Director of Public Prosecutions v Lucas

[2013] VCC 1392

27

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

AT MILDURA

CRIMINAL DIVISION

Case No. CR-12-02353

DIRECTOR OF PUBLIC PROSECUTIONS

V

AARON DAVID LUCAS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Mildura
DATE OF HEARING:	26 September 2013
DATE OF SENTENCE:	26 September 2013
CASE MAY BE CITED AS:	DPP v. Lucas
MEDIUM NEUTRAL CITATION:	[2013] VCC 1392

REASONS FOR SENTENCE
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Subject:         Criminal Law

Catchwords: One charge of sexual penetration of child under 16; accused suffers high functioning autism; pleaded guilty; remorse; vulnerable to exploitation if imprisoned

Sentence:  CCO 2 years    

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. O'Doherty	OPP
For the Accused	Mr J. Lowy	Martin Irwin & Richards

HER HONOUR:

1       Aaron David Lucas, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The child, a girl, was nine years old.

2       This occurred on 20 August 2012 when you visited your neighbour's house to discuss lawn mowing.  The neighbour was caring for the child, who is the complainant in this case, that morning.  She was playing with the young son of that family and you engaged in their play.  The neighbour, the boy's mother, was working elsewhere in the house, attending to the children from time to time.  Whilst playing with them you tickled both the children and sat the little girl on your knee.  You put your hand down her pants inside her underwear and touched her vaginal area.  You moved your fingers around and inserted one finger into her vaginal area, keeping your finger inside her underwear for a few minutes before removing it.  The neighbour came in to check on the children and saw the girl sitting on your knee.  She told her to get off and to sit on a beanbag she placed on the floor.  Soon after that you left the house.

3       Later in the morning the girl's mother returned home and went to collect her daughter.  The girl told her mother what had happened.

4       On 23 August you were interviewed by the police and you made admissions to what had happened, saying that you did not penetrate her vagina but you moved your fingers around in that area.

5       You pleaded guilty at the committal mention and later when you were arraigned.  However, soon after that you indicated an intention to apply to change your plea to not guilty.  It is not necessary for me to give details of what has occurred since then, suffice to say that you have now pleaded guilty and this has avoided the need for a trial. 

6       That is of considerable importance.  First, it has saved the inconvenience and expense of a trial for all concerned and has assisted in the administration of the system of justice.  Second, it means that the child and her mother do not have to give evidence in court. 

7       They have each provided victim impact statements and it is clear that your offending has had a considerable emotional impact upon them.  They want to have this matter put behind them and I can infer from what they have said in their statements that giving evidence would have been difficult for them.  Therefore you are entitled to a discount on your sentence which takes account of those benefits, even though it was a late plea.

8       Two reports provided by Dr Raeside, a psychotherapist, and Ms Leen, a psychologist, have set out details of your background and your diagnosis of high functioning autism.

9       You went to school until Year 11 and you did quite well in some things but you found it a struggle.  After leaving school you had various jobs and you are now receiving a disability support pension.  You still do some part-time work.  I have just heard that you are enrolled in a horticultural course that you hope to complete in a year or so and after that you intend to look for full-time work.

10      You lead your life in rather an isolated way, although you have a number of interests and hobbies. 

11      At the time of the offence you lived with your mother but you have since moved away from that location and you now live with your father.

12      You knew what you did was wrong and you are embarrassed about it.  You have said you were disappointed in yourself and your parents are disappointed as well.  This means you are sorry and remorseful and that is an important matter for me to take into account in being able to make your sentence more lenient than it would be if you were not sorry.

13      Now I come to that sentence.

14      This is a serious offence and it is usual for a person who has offended in this way to go to prison, because that sends a message to others not to do this sort of thing.  As I said this morning, prison is not appropriate for you for several reasons.  I have already mentioned your remorse and your plea of guilty and in addition your disability would place you in a vulnerable situation in prison and so you would be likely to suffer hardship that others who do not have such a disability would not suffer.  Also, prison is not necessary in your case to ensure that you do not offend again.  That can hopefully be achieved by the conditions of a Community Corrections Order.

15      You have been assessed as suitable for that order and it will begin today and will last for two years.  You will be under supervision and you must perform 50 hours of unpaid community work over six months.  You must attend any appointments made for you, whether that is with a psychologist or perhaps some other professional person who may be able to assist you towards your rehabilitation.  This will include being assessed for a Sex Offenders Treatment Program.

16      Mr Lucas, you must attend at the Corrections Office which is at 59 Madden Avenue, Mildura, at the latest by four o'clock on 30 September, which is next Monday. 

17      The prosecution has applied for the forensic sample that was previously obtained from you to be retained by the police, and you do not oppose that and I make that order.

18      Because of the serious nature of this offence you must be placed on the Sex Offenders Register, which means you must provide your details to the police each year for 15 years.  In a moment you will be asked to sign a form about that.

19      Finally, if you had pleaded not guilty to this charge I would have imposed a more serious penalty, I would have imposed a Community Corrections Order lasting for three years with a condition that you perform one hundred hours of unpaid community work.

20      There may be a delay for a short time while the paperwork for the Community Corrections Order is prepared because that is something that you have to sign and I have to sign also, so take a seat for a moment please, Mr Lucas.

21      Would you like to have a look at that first, Mr Lowy?

22      MR LOWY:  Yes, Your Honour.

23      HER HONOUR:  Anything further, Mr Lowy?

24      MR LOWY:  No, Your Honour.

25      HER HONOUR:  Mr O'Doherty.

26      MR O'DOHERTY:  No, Your Honour, nothing further.

27      HER HONOUR:  Thank you.

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