Director of Public Prosecutions v Legg

[2015] VCC 1343

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01539

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLENN ANDREW LEGG

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2015
DATE OF SENTENCE:	7 September 2015
CASE MAY BE CITED AS:	DPP v Legg
MEDIUM NEUTRAL CITATION:	[2015] VCC 1343

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J.L. Piggott
For the Offender	Mr J. Gullaci

HER HONOUR: 

1Glenn Andrew Legg, you have pleaded guilty to one charge of indecent assault, Charge 1; and one charge of recklessly cause injury, Charge 2.  The maximum penalty for indecent assault is 10 years’ imprisonment.  The maximum penalty for recklessly cause injury is 5 years’ imprisonment.  The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. 

2In brief, the circumstances were as follows.  You and the complainant in this matter commenced a relationship in about 1993.  You moved in together. At that time the complainant had a son and daughter. You had a son.  You subsequently had three children together. 

3You indecently assaulted the complainant on 3 December 1993.  The complainant had been suffering migraines and had been prescribed medication to help her sleep.  The medication would, “knock her out.”  That day the complainant took her medication and went to bed about 6 pm.  As she slept you masturbated and ejaculated over her.  When the complainant woke up the next morning there was semen on the bed, her legs, her chest and on her genital area.  You were asleep beside her.  This is the subject matter of Charge 1 of indecent assault.  This charge is a representative charge.  It is representative of similar conduct occurring on your part approximately twice weekly between 1993 and 2001.  On this first occasion, the next morning the complainant challenged you about your behaviour.  You said that she had not given you sex so that you helped yourself. 

4In late January or early February 1994 the complainant found out she was pregnant with your second child.  While she was seven months pregnant, you were home.  You kept asking the complainant for money for gambling.  The complainant told you that she could not afford it because there were bills outstanding.  You became angry and hit the complainant to the jaw with a clenched fist.  She fell to the ground.  She was stunned and in shock and says, “It hurt like hell.”  This is the subject matter of Charge 2, recklessly cause injury.

5The relationship between you and the complainant ended in early August 2005 in particularly tragic circumstances.  It appears that the complainant received a call from a doctor disclosing to her that her 13 year old daughter was pregnant.  It turned out that you were the father for her daughter’s child.

6The complainant had spoken to people previously about your offending against her but had not formally spoken to anyone including the police.  She felt unable to do so.  In September 2013, she did disclose the offending against herself to a person involved with the Department of Human Services in relation to contact by you with your son.  The complainant made a formal statement to police in October 2013. 

7There was a pretext telephone call with you on 7 November 2013.  In that call you admitted that you had sexually assaulted the complainant on occasion and that you had punched her on the jaw.

8In about early 2015 you wrote a letter to the complainant which has also been tendered to the court.  In that letter, you had, in broad terms, admitted that you had masturbated on her and appeared to be expressing some remorse for those events.

9You were arrested and interviewed on 27 November 2013.  You made no admissions to sexually assaulting the complainant but did say that it was possible that you had hit the complainant after she refused to give you money.

10The matter ultimately resolved to a plea of guilty in early June 2015 with you entering a plea of guilty on arraignment in this court.  The matter had previously been through a contested committal proceeding.

11A Victim Impact Statement from the complainant was tendered as Exhibit B.  The complainant read her Victim Impact Statement in court.  In her Victim Impact Statement the complainant - in dignified terms - described how she felt as a result of your offending and the impact that it had on her confidence and self-esteem.  It appears that she considers that she has been able to go through a number of steps involved in the process of this matter coming to court and sentencing today.  It appears that she considers that those steps have assisted her in being able to move on from your offending.  It is to be hoped that with continuing support she will be able to do that.

12In sentencing you I have taken into account your personal circumstances.  You grew up in the eastern suburbs of Melbourne.  It appears that you had difficulties with your schoolwork but you attended a technical school until the end of Year 10.  Your home life was characterised by conflict. 

13A psychological report from Ms Carla Lechner dated 27 August 2015 was tendered as Exhibit 2.  You told Ms Lechner that you had been “sexually abused” by your younger sister when you were a young teenager.  You say you were also the victim of three instances of sexual abuse by males in your later teenage years.

14After leaving school you worked in various jobs for relatively short periods of time.  In your 20s or 30s you were placed on a disability support pension and then later on a carer’s pension.   Last September you worked in a bakery for a period of time. It appears from the reference provided and tendered as Exhibit 5 that you did that successfully. 

15Ms Lechner says that you present with the symptoms of major depression and are being treated with anti-depressant medication.  She says that your personality development has suffered because of various things that have happened in your past and various conditions and that you tend to perceive yourself as a victim.  She says that this needs to be challenged in a therapeutic environment and strongly advises ongoing psychological work. She says that, “Assisting Mr Legg in completely understanding appropriate sexual boundaries and desisting from expressing anger in a sexually aggressive manner could also be a focus of therapy.  This, in turn, will minimise the risk of relapse to offending behaviours at times of stress.” 

16Ms Lechner says that you are in the low average/borderline range of intelligence with approximately 91 per cent of the adult population performing better.

17Ms Lechner says that you report three suicide attempts in the past year and it appears from what she says in her report that your major depression is reasonably severe.  Ms Lechner describes you as expressing regret and shame for your actions although she also refers to other aspects of what you said to her which suggest that to a degree you still tend to minimise your behaviour and to see yourself somewhat as a victim.

18Ms Lechner says that it is encouraging that since you were released from prison in circumstances I will later describe that you have not relapsed into offending behaviour.  She says the risk of such relapse would be further reduced through your involvement with treatment services as she has recommended.

19In sentencing submissions your counsel submitted that the appropriate sentence would be a community correction order or a wholly suspended term of imprisonment. 

20Your counsel particularly relied on a number of matters including your plea of guilty, your admissions, your lack of prior criminal history to this offending, a subsequent term of imprisonment which was served, your remorse, your lack of any relevant subsequent offending, your symptoms of major depression and your prospects of rehabilitation.

21The prosecutor in sentencing submissions did not take issue with matters put by your counsel or with the submission that a suspended sentence or a community correction order was available as a sentencing option.

22Mr Legg, as conceded by your counsel, your offending is serious.  The indecent assault against your partner consisted of behaviour which was degrading and disgusting.  It was not an isolated incident.  The way you behaved is no way to treat someone who was your partner at the time. 

23Physical violence is, of course, very wrong and that was also a wrong action.  It was fortunate that no more injury was caused than was.  It is one thing to have a verbal argument but when it escalates to a physical punch that is a very dangerous situation indeed. 

24Had I been sentencing you at a closer period in time to the offending I would have sentence you to a term of imprisonment for the purposes of denunciation, just punishment, general deterrence and specific deterrence. 

25There are a number of matters which ultimately have led me to the conclusion that the appropriate sentence on this occasion today is a community correction order.  Since this offending you have served a significant term of imprisonment. 

26On 12 May 2006 you were sentenced to a term of imprisonment of 9 years with a non-parole period of six years and six months in respect of four charges of incest, one count of assault and one count of threat to kill.  Those charges arose out of the offending which I previously referred to against the complainant’s daughter.

27You served that sentence and were released on parole and the parole period has expired.  You have lost the opportunity for any concurrency in sentence which would have been available to you if you had been sentenced on all these matters at the same time.

28It is also clear that you have been punished to a degree for other offending and that you have not reoffended since your release from prison except for a relatively minor matter in respect of your reporting conditions under the Sex Offender Registration Act. 

29On that subject, I do not intend to require registration for the offence of indecent assault on this occasion as registration is not mandatory and you are already registered for life and required to comply with the reporting conditions of the Sex Offender Registration Act for life. 

30There are also a number of matters which I have taken into account in mitigation.  You have entered a plea of guilty.  That plea of guilty was not made at an early stage but nevertheless has saved the trauma and expense of a trial.  I also accept that your plea of guilty is an expression of your remorse.  Your attitude to the offending seems somewhat complicated but it seems clear from the material available to me that to a considerable extent you are sorry for what you did.  It also appears from certain comments that you have made that you understand that your former partner has suffered considerably as a result of your offending. 

31You did make admissions in the pretext call and in your letter.  You also made some admissions to the police.  You have no prior offending prior to the offending to which I am sentencing you. 

32I note the contents of Ms Lechner’s report.  I agree with your counsel that there is no basis for the application of Verdins principles but I have taken into account as part of the general background that you have suffered from a number of physical health problems, a speech disorder and some injury to your neck.

33

In respect of your prospects for rehabilitation, I have taken into account your efforts to rehabilitate since being released from gaol including your continuing to see a psychologist – Mr Miguel Barrero.  His report was tendered as

Exhibit 4.  Mr Barrero says that you are progressing well in treatment and he considers that you constitute no risk to the community.

34I note also that the proprietor of the guest house in which you have been living says in his letter, which was tendered as Exhibit 3, that you have been helpful and responsible. 

35I consider that your prospects of rehabilitation are reasonably good.  Taking into account your prospects of rehabilitation the matters in mitigation, the principles of totality and proportionality and the desirability of continued supervision of your rehabilitation in the community – I consider that a community correction order would appropriately meet the sentencing requirements of denunciation, just punishment, general deterrence and specific deterrence.

36Your prospects of re-offending are reduced, as I have said, and I accept that your rehabilitation is progressing well but I consider that specific deterrence needs to be given some weight in sentencing you .

37You will be sentenced in respect of the offence of indecent assault as a serious sexual offender because of the sentence you received on 12 May 2006.

38That fact will be recorded in the records of the court. The Sentencing Act provisions in relation to a serious sexual offender will be applied. Community protection is the principle purpose of the sentence I am imposing but I do not intend to impose a disproportionate sentence to achieve that purpose.

39

I have had you assessed for a Community Correction Order and you have been assessed as suitable.  If you consent, I propose to impose a Community Correction Order with the following conditions.  Could you please stand,

Mr Legg.

40The conditions of the Community Correction Order would include the mandatory conditions, that is, the core conditions that all such orders have.  Those have been explained to you.  Do you understand what those conditions are?

41OFFENDER:  I do.

42HER HONOUR:  In addition to those mandatory conditions I would impose conditions that the order would go for 18 months.  You would have to do 100 hours of community work, be under the supervision of a corrections officer, undergo treatment and rehabilitation for mental health issues and undergo treatment and rehabilitation in terms of programs to reduce re-offending.  Any hours that you spend on treatment and rehabilitation would be deducted from the work hours required.  Do you understand those conditions?

43OFFENDER:  I do.

44HER HONOUR:  The other condition which is extremely important is that if you breach this order by not doing what you are told or by further offending you would be brought back before me on breach of the order.  If you are brought back before me then I would be sentencing you in respect of any breach and I can re-sentence you in respect of this offending.  Do you understand that?

45OFFENDER:  Yes.

46HER HONOUR:  Do you consent to be making a Community Correction Order with those conditions?

47OFFENDER:  I do.

48HER HONOUR:  All right, thank you.  Then, in that case, in respect of both of these charges of indecent assault, and recklessly causing injury you are convicted and sentenced to a Community Correction Order with the conditions that I have just described.  Please take your seat. 

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