of all there are core conditions that apply to all community correction orders, including yours:
·You must not commit, whether in or outside Victoria during the period of the order, that is two and a half years, an offence punishable by imprisonment. Beware, it can be all sorts of offences.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is the next two and a half years.
·You must report to the Community Corrections Centre at Ballarat within two clear days, specifically you must attend to 206 Mair Street, Ballarat before 4.00pm on 8 September, so that is next week, 2015. If you are late, you breach the order. Back before me. Does not look good. Do you follow?
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change. Be careful in the next two and a half years, you have to do that.
·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee. No holidays unless you get permission. Outside Victoria, obviously.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure you comply with the order. Do what you are told for the next two and a half years.
53 Now, there are a number of other conditions that are attached to your order:
· You must perform 250 hours of unpaid community work over a period of 18 months, as directed by the Regional Manager (s48C).
· You must be under the supervision of a Community Corrections officer for the period of the order, that is, for two and a half years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s48E).
· You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager.
· You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager (s48D(3)(a)). I note, this may not be a required.
· You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager, and
I specifically refer to the Sex Offenders Program (s48D(3)(f)).
· Further, listen really carefully to this. I direct that any non-compliance with these conditions, any of the conditions, are to be notified to me immediately by Corrections (s48(1)). I will then determine if this matter should be mentioned before me, and you will be advised of that. So you have got to be careful. I want to know one thing you do not do, then I will decide whether I want to see you again. Assuming it all goes well and I do not see you before the next condition.
· You must attend for review of your progress and compliance or otherwise with conditions of the order and you have to come back before me on 22 June 2016 at 9.30am (s48K). That is what we call judicial monitoring and that is when I am next back in Ballarat. So it is a bit less than a year, but it saves you having to come to Melbourne or me having to come up here for the day. I have made it a little bit earlier than that and I will see how you are going. If all is going well, I might reconsider seeing you again. But you have to understand, this is a bit of a two-pronged process. If you fail to attend, fail to do any of those things that I have mentioned, conditions wise, then there is a chance I will see you before that date and things will not look good. On that date, if that is the next time I see you, then it could be a short hearing, if all is going well. It might be a bigger problem for you if it is not. So just keep that in mind. So you have an actual appointment with me on 22 June 2016 at 9.30 am at Ballarat County Court when I am back here. You will be notified if there is any change to that, but that is when I am back, as far as I am aware.
54 Now, as I have said, I can only impose a community correction order if you agree to such an order being imposed, so I have to tell you more about it.
55 I should advise you that if you contravene or breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
56 You can also be re-sentenced for the offence that is before me, that is, the indecent assault. One of the options available to me includes a term of imprisonment (s83A(s)).
57 So you have got to be extra careful for the next two and a half years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on this charge of indecent assault. You have to be very careful.
58 I also advise you, if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, or worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
59 Now, being aware of all of that, do you consent to a community correction order in the terms I have just outlined? All those conditions. Now, do you want to have a word to Ms Swiney first, to make sure you know what you are doing here? You would like to? Yes, all right.
60 MS SWINEY: Thank you, Your Honour.
61 HER HONOUR: Ms Swiney, do you want to go down the back there and have a word?
62 MS SWINEY: Thank you, Your Honour.
63 HER HONOUR: How are we going, Ms Swiney? Is he right?
64 MS SWINEY: Thank you, Your Honour, he's happy to consent to that order.
65 HER HONOUR: Good. Stand for the moment please.
66 All right, so do you consent to the community correction order, in all those terms and conditions that I have just outlined, both core and additional?
67 OFFENDER: Yes.
68 HER HONOUR: Nice loud voice, good, all right. That is being recorded.
69 So I therefore formally turn to sentence you.
70 On Charge 1, indecent assault, I convict and sentence you to be placed on a Community Correction Order for a period of 2 years and 6 months, with all the conditions to which I have just referred, both core and additional. All right?
71 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of this charge following jury verdict, in other words, if you had pleaded not guilty and the jury had found you guilty of it, I would not have sentenced you to a community correction order, rather I would have sentenced you to a term of imprisonment of 2 years and I would have set a non-parole period of 12 months. In other words, you would have gone to gaol.
72 By virtue of your plea of guilty to the charge of indecent assault, you are to be subject to the Sex Offenders Registration Act for a period of 8 years. And your counsel agreed, as you heard, that such would apply to you. In other words, the legislation catches this offence, if I could put it that way.
73 In a moment my associate, Ms Jackson, will approach you with documents to sign, acknowledging receipt of the paperwork, if you like, that tells you a bit about the Sex Offenders Registration Act. By signing those papers, you are not being asked if you consent to that order being made, I have made the order, you are merely acknowledging receipt of the documentation, that is all. Now, as I have said, I make the order and it is for a period of 8 years.
74 Pursuant to s18(4) Sentencing Act 1991, for completeness, I note you have not spent any days in custody by way of pre-sentence detention, should I need to revisit this sentence, which of course I hope I do not. Correct? No PSD?
75 MR MOORE: No PSD.
76 MS SWINEY: That is correct, Your Honour.
77 HER HONOUR: The prosecution also made application for a forensic sample, pursuant to s464ZF Crimes Act 1958. Ms Swiney, who appeared on your behalf, consented to the order being made. I make the order in the terms sought. It will be for a saliva sample, and I make the order based on the seriousness of your offending. I must advise you that the authorities may use reasonable force in order to obtain that sample from you. So it is best to give it, all right? Up to you.
78 Any other orders sought?
79 MR MOORE: No, Your Honour.
80 HER HONOUR: All right. Ms Jackson is coming back to get you to sign a couple of things. One of them will be the consent, if you like, or the acknowledgement of the community corrections order. The other document is the Sex Offender Registration papers, just acknowledging you have received them. That is all.
81 So Ms Swiney, do you want to go back, or are you happy?
82 MS SWINEY: No, Your Honour, I'll - thank you.
83 HER HONOUR: All right, Mr Jordan, just before I leave the Bench, a little bit of friendly advice, if you are prepared to take it that way. Be very careful in the future in sexual relationships. No doubt there will be plenty of them in the future. But you just need to be very, very careful that consent is obtained. Not, "I think she might be consenting", but, "She is consenting". Otherwise you can find yourself in a real pickle. Courts regard sex offending very, very seriously.
84 Anything further in this matter?
85 COUNSEL: No, Your Honour.
86 HER HONOUR: No, thank you both, counsel, for that. Yes, thank you. Yes.
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