Director of Public Prosecutions v Mason, Jack
[2013] VCC 697
•2 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00083
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK MASON |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2013 | |
DATE OF SENTENCE: | 2 May 2013 | |
CASE MAY BE CITED AS: | DPP v Mason, Jack | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 697 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Moran (Plea) Ms R Schell (Sentence) | OPP |
| For the Accused | Mr G A Georgiou S.C. | Lewenberg & Lewenberg |
HIS HONOUR:
1 Jack Mason, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years contrary to s45(1) of the Crimes Act 1958. The maximum penalty for this offence is ten years’ imprisonment.
2 The charge is said to be a representative one in respect of two acts of penile/vaginal penetration that occurred close in time to one another in the small hours of the morning one day between 17 and 29 December 2009.
3 The facts that support the charge, and the general circumstances surrounding the offence, are set out in the summary of prosecution plea opening read aloud in court and exhibited on the plea as Exhibit A, I will not repeat them. The circumstances set out in Exhibit A include uncharged acts that pre‑date the charge on the indictment.
4 At the time of your offending you were a few weeks short of your seventeenth birthday and had completed year 11, whilst the complainant had only just turned fourteen years of age.
5 After the events that bring you before me, in early 2010 your parents met with the complainant’s parents, and whilst it is plain that not all present knew the details of your conduct, they each understood that you had engaged in sexual activity of some sort with the complainant. It appears that at the meeting it was accepted that you were remorseful, and no further action, save parental discipline, was to be taken against you.
6 Had your conduct been reported to the police at the time of the meeting, then in all likelihood you would have been dealt with in the Children’s Court and a different sentencing regime would have applied to you than that which applies to you today, something over three years after the event. I take that matter into account when arriving at the appropriate disposition in this matter. (see R v PJB [2007] VSCA 242 at [16] )
7 The delay in reporting this matter to the police stems in part from the complainant’s fragile psychological state, which pre-existed your offending, and the course that her counselling took leading up to December 2011 when she revealed the full extent of your conduct. It is clear however that as early as January 2010 by a letter directed to the complainant’s older sister, your “best girl mate” you admitted the nature and wrongfulness of your conduct. In this letter you expressed, in my view, immature but genuine remorse for your conduct. (See depositions page 82.)
8 The consequences of your conduct on the complainant and her parents have been profound and are set out in the victim impact statements Exhibits B, C and D. By her statement which the complainant read aloud in Court she demonstrated that she is a highly intelligent, sensitive and articulate young person. She has suffered greatly from the fallout from the fact of your offending becoming well known within her cohort of friends and acquaintances, which extended to those of her older sister. The complainant’s emotional and psychological wellbeing, already fragile at the time of your offending, deteriorated to such an extent that she attempted to take her own life. Her psychological difficulties continue to this day and she is estranged from her family. These matters have, of course, greatly impacted on her parents, and the extent of the effect of your offending upon them is set out in Exhibits B and D. These consequences were unintended by you, and it is plain that you could not have anticipated them at the time of committing your offence. Upon being made aware of the ramifications of your conduct on the complainant you expressed bitter regret.
9 You come from a close family. You have two younger siblings. They are aware of the circumstances of your offending, and have been so since some time shortly after your conduct became notorious amongst your contemporaries. You were bullied as a result of your conduct becoming public.
10 You are presently aged 20 years and were educated at St Kevin’s College, Toorak, where you were a champion athlete. In VCE you attained an excellent ATAR score, but through an oversight on your part you failed to apply in time to universities in Melbourne, but you were accepted to study at the University of Sydney. You are majoring in psychology and economics. You hope to practise as a psychologist. This will entail registration and the necessary disclosure to the relevant authority of your offending and sentence.
11 Your first year in Sydney proved difficult for you, as was attested to by your godmother, Ms Cossar. You now seem to have become settled in Sydney, and live in a shared house with other students and your girlfriend. Tendered on your behalf were a bundle of references, Exhibit 2. The authors of these references all speak highly of you, and many of them were in court to support you. One of your referees, Mr Kerr, gave evidence of your openness with him in respect of this matter, and that you expressed sympathy for the complainant to him. Mr Kerr also deposed to the impact that your offending has had upon your family. Mr Kerr was supported in his opinion of you by the evidence of Ms McKinnon, a family friend.
12 Tendered as Exhibit 1 on the plea was a report from psychologist Patrick Newton. Mr Newton opined that you are an articulate and intelligent person, but nevertheless remain immature for your age, and in particular your awareness of emotional and interpersonal issues is poorly developed, and this lent a certain superficiality to your reflections. You have suffered from anxiety as a result of the proceedings against you. There is no evidence of deviancy and Mr Newton assessed your risk of recidivism as falling within the “low risk range”.
13 The crime to which you have pleaded guilty is a serious offence. It was committed by an immature and irresponsible youth, as is evidenced by your letter to the complainant’s sister. At the time of offending you were a child and you are for present purposes a young offender and come to the Court without prior conviction.
14 I am satisfied that you are genuinely remorseful, and that this is evidenced by your plea of guilty and the time at which it was entered, as well as the letter to the complainant’s sister to which I have earlier referred. Your plea of guilty also has utilitarian value and your plea will result in a lesser sentence than might otherwise have been imposed.
15 I am satisfied that in the circumstances of this case your rehabilitation should be the dominant factor amongst the many that I must balance in coming to a just sentence which denounces your conduct, punishes you for it, and will deter you and others from committing like offences in the future.
16 I am satisfied that your prospects of rehabilitation are excellent, and that you are on your way to becoming a responsible and productive member of society. In my opinion that process should not be impeded.
17 In all the circumstances, pursuant to s.75 of the Sentencing Act 1991 on being satisfied that you are guilty of an offence under s.45(1) of the Crimes Act 1958, without recording a conviction I adjourn these proceedings for a period of 24 months and release you upon you giving an undertaking to be of good behaviour during the period of the adjournment and to attend before this Court if called upon to do so.
18 Now Mr Mason it requires your consent to enter into that bond, do you need to speak to your client?
19 MR GEORGIOU: No Your Honour.
20 HIS HONOUR: Mr Mason, I want you to come out of the dock and come down to the prosecutor’s end of the Bar table, my associate will show you the relevant documents to be signed. To the prosecutor’s end please Madam Associate. Madam Prosecutor if you would oversee this as well please. Could you show that to Mr Georgiou please.
21 Thank you. Mr Mason do you understand this document?
22 OFFENDER: Yes I do.
23 HIS HONOUR: And you have signed it of your own consent?
24 OFFENDER: Yes.
25 HIS HONOUR: If you break the conditions of this undertaking you may be punished for any offence that has been adjourned on your agreeing to enter this order. You may be punished for failure to be of good behaviour, in addition to being punished for either of the above, you may also be fined. I want to explain something to you. You are obliged to be of good behaviour for the next 24 months. If you are not and you commit any offence in that 24 month period you will be dealt with for that offence, you will have breached this undertaking, you can be punished for that breach, and you will come back to me. Do you understand that?
26 OFFENDER: Yes I do.
27 HIS HONOUR: At that stage you fall to be re-sentenced. Do you understand that?
28 OFFENDER: Yes I do.
29 HIS HONOUR: Thank you, you can sit behind your barrister, Mr Mason, and Mr Georgiou, I have signed that document.
30 MR GEORGIOU: Thank you Your Honour.
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HIS HONOUR: Before you leave the Court you, Mr Georgiou, and you,
Ms Schell, will receive copies of that document for your records. Are there any other matters that you say should be attended to?
32 MS SCHELL: Nothing further Your Honour.
33 MR GEORGIOU: No Your Honour.
34 HIS HONOUR: Then can we stand down till 10.30 please.
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