Director of Public Prosecutions v M, J

[2020] VCC 156

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

M, J

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2020
DATE OF SENTENCE:	26 February 2020
CASE MAY BE CITED AS:	DPP v M, J
MEDIUM NEUTRAL CITATION:	[2020] VCC 156

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Fitzpatrick	Office of Public Prosecution
For the Accused	Mr R. Sullivan	Stephen Peterson Lawyers

HIS HONOUR: 

1MJ, in 2017, you befriended a disabled man who lived in the rear of his parents' house in Trafalgar.  On 3 June 2018, a number of friends and extended family attended that house to plan a funeral.  A three-and-a-half-year-old child came to the house with his parents.  The child played outside while the adults talked inside.  You were not involved in the funeral planning.

2You played with the child.  At one point, out of view of the adults in, it seems
a van you were living in at the time in the backyard, you touched the child on his penis and put your finger between the child's buttock cheeks.

3The child told his mother what you had done some weeks later.  You were arrested and interviewed on 21 July 2018.  You then denied the allegations,
or denied the allegations at that point.  You were remanded in custody and have remained in prison since.

4A special hearing was recorded where the then four-year-old was cross-examined, very professionally and sensitively, by your then counsel.

5As the trial was about to commence, you negotiated a plea to one rolled-up charge of sexual assault of a child under the age of 16.  Also you confirmed your long-expressed intention to plead guilty to a charge of breach your
Sex Offenders Registration Act requirements.  The particular requirement was to report to the police, or authorities, that you had contact with the child who had attended at the house on previous occasions when you were there.

6What must be made clear is that your sexual assault of the very young victim was dreadful and abhorrent behaviour.  While the conduct was not planned, but arose from the opportunity of the child being at the house playing while the adults focused on the funeral arrangements, nonetheless, this was serious offending.

7In fact, the parents of the child were further disengaged as the mother was taken to hospital by the father due to pain arising from her then-pregnancy. 

8Your touching of the child was brief, but above all, it is revealing of your perverse sexual attraction to children.

9It is to be noted that you pleaded guilty, as I have said, to breaching your existing Sex Offenders Registration Act obligations.  You were on the register because in 2015, you were dealt for grabbing your teenager stepson's testicles.  You were placed on an 18-month community corrections order by a magistrate, and you completed that order.

10I say that notwithstanding that the Magistrates' Court requested consideration requiring you to do a sex offender's course, but you were not seen as in need of that course, and it was not arranged.  That was unwise by those who made that decision, and unfortunate.

11To return to the assessment of the gravity of your offending on this occasion.  The conduct, given the age of the victim, was especially serious criminal behaviour.  The courts and the community now well understand the very high risk that adverse effects to a child will emerge.

12The victim's parents and others in the family were distraught at what you had done to the child.  In her victim impact statement, the mother wrote of how your conduct made her and makes her still feel angry at the world, at her family, and at herself.  She of course is not in any way to blame.  Only you are responsible for this crime.

13The mother is very anxious when her child is at school and away from her. 
She reports changes in the child with nightmares, outbursts of anger, and him fearing being hurt and fearing being washed properly by her.

14The father, in his victim impact statement, speaks of his loss of trust in people, meaning that he feels the need to be with his children all the time.  This limits his social life.  He has had trouble sleeping and unfortunately has turned to alcohol to help.

15The crime of sexual assault of a child under the age of 16 is one that Parliament has set a standard sentence for.  The standard sentence is four years. 
I am required to follow the standard sentencing provisions as set out in the Sentencing Act, as those provisions have been helpfully interpreted by the Court of Appeal in Brown v DPP.

16So I must take into account as one of the factors relevant to my instinctive synthesis this fact that this offence is a standard sentencing offence.  As I have just referred to, the standard sentencing regime does not affect the approach to sentencing, which is an approach known as 'instinctive synthesis.' 
The standard sentence of four years is a legislative guidepost, as is the maximum term of 10 years.

17In this case, the gravity of the offending, taking into account only the objective factors, established as discussed already that by the very young age, or by the fact of the very young age of the victim, and the intimate and degrading places in which you touched him, that this crime is serious.

18The brazenness of the offending also adds to its seriousness, as it reveals that you can be unrestrained in seeking perverse gratification in sexual encounters with children; that is, notwithstanding that other adults who are protectors of the child are nearby.

19Though the fact that there was no planning, and the brevity of the offending - these are matters ameliorating the seriousness when considering the objective factors.

20The sentence I impose will be a significant portion of the standard sentence, and also include important protective aspects by reason of a lengthy community corrections order which will include a requirement that a sex offender's program is commenced and completed.

21Thus, in my view, taking into account the identified seriousness and your high moral culpability, as against other factors not yet fully mentioned, such as the value of your plea of guilty, in the end, the sentence I will announce is just and appropriate for this example of this standard sentencing offence.

22As to your personal circumstances, you are now, I think, 42 years old or about to be.  You have a criminal history.  Your criminal history was mostly in your early 20s, with one offence in your 30s before the sexual offence in 2015 that
I have already mentioned.  That offence is most relevant.  There is other offending, but it is to a lesser degree relevant; that is, your recent breaches of your sex offender registration requirement, which saw a magistrate impose fines.

23You have had two substantial relationships in the past, and you have three daughters from one relationship, and you parented step-children in another.  However, your 2005 sexual offending did involve one of those step-children.

24You have worked from time to time via labour hire companies, and have had periods of unemployment.

25Prior to you entering a plea of guilty, you sought a sentencing indication. 
The prosecution submitted, importantly, that I should grant that application and indicate to you that should you plead guilty, then you would not be required to do any more time in prison.  I granted that application and you immediately pleaded guilty on arraignment.

26Thus I have indicated my sentence will not involve any more imprisonment, in all the circumstances, given that you have been on remand and done thus far 587 days - that is, just around 18 months.

27The breach of the Sex Offenders Registration Act obligations, Charge 2, is in my view subsumed by the sexual assault charge.  The penalty ought to be and will be wholly concurrent.  It still has to be proportionate.

28This was more than just not advising of a car registration or an address. 
This was being in the company of a child that you should have reported, so that the authorities could have done something to be protective.  In the end, you being in the company of the child, or being allowed to be in the company of the child, enabled this offending.

29The important sentencing principles are denunciation of your crime,
the abhorrent crime, and deterrence to others, and deterrence especially to you.  Those matters are well-satisfied by a significant gaol term, though one lower than the standard sentencing, for the reasons that I have outlined and explained. 

30The protection of the community is an important sentencing consideration,
and in this case, it is most likely best achieved by having you supervised upon your release and educated on appropriate sexual behaviour in the community.  You simply must do the sex offender's program and cooperate with those that run it.  I will not abide Corrections not placing you in such a course, nor you not complying with every single obligation required by that course. 

31The long community corrections order that I intend to impose will facilitate your reform while you are generally monitored and supervised by the Office of Corrections.  I will impose a further sex offender's registration obligation upon you by reason of the charges that you faced.

32I have taken into account that you pleaded guilty and took responsibility for this matter, alleviating the system and many witnesses, albeit not the child, from giving evidence at a trial.

33For Charge 1 on the indictment, the sexual assault of a child under the age of 16, I intend to impose each and every day of the time that you have spent in prison.  Thus, my sentence will be expressed in days.

34You are sentenced to a term of imprisonment of 587 days. 

35Before moving to anything else, pursuant to s.18 of the Act, I declare that the period of time you have been on remand has been reckoned.  That has resulted in the calculation that you have done 587 days on remand.

36That amount of time having been reckoned, I now declare that it is part of the sentence that I have just imposed.  Indeed, it is each and every day of the sentence I have just imposed.

37Further, I will ensure that this declaration is entered into the records of this court, so that prison authorities are left in no doubt you have done the entire term of imprisonment that I have just imposed.

38Before moving to Charge 2, in relation to Charge 1, I place you on a two-year community corrections order.  The conditions will be that you are under the supervision of the Office of Corrections and that you are required to do programs as directed by the Regional Manager of the Office of Corrections.  That program will be a sex offender's course. 

39Charge 2, the breach of the sex offender's registration obligation, you are sentenced to 14 days' imprisonment. 

40Those 14 days are concurrent with the sentence that I imposed on Charge 1.

41Thus, the total effective sentence I have imposed is 587 days, and you have done each and every day of it.

42Had you pleaded not guilty to these matters, I would have imposed a sentence of three years and six months with a minimum term of two years and six months.

43Is there anything else required? 

44MS FITZPATRICK:  The only matter, Your Honour, is that the prosecution now has the original victim impact statements if Your Honour wished to mark them as an exhibit. 

45HIS HONOUR:  They are both exhibits.  They do not have to be.

46MS FITZPATRICK:  As Your Honour pleases.

47HIS HONOUR:  Thank you.  Anything else required?

48MR SULLIVAN:  Your Honour, it occurs to me that - the maximum term of imprisonment allowable under a corrections order.  I'm just trying to look that up.

49HIS HONOUR:  Section 44(1) which requires that I can impose a sentence of imprisonment, having deducted the matters - time served under s.18, can be no more than 12 months. 

50MR SULLIVAN:  Having deducted.  That's the ‑ ‑ ‑ 

51HIS HONOUR:  Yes, that is what it is.

52MR SULLIVAN:  As it please Your Honour.

53HIS HONOUR:  I had not mentioned it because it is explicit in the Act.  I cannot, albeit that I have sentenced him to more than 12 months, have a discretion as to whether I, in the ordinary course, would set a minimum term.  But because of the requirements of s.44(3), I cannot impose a non-parole period and I do not.

54MR SULLIVAN:  As it please Your Honour.

55HIS HONOUR: Further gaol, as was indicated under s.287 and 288 of the Criminal Procedure Act, he is to do a community corrections order that starts today.  We will read out to him the conditions.  And the sex offender registration is compulsory, or mandatory, and it is a period that is also mandatory of
15 years.  Do you understand that?

56OFFENDER:  Yes, Your Honour. 

57HIS HONOUR:  What happens there is that - probably happened the last time you were put on it.  I have to sign a document saying that I have given you a document.  You have got to a sign a document to say that you received it. 
But the important thing is the content of the document sets out all your obligations.  And as you know, if you do not comply, you will be brought back to a court for breaching those requirements, and there will be ever-more increasing serious penalties.  Do you follow?

58OFFENDER:  Yes, Your Honour. 

59HIS HONOUR:  Thank you.  There is no connection with him and the names of any complainants or victims.  I never name them.  I did not then.  It is just
Mr MJ and a range of people.  I mention Trafalgar, but that is about as far as it got. 

60MS FITZPATRICK:  Agreed, Your Honour.  I don't see any need for a pseudonym beyond that.

61HIS HONOUR:  Thank you.  It can go on the portal.  No, it is not going to have a pseudonym.  It can go on the portal, meaning that someone can report it.

62MS FITZPATRICK:  Yes, Your Honour. 

63HIS HONOUR:  By reference to the oral reasons I have just given, anyone can report it.

64I would expect you would have to go downstairs and sort things out.  They will contact Central Records and the like, if that is still the name of the organisation that knows whether you have done your time and so on and so forth. 
And if that is the case, then you will be released.  There are obligations upon you to report to places as soon as - within a certain period of time.  You have just got to meet them. 

65Mr MJ, the community corrections order will go for two years.  It starts on your release.  That will be today.  You have got to get down - the mandatory conditions that apply to everyone on a community corrections order are the following.  This is important that you understand:  that you must not commit any other offence for which you could be imprisoned during the time that the order is in force.  That includes a breach of your sex offender's registration. 
Should you breach that order, the sex offender's registration order, then you will breach the community corrections order, you will come back before me, and
I will have to re-sentence you.  And I will not be inclined to allow you to remain in the community.  You follow?  You have got one chance.

66OFFENDER:  Yes, Your Honour. 

67HIS HONOUR:  You must comply with any obligations or requirements under the sentencing regulations.  You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre down in Werribee - the address is here - within two clear working days of this order commencing.  You must let them know, within two clear working days, of changing your address or your job.  And you cannot leave Victoria without getting permission.  You have got to obey their instructions and directions.

68In addition to those conditions that are mandatory for everyone, your particular conditions are:  you must be under the supervision of the community corrections offices for two years, and you must participate in programs that address your offending, being the sex offender's registration.

69If you sign that, that will bring the matter to an end.  Just bear with me for a moment.  He has to sign it twice.  For some reason, he has to - Mr Sullivan, he has to sign this document that relates to the sex offender's program.  Just give him a hand with that.

70MR SULLIVAN:  Yes, Your Honour.  Thank you. 

71HIS HONOUR:  Thank you.  Mr MJ, you have signed a document which acknowledges that you have received a notification of reporting obligations and a notification of reporting period.  My associate will sign it and forward it to the Chief Commissioner.  Is there anything else required?

72COUNSEL:  No, Your Honour. 

73HIS HONOUR:  Thank you very much.  Mr MJ can head downstairs. 
If there is any difficulty, the parties can bring the matter back on.  But otherwise, he will be released and hopefully has got some resources to get somewhere to live.  Thank you.

74OFFENDER:  Thanks, Your Honour.

75HIS HONOUR:  I am not going to leave the Bench, so thank you very much.

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