Director of Public Prosecutions v Metzke

[2018] VCC 712

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-02468

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT METZKE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	18 May 2018
CASE MAY BE CITED AS:	DPP v Metzke
MEDIUM NEUTRAL CITATION:	[2018] VCC 712

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

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr J Lavery	Victorian Legal Aid
And Ms C Woodward
For the Director of Public Prosecutions	Ms J Warren	Office of Public Prosecutions

HIS HONOUR:

1Robert Metzke, you have pleaded guilty to one charge of sexual assault.  That crime carries a maximum penalty of ten years' imprisonment.

2You pleaded guilty to a settled indictment, and I am satisfied on the material before me that you have displayed appropriate remorse for the offending itself.  You must also get the utilitarian benefit of that plea of guilty.

3In this particular situation, I believe that there would have been a reasonable chance of your being acquitted had you contested the matters, and you must get the benefit of that.

4Your plea of guilty has saved the victim from what, on the material before me, would have been an extremely traumatic experience of giving evidence, somehow or other, in a court room.

5You are now 52 years of age.  You do have a criminal history going back quite some period of time.  However, there are no prior convictions of findings of guilty for anything in the nature of a sexual offence, and there are no matters within the criminal history which are of concern to me.

6Firstly, pursuant to s.464ZF of the Crimes Act, I make an order for you to provide a saliva sample. That order having been made, I advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you, and Mr Lavery will explain to you how you go back out providing that sample.

7In this situation, you are not subject to the Sex Offenders' Registration Act, and accordingly, I give you no advice in respect of those matters.

8A summary of the offending is that you had been in a long-term "friendship", for want of a better word, with the victim and she was living at your premises.  I accept from the material that the pair of you were presenting as a functioning couple when in fact, that was not exactly the case.

9On the material, it is clear that the relationship, at her request, was of a platonic nature.  You would appear to have been sleeping in the same bed for something in the order of 18 months.  She was 48 years of age.

10She suffers from a number of mental health illnesses, and these are all contained and described within a report of a psychiatrist, Dr Morton, which is tendered and is on file.  It seems to me there is no need for me to go into the detail of all that, but she suffered from very significant disorders including agoraphobia and the like.

11In a sense, she was staying with you because you would appear to have become her de facto carer.  In any event, she says that the relationship was not to be of a sexual nature.

12On this particular night of September 18 2015, you each took medication.  She took her usual medication, but you took some of hers.  I cannot quite remember what it was - Valium, or Serepax, or something along those lines.  What effect that had on you, being naïve to it, I have no real idea.  But in any event, the pair of you were in bed and clothed.

13At around 4 or 5 o'clock in the morning, she woke and found she was lying on her back.  She realised that your hand was down her pants with your fingers touching her vagina.  She asked, "what the fuck" you were doing.  You said that you thought she was awake.  You then left the room and she remained in the bed for around two hours, in shock, thinking about what had happened.

14Your version of events is that you went and slept on the couch, as indicated from the record of interview where you made full and frank admissions to this particular charge, now presented in the way you have now pleaded:  that obviously, you had taken the medication, that you were half asleep when you had placed your hand on her vagina, that you had apologised to her, and that you spent the night on the couch, as you said, "broken-hearted" at yourself, because you felt you had betrayed her trust.

15It is a sad, in my view, state of affairs.  A very sad situation of offending.  She clearly has, and has had for a long time, great difficulties in this world, and so have you.  Your counsel, in a laudably succinct way, described your history to me.

16You were born around Yallourn.  Your father worked for the SEC.  You were the youngest of five children, and the family lived on rural properties.  From time to time, or certainly, on at least one occasion, you were sexually abused whilst a child living in those circumstances.  You became what I distinctly remember as being an uncontrollable child.

17You were taken to Baltara.  You were taken to Turana, and you spent the rest of the time, until you were  17, at The Basin.  Having had experience of all those institutions, and as a barrister, and as a judge, having had to deal with people who went through those processes, it seems to me that you have done remarkably well to have survived to the age you have without committing the gross sort of offending that people who have had that disgraceful experience often seem to do.

18As an adult, you have done your best.  You worked for seven years as a park ranger.  You worked at the paper mills for quite a period of time, and you worked up until around 2002.

19You married in 1993, and have two children from that marriage in their 30s.  From 1999 to 2008, you were in another relationship which produced children.  There was a child in that situation who had cerebral palsy, your son. He died in 2008 at the age of 15.  He died in the care of the Department.

20When that occurred, you fell apart, as is not surprising with the lack of emotional resources you would have had from your childhood, and you became seriously alcoholic, and you became homeless.  You were put in to institutionalised rehab, and it was in those circumstances that you met the victim.

21Obviously, you were supports for each other in a very significant way, and became close.  As I have indicated already, your counsel has told me that you were presenting as a functioning couple.  That relationship with her went on for some seven years before this offending caused the cessation of it.

22I have before me the victim impact statement that has been prepared by Ms Gordon, and that describes how she feels and how she perceives all this.  I make it clear that I read and have read previously the psychiatric report in relation to her, and I think that she would be a very, very vulnerable person in any event.

23But the fact of the matter is that the offending clearly has had a dramatic effect on her, and having seen the text messages that were exchanged in the aftermath, albeit, you apologising, indicates that she was certainly very angry about it all and regards herself as having been betrayed.  Again, as I have already indicated, you see that for yourself.

24Your present circumstances are that you have entered a new relationship, and your partner is here in court to support you.  You intend to marry.  You are her carer, and without your assistance, I am told, and had no reason to not accept, she might find herself institutionalised.

25Your father passed away not long after the offending, for which you have been now found guilty, and you reside in his house in Seymour with, as I said, your newfound partner.

26It seems to me that the risk of you re-offending in a sexual way is virtually zero.  Your rehabilitations would have been, throughout your entire life, a difficult process for you, but you are contributing to the community in what you are doing.  You are a disability pensioner, but you are removing the burden, if it can be put that way, of the institutionalisation of your current partner from the community.

27In all the circumstances, it seems to me that any form of custodial sentence would be totally inappropriate.  The Crown accept that a non-custodial disposition is open.

28I had considered and discussed with your counsel briefly the prospect of a community corrections order.  I do not believe that you need a sexual offenders program.  You would be incapable of doing work hours, and there is no other matters within a CCO that I think would be applicable to you.  Accordingly, I think that would just be a waste of everybody's time.

29In these unusual and very sad circumstances, I have taken the view that the appropriate disposition is one of an adjourned undertaking.  It will be with conviction, because of the seriousness of the offending, but if you agree, the matter will be adjourned for a period of 12 months on your undertaking to be of good behaviour during that period of time.

30In those circumstances, I do not believe I would give a s.6AAA.

31MS WARREN:  As Your Honour pleases.  Sorry, Your Honour.  The related summary offence, failed to appear.

32HIS HONOUR:  We will go over them.  I will put it all within the bond.

33MS WARREN:  Yes, Your Honour.

34HIS HONOUR:  Sorry, I did not even mention that, did I?  I will add in to the sentencing remarks - because it will come up and this will make me remember it, because I will get this - I will add in that he has been charged with fail to appear which goes for three months or something, does it not?

35MS WARREN:  Yes.

36HIS HONOUR:  But I will include the fail to appear within the undertaking.

37MS WARREN:  Yes, Your Honour.

38HIS HONOUR:  If the machine will let me do it.  It does?  Good, thank you.

39(At this stage the court proceeded with another matter.)

40All right, Mr Metzke.  Just stand for a moment, if you would, please, sir.  Do you understand that it is an adjourned undertaking for twelve months?  Any sort of offending is going to breach it.  If you get brought back, I have got to deal with you again.  I do not want to have to do that.  You do not want me to have to do that, and I am confident that you will not reoffend.  All right?

41OFFENDER:  Yes, Your Honour.

42HIS HONOUR:  So all I can simply say to you is, you understand - and you clearly understand - the distress this has caused your former friend, and I simply wish each of you good luck.

43OFFENDER:  Thank you, Your Honour.

44HIS HONOUR:  Thank you, Mr Lavery and Ms Woodward.  Thank you, Ms Warren.

45MS WARREN:  Yes, Your Honour.

46(At this stage the court proceeded with another matter.)

47HIS HONOUR:  Nothing else we need to do?  Thank you, Mr Lavery.  Thank you for coming down and sorting all that out.  Very much appreciated.

48MR LAVERY:  Thank you, Your Honour.

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