Director of Public Prosecutions v Lovell (a pseudonym)

[2020] VCC 87

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN LOVELL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2020
DATE OF SENTENCE:	14 February 2020
CASE MAY BE CITED AS:	DPP v Lovell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 87

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Family violence-sexual assault-procure sex act by threat-using a carriage service to menace, harass or cause offence-summary driving offence- State and Commonwealth charges-victim ex-partner of accused-offences committed when intervention order in place-accused drug-affected- prior criminal history
Legislation Cited: Family Violence Protection Act 2008 (Vic); Crimes Act 1958 (Vic); Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic)
Sentence: Total Effective Sentence of four years and nine months on the State charges; licence cancelled and disqualified for three years; on the Commonwealth charge 18 months imprisonment commencing at the expiration of the non-parole period of the State sentences to be released on a Recognisance Release Order after three months upon giving security of $1000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	OPP
For the Accused	Mr D. Gibson	VLA
(For Plea)
Ms Z. Broughton
(For Sentence)

HER HONOUR: 

Introduction

1To protect the identity of the victim I shall refer to all parties by pseudonyms throughout these sentencing remarks. 

2Kevin Lovell, on 1 and 2 September 2018 you committed a series of offences in relation to your 20-year-old ex-partner, Sherry Peterson.  The most egregious thing you did was that, after threatening Ms Peterson into handing over her mobile phone, you demanded that she perform oral sex on you, recorded that activity with her phone and then distributed the video to her Snapchat group.  As if that was not bad enough, at the time you were subject to an intervention order prohibiting you from having any contact with Ms Peterson.  Further, you had only just been placed on a community corrections order.

3On 7 September 2018 you were arrested, interviewed and charged in respect of this conduct.  You were remanded in custody and have been in custody ever since. 

4On 28 January 2020 you pleaded guilty before me to:

Persistent contravention of family violence intervention order, contrary to the Family Violence Protection Act 2008, punishable by a maximum term of five years, that is Charge 1;

Sexual assault contrary to s.40(1) of the Crimes Act 1958, punishable by a maximum term of 10 years' imprisonment, that is Charge 2;

Procuring sexual act by threat contrary to s.44(1) of the Crimes Act 1958, punishable by a maximum term of 10 years' imprisonment, that is Charge 3; and

Using a carriage service to menace, harass or cause offence contrary to s.474.17(1) of the Criminal Code Act 1995, a Commonwealth offence punishable by a maximum term of three years; that is Charge 4.

5You also pleaded guilty to a related summary charge of driving whilst disqualified, which is punishable by a maximum of 240 penalty units or two years' imprisonment. 

6It now falls to me to sentence you for your conduct.

7In arriving at an appropriate sentence I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other; rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

Circumstances of your offending

8The full circumstances of your offending are set out in the agreed Summary of Prosecution Opening but can be summarised as follows.  On the evening of 1 September 2018 you contacted Ms Peterson by Facebook, text message and phone call, seeking to speak or meet up with her.  Because you sounded distressed and upset, she agreed to meet you the next day. 

9You met in the Preston McDonald's car park, each of you having driven there separately.  You got into her car and demanded Ms Peterson give you her mobile phone. When she resisted you threatened her with a black eye.  Upon realising the phone's pass code had changed you grabbed her by the collar, pulled her close to your face and yelled, 'Give me your pass code'.  When she did, you began searching her phone.  You got out of her car and into your car with the phone, which you continued interrogating.  Ms Peterson pleaded for you to return her phone but you told her to get into your car.  You then filmed yourself and Ms Peterson whilst saying ‘she belonged to the gang’.  You sent this video to two of Ms Peterson's male friends. 

10Ms Peterson continued to plead for the return of her phone but you said 'now you're going to suck my dick'.  You put your hand inside her bra, grabbed both of her breasts and forcibly kissed her on the lips.  That conduct constitutes Charge 2 on the indictment of sexual assault.

11You then exposed your erect penis and said to Ms Peterson, 'you can have your phone back, there'll be no harm if you suck my dick'.  Whilst Ms Peterson was crying and asking for her phone you guided her head towards your penis.  Fearful of refusing Ms Peterson complied.  She noticed that you were recording with her phone and asked you to stop.  Aggressively, you told her to continue and ejaculated into her mouth.  You said to her, 'How does Stevie's pussy taste', which she took to be an allegation that she had engaged in sexual activity with another person by that name.  That conduct constitutes Charge 3- procuring sexual act by threat.

12Using Ms Peterson's phone, you sent that video together with the earlier video to the same two male friends of Ms Peterson and then sent the oral sex video to her Snapchat contacts.  This conduct constitutes Charge 4- using a carriage service to menace, harass or cause offence. 

13Not content with what you had done so far, you telephoned a person by the name of Melanie and told her to come to Preston McDonald's and 'bash the fuck out of' Ms Peterson.  At that point Ms Peterson gave up all hope of retrieving her phone and got out of your car.  As she did so you threw her phone towards her and laughed. 

14Ms Peterson immediately called her sister.  Seeing her on the phone, you used your car to block her car and approached her on foot.  She locked her car doors and yelled at you to leave her alone.  It was only when she showed you that she was speaking to her sister, not the police, that you departed at which point she did call the police.

15As mentioned, all this occurred whilst you were subject to an intervention order, which was made on 15 June 2018 and served on you the next day.  Your conduct in contacting Ms Peterson by Facebook messenger, text message and telephone on 1 September and the next day getting into her car, threatening to give her a black eye, grabbing her by the collar, sending the first video to her two friends and telling Melanie to assault her, all form the particulars of Charge 1- persistent contravention of a family violence intervention order.

16During the incident and subsequently a number of Ms Peterson's friends and acquaintances contacted her to advise they had seen the video of her performing oral sex on you. 

17The Holden Cruze you were driving when you met Ms Peterson in fact belonged to a friend of yours.  She lent it to you on 2 September 2018 and saw you drive it on two occasions that day and again on 7 October 2018.  You were not in fact entitled to drive any car as your probationary licence was cancelled and you were disqualified from driving for six months on 28 August 2018.  Your driving of this car between 2 September and 7 October 2018 constituted the rolled-up summary charge of drive whilst disqualified.

Objective gravity of your offending and moral culpability

18Viewed globally your offending was very serious and your moral culpability was high.  Ms Peterson was a person with whom you had previously had an intimate relationship and you exploited the fact that she still cared for you by persuading her to meet you.  When she did you proceeded to intimidate, threaten and sexually abuse her.  Your actions were controlling, frightening, degrading and cruel. 

19Further, at the time you were prohibited from seeing or contacting her at all and had just been placed on a community corrections order which required you, amongst other things, not to commit an offence punishable by imprisonment.  You demonstrated a complete disregard for these court orders, as you did for the order disqualifying you from driving. 

20I regard your conduct as a serious example of each of the offences of persistent contravention of a family violence order (Charge 1), procuring sexual act by threat (Charge 3) and using a carriage service to menace, harass or cause offence (Charge 4). 

21In relation to Charge 1, your breach of the order consisted not only of communication, but of actual family violence, albeit it was confined in time.  In relation to Charge 3, not only did you intimidate Ms Peterson into giving you oral sex in a busy public car park, you filmed it and continued to do so after she saw what you were doing and asked you to stop.  I do not take into account the distribution of that video in relation to this charge.  The filming in itself is a circumstance of aggravation.  In relation to Charge 4, your sending a sexually explicit video to Ms Peterson's Snapchat contacts was obviously designed to have the widest possible impact and cause the greatest possible distress. 

22The driving whilst disqualified charge is also serious as it represents a number of instances of driving and occurs on a background of you having, on my count, three prior convictions for driving whilst suspended, as well as other serious driving offences.

23I agree with the prosecutor that it is a less serious example of sexual assault.  That is Charge 2. 

24The fact you were on ice at the time may explain, to some extent, what you did - one can only hope that you would not have behaved in that way otherwise - but it is in no way mitigatory.  You have had a long-term ice addiction and your prior criminal history is a testament to that.  I am satisfied beyond reasonable doubt that you were aware that consuming ice may lead to you committing offences, but I am not satisfied to that standard that you knew that it would cause you to offend in the way you did on this occasion.  I therefore do not treat it as an aggravating feature. 

25There is nothing in your personal circumstances, which I will shortly outline, which operates to reduce your high moral culpability. 

Impact of your offending

26Anxious not to cause Ms Peterson any further distress and mindful of her request that her victim impact statement not be read aloud in court, I shall not quote directly from that document.  Suffice to say Ms Peterson confirmed the extent of her public humiliation and the intrusion into her privacy.  She pointed out that nothing can eradicate the memory of the hundreds of people who saw the video, some of whom she had not spoken to for many years. 

27Ms Peterson also explained that she has experienced sleep disturbance, anxiety and trust issues since the incident.  She also has difficulty facing people knowing they may have seen the video. 

28Not unusually, Ms Peterson's victim impact statement covered matters and incidents beyond the charges to which you have pleaded guilty.  I am obliged not to rely on any impact that cannot be directly attributed to the offences before me and I have been careful not to do so.  Suffice to say your offending has had a profound and lasting impact on Ms Peterson.

Plea of guilty, co-operation and remorse

29Mr Gibson, who appeared on your behalf, submitted that I should find that your plea of guilty is accompanied by remorse.  I am not satisfied that is so. 

30When formally interviewed by police on 7 September 2018 you denied the offending stating:

·That you had never had or driven the Holden Cruze;

·That you had received text messages 'threatening with this very situation- this very scenario that is playing out now';

·That the video of Ms Peterson where you were saying she belonged to the gang was a ‘very old video’;

·That Ms Peterson's version of events was 'bullshit’, a ‘dreamt-up fucking story' and ‘rubbish’;

·That Ms Peterson was 'an absolute slut'; and

·That you and Ms Peterson had previously recorded videos of her performing oral sex on you.

31The fact you were still on ice at the time of interview may explain these answers.  You were not, however, on ice after you were remanded.  With plenty of time to reflect, you nevertheless instructed your counsel to cross-examine the complainant at the committal hearing, some 10 months later. 

32I accept Mr Gibson's submission that the cross-examination, which he conducted, was done as sensitively as possible in the circumstances.  However, that does not detract from the fact Ms Peterson still had to come to court to be asked questions about matters that were deeply personal and painful, including matters beyond the incident under consideration.

33Mr Gibson submitted that upon seeing Ms Peterson give evidence you became remorseful and settlement negotiations commenced immediately after the committal hearing.  The matter did indeed resolve 16 days later. 

34In response the prosecutor, Mr Cordy, submitted that your plea of guilty must be seen in the context of a strong Crown case, particularly given the video evidence.  Through your counsel, you took issue with Mr Cordy's assertion that it was apparent that Ms Peterson was not a willing participant and as a result I was invited by both counsel to view the video so that I could form my own view.  Having done so, I accept that the video of the actual sex act does not reveal Ms Peterson's attitude, however the earlier video in which you say ‘she belonged to the gang’ clearly does.  In that video she sounds distressed and can be heard pleading with you.  In my view, having regard to the evidence as a whole, this was a strong Crown case.  Further, the fact that even as late as the plea hearing you were contesting Ms Peterson's state of mind does not reflect well on you.

35I stress that I do not regard your attitude, whether it be in subjecting Ms Peterson to cross-examination or in disputing the inferences to be drawn from the video, as aggravating your offending.  You are not to be punished for that.  Rather, you have failed to persuade me of a mitigating factor, namely the existence of genuine remorse. 

36That said, you are entitled to a utilitarian discount in sentence for the fact you have pleaded guilty.  In so doing you have facilitated the course of justice and taken legal responsibility for your crimes.  Ms Peterson was spared the experience of coming to court to give evidence a second time.  The discount is not as big as it would have been if you had pleaded guilty at an earlier time or if your plea was accompanied by remorse, but it will be significant nonetheless.

Background and personal circumstances

37Your background and personal circumstances are set out in the Outline of Defence Submissions and were elaborated upon during the plea by Mr Gibson and your mother, Sarah Lovell, who gave evidence on your behalf. 

38Briefly, you are now 27 years old.  You were born in Melbourne and raised by your two parents.  You have two older sisters and a younger brother. 

39There were behavioural issues from a young age.  You had difficulty controlling your temper and expressing yourself and were bullied at school. 

40You had a neuropsychological assessment at Austin Health when a child.  Your cognitive functioning was assessed as being in the high-average range, albeit you had problems with memory and planning.  You also attended a Social Skills workshop when you were 10 to assist you in developing skills to get along with your peers.

41According to your mother you were not diagnosed and your behavioural issues were not explained until you were 11, when an audiologist determined that you had difficulty distinguishing background noises from more direct noises, such as a person speaking to you.  This, apparently, was a source of frustration and anger.  No documentation supporting or explaining the significance of this condition was tendered on your plea.

42You left school during Year 10 when you were 16 and completed two years of a mechanics apprenticeship.  At around this time you started using ‘ice’, which Mr Gibson submitted was a feature common to all your offending. 

43At the suggestion of your family, you moved to Queensland when you were 19 to work in the mines and get away from the drug scene in Melbourne.  You initially worked in Brisbane before relocating to Townsville, where your older sister and niece lived.  Unfortunately, your involvement with drugs increased rather than decreased.  This culminated in you receiving a term of imprisonment on 6 August 2015 for a variety of offences including a serious assault and trafficking ice and cannabis. 

44Upon your release after serving eight months of your sentence you returned to Melbourne and reconnected with your family.  You managed to stay out of trouble and completed a carpentry apprenticeship in 2017, thereafter working on your own.  You started seeing Ms Peterson around this time.

45Unfortunately you also began to use ice again and further offended.  Your ice use and criminal history affected your ability to work. 

46In early 2018 you started attending Kylie Wainwright and Associates in Eltham in relation to drug and anger management however, this stopped when you were remanded in custody in April 2018 for further offending.  After being bailed, reoffending, further remanded and then bailed again, you were ultimately sentenced on 28 August 2018 to time served and a community corrections order.

47Since being remanded in custody in relation to these matters you have done maintenance and carpentry work.  You have taken on a mentor role for younger inmates and have also been training other inmates in carpentry skills. 

48You have always been supported by your family.  Your parents supported you in court on your plea and they will continue to support you on your release.  While you were in custody your grandmother, to whom you were very close, passed away, which you found very upsetting.  I accept Mr Gibson's submission that your inability to be with your family and attend your grandmother's funeral does amount to a form of extra curial punishment.

Character and risk of reoffending

49Your contact with the criminal justice system began in 2010 when you appeared in the Children's Court for several driving offences.  You were sentenced to a good behaviour bond and your licence was cancelled and disqualified for six months. 

50As an adult you have been convicted of multiple offences in Victoria and Queensland, albeit none as serious as this.  Your lack of remorse and the chronology of your offending does not bode well for your future.  You have not been deterred by periods in custody and you show a complete disregard for court orders. 

51The fact that the instant offending occurred within days of you being released from prison on a community corrections order for numerous drugs, driving and public order charges is not only aggravating but seriously undermines your prospects of rehabilitation.  I also note you have only narrowly escaped breaching the suspended sentence you received in Townsville by this offending.

52In my view your prospects of rehabilitation could only be described as moderate at best.  In your favour you are still young and have a supportive family.  You have also been gainfully employed in the past, demonstrating that you are capable of being a worthwhile member of society.  However, unless you remain abstinent from drugs, it is highly likely your future will consist of further offending and incarceration.

Current Sentencing Practices

53One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  The reason is to promote consistency of approach in sentencing, and in particular in the application of relevant sentencing principles. 

54Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.

55The circumstances of your offending may not be as amenable to an analysis of current sentencing practices as many other crimes. Upon specific enquiry, I was not referred to any comparable cases by counsel appearing. Indeed I was informed that the current s.44 of the Crimes Act, which commenced on 1 July 2017, is rarely used and my investigations have failed to find a single sentence imposed in respect of it. 

56This is to be contrasted to the predecessor to s.44, s.57 of the Crimes Act, where sentences, usually of some years, have been imposed in a wide variety of circumstances, albeit none directly comparable.  I have had regard to those cases but am cognisant that ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case. 

57I also emphasise that you have not been charged with rape in respect of the sexual penetration that occurred and I am not sentencing you on the basis that you are guilty of that crime. Rape is a crime with different elements from s.44 and a much greater maximum penalty than that to which you are subject (that is 25 years, not 10 years).

Purposes of sentencing

58In addition to specifying the matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community.

59A custodial sentence must only be imposed as a last resort but is conceded to be the only appropriate disposition in your case. That said, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes and, when there are multiple charges as here, I must have regard to the principle of totality. 

60In your case general and specific deterrence, just punishment and denunciation all loom large in the sentencing process.  The courts in this state have repeatedly condemned controlling, dominating and violent behaviour against partners or ex-partners and emphasised the need to impose sentences that will deter would-be perpetrators, who are usually men, from such conduct. The message needs to be especially clear when the behaviour occurs in flagrant disregard of an intervention order.  The sentence that I impose in this case must not only serve the purpose of denouncing your conduct, it must deter you and others from acting that way in the future. 

Sentence

61If you could please stand, Mr Lovell.

62On the charge of procuring sexual act by threat, Charge 3, I convict and sentence you to three years and six months' imprisonment.  That is the base sentence.

63On the charge of persistent contravention of a family violence order, Charge 1, I convict and sentence you to 18 months' imprisonment; nine months of that sentence is to be cumulative on Charge 3 and the other State sentences imposed in this case.

64On the charge of sexual assault, Charge 2, I convict and sentence you to six months' imprisonment; three months of that sentence is to be cumulative on Charge 3 and the other State sentences imposed in this case.

65On the summary offence of drive whilst disqualified, I convict and sentence you to six month's imprisonment; three months of that sentence is to be cumulative on Charge 3 and the other State sentences imposed in this case.

66I also order that any licence to drive you may hold be cancelled and you are disqualified from driving for three years effective from today. 

67That makes a total effective sentence, in respect of the state offences, of four years and nine months, that is 57 months, and I fix a non-parole period in respect of those charges of three years and eight months, that is 44 months. 

68In respect of the Commonwealth offence of using a carriage service to menace or harass, I convict and sentence you to 18 months' imprisonment.  I direct that this sentence is to commence at the expiration of the non-parole period on the State sentences.  I further order that you are to be released pursuant to s.20(1)(b) of the Crimes Act (Cth) 1914 after serving three months of that sentence upon giving security by recognisance of $1,000 that you will be of good behaviour for the period of 15 months.  I need to explain to you that if you do not comply with that promise, to be of good behaviour, you will be brought back before the court, likely me, and there are various things that the court can do such as fine you or extend the order or place you on a community corrections order, but the most serious option is that the court can order that you serve the balance of that sentence outstanding.  That is another 15 months.

69So your earliest possible release date combining the non-parole period from the State offences and the recognisance release order Commonwealth sentence is three years and 11 months.  That is 47 months.  When you are actually released depends on the Adult Parole Board. 

Pre-Sentence Detention

70I declare that you have served a total of 525 days pre-sentence detention not including today in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively. 

Section 6AAA

71If you had not pleaded guilty to these charges and then been found guilty by a jury I would have sentenced you to a total term of seven years with a non-parole period of five years. 

72In relation to the Commonwealth offence, because it's a recognisance release order it's effectively a promise by you to be of good behaviour, that is not to commit another offence once you are released in relation to that offence.  You need to sign a document.  So that document has been prepared.  I will sign it first and then my associate will witness you sign it.  Do you understand?

73OFFENDER:  Yes, Your Honour.

74HER HONOUR:  So I'll just have that taken up to you.  You can sit down again, thank you, Mr Lovell.  Now, because the sentence is somewhat complicated by the fact it's a State and a Commonwealth indictment, I just want to ask counsel now - and I know you haven't had much opportunity to have a look at it, but as far as you are - or as far as you can ascertain are you satisfied that the sentence is appropriate?  I don't mean the length or what I've done but just technically.

75MR CORDY:  I believe it's technically appropriate, Your Honour.

76HER HONOUR:  Yes, thank you.  Ms Broughton?

77MS BROUGHTON:  Yes, I also do, from what I can ascertain.

78HER HONOUR:  Yes, all right.  Thank you very much.  If you could remove Mr Lovell, please.  Yes, thank you, if you could adjourn the court.

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