Director of Public Prosecutions v Martin
[2019] VCC 535
•16 April 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-02074
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY MARTIN |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 August 2018 |
| DATE OF SENTENCE: | 16 April 2019 |
| CASE MAY BE CITED AS: | DPP v Martin |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 535 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Ms D. Mitchell | Docherty Legal |
HIS HONOUR:
1Ashley Martin, you have pleaded guilty on an indictment to one charge of sexual penetration of a child under the age of 16. At the same time, I have before me an appeal from the Magistrates' Court, whereby you received eighteen months, with a twelve month minimum, for a number of offences including one very serious act of reckless endangerment. The summary of those appeal matters has been put before me and I have not the slightest intention of going through each and every one of them. The magistrate imposed an aggregate sentence and I see no reason not to do that again.
2Insofar as that is concerned, it is my intention, as I will be explaining shortly, on the indictment, to give you a sentence of imprisonment, relatively short, to be followed by a community corrections order. In those circumstances, there is no need for the magistrate's parole and I think in all the circumstances, this being your first time in custody, whilst it is a hearing de novo, I think it is probably a little bit excessive.
3Accordingly, on the appeal, you are sentenced to be imprisoned for a period of 270 days. I direct that 164 days be reckoned as having been served under that sentence. I will restore the fines that were ordered by the magistrate, in the same sums, but you understand, hopefully you will have it explained to you, that those fines can be cut out by work hours on the community corrections order. I make again, and I will sign them in chambers if need be, all the compensation orders that were made in the Magistrates' Court. You have got them? It is all right, we will get it all done if we can right now. Those orders are all made and handed down.
4The sentence that I have imposed, insofar as that appeal is concerned is going to be - is to be concurrent with any other sentence imposed today. Section 6AAA here is a bit meaningless, but I will say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 365 days. Sorry, and I will also be reimposing the licence disqualification and I will be backdating that to the day that the magistrate imposed sentence, which are from memory, was some time in February.
5MS MITCHELL: The 15th.
6HIS HONOUR: The 15th of February, yes. So it will be backdated to that point in time. It will be for the same period of time which I suspect is a minimum, but yes, one year.
7All right, I then, having disposed of that matter, turn to the indictment. You were first before me in early August of last year and the matter has had a somewhat chequered history since. It was essentially agreed at the time that a community corrections order would be appropriate for you, but you have subsequently engaged in serious offending and have been in custody now for some significant period of time. You, as I say, pleaded guilty. You do have a criminal history for the indictment, but of course it is a different criminal history for the appeal. As I understand it, you have now been in custody for 164 days and that is the first sentence of imprisonment you have undergone.
8There is nothing in your criminal history or subsequent appearances in court of a sexual nature and accordingly, this charge is to be regarded, in my view, as one out. You pleaded guilty at a reasonable early opportunity and you have now had a very significant delay of something in the order approaching six years. You must get the utilitarian benefit of that plea of guilty and whilst you have an IQ of 58, and the expression of remorse will be somewhat difficult for you, I understand from the materials that you are at least getting some sort of insight into the nature of the offending that occurred.
9The summary of the offending is that you were 19 years of age at the time of it and you are now 25. At that time, back in 2013, you were living on and off with your mother and in effect had been couch surfing at other houses. The complainant was 14 years of age at the time and she also has intellectual problems, including autism and ADHD.
10In this situation, I do not think I have to go through the background of all this. The complainant was in a relationship with another young man, and I think I said during a recent ruling, she was a fairly experienced young player in all this. The fact remains though, that she was under age and you clearly knew it and accordingly there has to be an appropriate penalty for what occurred.
11Sometime between 1 November 2013 and 1 December 2013, you and the complainant started using Facebook messenger to communicate with each other. Those messages were how you liked her and that you had changed. You asked her for her phone number and she gave it to you. This is a message from her. In her VARE sorry, she says that you had been boyfriend and girlfriend of sorts for a couple of days. In any event, at that time, her boyfriend was in hospital with diabetes and you, as I say, were communicating with her. She, even at that age, was endeavouring to source drugs for you, and that is the milieu in which all this takes place. She herself was using. You wanted ice. She told you that she did not have any and that apparently upset you. You then, in a park, pulled her into the male toilet block. Once inside, you had penile vaginal intercourse with her.
12Again it is sexual penetration, not rape, so I do not really need to go into the details of it all. She complained relatively shortly thereafter and the - basically conduct is pretty consistent with somebody with a mental age of well under 19, the way you behaved subsequently. Parts of the Crown opening were not read out during the course of the hearing and I do not propose to read them out here. The openings will remain on file. In any event, she was accused of having cheated on her boyfriend in a somewhat child like way. The matter eventually came to light.
13As I say, you have pleaded to it, it is one off, it could not be regarded as predatory. There were no attempts by you, as I understand it at least, to pursue it, to have intercourse with her on further occasions and the matter just simply went away for an extended period of time, until you were interviewed in 2015. You were then not charged for something in the order of a year. There was going to be a plea, then it was going to be a trial, but in any event, there has been a very significant delay of over five years, and for someone who is now only 25 years of age, with an intellectual deficiency of your magnitude, then that is a significant period of time indeed, and one which I take into account. Subsequent to all this, because I was going to give you a community corrections order initially, have you assessed for a Justice Plan and I have the certificate of disability that has been provided to me, as well as a Justice Plan.
14Obviously in your circumstances, general and specific deterrence have to play some part, but it is obviously very much limited. Denunciation, appropriate punishment, again limited as is I suspect moral culpability. It seems clear to me that the pair of you were operating on around about the same mental age and there is no victim impact statement before me which is somewhat understandable.
15MR McKENRY: Sorry, Your Honour, did you say "No victim impact statement?".
16HIS HONOUR: I do not have one do I?
17MR McKENRY: Yes.
18HIS HONOUR: Where is that? There is not, but there should have been.
19MR McKENRY: My instructions are it was filed.
20HIS HONOUR: No, no, no I am not arguing, I just do not have one. I did not realise that. Yes, print them off. I might have to just stand down for a couple of seconds.
21MR McKENRY: And if there is not an electronic one, I will endeavour to have ‑ ‑ ‑
22HIS HONOUR: No there are. There is four of them apparently.
23MS MITCHELL: Yes, there was two ‑ ‑ ‑
24MR McKENRY: It's the mother and the complainant and then there was further statement from each after the change of plea.
25HIS HONOUR: I have never read those. I have not got them.
26MR McKENRY: I apologise, Your Honour.
27HIS HONOUR: No, no, it's not an apology, it is very pertinent that you raise it with me. No I have not got them.
28MR McKENRY: Your Honour, they're not originals, but I have clean copies.
29HIS HONOUR: No, well they are coming off now. Thank you, Mr McKenry. Thank you for that. Thank you for alerting me to that. When I see them I will remember if I read them or not.
30MS MITCHELL: I think you did, Your Honour, on 3 August last year.
31HIS HONOUR: I just do not - yes, I - yes I do recall this. There was a lot of (indistinct) that was not done. Yes, all right.
32MR McKENRY: Yes, Your Honour, although s.8I and J weren't applicable then, there's certainly material that - this is the Sentencing Act, but Your Honour would've directed yourself not to have any regard to and I would ‑ ‑ ‑
33HIS HONOUR: That is precisely right. No, I do remember it now. There was a lot of - yes, yes, you do not have to say anymore. That is why I have not got copies of them I think. No, I do remember it now. Yes, it has sort of got nothing to do with the offending as I recall.
34MR McKENRY: It focuses on the process.
35HIS HONOUR: It does. Are these exhibited? If they are not exhibited I better exhibit them. No, they are not exhibited.
36MR McKENRY: That's an oversight. I seek to tender ‑ ‑ ‑
37HIS HONOUR: No, no, no we are not being critical at all. I am just a bit amazed that I had not - I do not have copies of them. I did not have copies in my own materials. They were not exhibited, which I do not know what happened there, but we do not need to go - I am reading them now, I will take them into account as ‑ ‑ ‑
38MR McKENRY: I appreciate that. For what it's worth, I formally tender those four impact statements.
39HIS HONOUR: Well not for what it is worth, we have to I think.
40MR McKENRY: Yes.
41HIS HONOUR: Yes.
42#EXHIBIT D - Victim Impact Statements.
43MR McKENRY: Thank you, Your Honour.
44HIS HONOUR: Yes, no I do remember this. There may have been a reason why they were not exhibited, but they are and I am taking them into account.
45MR McKENRY: Yes, Your Honour.
46HIS HONOUR: No, I do remember now, yes. Remember the handwriting.
47MR McKENRY: Yes, Your Honour.
48HIS HONOUR: Yes, all right well I have read through those. I do recall having read them at the time and they certainly play a part in the sentencing process, but a significant part of them is unrelated, though obviously the offending has had a direct effect on her and her family over an extended period of time.
49MR McKENRY: Thank you, Your Honour.
50HIS HONOUR: Insofar as matters personal to you are concerned, as I say, you are 25, you have a very significant intellectual disability, with an IQ of 58. I am well aware of the principles in decisions such as Muldrock and the like. I am well aware that you have never previously had any form of community disposition. You have never been on a community corrections order and I think it is important that in your situation, that be done now.
51When I first released you on bail, you virtually totally failed to comply with those conditions, but now that you have an extended period in custody, I hope that you are more likely to do so. We have already had one application where the situation was an application was made to exempt you from being on the Sex Offenders Registration. I have made a ruling in relation to that, in the basis that I consider that you were probably a low risk of reoffending. Rightly or wrongly, the Community Corrections that I have received this morning confirms that view, but I will not take that any further.
52There were reports tendered on your behalf from Mr Simmons, a psychologist and there were also reports tendered by the Crown, well on behalf of the Chief Commissioner of Police at least, in relation to the Sex Offenders Registration. I think, even if you had been on the Sex Offenders Registration, would have been a disaster because I am going to give you at least, partially a community corrections order. I imagine this would have been brought back for breach on a regular basis, with you trying to comply with the register. I do not think you would have the faintest or the slightest capacity to do that.
53Your father died in his 30s and apparently had mental health illnesses. You have had reasonably close relationships with family since then. Though there has been falling outs and when you have fallen out with family, you have tended to get yourself into trouble. At the age of 15, you commenced working at Tatura Panels and you worked there until you were 17 and it seems that when you have hand on work, you seem to enjoy it.
54You had been using alcohol from a very early age and clearly, you have been using drugs in later years. It is again clear that subsequent to this matter first coming on for trial, your behaviour has been somewhat out of control. There is no suggestion in your psychosexual development of there being any significant pattern of deviant arousal. I am not going to go through Static-99s and the like. I have already debated - well they are not of a lot of assistance in judging an individual person.
55I think what it comes down to is that you have now, with your difficulties, done over five months in prison. You are going to have to do some more because of the seriousness of the offending overall, but I have had you assessed. It is clear that whilst I regard your risk of reoffending is low, that it would not be fair to either you or the community, for you to be released after a prison sentence without some sort of supervision, and without some sort of assistance.
56The community corrections order assessment outcome, which is in my view deficient, but I am not going to adjourn the matter again, indicates that you could have a treatment and rehab for drugs, as well as treatment and rehab programs to reduce reoffending, also supervision. The programs reduce reoffending I am interpolating would be the Sex Offenders Program, which I know from previous experience, takes a significant period of time to implement.
57The outcome report does not even mention the Justice Plan that have been prepared, but I am also going to make that as a condition of the community corrections order. So what I am going to do - putting it simply, the risk of you reoffending in a general sense I think is clearly high. The risk of you reoffending in a sexual sense is low. Prospects of rehabilitation have to be guarded for somebody with your difficulties and the best that can be hoped is that you are put in a situation where you do not run around with idiots, and you do not reoffend. All that is to be hopeful and I think the Justice Plan gives at least some confidence that it may be able to be achieved, as a result.
58Accordingly on the indictment, if you agree, you are sentenced to be imprisoned for a period of 125 days. I direct that 19 days be reckoned as having been served under that sentence. That sentence is to be served concurrently with the sentence imposed by me on appeal this day.
59Upon your release from custody, if you agree, you will be placed on a two year community corrections order. It will be with conviction. It will have the conditions of treatment for drugs, treatment for programs to reduce reoffending, supervision and a condition that you comply with the Justice Plan that is before me and is dated 12 September 2018. Does that all make sense?
60MR McKENRY: As Your Honour pleases, yes it does.
61HIS HONOUR: I will try and explain it to him in a moment.
62MS MITCHELL: Yes, Your Honour.
63MR McKENRY: There'll need to be a s.6AAA on that as well.
64HIS HONOUR: Yes I want him to sign it first, he might run. Yes, it would be a dangerous thing to do before they sign I think. I think two years is the maximum time I can impose a Justice Plan for is it not?
65MR McKENRY: I'd need to check, Your Honour.
66MS MITCHELL: I think it might be three ‑ ‑ ‑
67HIS HONOUR: No, we can do it for two though.
68MS MITCHELL: Yes.
69MR McKENRY: You can do it for two.
70HIS HONOUR: I know there's a limit, but I ‑ ‑ ‑
71MS MITCHELL: Yes.
72HIS HONOUR: ‑ ‑ ‑ think it is two. Yes, all right. Do you mind Ms Mitchell going down with my associate and getting this signed? Madam Associate where is he supposed to report?
73ASSOCIATE: Shepparton, Your Honour.
74HIS HONOUR: All right. Pursuant to s.6AAA, but for the plea of guilty, would have sentenced to be imprisoned for a period of nine months, with a community corrections order to follow. No other orders I have to make?
75MR McKENRY: Just checking that, Your Honour, not that I am ‑ ‑ ‑
76HIS HONOUR: I think I have made them all.
77MR McKENRY: I'm not seeing a note that Your Honour dealt with the 464 application. I believe you. But if Your Honour would perhaps mention that again that Your Honour is minded ‑ ‑ ‑
78HIS HONOUR: The 464, it was a one-off for sexual offending, so I am not going to grant it.
79MR McKENRY: Your Honour pleases. Those are the only matters that I have.
80HIS HONOUR: Yes, all right. Nothing else. All right, well I am going to try and tell him what it is about. Just stand up for me for a moment if you would
Mr Martin. All right, now look I know you have got your difficulties, right, but I do not know whether you have enjoyed gaol or not, but it has reached a point where if you keep doing this sort of stuff, I am not talking about the sex offending, I am pretty confident that you will not do that again and you have got a bit of understanding about it, all right?81If you run around with people and you use ice, you are basically going to spend the rest of your life in the can, all right? Now you know enough about the world to know that is what is going to happen. So when you get out, go home and just try and stay away from it, all right?
82OFFENDER: Yep.
83HIS HONOUR: So I cannot do much else for you. Also, what you have got to realise is that when you are on a community corrections order, you have got people who can give you a hand. When things are going wrong, there is people you can talk to and if things are going really wrong, it can always get brought back before me to readjust it, all right? Like I can change things around a bit, or put in different conditions or what have you. But do not just disappear or I will come looking for you and eventually I have to lock you up again.
84OFFENDER: Yep.
85HIS HONOUR: All right? Very well, thank you for that. Yes, you can take him now, thank you.
86MR McKENRY: Your Honour pleases.
87MS MITCHELL: As Your Honour pleases.
88HIS HONOUR: What percentage of that do you reckon he understood
Ms Mitchell, about five?89MS MITCHELL: I'll go down and talk to him.
90HIS HONOUR: All right, thank you.
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