Director of Public Prosecutions v Joseph, Samuel
[2012] VCC 1970
•30 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR12-01055
CR-12-02133
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL JOSEPH |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 30 November 2012 | |
CASE MAY BE CITED AS: | DPP v Joseph, Samuel | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1970 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Lew | |
| For the Accused | Mr D. Gray |
HER HONOUR:
1 Samuel Robert Joseph, a jury has found you guilty of one charge of sexual penetration of a child aged under 16. You have also pleaded guilty to one charge of marijuana on that same indictment. In addition, you pleaded guilty to charges of attempted armed robbery, one charge of burglary, one charge of theft, and have agreed to the summary charge of breaching an intervention order, to be uplifted and dealt with this court pursuant to s.145 of the Crimes Act 1958.
2 The facts underlying your offending are as follows, beginning with the charge of sexual penetration of a child under 16: the complainant in this matter, (V), was 14 years old and you began living at her mother’s home as a boarder in Bendigo on or around 11 February 2011. You and she became friendly and spent time together, although you worked fairly long hours as a concreter. She had been described by her mother as a loner who had few friends of her own age. Her mother welcomed the friendship between the two of you, regarding it as a sort of brother/sister situation.
3 From evidence on the trial, it appears that in about the third or fourth week of March 2011 you and V were in your bedroom drinking and she was drunk. You put a condom on your penis and penetrated her vagina, then told her you could not ejaculate if you did not take the condom off. You withdrew your penis, removed the condom, and penetrated her vagina, withdrawing before ejaculating. The jury acquitted you of two charges of indecent acts with a child under 16 and three further charges of sexual penetration of a child under 16, all charges allegedly involving V.
4 In a record of interview with police, you did admit to having sex with V on one occasion, when you said you were upset about the separation between you and your former partner. You were both drinking. She comforted you, you said, and one thing led to another. You told police, however, that you believed she was 16 at the time. The evidence of V and her mother at the trial was that you had been informed of her real age on several occasions shortly after moving into the house and your defence was clearly rejected by the jury.
5 Police searched your premises on 28 March 2011 and found two packages of cannabis amounting to a small quantity of that drug, and you were charged with the offence of possessing cannabis, to which you pleaded guilty, that comprising charge 7 on the indictment. The charge on which you were found guilty was charge 4 on the indictment. On 29 March 2011, a family violence intervention order was made by the Bendigo Children’s Court for a 12-month period prohibiting you from, amongst other things, contacting or communicating with V, this being served on you on March 31 2011.
6 On 29 April 2011, you rang V on her mobile phone, but she hung up when you identified yourself, then sent a number of text messages in which you effectively apologised about what had happened and said goodbye. These actions comprise the summary offence of breach of intervention order. I now turn to the charges to which you pleaded guilty and which are contained in indictment C12606H66. Charge 1 on that indictment, attempted armed robbery, occurred on 15 September 2012 in the early hours of the morning at a 24-hour convenience store in Bendigo, which you entered wearing a hoodie over your head and a towel over your face.
7 You were carrying a 20 cm long sharpened piece of wood, walked up to the cash register and unsuccessfully tried to open it. When the store attendant came up to the counter, you pointed the wood at him saying, “Come on, you know what I want.” You started to walk around the counter but the victim told you to you stay where you were, that he would give you what you wanted, and started fiddling with the register but did not open it. He then asked you to leave the store and think about what you were doing and said if you didn’t come back he would forget about what had happened. You left the store empty-handed about two minutes after entering it.
8 Charges 2 and 3 on the indictment, burglary and theft, relate to an incident later that morning, at about 12.30 am, when you went to the Bendigo Marketplace Centre Management Office in Bendigo and forced a lock on a rear window, went inside, and after searching several rooms took an LCD television, a BlackBerry mobile phone worth about $600, and an unknown amount of cash from a charity box. The incident was captured on CCTV footage. Police were called as a result of the security alarm being activated, and you were arrested in Bendigo at about 3.40 am that morning, carrying a green shopping bag with USB cables and an adapter. The television and mobile phone taken from the centre were located at your accommodation, but the cash was not recovered. You made full admissions in a record of interview to being involved in both the attempted armed robbery and the burglary.
9 I received victim impact statements from V and her mother. In her victim impact statement, V said that a previously close and open relationship with her mother had been badly damaged in the area of trust as a result of your offending. She said more than two years later she and her mother were still fighting about the incident, that there were rumours going around that her mother had allowed her to have sex with you, and that this made it difficult for her to go out. She said she would never had had sex with you had she been sober, and I note the context of this offending was one where you were purchasing alcohol for V and the pair of you consistently drinking together.
10 V’s mother, in her victim impact statement, said she continues to feel guilt over being unaware of the developing relationship between you and her daughter, for having failed to protect her and also spoke of rumours abounding in the town to the effect that she had allowed the sexual incident to occur. She said she now trusts others less and feels betrayed because she was happy with the friendship you offered her daughter. Generally, she feels depressed and angry. No victim impact statement was received from the store attendant, the victim of your attempted armed robbery.
11 I now turn to your personal circumstances. You are 31 years old and were born and raised in Tasmania. You have one sister, aged two years older than you, and your parents separated when you were 13. Your mother brought you and your sister to Melbourne, where you lived in Fitzroy. Your maternal grandparents owned a gourmet pie shop in St George’s Road, Northcote, where your mother worked. You attended Northcote High School, where you achieved fairly good marks but became bored and developed a cannabis habit and began generally fighting with your mother. Eventually, she pulled you out of school after year 9 and got you work as an apprentice hairdresser in Northcote.
12 At the same time, you moved out of home and went into a shared accommodation and over the next two years worked for five different hairdressers, always running into the same problem that although you were taken on as an apprentice your employers would not sign the necessary papers. Your marijuana habit, in that time, increased and then reached a stage where you were smoking so much you could not hold down a job. You also began using ecstasy and amphetamines in those years, on an intermittent basis. You then moved into employment, over the next short period of time, as a kitchen hand, and undertook menial work for low pay.
13 Eventually, you were unable to afford the shared accommodation, and for a while couch-surfed at friends’ houses. Your sister, by this stage, had left home and had two small children and refused to have you live with her, and by the age of 17 or 18 you were homeless and living on the streets. At this stage, you began using heroin. You were sleeping under bridges and in squats and in hostels when you could. Unsurprisingly, you, at this time, began to acquire a criminal history, beginning with a conviction for possession of and use of heroin in May of 1999.
14 In July that year, you were dealt with by the Melbourne County Court for armed robbery, which your counsel informed me involved you entering a shop and robbing $200 at knifepoint. At this stage, you were trying to live with your sister, but she and her mother pieced certain information together and informed police of your activities and you were charged. You were placed on a community-based order without conviction with a condition to undergo assessment and treatment for drug and alcohol use.
15 You breached that order after 6 or 7 months by impulsively moving to Byron Bay without permission, seeking to escape your environment. You stayed there for about six months, living rough and using heroin. You returned to Melbourne and lived on the streets, and apparently at this stage you wanted to end your life. In 2000, you tried to commit an armed robbery on a service station using a knife, but the cashier beat you up. The Morwell County Court sentenced you to a total term of three years in a youth training centre for attempted armed robbery and breach of a community-based order.
16 You served 19 months of that term at Malmsbury Youth Training Centre, then were released on parole on 14 September 2001. You moved to St Kilda for 12 months, living in a youth justice dwelling, and immediately began using drugs again, in particular amphetamines, which you had been using regularly before your apprehension for attempted armed robbery. In August 2000, whilst you were undergoing the three-year youth training centre detention, you were also sentenced on charges of possessing and using amphetamine, which offending occurred before your detention.
17 On 14 November 2002, you were placed on a further community-based order by the Melbourne Magistrates’ Court on charged of theft of motor vehicle, shoplifting, unlicensed driving, and unlawful assault, but by this stage you had moved to Bendigo to live at the Lighthouse Foundation. This was a successful placement for you: you stopped using drugs and there met your partner, Ms S, with whom you lived in a relationship for the next eight years.
18 In that time, you had steady work as a concreter and generally lived a settled way of life, and you and Ms S together raising three children, but the relationship, unfortunately, broke down after Ms S found you had had a one-night stand. She became very hurt and then herself had an affair with the next-door neighbour. This then began a period of considerable dislocation for you. You continued to work as a concreter and, indeed, were employed in this capacity up to the time of your arrest in September 2012. However, as a single man, you were unable to obtain premises to rent, although you were making in the region of $1000 a week.
19 In that time, you continued to have contact with Ms S, but lapsed back heavily into drug use, this time abusing ice and also engaging in large-scale abuse of alcohol. You moved from friend’s house to friend’s house, and in that context took a room in the house where V and her mother lived. Your unstable and unsatisfactory housing condition continued after you had to leave those premises. You applied for houses every week, became depressed because of your unstable accommodation, and because relations with Ms S broke down and you were unable to see your children.
20 The two of you tried to get back together in 2012, but Ms S apparently had a boyfriend with whom she continued on which, and eventually in either March or May of 2012 you tired of the situation and broke a window at the house. The Department of Human Services became involved, and Ms S took out an intervention order against you. You also, in this time, commenced illegal use of the antidepressant Xanax, which had a negative impact on your mood. This is a common experience of this court – that is, that abusers of Xanax – suffer severe mood disorder, which often results in accompanying offending.
21 In any event, your counsel inform me that the attempted armed robbery which was committed a couple of days before the trial involving V was due to start, at which stage he said you were virtually hoping to be jailed. Your accommodation difficulties had become extreme. You had a deepening depression over a failure to have access to your children. Your drug abuse and your alcohol abuse had continued to escalate to the point where you apparently required the proceeds of the attempted armed robbery and the burglary in order to support your habit.
22 You have remained in custody since September 15 of this year, bail in relation to the sexual penetration charges having been revoked. You have been placed in protection in a Melbourne remand centre, where no drug courses are available. You put your name down for a job, but none has been allocated to you. Your time in custody, I accept, has been fairly isolated. You have no visitors. You speak to your sister on the phone and have a very occasional conversation with your mother by telephone, she now living in Cairns with her partner. You have not had contact with your father for about eight years. You hope at some stage that your children will be brought to visit you in jail.
23 Your relationship with your mother apparently improved in the years while you were with Ms S and staying out of trouble, although distance has meant her contact with you has not been frequent. You are currently on a methadone program in jail and have reduced your daily dosage to about 60 mg. It is your aim on being released from jail to move to Cairns and escape the Bendigo drug milieu in which you have become entrenched and to make a fresh start. You are confident that you can get work as a concreter.
24 It has not been suggested to me that I should deal with you in any way other than imposing a sentence of imprisonment. Your counsel submitted, and I accept, that the attempted armed robbery was a very low-level affair involving, as it did, a short confrontation with your victim, who was fairly readily able to dissuade you from your course. In one sense, it is quite different to many attempted armed robberies where the actual crime has been thwarted only because of physical intervention either by the person being held up or a bystander. In your case, it was as a result of you being talked out of the action and simply leaving the premises voluntarily and very soon after you had come in. The burglary was carried out on commercial premises. You were swiftly apprehended and the goods recovered, apart from the moneys taken from the charity box.
25 The offending in relation to V, however, was serious. The jury clearly accepted her evidence and that of her mother that you were made known of her age from the outset. I accept that the sexual interaction took place in the context of you mourning the demise of your relationship with Ms S, V comforting you, and matters going from there. In other words, I accept it was not a planned activity, nor one where you manipulated V into having sexual intercourse with you. Nevertheless, it did take place in the context of alcohol and intoxication, not just of yourself, but of your 14-year-old victim.
26 You are many years older than V and your actions were, to say the least, grossly self-indulgence. You are the father of three, and the evidence of V’s mother was that you knew, and indeed you said words to this effect in the interview, that she was a rather lonely girl, with few friends. It was clear you developed a friendship with her and ultimately, although it may have been impulsively, you exploited that friendship in a most serious way.
27 I do accept, however, the evidence of V herself that you also, in what appears to have been a sort of maudlin state of alcohol use and grief over your relationship, decided that you were, in fact, in love with V, although it appears she did not return your feelings. However, I do accept the prosecution’s submission that the age discrepancy and the provision by you of alcohol to V are aggravating factors in this case, nor of course did you plead guilty to the charge.
28 On the plus side, I accept you have overcome a difficult childhood to carve out a good work history. You are devoted to your children, and I regard your plans, although at this stage they remain plans only, to remove yourself from the adverse influences of your Bendigo milieu and to start afresh as positive ones. I accept you have reasonable prospects of rehabilitation, although this is a somewhat guarded prognosis. Your problems with drugs and alcohol very much stand in your way and you have demonstrated a capacity to lapse back into misuse of them in times of stress. I, therefore, sentence you as follows. Could you stand up, please.
29 On the charge of sexual penetration of a child under 16, which was charge 4 on the presentment, you are sentenced to three years’ imprisonment. On the charge of attempted armed robbery, on the second presentment, you are sentenced to nine months’ imprisonment. I note that this is, as I have said, a very low-end example of this type of offending, but you have priors for it. On the charge of burglary, you are sentenced to six months’ imprisonment. On the charge of theft, you are sentenced to six months’ imprisonment. On the charge of possessing cannabis, you are fined $200; and on the charge of breaching an intervention order, you are sentenced to one week’s imprisonment. The base sentence will be the sentence imposed on charge 1, three years, and I order that six months of the sentence imposed on the charge of attempted armed robbery and three months of the sentence imposed for burglary be served cumulatively to the sentence imposed on charge 4 of the first indictment and all other sentences, giving a total effective sentence of three years and nine months. I order that you serve two years before becoming eligible for parole.
30 Pursuant to s.6AAA, I declare that had you not pleaded guilty to the charges of attempted armed robbery, burglary, theft, breach of intervention order and possession of cannabis, I would have sentenced you to a total effective sentence on those charges, except for the possessing cannabis, to two years and order that 15 months of that sentence be served cumulatively to the sentence imposed for sexual penetration of a child under 16, giving a total effective sentence of four years and three months and ordered that you serve three years before becoming eligible for parole.
31 Thank you. All right. Yes. Is there anything else that I need to do?
32 MR LEW: Your Honour, the ancillary
33 HER HONOUR: Pardon?
34 MR LEW: There were ancillary orders which were handed up. I beg your pardon. Your associate says they’ve already been handed back.
35 HER HONOUR: Have they been handed back or not? They were.
36 MR LEW: They were.
37 HER HONOUR: Very well. So that’s everything?
38 MR LEW: And, Your Honour, presentence detention.
39 HER HONOUR: Yes. I declare – how many days?
40 MR LEW: Your Honour, I’ve, embarrassingly, left my notes in that basket there. Your Honour, may I approach that basket.
41 HER HONOUR: Yes. Just one moment, please. Yes, you may approach that basket.
42 MR LEW: Thank you, Your Honour.
43 HER HONOUR: You can even touch the basket if you like. Have we worked out the PSD?
44 MR LEW: We’re working it out, Your Honour.
45 HER HONOUR: In relation to the charge of sexual penetration of a child under 16, you are to be placed on the Sex Offenders Register for a period of 15 years. We will print the papers out. They will be served on you, and your counsel will explain your obligations. How are we going? I’ve got a jury sitting in the jury room, so I would be grateful if we could get moving with the PSD, please.
46 MR LEW: Your Honour, may I approach the informant.
47 HER HONOUR: Yes. What does that mean for now though? So 67 days on the - how are we going there? I just normally expect this to be done before we come into court, thanks. 77? Does that include today? Does that include today, please? Gentlemen, I’m speaking to you.
48 MR LEW: Yes.
49 MR GRAY: I believe so, Your Honour.
50 HER HONOUR: Thank you.
51 MR LEW: Excuse me a moment, Your Honour.
52 HER HONOUR: This is not to happen again. All right. I expect PSDs to be worked out. It was 67 days as at what date, Associate? All right. I declare that 77 days have been served by way of presentence detention. Thank you. Can we just get that printed out, please.
53 MR LEW: Yes, Your Honour, and that includes today: the 77 days.
54 HER HONOUR: Yes, yes.
55 MR LEW: I apologise for that oversight, Your Honour.
56 HER HONOUR: Yes. Very well. Get you to sign that. All right. I’m going to stand down. Thank you.
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