Director of Public Prosecutions v Lewer

[2013] VCC 408

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
(Not) Restricted
Suitable for Publication

Case No. CR-12-02092

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENT LEWER

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 April 2013
CASE MAY BE CITED AS:	DPP v Lewer
MEDIUM NEUTRAL CITATION:	[2013] VCC 408

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Moran	Office of Public Prosecutions
For the Accused	Ms M. O'Brien

HER HONOUR:

1       Brent Lewer, you have pleaded guilty to one charge of sexual penetration of a child under 16.

2       The victim, a child I will call "Nell" in order to give her the protection she is entitled to by law from disclosure of her identity, was the daughter of a family with whom you are friendly. Your extended family and hers were members of a model aircraft club and you had had much contact over the years. At the time of the offence, Nell was 15 and you were 24,

3       She knew you lived with your partner and four children. The oldest of the four children of your family is only a couple of years younger than her, and the younger two, your biological children, were both under five. From Nell's perspective you were a grown up, a man with a family of your own, while she was the child of a family who was friendly with you and your family.

4       You work as a truck driver. You arranged with her family to take her in the truck with you one day when you were working. She and they agreed. They had no reason not to trust you.

5       You picked her up from home in your truck and drove to a factory area in Tullamarine. Once there, whilst waiting, it would appear, for the owner of the factory to arrive so it would appear nobody else around, you closed the internal curtains to the truck and locked the doors. You told her to get into the sleeping area of the truck, which is behind the seats but she refused. You put your hand down her pants, put your fingers in her vagina, took your off her clothes, and yours, touched her on the breast and then penetrated her vagina with your penis. You did not use a condom, so adding to the serious of the offending already by exposing her to the risk of pregnancy or sexually transmitted disease. She told you to stop and you did but you then asked her to put your penis in her mouth. She refused but you had not finished. You then masturbated yourself to the point of ejaculation and ejaculated on her face. That, as the prosecution says, is a degrading act. It is the act of penile vagina or penetration which is relied on for the charge to which you have pleaded guilty. The other sexual acts, that I have detailed, form part of the surrounding circumstances and are properly then to be regarded as adding to the seriousness of the overall offending but they are not the subject of separate charges.

6       Nell then remained with you for the rest of the day while you did your work. You then drove her home and when she got home she immediately complained to her mother. The matter was promptly reported to the police and you were arrested and questioned the following day.

7       When interviewed you denied the offence. You consented to a DNA sample being taken and said that an examination of the truck may reveal semen as you had pornographic magazines in the truck. By implication indicating that you had viewed pornographic magazines and masturbated in the truck thus accounting for the possible presence of spermatozoa there. Forensic examination and DNA testing confirmed the presence of spermatozoa, both in Nell’s vagina and on her face. Of course spermatozoa can be expelled without ejaculation thus accounting for the spermatozoa in her vagina although there was no evidence of ejaculation there.

8       You were arrested and questioned for a second time after the DNA results were obtained. When confronted with the DNA results, you maintained your denial and proposed a fanciful explanation to account for your DNA and your spermatozoa being on her face and in her vagina. You maintained your denials until shortly before trial.

9       The circumstances I have recounted indicate the seriousness of the circumstances of the offending and the seriousness of the breach of trust involved. For an offence such as this, it is clear that punishment, denunciation and general deterrence must weigh heavily.

10      Victim impact statements were provided by Nell and her mother. They were read aloud in court and eloquently described the distress and sense of betrayal felt by Nell and her family.

11      I was told that you now accept full responsibility for your conduct and, having heard the victim impact statements, you accept the full impact of your offending on Nell and on her family.

12      Having said that, I was told that nonetheless you cannot explain why you acted as you did. You were assessed by the psychologist, Ms Pamela Matthews. She quoted you as saying "It shouldn’t have happened. I don’t want to make any excuses for it, flirting, stuff like that. I thought we were friends and that and one thing led to another. At the end of the day I shouldn’t have done it, so no excuse."

13      As is often the situation in cases like this, there are many victims apart from the primary victim Nell; there is her family as well. This is a breach of trust not just for Nell and her family, but also for your partner. She has stood by you and has written a moving letter of support. She was a young single mother of two children when the two of you met and formed your relationship. You have assumed the role of parent for her two older children, and you and she have had two more children together.

14      You are the sole breadwinner of the family. The third child of the family, your oldest biological child, has a significant physical disability. The burden that will fall on your partner is therefore even greater than the burden that normally falls on the innocent partners and families of people who commit serious criminal offences and are imprisoned. I accept that and I take into account, although it is clear, as Ms O'Brien acknowledged, that the hardship caused to her and the hardship caused to you by the realisation of the burden that she has to carry, does not fit into the category of exceptional circumstances by reason of family hardship as the law recognises it.

15      You and your partner are aware that you will receive a custodial sentence and you have talked through and made preparations for that. It is clear that you and she will find it hard, as will your children. I accept that you have shown, perhaps belatedly but nonetheless genuinely, an acceptance that this is a consequence of your behaviour for which you must bear full responsibility and that is added to the shame and sense of responsibility that you feel.

16      You are otherwise a good man with a good and solid educational and work history. You come from a good and stable family. Your parents, as well as your partner, have been at court and your mother, your father-in-law, and a friend provided testimonials attesting to your good character and expressing the view that this was out of character offending.

17      

Ms Matthews assessed your risk of re-offending on the risk for sexual violence protocol, or RSVP. That is a well recognised assessment took. As

Ms Matthews noted, the RSVP cannot be used to estimate specific likelihood or absolute probability that an individual will commit sexual violence in the future, but is a good predictive estimator of risk

18      On that test, she assessed your risk of re-offending as low. She noted, in particular, that the offending was not representative of chronic, diverse or escalating sexual violence, nor representative of paedophilia or other forms of sexual deviance. The offending appeared to be opportunistic. There is no psychosis or major mental illness, or psychopathic or other personality disorder which could explain the offending and support a finding of a higher risk of re-offending. Clearly, the stability of your relationship with your partner, your history of stable employment, the extended family and other supports that you have, all count in your favour in assessing not only your low risk of re-offending but your prospects of rehabilitation generally.

19      Ms Matthews noted that you currently present as moderate to severely depressed and anxious, a state which she said was reactive to your legal situation. This is not surprising given the circumstances.

20      In her view, a Level 1 sex offender treatment program, which can be delivered in the community, is all that is required to further reduce your level of risk. In her view, given treatment, implicitly successful treatment, your risk of re-offending is likely to be extremely low. I accept those opinions of hers.

21      You suffer from chronic severe asthma and the stress and anxiety of the pending court hearing, you reported to Ms Matthews, has exacerbated your asthma and eczema. In Ms Matthews' opinion, your depression and anxiety are likely to exacerbate if you are imprisoned with consequent further negative impact on your physical health. Your mother has expressed the same opinion. She, of course, has been able to observe you and your asthma and the triggers for it at close quarters since you were a baby and it is clear that you have faced life threatening situations on many occasions.

22      I am not sure Ms Matthews' undoubted expertise as a forensic and clinical psychologist, extends to expressing opinions about the impact of stress or anxiety on your physical health. I am not sure that your mother is able to do that either.

23      I was provided with a report from a general practitioner, Dr Heyman of Westcare Medical Centre. He reported that you have asthma which is at times severe. He reported that you require daily medication for your asthma, that you must carry a puffer with you at all times, and that you need easy and immediate access to a nebuliser in the event that you suffer a more severe asthma episode than can be treated with a puffer.

24      On the first occasion the plea was presented before me, it was put that this meant it was likely you would have to spend any term of imprisonment in a medical unit and that that would constitute a hardship which should moderate the sentence to be imposed upon you. If you were only able to be housed in a medical unit, it was put that you were unlikely to be able to access the full range of programs and employment opportunities open to prisoners in mainstream and that you would be unlikely to be able to experience medium or low security prison placements, such as those that would be available to other prisoners who did not have your health needs.

25      The hearing has been twice adjourned in order to obtain information from your your medical practitioners and Justice Health as to the treatment of your asthma in prison. The subsequent reports that have been provided indicate this: the first report from Justice Health indicated that there would be, for you as for every person admitted into custody, a review by a medical officer on initial reception and that medications would be prescribed as clinically indicated. Dealing specifically with the asthma, the report said :

"Ventolin puffers are prescribed for personal use and kept on the person for immediate use as prescribed or required."

26      The report also said that:

"If a Ventolin nebuliser was required, the patients were to present to the prison health centre for treatment as prescribed by the medical officer under the supervision of health staff."

27      That initial report from Justice Health did not answer all the questions that I had asked to be put to it. In particular, whether you would be able to have access to a nebuliser in a mainstream unit. The plea was further adjourned to enable that further information to be obtained from Justice health.

28      On the first return of the plea on 15 March of this year, a medical report from Dr John Nguyen, a medical practitioner, was also provided. He is a different medical practitioner and it would appear to be from a different medical practice to Dr Haymen’s who provided the first report. Dr Haymen had noted in his report that you had not visited his clinic for seven months and were known to attend other clinics as well as his and expressed a precautionary note that the treatment that he set out in his report that you were receiving, may have varied as a result of your attendance on another clinic.

29      It was not clear from Dr John Nguyen's report when you had last presented there but is clear there is a great consistency between the reports as to your medication and as to your condition. So far as the more recent report is concerned, Dr Nguyen identified that are currently taking Prednisone, which is a daily treatment, as I understand it, as an asthma preventative; that you had a ventolin nebuliser, a ventolin puffer or inhaler and a medication called Seretide Accuhaler which was again a daily puff that you needed to take. He said this:

"Brent has asthma and needs his medications for his asthma. He needs his ventolin puffer, or ventolin nebuliser, three times a day and as much as he needs it. He also needs his Seretide twice a day every day. When his asthma flares up, he will need regular ventolin, puffer or nebuliser, at least four hourly or as much as he needs it. He also needs six hourly Atrovent nebuliser as well as a course of Prednisone, 50 milligrams, once a day. He may also need to see his treating doctor and/or go to the hospital in the ambulance or MICA if his asthma is worsened."

30      A further report has now been provided, not from Justice Health but from Corrections Sentence Management Unit. It advises this:

"Prisoners are able to carry prescribed ventolin puffers on their person for immediate use as required. Prisoners with asthma are not restricted from being classified to any prison locations. However, all prisoners are subject to review by medical staff prior to transferring to their classified location to ensure that they are medically fit to transfer. In the event that a prisoner is not medically cleared, medical staff notify SMB in order to have their proposed transfer cancelled or rescheduled."

He does not identify what "SMB" is but I suspect it is something to do with prisoner movements. He continues:

"I would foresee any issues with respect to this person accessing programs whilst in custody because of their asthma and need to carry ventolin. With regard to employment, all prisoners are expected to work in custody once sentenced. However, consideration is given to prisoner's health issues and prison locations are guided by the advice of medical services as to whether or not a prisoner is fit to work. As per the Corrections Regulations 2009, a prisoner must be paid a minimum rate if they are unable to work due to illness, disability or age. The medical assessment by prison health staff that a prisoner is unfit to work, is subject to regular reviews. There are a range of employment options in custody and prison locations endeavour to identify suitable positions for prisoners with health issues that do not aggravate their condition. In the event that his health were to decline rapidly, requiring emergency intervention, he would be transferred by ambulance to the nearest hospital emergency department for review and treatment. There are mechanisms in place to ensure that all prisoners can communicate with prison staff 24 hours a day via either cell intercom systems or Duress alarms. His need to be prescribed, or have access, to a ventolin nebuliser would be determined by the prison medical officer. I would not anticipate that prison locations would have any issue accommodating a prisoner's need to have a nebuliser in their cell if health staff direct that it is required As noted above, having asthma does not preclude prisoners from being classified to any prison locations subject to medical staff confirming they are fit to transfer to the location."

31      On the material before me, I am satisfied that your health needs would be adequately cared for in prison. The evidence before me does not satisfy me that you would be required to be housed in a medical unit or restricted in the prisons in which you could be held.

32      I sentence you, therefore, on the basis that you would not be restricted to a medical unit whilst incarcerated or precluded from being classified, if suitable, to a medium or low security prison or be restricted in your access to programs or employment. In my view you have not discharged your onus of establishing that your medical condition is such that you could only be housed in a hospital unit or medical unit and therefore would be denied access to programs available to prisoners in mainstream or low security prisons.

33      I accept that living with a life threatening condition, as you have had to do, is a very difficult thing and that any change of circumstances will create stress and concern that those around you may not have the same acute awareness of your asthma, of its onset and of the risks posed to you than those with whom are familiar, and who are familiar with you, will have. However, there is nothing in the material before me to indicate that whilst that anxiety exists, that there is any reasonable foundation for your believing that you would not be properly and adequately cared for within a prison system.

34      Your plea of guilty, the evidence that I have accepted of your acceptance of responsibility and remorse, your past good history and your family support, all count in your favour. Although it is true that your plea of guilty was not entered at the earliest possibly stage, and in fact was entered only shortly before trial, I accept, and take into account in your favour, that it does, in the circumstances I have recounted, indicate remorse and acceptance of responsibility on your part and you have also of course, by your conduct, prevented or avoided the need for Nell to have to give evidence to relive the events and to suffer the indignity of being confronted with an allegation that was lying about what she said happened. Your plea of guilty has vindicated the truthfulness of her account and I take that into account in your favour.

35      

I also take into account the hardship to your family and the likelihood that you, like so many prisoners who lose their liberty because of their wrongdoing, suffer reactive depression and anxiety. Although I accept your risk of

re-offending is low, in my view you and the community would benefit from your participation in a sex offender treatment program. I say that, particular having regard to the account that you gave to Ms Matthews. I accept

Ms Matthews' evidence that the type of sex offender treatment program that would be suit your needs and your assessed level of risk is one that can be administered in the community.

36      I propose therefore to structure the sentence so as to permit sufficient flexibility for that program to be delivered either in custody or in the community, if you are released upon parole, or in part in custody and in part whilst in the community, if you are released on parole. I say "If you are released upon parole" because of course that is not my decision but the decision of the Parole Board.

37      Could you now please stand, Mr Lewer.

38      On the charge to which you have pleaded guilty; you are convicted and sentenced to be imprisoned for a period of 4 years. I fix 2 years as the period that you must serve before being eligible for parole.

39      I declare that you have spent one day in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

40      I make an order for the retention of the forensic sample provided by you. In my view, the seriousness of the offending, including your denials at interview, justify the making of such an order.

41      Pursuant to the Sex Offender Registration Act, you fall to be registered and to be subject to the requirements of that Act for a period of 15 years.

42 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to be imprisoned for a period of 6 years and I would have fixed a period of 4 years as the non-parole period.

43      Could you take a seat, Mr Lewer, while I finalise the ancillary orders.

44      MS O'BRIEN:  Your Honour, might I approach Mr Lewer?

45      HER HONOUR:  Yes, you may. I am just having the sex offender registration conditions printed out because they have to be provided to him.

46      MS O'BRIEN:  Yes, Your Honour.

47      HER HONOUR:  Ms O'Brien, my associate is just going to hand you the sex offender reporting conditions. Can you please hand them to Mr Lewer.

48      MS O'BRIEN:  Certainly.

49      

HER HONOUR:  Mr Lewer, I am obliged to provide you with a copy of the reporting conditions under the Sex Offender Registration Act and that is what Ms O'Brien is about to hand you. I am going to ask you if you will sign the receipt acknowledging that you have received that. You do not have to sign that receipt if you do not want to, the record of the court will show that it has been provided to you. We have an additional requirement to ask for your acknowledgement but you do not have to sign it if you do not want to.

Ms O'Brien will explain that to you.

50      PRISONER:  Yes, Your Honour.

51 HER HONOUR: Thank you. I note that Mr Lewer has been provided with the reporting conditions under the Sex Offender Registration Act and that he has signed the acknowledgement of receiving that and that is now on the file.

52      Now, do the orders I have made reflect the orders I said I intended to make and are there any further orders that are required to be made?

53       MS O'BRIEN:  Your Honour, I was just hoping that it might be notated, and I'm sure it will be on the custody record, that Mr Lewer is in fact a chronic asthmatic. He has bought his medications in with him today. I understand that there will be a review later in the day but perhaps it's prudent - - -

54      HER HONOUR:  Yes, indeed. Has he bought a letter from his doctors as to his condition and medications?

55      

MS O'BRIEN:  Your Honour, I was going to ask that a copy of, in particular,

Dr Nguyen's report be annexed to the prison records.

56      HER HONOUR:  Yes, I will ensure that a copy of the report of Dr Nguyen, and also a copy of the report of Dr Haymen, are provided to the custody officer and ask that Mr Lewer not be removed from the County Court to prison until those two medical reports are with him so that they go with him on his induction. Now, can he take his medications downstairs with him or do they have to be handed over by somebody else?

57      CUSTODY OFFICER:  The medications can't go to the prison with him. If there's any scripts, yes, plus the notation.

58      HER HONOUR:  I have information that he needs his puffer at all times.

59      CUSTODY OFFICER:  If he's got that on him - - -

60      HER HONOUR:  And he can keep that with him?

61      PRISONER:  Sorry, Your Honour. I've got to have the puffer.

62      HER HONOUR:  Yes, that's what I’m talking about. He's got the puffer on him now, can he keep that on him?

63      CUSTODY OFFICER:  Yes.

64      MS O'BRIEN:  And the nebuliser, Your Honour, he needs to have with him.

65      PRISONER:  It's in the bag.

66      CUSTODY OFFICER:  Yes, he can have that one too.

67      HER HONOUR:  All right, so the puffer and the nebuliser can go down. Any other medications can - can't come through but he's got the prescriptions. I think there are arrangements that can be made for the medications to be put in a bag and provided over the counter to prison officers but not given into his possession and, Ms O'Brien, perhaps you and Mr Lewer's family can make arrangements down in the cells for the balance of that.

68      MS O'BRIEN:  Yes, Your Honour.

69      HER HONOUR:  I might be able to sign everything now and provide the copies to the custody officer before Mr Lewer is removed. All right, the record of order contains a notation that Mr Lewer is a chronic asthmatic and that the reports of Dr Nguyen and Dr Haymen are annexed.

70      MS O'BRIEN:  If Your Honour pleases.

71      HER HONOUR:  Has everything been handed over?

72      (UNKNOWN VOICE from body of court.):  Yes it has.

73      HER HONOUR:  Thank you.

74      (UNKNOWN VOICE from body of court.):  Do I give him the pills as well for the nebuliser?

75      HER HONOUR:  The pills for the nebuliser, do they go to you or do they have to go over the counter?

76      CUSTODY OFFICER:  (Indistinct) yes, give us those now.

77      HER HONOUR:  Thank you for that. Thank you, remove Mr Lewer please.

78      (PRISONER REMOVED).

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