Director of Public Prosecutions v Lindsay (a pseudonym)
[2016] VCC 1614
•27 October 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL LINDSAY (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 24 October 2016 |
| DATE OF SENTENCE: | 27 October 2016 |
| CASE MAY BE CITED AS: | DPP v Lindsay (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1614 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Recklessly Cause Injury – Sexual Assault – Family Violence – Culpability of Offender – Applicability of Community Correction Order – Prospects of Rehabilitation
Legislation Cited: Criminal Procedure Act 2009 (Vic), Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:R v Ibbs (1989) 165 CLR 447; Boulton & Ors v R [2014] VSCA 342; DPP vBorg [2016] VSCA 53
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci | Samantha Ward |
HIS HONOUR:
1Mr Lindsay[1] stood trial in this matter. As part of the preliminary matters to the trial I was required to make a ruling, under s342 of the Criminal Procedure Act 2009 (Vic). Mr Doyle appeared on behalf of the Director and Mr Gullaci on behalf of Mr Lindsay. On the day the trial was to start, the matter was resolved following further discussions by counsel.
[1] A pseudonym
2That led to the plea being entered by Mr Lindsay to the Indictment filed this morning in which Mr Lindsay pleaded guilty, as has been confirmed this morning to two charges. The first charge being an offence under s.18 of the Crimes Act 1958 (Vic), recklessly causing injury to his wife in late July 2015, to which the maximum penalty described by Parliament was one of five years imprisonment.
3The second charge being an offence against s.40(1) of the Crimes Act, sexual assault, the victim again being his wife. The maximum penalty prescribed by Parliament for that offence, being one of ten years.
4As I say, the victim in both instances was his wife and the sexual assault occurred on 8 December 2015.
5The circumstances surrounding those two crimes were set out in the prosecution summary, Exhibit A, and such facts were accepted as the facts upon which I am to sentence Mr Lindsay by Mr Gullaci.
6Exhibit B was filed, being a photo in relation to Charge 1 being the reckless injury. In so far as Exhibit A was concerned it set out the circumstances. There was, in paragraph 4 of such summary, a reference to an earlier assault. However, that did not make up part or parcel of the matters to which I was dealing with.
7In so far as Charge 1 was concerned, the victim was hit to the face by Mr Lindsay's left hand. She immediately felt the right side of her jaw and cheek go numb. She left the paddock and went inside. It is quite clear ultimately in the record of interview that he did not dispute contact, albeit there was a dispute as to the type of contact. Mr Lindsay said in the record of interview that he did not touch her harshly, although he did accept that he heard a click straight away, such produced a hairline fracture, which did not require any further treatment, but that may well have been associated with the fact that the victim was suffering from osteoporosis. Exhibit B showed a black eye. The x-rays revealed a fractured right maxilla, being the cheekbone, with minimal displacement.
8In so far as Charge 2 is concerned, as I said, that occurred on 8 December 2015. Clearly, such was not consensual and the circumstances of this were stressed by the learned prosecutor in his submission. The background to this particular crime had been the coming apart of this relationship and the impact on both parties of that.
9Leading up to this sexual assault, the victim had left the prisoner on at least two occasions, stayed away for considerable periods and at this particular time was staying at her daughter’s house, while the daughter was away on holidays.
10The prisoner had come to her house for an unrelated purpose and unfortunately took the opportunity there to seek to have sex, one final time. Although he clearly denied that in his record of interview. By his plea, he accepts that the sexual assault involved him touching the victim's vagina with his fingers, albeit that he did not penetrate her.
11The circumstances surrounding both before and after were that he had taken her into her bedroom. He had forced her onto the bed. He had removed her pants and underpants and was in the process of touching himself and also undoing his own pants. When I say, ‘touching himself’ touching his own penis. She was at all times struggling and indicating her lack of consent.
12The circumstances not only of the crimes, but of the totality of the break up, were such that there was some concern about the prisoner's mental health at the time and, as a result, subsequent to this sexual assault the victim phoned the police concerned about what may happen. I think they call it a special combined Doctor/Police team went to the prisoner's home as a result of that.
13In so far as the impact of this crime upon the victim, a victim impact statement was filed and read to the Court, Exhibit C.
14As I said at the time, there is a number of matters relevant to the break-up and indeed relevant to issues of property settlement that still remain and are of difficulty to the victim and those matters have to be not disregarded but placed in their proper perspective by me. They are not matters that relate or emanate out of the sexual assault.
15One matter that is clear is that the victim indicates the impact of the break-up, the fact that she was emotionally drained, the need for counselling and that it has been a relief to her that her husband has finally admitted his guilt in regard to these two crimes.
16In so far as the physical impact is concerned in regard to Charge 1, I have detailed the actual fracture. She was required to go to the doctor who obtained the MRI and she was subjected to an opinion of a plastic surgeon who indicated that natural healing would be required. Apparently that took place after a period of 12 months and that break is apparently almost back to normal now, but there is some reduction in feeling.
17Matters about socialisation to which the victim refers, I think are again general and of course it is obvious the impact upon a person of a sexual act committed without her consent.
18The seriousness of such offence is demonstrated by the fact that the Parliament has prescribed a maximum penalty of ten years. However, of course, this Court is required to assess the culpability of such a crime as detailed by the High Court in R v Ibbs (1989) 165 CLR 447, 452 where you have a general crime such as this which encompasses many forms of behaviour. It is necessary to assess the crime by way of culpability upon the scale of heinousness.
19In so far as that is concerned, there is no doubt as was put by the learned prosecutor, that this act being committed without consent, occurred with the victim being taken to the bedroom and being physically coerced, with her continuing to resist.
20It was indeed as a result of the totality of those circumstances that the learned prosecutor put to the Court that he was instructed to submit the appropriate sentence should be, while a community correction order was appropriate, combined, to use his words, "with a short sharp period of immediate imprisonment."
21When one assesses the actual sexual assault, I find that it is at the lower category of culpability, as required to be assessed by Ibbs. It is somewhat reminiscent of the old indecent assault, same penalty. I take particular note of what the prosecutor says and those circumstances surrounding this crime certainly aggravate it. However, I find, that it is still a lower level type sexual assault in these circumstances being touching of the vagina without penetration by a person who was well known to the victim, but, of course, separated at this time.
22In so far as other matters put, it was agreed there were no priors. There has been a subsequent breach of the law. There was an intervention order applicable to the victim, which was breached. However, perhaps somewhat remarkably, no conviction was recorded against Mr Lindsay by the Magistrate and a fine was imposed of only $800. I accept therefore that there are no priors or subsequent convictions of which I need take note of.
23It was strongly put by Mr Gullaci that despite the persistence shown in these offences and the breach of the IVO that Mr Lindsay now recognises and accepts that the relationship with his wife is over and that it is necessary for him to get on with his life.
24Mr Gullaci tendered Exhibits 1 to 6 in so far as Mr Lindsay was concerned. Mr Gullaci stressed the issue as to there being no prior offences, and submitted to the Court that while he instructs Mr Gullaci that he still cares for his wife, he has now accepted that such relationship is over. Mr Gullaci submitted that I should see and assess this assault and the sexual assault as being closely connected to the issues of the breakdown. That I should accept the reckless injury as a matter that was always admitted as an indication of an example of frustration, albeit totally inappropriate.
25In the record of interview it was accepted by the prisoner at Question 74 that there was no excuse at all. At Question 77 Mr Lindsay had said, "they’re not great things," and that he was certainly not proud of what had happened in so far as the criminality was concerned.
26I accept that given his history these crimes were out of character, that they occurred within the context of an emotional break-up, which clearly involved strong emotions, that Mr Lindsay has indulged in subsequent counselling in order for him to reach acceptance, that such counselling continues, that in his prior life and indeed current life he has been successful in many of the tasks that he has been involved in, been successful in his current operation, that he is well-known as being a person who has assisted in charities and has been financially successful.
27The matters that were stressed were that this Indictment was pleaded to at the first opportunity when an appropriate Indictment was presented and in those circumstances the prisoner is entitled to an appropriate discount. That having accepted the marriage was over that he has effected, and will effect good rehabilitation. That I should accept that these crimes happened within the circumstances of these events, that they were situational, that once having accepted his life is to be without his wife in future, I can be satisfied that he will live the life that he has lived previously, that is, without any criminality.
28The submission essentially asked me to consider the imposition of a community correction order. The real consideration involved is a solution to a submission of the prosecution that such an order, while being appropriate, should be accompanied by a term of imprisonment, given the assessment of the prosecutor in so far as Charge 2 is concerned.
29As was put by Mr Gullaci the principles set out in Boulton & Ors v R [2014] VSCA 342 are applicable. As clearly explained subsequent to Boulton, in DPP vBorg [2016] VSCA 53 [108], the Court of Appeal detailed that the principles of Boulton have to be understood upon the appropriate background and that background is that the essential character of a sentencing Court's task remains unchanged despite the statements in Boulton and that is that the fundamental principle relating to sentencing is that of parsimony, which has always been a fundamental principle.
30In so far as a community correction order is concerned, as the Court of Appeal made clear in Borg at [106] the conditions attached to a community correction order and its conditions while punitive can never be equated to that of imprisonment. Imprisonment being, as they described at [106], "uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty."
31As the Sentencing Act 1991 (Vic) requires, a Judge is required to give adequate consideration to whether a sentencing option other than an immediate custodial term is appropriate. The option of a community correction order, is an alternative disposition and as pointed out by the Court of Appeal in Boulton, in an appropriate case, a community correction order can achieve all the purposes of sentencing and can do so in cases which might previously have been thought to require a sentence of imprisonment. Again the context and background needs to be understood that Boulton was related to a post legislative situation where suspended sentences had been eliminated.
32At [109] of Borg, the Court of Appeal referred to the comments made in McGrath v R [2015] VSCA 176 where the statements of Priest JA in R v Hutchinson [2015] VSCA 115 were referred to where His Honour had said it should not be thought that Boulton offers a ‘Get Out of Gaol Free Card’ in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes of which sentence may be imposed.
33One of the purposes for which a sentence may be imposed is, of course, to punish the offender to the extent and the manner which is just in all the circumstances. As the Appeal Justices said, there may be cases, indeed, many cases, where having regard to the seriousness of the offending, a community correction order on its own will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all the circumstances, is just.
34If I might say so, it has been that balance which has been particularly difficult to consider in this matter. I, in no way, take a view that in any way either of these offences is not serious. I accept that in particular the second offence must be taken into account and looked at in the totality of the circumstances surrounding it, and those circumstances aggravate the culpability. However, having given consideration to all those matters, I find that the appropriate purposes of sentencing can be achieved in this matter by the imposition of a community correction order. I form that conclusion after taking into account all of the appropriate considerations set out in Boulton and further exemplified in Borg, and perhaps clarified for the profession who had taken a somewhat more expansive view of what Boulton means.
35Mr Gullaci before I pronounce such a sentence I might indicate that it is my view that in so far as the second offence is concerned I would impose a community correction order. I would accept your submission, I do not think a sexual offender program is appropriate. However, I do think a men's behaviour program is appropriate.
36MR GULLACI: Yes, Your Honour.
37HIS HONOUR: I understand that such program is available in many, many areas and in particular through this Court. I am sure that will be able to be done. The period that I would be intending to impose would be a period of two years and I would be intending that 50 hours of community work be carried out.
38MR GULLACI: Yes, Your Honour.
39HIS HONOUR: As I say, I thank the representative here for getting the report back so quickly. In so far as the first charge is concerned, I would be intending to impose a fine of $3,000 and I would be inclined to grant a stay of six months.
40MR GULLACI: As Your Honour please.
41HIS HONOUR: You can indicate to your client I am prepared to extend that obviously but I would anticipate a significant amount having been paid in that period. Do you want to talk to your client about that before I pronounce it?
42MR GULLACI: I will just explain to him briefly, sir, but yes, that should not be a problem. No issue with any of that, Your Honour.
43HIS HONOUR: Yes, thank you. Mr Lindsay if you would stand please.
44On the first charge of causing reckless injury to your wife you will be fined the sum of $3,000. I will grant a stay of six months in regard to that matter and I re-emphasise the matters I have just said.
45In so far as Charge 2 is concerned the charge of sexual assault upon your wife given its seriousness you will be sentenced to a community correction order for a period of two years, with the following conditions: that you perform 50 hours of community work and that you be subject to a program to ensure no further offending under s.48D(3)(g). The program I have in mind is a men's behavioural change program. Specifically, I put in the order that I do not consider a sex offender program should be necessary. I accept the submission put to me that the circumstances of this case indicate your offending was situational and I am sure now that the marriage is over that you will revert to the crime free life that you spent prior to these times and that we will not have to worry about having you before these Courts again.
46For purposes of s.6AAA of the Sentencing Act, I would indicate that had Mr Lindsay not pleaded guilty then the only sentence would have been an immediate sentence of gaol. I cannot conform to the requirements of Parliament much further than that.
47MR GULLACI: Yes, Your Honour.
48HIS HONOUR: Anything further I need to attend to, gentlemen?
49MR DOYLE: The 464 forensic.
50HIS HONOUR: Yes, I am not going to make that order for the same reasons. The fundamental reason for a 464ZF order is the risk of recidivism. I do not see any risk in this case and I therefore do not intend to sign a 464ZF order.
51MR DOYLE: As Your Honour pleases.
52HIS HONOUR: I will stand down. Sorry, get the order signed first. Yes, thank you.
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