Director of Public Prosecutions v Lobert
[2018] VCC 1277
•3 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00531
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PRADEEP LOBERT |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July and 3 August 2018 | |
DATE OF SENTENCE: | 3 August 2018 | |
CASE MAY BE CITED AS: | DPP v Lobert | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1277 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Pradeep Lobert, you have pleaded guilty to one charge of sexual assault. The maximum penalty applicable to that offence is ten years' imprisonment. The victim of your offending was Heidi Barker[1].
[1] Heidi Barker is a pseudonym
2 This crime arises out of events which took place between Heidi and yourself on 16 April 2017.
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, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecution and discussed during the course of the plea hearing, including the extensive discussions we have had this morning. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
4 I turn to a brief summary of your offending.
5 At the time this offence was committed, Heidi was 16 years of age, and in a relationship with Joshua Hayes[2].
[2] Joshua Hayes is a pseudonym
6 You were born in 1992, and 24 years of age at the time of your offending.
7 On the evening of 15 April 2017, Heidi went to a birthday party for Joshua's sister. You attended the party. Heidi and you had never met prior to attending that party.
8 Between 5.30 and 6.00 in the morning of 16 April 2017, Heidi went to bed in Joshua's bedroom. She was wearing a skirt and dressing gown. Joshua and Heidi went to sleep on the bed, while a friend, Daniel McKay[3], fell asleep in a chair in the bedroom.
[3] Daniel McKay is a pseudonym
9 Just prior to them going to sleep, you were in the bedroom, charging your mobile phone. You announced that you would only be about ten minutes doing that.
10 At approximately 7.00 am, Heidi woke to find you on top of her. Her skirt had been moved up above her waist and her dressing gown fully open. You touched Heidi all over her body, touching her breasts and putting your fingers inside her underwear, where you touched her vagina. You also kissed her inner thigh (Charge 1, sexual assault), and that was clarified with the prosecution as incorporating those acts.
11 Heidi screamed, waking Joshua and Daniel. They both saw you on top of Heidi, with her skirt pushed up and dressing gown open.
12 Joshua kicked you off the bed and chased you out of the house. Heidi was very upset, screaming and crying.
13 About an hour after being chased from the house, you contacted Heidi through Facebook Messenger. That message was accompanied by a photograph of you. You asked Heidi if she was ‘the chick that was at J's birthday party’. Through further communication on Facebook Messenger, you denied your offending, claiming you were attempting to get your wallet from under the bed.
14 On 18 May 2017, Heidi made a VARE to the police about your offending on 16 April 2017.
15 On 31 May 2017, you were arrested at your home in Kilsyth and taken to the office of the Knox Sexual Offences and Child Abuse Team for a record of interview.
16 During the interview you denied attending the party and stated you and a friend had used drugs and that you had passed out at home. You said you passed out on the Saturday, only waking on the Sunday or Monday. You could not provide the identity of your friend. You denied knowing Heidi and denied sexually assaulting her.
17 I turn to a brief chronology. Your offending, as I said, occurred on 16 April 2017 and, as I have also said, Heidi made her VARE statement on 18 May 2017 and you were subsequently interviewed on 31 May 2017.
18 You were charged on 20 November 2017. Thereafter, the matter proceeded through a filing hearing and committal mentions and, as we discussed this morning, you offered to plead guilty to the charge on 9 February, accepted by the prosecution, as I understood it, 28 February. You indicated your intention to plead guilty, and the plea hearing was listed for 13 July 2018.
19 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, by your plea of guilty, has been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial, and in particular, I refer to Heidi.
20 Further, I take into account in your favour you intimated early your intention to plead guilty to this charge, after your legal representatives became involved, and discussed an appropriate charge with the prosecution. I note, however, that at the time of your interview you denied any offending and even being at the premises where the offending had taken place.
21 I am prepared to accept your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of it, as I have discussed extensively with your counsel, given your repeated denials, and as I understand, denials most recently.
22 You have admitted a number of prior court appearances, the first on 9 July 2009, at which time you were before the Frankston Children's Court on charges of burglary, theft and use and possess cannabis. The matter was without conviction, adjourned on a good behaviour bond.
23 You next appeared at Benalla Children's Court on 14 July 2009, on a charge of possessing liquor, being under 18 years of age, and without conviction were fined $57.
24 You next appeared at Moorabbin Children's Court on 18 November 2009 on a number of driving offences, two charges of failing to answer bail, affray and possessing a dangerous article in a public place, and without conviction placed on a period of probation for 12 months.
25 You appeared at Ringwood Magistrates' Court on 20 October 2014, and were dealt with for persistent contravention of a family violence order, and were convicted and fined $1,300.
26 You next appeared on 4 December 2015, where you were dealt with for a number of offences. You were dealt with for offences of contravening a family violence intervention, use cannabis, use methamphetamine, traffic cannabis, possess methamphetamine and prescription drugs, and possess a controlled weapon without excuse, and negligently dealing with proceeds of crime, for which you were convicted and placed on a Community Correction Order for a period of 18 months. A number of conditions were attached, including a treatment and work component.
27 Your offending before me, on 16 April 2017, breached that Community Correction Order, which was due to be completed on approximately 4 June 2017. I am, of course, not sentencing you for that breach. However, an aggravating feature of your offending before me was that it was committed whilst you were on a Community Correction Order.
28 Your counsel, Mr Malik, prepared a written outline of submissions and addressed them during the course of the plea hearing. He urged from the outset that the appropriate disposition in all the circumstances would be a Community Correction Order, and significant discussion occurred between he and I regarding that submission throughout your plea hearing, and again today.
29 Details were provided in that written outline of your background and history, much of which was contained in other material available to me, and I will not repeat.
30 You are now 25 years of age. At the age of 5, you came to Australia and moved to Boho South, near Euroa in country Victoria, with your adoptive parents. At the end of Year 9, when you were 15, you moved to Wodonga, and stayed there for six or seven months, working as a baker's apprentice for approximately three months. You then moved back to Boho South with your parents for approximately four months, before moving to Melbourne when you were 16 years of age.
31 When you came to Melbourne, you did not have stable accommodation or employment for the first four to five months. You eventually undertook hospitality training through Unidale TAFE, and obtained employment in a Greek restaurant. You also began a relationship.
32 You and your partner had been together about six months when she became pregnant to you, and in 2012 your son was born. You were then 19 years of age. That relationship ended in October 2013, and consistent with other material before me, you had access to your son until September 2014.
33 At the time of this offending, you had only intermittent employment, unstable accommodation, and had increased your drug use.
34 Turning to your drug use, you said you began smoking ice after your relationship with your ex-partner ceased, and that had continued until you moved back to your parents' home in December 2017.
35 As well as your reference to having taken ‘juice’ (GHB) at the time of this offending, you said you were also taking anti-depressant medication and using sleeping pills, although I note the latter was not disclosed by you in your record of interview.
36 Referring to your criminal history, it was submitted that that began after the breakup with your ex-partner. The breaching of a Family Violence Order in 2014 and 2015, I was told, involved contravening non-contact conditions of the order as opposed to any allegations of violence.
37 Your counsel conceded your offending before me breached a Community Correction Order, but urged you had otherwise complied with the order, other than this offending. That, in one sense, is concerning when assessing your rehabilitation prospects, in that you attended counselling yet continued to use drugs.
38 Your counsel noted, as do I, no prior convictions for sexual or violent offending. Your prior convictions, I was told, related to your drug use.
39 Your counsel relied upon your plea of guilty, which was made at the earliest reasonable opportunity. Such was accepted by the prosecution and also by me.
40 Assessment of your remorse beyond your plea of guilty, as I discussed with your counsel at the initial plea hearing and today, is problematic. You maintain you did not remember your offending. Material contained within the depositions tends to suggest otherwise. You have previously stated you were just looking for your phone under the bed when ‘caught’ out regarding your offending at the scene by Joshua and Daniel.
41 It is also of concern that, in a statement sworn by you in December 2017, ie: after being charged with this offending, you maintained ‘no memory of meeting Heidi or being at the party. I also refer to a subsequent statement in February 2018. You also maintained your lack of memory at your recent interview with Dr Zimmerman.
42 Your lack of remorse and insight, other than your plea of guilty, is concerning.
43 Mr Malik, not surprisingly, focussed on your attempts at rehabilitation since this offending. You had self-referred to SURe, (Substance Use Recovery) program with Anglicare, on 1 September 2017, and attending five sessions up until 23 February 2018, and had engaged well.
44 In approximately December 2017, you returned to the family home in Boho South, initially gaining employment as a fruit picker from late December through to late March 2018, and a reference was tendered relevant to that employment.
45 I was told you had subsequently obtained employment at a service station, and continued to live with your adoptive parents.
46 You had also engaged with a psychiatrist in Shepparton, and on his recommendation had begun regular sessions with a psychologist and drug and alcohol counsellor in Euroa.
47 You continue to enjoy the support of your parents and their extended family, and some were in court to support you at your plea hearing, and again before me today, and provided written material in relation to their support. You were providing some financial support to your son, and you hoped to re-establish contact with him, although I was told you had failed to attend two urinalysis testing appointments with Dorevitch, now three, for the reasons given by Mr Malik today.
48 I was told you now have engaged in pro-social settings, including playing in a local badminton team, and I also received correspondence in that regard.
49 Mr Malik also referred to you, on 26 November 2017, having been the subject of a physical assault, which you claimed involved a group of people assaulting you, including Heidi and Joshua. Medical records confirm you suffered an undisplaced fracture of the vertebrae and had blood in your urine three days after the assault, and a medical report was tendered relevant to your allegation of an assault upon you (Exhibit 8).
50 Mr Malik urged this assault could be taken into account by me as extra-curial punishment, relying upon Chaplin v The Queen[4], and in particular, I note paragraphs 13-14. I discussed with Mr Malik the difficulty with the material relied upon by him (specifically your statements on 5 December 2017) when assessing that submission, and also the subsequent statement. I further discussed this with him at your further plea hearing today, being 3 August 2018.
[4] [2010] VSCA 145
51 Mr Fisher, on behalf of the prosecution, submitted that submission should not be given any weight, and referred to 11.9.4 Sentencing Manual (JOIN). He submitted that given the circumstances in this case, I should not take this into account as extra-curial punishment, as this was merely an allegation at this stage, that there were inconsistencies in your account of this alleged offending in your statement/s, and the motivation for the assault was far from clear, based on what you had been told by someone else. At this stage, he urged the inconsistency remained.
52 I accept the submission of the prosecution.
53 I also note, regarding the alleged assault, no reference was made of it to either Dr Golhar in March 2018, or Dr Zimmerman in June 2018.
54 I discussed with your counsel today in some detail this notion of extra-curial punishment, and whether it was relevant in your case. Your counsel correctly observed that current sentencing practices were merely a part of sentencing considerations, and not the only matter I must consider when determining the appropriate disposition, and of course, he is very correct in that regard.
55 It is also very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. Ultimately, I must determine the appropriate disposition for your offending, based on all relevant sentencing considerations.
56 I was handed three decisions of this court, and a reading of them reveals differences in the offending between each and yours.
57 In DPP v Silva[5], the offender did not have any prior convictions, and the prosecution was conceding a Community Correction Order was an appropriate disposition.
[5] [2016] VCC 414
58 In DPP v Williamson[6], the offender did not have any prior convictions. The prosecution also conceded a Community Correction Order was within the range. Further, there was delay in that case also taken into account by his Honour.
[6] [2016] VCC 865
59 In DPP v Filipov[7], the offending involved historic sexual offences. The offender had prior convictions (30 years prior, two charges of indecent exposure and obscene exposure). His Honour was concerned regarding sending the offender back to prison, he having been granted bail prior to sentence (paragraph 22). His Honour also took into account the principles in R v Verdins & Ors[8] in that case.
[7] [2017] VCC 372
[8] (2007) 16 VR 269 [26]
60 Before me, relevant to you, was a report from Dr Nina Zimmerman, Forensic Psychiatrist, dated 22 June 2018, in which details were provided regarding your background and history. You were born in India and spent some years there in an orphanage with your brother. Your best friend in the orphanage died when you were about 4 years old.
61 You and your brother came to live in Australia, adopted by your Australian parents. You said you were very happy you had a mother, and that you fitted into the family quickly. You described a close relationship with your brother until he started using drugs when in secondary school.
62 You said you were often in trouble at primary school, as you would do the wrong thing and not do your work. You always had friends. You said at times you would get very angry, and that continued until recently, when you completed an anger management course.
63 You returned to your home town in India for your 13th birthday, and would like to return to visit at some stage in the future.
64 You attended Euroa High School, although were often in fights in Years 7 and 8, and skipping school. You began smoking cannabis regularly from the age of 12 with your mates, and were expelled in Year 9.
65 You completed Year 9 at Hamilton Boarding School and began a baker's apprenticeship, however left as you did not get on with your boss.
66 You moved to Wodonga, where you were not working and were couch surfing.
67 You came to Melbourne, again couch surfing while doing some work at a pizza shop and also as a panel beater for a short time.
68 You described sexual relationships in the past, and from one of those relationships you had a son.
69 You said you became depressed when denied access to your son and the restrictions placed upon you regarding your drug use before regaining contact. You were to be ‘off drugs’ for six months before regaining contact, and said that would be ‘up in two months' time’ in the report to Dr Zimmerman. Your son is 5 years old, and your ex-partner had agreed, subject to your cessation of drug use, to you seeing your son, in her presence, for 2.5 hours a fortnight.
70 You were, at the time of Dr Zimmerman's report, selling kebabs and living with your parents. You said you have a strong relationship with them now because you are off drugs.
71 Dr Zimmerman also had some notes prepared by your parents regarding your background and history. At age 5, you and your brother were selected for inter-country adoption, and you moved in with the Loberts near Echuca. When you moved from Euroa to Wodonga you began using drugs, displaying aggression and erratic behaviour towards the family.
72 You left for Melbourne when you were 16 and refused to engage in drug and alcohol counselling. Details were provided by your parents in Dr Zimmerman's report regarding the difficulties you had with the mother of your child (paragraph 16). You had not at that time succeeded in drug abstinence for six months, and therefore had not been able to recommence access visits, although your parents continued to have access with their grandchild.
73 Correspondence was also available to Dr Zimmerman from Ms Mackrell, dated 30 May 2018, confirming your involvement with community badminton in 2003, and again, more recently, in early 2018, as a regular attendee and helping out with coaching.
74 Also before Dr Zimmerman was correspondence dated 26 May 2018 from Mr Tregent, blueberry farm owner, who had known you for 12 years. In the past, you had picked fruit on his farm, and were most recently employed from late December 2017 to March 2018.
75 Turning to your psychiatric history, you had never been admitted to a psychiatric unit, however attended Maroondah Emergency Department after your relationship with your ex-partner broke up. You reported at that time your distress and suicidal thoughts triggered by the breakup of the relationship and lack of contact with your son.
76 Prior to your offending before me, you were taking antidepressant medication and also sleeping pills. You are currently taking a sedating antipsychotic medication to help you sleep, and an antidepressant. I note Dr Zimmerman's reservations about such medication.
77 You were, at the time of her assessment, currently sleeping better, not having nightmares or flashbacks of past traumatic events, and also denied having any suicidal thoughts. Since this current offending, you had seen a psychiatrist, had drug and alcohol tests and counselling, parent classes and anger management classes.
78 Reference was made to correspondence from Mr McCorriston, Psychologist, dated 1 September 2014, you having been referred to him for counselling on 12 June 2014. You had missed many appointments, often presenting in crisis with a depressed and anxious mood and suicidal thoughts.
79 Reference was also made to correspondence from Dr Swamy, Psychiatrist, dated 5 February 2014, who at that time referred to a diagnosis of chronic post-traumatic stress disorder, depression, and substance abuse.
80 Correspondence was also referred to by Dr Zimmerman from Eastern Health Emergency Department dated 14 July 2014, regarding an incident in the context of you having been denied contact to your son by your ex-partner. It would appear there were no attendances subsequent to that date.
81 Reference was made to correspondence from Dr Golhar, Psychiatrist, dated 25 March 2018, who diagnosed you with complex post-traumatic stress disorder resulting from your early life trauma and developmental difficulties.
82 When you were 15, Child and Adolescent Mental Health Services assessed you and recommended you receive drug and alcohol counselling. However, you refused to attend.
83 Regarding your substance use, you said you first used cannabis when 12, using regularly up until late last year, approximately 28 grams of cannabis daily. You used to drink alcohol heavily, however, you did that to ‘fit in’. It was not something you enjoyed.
84 You smoked methamphetamines after you and your partner broke up, also sold it up until you moved back home with your parents in Christmas 2017.
85 You described having tried to stop using drugs on numerous occasions, but failed. You were now free, you said, of substance, and had been for several months. I note, in that regard, eight urinalysis results, the first positive for benzodiazepine, the remaining six being negative for substances (Exhibit 10).
86 There was correspondence from Ms Kendrick, Anglicare Substance Use Recovery Program, dated 23 February 2018, describing your self-referral to the program in October 2017 and having attended five appointments. When unable to attend appointments, you maintained contact by phone.
87 Reference was made to your prior criminal history. You do not have any prior convictions for sexual offences, and I am aware of that.
88 Turning to your account of this offending, you said you had been dealing drugs and had no friends at around the time of this offending. Your relationship with your parents was strained, and you were not having any contact with your son. You maintained you had no recollection of committing the offence and no memory of the weekend in question. You did, however, say you used ‘juice’ (GHB) on the Friday. You remembered nothing more, you said, of the next few days.
89 You said you apologised to the victim, despite having no recollection of the events.
90 At interview, there were no indications to Dr Zimmerman for cognitive testing.
91 At the time of this offending, you were living in unstable accommodation, using a range of drugs, isolated from family and friends.
92 Dr Zimmerman referred to the abuse, abandonment and lack of stability and nurturing relationships in your early years, and your failure to develop a stable sense of self or ability to form stable and appropriate relationships with others.
93 Whilst not formally assessed, in the opinion of Dr Zimmerman, you had symptoms of borderline personality disorder, however, she was unable to confirm that diagnosis. You met the criteria for cannabis and methamphetamine dependence and poly-substance abuse.
94 Whilst at the time of her report you had achieved four months of abstinence, you remained at risk of relapse in times of increased stress. In her opinion, you did not currently meet the criteria for post-traumatic stress disorder. Your experience as a child, however, had impacted on your ability to form secure attachments.
95 Regarding your offending, your drug use may have led to your inability to reason.
96 Regarding remorse, Dr Zimmerman noted, as did I, in the absence of any memory of this offending, your remorse is limited.
97 Regarding treatment and assessment for drug and alcohol counselling, whilst being offered in the past, you have not taken it up. Since this offending, however, you had seen a psychiatrist and a psychologist.
98 Dr Zimmerman, as I said, questioned the need for you to be taking antipsychotic medication.
99 Reducing your risk of future offending, she said, would depend upon you addressing your substance misuse. She also recommended you have contact with a psychologist, with a program that offers dialectical behavioural therapy. Dr Zimmerman cautioned against the use of medication unless carefully controlled, to avoid your dependence upon it.
100 Before me was correspondence from Samantha Kendrick, dated 23 February 2018, referrable to your attendance with SURe (Substance Use Recovery with Anglicare Victoria).
101 Also correspondence from Peter Tregent, dated 26 May 2018, owner of the blueberry farm in the Strathbogie Ranges, to which I have previously referred.
102 You blamed your offending on your drug use.
103 Your counsel submitted you were not relying upon the principles in Verdins, and that was, on the material before me, an appropriate concession.
104 Mr Malik, however, urged that your time in custody, if such a sentence was imposed, would attract some mitigation consistent with general sentencing principles, and I note in that regard Dr Zimmerman was of the opinion you did not currently meet the criteria for post-traumatic stress disorder, and she was unable to confirm a diagnosis of borderline personality disorder. I do, however, note I can take any time you spend in custody into account as being your first time in custody, consistent with general sentencing principles.
105 There was the report before me from Dr Golhar, Consultant Child and Youth Psychiatrist, dated 25 March 2018, referred to by Dr Zimmerman. You were referred to Dr Golhar by your general practitioner on 2 February 2018. Further details were provided of your background and history, which I have read but I will not repeat here.
106 At the assessment by Dr Golhar, you presented less with depressive symptoms and more with features of emotional and dysregulation/borderline personality, organisation, and anxiety related to contact with your son and partner. A number of recommendations regarding your treatment were outlined within the report of Dr Golhar (paragraphs 1 to 3).
107 Also before me was a reference from Diane Mackrell, dated 30 May 2018. She had known you since 2003, when you initially attended social badminton evenings which she ran in Strathbogie. You were involved with community badminton for four to five years. Thereafter, she knew you as a student when she was a teacher/librarian and badminton coach at Euroa Secondary College from 2005 to 2007. She made contact with you again in early 2018, when you returned to Euroa and joined the local badminton competition with which she was involved. You had been willing to assist her coaching children who were learning to play badminton.
108 You have been working locally now for five months, and you enjoy the regular work. It appeared to her you were wishing to turn your life around in a positive direction.
109 There was a reference from your aunt, Kerry Margalit, dated 6 June 2018. Her sister is your adoptive mother. At one stage, she was able to access you some supported accommodation during your teenage years when you were away from home, through WA wide SS Housing. But after that unsettled period, she described you setting up with your ex-partner. She says that in the time leading up to 2018, you had found it difficult to retain work and to establish any ongoing social circle, or cope with life, in particular in the context of your relationship breakdown.
110 The offence before the court, she said, is out of character for you. She considers you to be a warm and kindly person. She describes that after the end of 2017, you returned to Euroa, where you had greater support. You spoke of having more responsibility in your employment at the service station, and talked about your badminton matches. She confirmed you hoped to re-establish contact with your son.
111 There was also a reference from Dr Sharon Des Landes, dated 11 July 2018, confirming you have attended for psychological treatment at the Centre for You in Euroa since May 2018, and had attended four sessions, the most recent on 11 July.
112 The focus of the sessions had been on your wish to become a better role model for your son. In that regard, she has been focussing on you gaining a better understanding of the decisions you have made in your life to date, and on developing your communication skills. She also had discussions with you about the impact of your early life prior to your adoption.
113 Your recent efforts towards your rehabilitation are a step in the right direction, as I have noted and have tried to explain. However, at the present, I have guarded optimism regarding your prospects of rehabilitation, although you seem to have made a good start.
114 Drug use has obviously been a big factor, in not only your past offending (including this offending), and of your life for many years. I note whilst previously on a Community Correction Order, you undertook counselling as directed. Nevertheless, you continued to use drugs, also that you took yourself out of Wellington House after just six days of treatment. This journey to complete abstinence is going to be a very long one for you. When sentencing you, I must seek to maximise your chances of rehabilitation as they may be.
115 I also received further correspondence today, as I have referred to in today's plea hearing, from your parents and I addressed that earlier.
116 There was a victim impact statement by Heidi Barker. The statement is eloquent, and it is difficult to do justice to it in these brief sentencing remarks. Your offending has impacted adversely upon her, and I take the relevant and admissible parts of that statement into account.
117 Heidi says she did not understand why you did that to her. She continues to think about your offending. Heidi has difficulty sleeping now, and ‘almost never’ went out with family or friends. She was worried she would see you and have a ‘meltdown’. She felt dirty, really disgusted with herself. Heidi hid from people, fearing they would say she was ‘at fault’ regarding your offending. She hates talking to strangers and does not pick up messages or answer her phone. She wants it to be "all over" and for her to be "me again". Your offending has affected her relationship with Joshua.
118 Heidi has required therapy. She found it difficult to make friends and be social, which frustrated her. She got scared when guys came up to her and would speak to her. She meditated to help her calm down.
119 Relevant also is the notion of social rehabilitation, and a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[9], in which his Honour Justice Vincent referred to social rehabilitation, citing DPP v DJK[10], allowing as I do, of course, for the different factual circumstances in that case to yours.
[9] [2006] VSCA 60
[10] [2003] VSCA 109
120 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
121 Mr Malik urged the appropriate disposition was a Community Corrections Order. He submitted the objective gravity of your offending placed it towards the lower end of the scale of gravity, submitting it was not premeditated, your offending was of short duration, that Heidi was asleep, and that your offending was opportunistic.
122 Further, that you were in essence a different person from December 2017, that you had incentives to ‘stay on track’, wanting access with your child. And of course, I am aware of all those matters that have been raised in mitigation over the last two hearings.
123 Mr Fisher submitted your offending was not at the lower end. I agree. He submitted Heidi was asleep, you removed/moved some of her clothing (lifted up her skirt and opened up the dressing gown). There was distress caused to Heidi, that your likely awareness of the potential for detection displayed a degree of brazenness by you. Your offending also breached a Community Correction Order.
124 Mr Fisher submitted your remorse was limited and that you maintained your being unaware of your offending as recently as the assessment by Dr Zimmerman.
125 Mr Fisher maintained his submission that the appropriate disposition was an immediate term of imprisonment. Such, combined with a Community Correction Order would be within the range of appropriate dispositions.
126 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must take into account other matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
127 There is also the need for specific deterrence when sentencing you. I note you do not have any prior criminal history reflective of any form of sexual offending. However, you do have an extensive criminal history, having been before the courts on multiple occasions. In particular, most recently you were placed on a Community Correction Order, breached by this offending.
128 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. In part, this will be related to you undertaking appropriate drug counselling.
129 I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct, and generally to impose just punishment.
130 I am mindful of Boulton & Ors v R[11] and the subsequent pronouncements of the Court of Appeal relevant to community correction orders. A community correction order has both a punitive and rehabilitative aspect to it, and in Boulton the court was urged to ‘rethink the conventional wisdom about whether prison is really the only option’.
[11](2014) 46 VR 308
131 Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[12], Alam v The Queen[13], Marocchini v The Queen[14] and Hutchison v The Queen[15], of course being mindful of the different offending in those cases from yours (and recently Gul v The Queen[16]).
[12] [2015] VSCA 95
[13] [2015] VSCA 48
[14] [2015] VSCA 29
[15] [2015] VSCA 115
[16] [2016] VSCA 82
132 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles, as stated by the Court of Appeal and other courts, relevant to this type of offending, now amounted to nought. Nor did I understand Boulton's decision to remove the instinctive synthesis when sentencing.
133 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to any particular charge. Further, I note Priest JA observed in Hutchison that:
"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 for which a sentence may be imposed." [17]
134 I arranged to have you assessed for a Community Correction Order, as I discussed with your counsel, and received a report from Susan Farrell that you are suitable for such a disposition if I was minded to impose same.
135 You were assessed as suitable for such an order, with a number of conditions recommended. You were advised by Ms Farrell of the likely conditions of such an order and the likely ramifications of any breach of the order. Being aware of those matters, you consented to the order being made.
136 In my opinion, however, to impose the disposition urged by Mr Malik, that is, a Community Correction Order without time to be served in custody would result in a manifestly inadequate sentence.
137 In my opinion, the only appropriate disposition is a term of imprisonment, with a Community Correction Order of 2 years and 6 months attached. That order will be with a conviction recorded.
138 Before I formally pronounce sentence, I have to tell you a bit about the Community Correction Order that I propose, because you have to consent, or otherwise, to it. So I have to tell you a bit about the Community Correction Order, and then I will explain the formal sentence in a minute.
139 Turning to the Community Correction Order, despite your consent to Ms Farrell, I must also tell you about the proposed Order and ramifications of breach of it, and seek your consent or not to the making of the Order. I must tell you about the proposed order and the conditions I propose be attached.
140 The following core conditions apply to a Community Correction Order, and they apply to you:
·You must not commit, whether in or outside Victoria, during the period of the Order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice – a Community worker, if you like – during the period of the Order, that is, 2 years and 6 months.
·You must report to the Community Corrections Centre at Seymour Community Corrections Service within two clear days after your release from jail.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, that is, a Corrections worker or his or her nominee.
·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.
141 The core conditions apply to everybody, not just you. But there are a number of other conditions attached to this Order that apply just to you:
· You must perform 200 hours of unpaid community work over a period of 2 years and 6 months, as directed by the Regional Manager, ie: Corrections worker (s.48C).
· You must be under the supervision of a Community Corrections Officer for a period of two years and six months.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager or Community Corrections worker (s.48D(3)(a)).
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency, as directed by the Regional Manager, if considered appropriate.
· You must undergo mental health assessment and treatment (including but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager or Corrections worker (s.48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager or Corrections office, and I am specifically referring thee to the Sex Offenders Program (s.48D(3)(f)).
· You must attend for review of your progress and compliance or otherwise with conditions of this Order. In other words, you have got to come back before me on Friday, 2 August 2019 at 9.30am, for me to see how you are travelling on this Order.
142 I have got to tell you more about the Order.
143 If you contravene or breach that 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 (s.83A(d)).
144 You can also be re-sentenced on the charge that is before me, and one of the options available includes a further term of imprisonment (s.83A(s)).
145 So you have got to be extra careful for the next two and a half year period after your release from prison. 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 same charge before me. So you have just got to be extra careful.
146 I have to also tell you that 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, you can also be fined ‘a substantial fine’ is the word ‘can be imposed’ (s.83A(e) and A(f)).
147 Now, talking about the Community Corrections Order, are you aware of all of those conditions?
148 ACCUSED: Yes.
149 HER HONOUR: Have they been explained to you? Although some of the specific ones will not have been, i.e. the community work component, have they been explained to you also, by Mr Malik?
150 ACCUSED: Yes.
151 HER HONOUR: Mr Malik, do you believe you have adequately explained the conditions that might be imposed on a CCO in this case? Have you discussed those with him?
152 MR MALIK: We have, Your Honour, but I will go and see him at the conclusion of this sentence.
153 HER HONOUR: Yes, but I am about to ask, does he consent to the Order, so I am just trying to clarify that you have, at this stage, spoken to him about the possible, likely conditions of any order.
154 MR MALIK: Yes.
155 HER HONOUR: And you would have, no doubt, referred to the report and discussed that with him, what was suggested there?
156 MR MALIK: Yes.
157 HER HONOUR: All right, so you have spoken to him about it.
158 MR MALIK: Yes.
159 HER HONOUR: Can I ask you, have you also, as well as me, explained the potential ramifications of any breach? Did you also discuss the ramifications of any breach, or the potential ‑ ‑ ‑
160 MR MALIK: Not in detail this morning, Your Honour.
161 HER HONOUR: All right. Now, I have gone through them. Do you want to go through those again, before he consents or otherwise?
162 MR MALIK: No, Your Honour.
163 HER HONOUR: So you are under the opinion he is sufficiently aware of those breach provisions?
164 MR MALIK: Yes, Your Honour.
165 HER HONOUR: All right. I gather you understand what could happen if you breach the Order by committing further offences?
166 ACCUSED: Yes.
167 HER HONOUR: In particular, not complying with the Order or any of the conditions of the Order?
168 ACCUSED: Yes.
169 HER HONOUR: Includes coming back before me and getting resentenced on this charge.
170 ACCUSED: Yes.
171 HER HONOUR: Well, just dealing with that CCO, do you consent to that Order being made in those terms?
172 ACCUSED: Yes.
173 HER HONOUR: Nice loud voice into that microphone.
174 ACCUSED: Yes.
175 HER HONOUR: I then turn to the sentence, which is as follows.
176 On Charge 1, you are convicted and sentenced to 5 months' imprisonment, and to the Community Correction Order thereafter, for 2 years and 6 months.
177 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to this offence, and if you had been found guilty of it by jury verdict, I would not have sentenced you to a community correction order, I would have sentenced you to a term of imprisonment of 3 years, with a non-parole period of 2 years. Now, that does not apply, that is what I would have sentenced you to if you had pleaded not guilty and been found guilty of it. No community correction order, it would have been 3 years' jail, non-parole of 2. But I am not doing that. Do you follow? All right. Well, your counsel will explain it.
178 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent nil days in custody by way of pre‑sentence detention, and I direct that that be entered into the records of the court.
179 The prosecution made application for a forensic sample, pursuant to s.464ZF Crimes Act 1958. This was not opposed by counsel on your behalf, and I make the order in the terms sought. It will be for a saliva sample, and I must indicate to you, the authorities may use reasonable force in order to obtain that sample. I make the order based on the seriousness of this offending and your prior criminal history.
180 The prosecution also submitted that the offence before me was a Class 2 offence, pursuant to the Sex Offenders Registration Act 2004, and as such you are required to be on that register for 8 years. Your counsel agreed such classification and duration applied to you. In a brief moment, my associate will approach you and ask you to sign acknowledging receipt of the paperwork that tell you about the Act. You are not being asked if you want to be on the register, I have in fact made that order. What you are being asked to do is just sign, acknowledging receipt of the paperwork. That is all you are being asked to do.
181 Were there any other orders sought?
182 MR FISHER: No, Your Honour.
183 HER HONOUR: And I am sure the PSD was correct, but I just want to double-check that, in case there were any days. There we not, were there?
184 MR MALIK: No.
185 HER HONOUR: All right. Mr Malik, in a moment, Mr Lobert is going to be asked to sign only acknowledging receipt of the paperwork - you understand the process, but he may not - relevant to the Sex Offender Registry.
186 MR MALIK: Yes, Your Honour.
187 HER HONOUR: You will have to speak to him downstairs, I'm afraid ‑ ‑ ‑
188 MR MALIK: I'll do that, Your Honour.
189 HER HONOUR: ‑ ‑ ‑ any discussion down there, I'm afraid, because I've got another matter starting a little while ago, but, more importantly, we don't have the time. It should be done that way.
190 MR MALIK: I'll do that, Your Honour.
191 HER HONOUR: All right. Are you ready, Ms Jackson, to take them down? All right. Thanks very much for your assistance, Mr Malik, and yours, Mr Fisher, during the hearing.
192 MR FISHER: Thank you.
193 MR MALIK: Thanks, Your Honour.
194 HER HONOUR: All right, thanks, Mr Lobert. You'll need to go out the back.
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