Director of Public Prosecutions v Meyer

[2024] VCC 928

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONAH MEYER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2024
DATE OF SENTENCE:	21 June 2024
CASE MAY BE CITED AS:	DPP v Meyer
MEDIUM NEUTRAL CITATION:	[2024] VCC 928

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence

Catchwords:              Causing injury recklessly – Sexual assault – Common assault – Possess drug of dependence – Commit indictable offence whilst on bail – Victim a close friend of offender – Friendship revolved around mutual use of GHB and other drugs – Offender stomped twice on victim’s face and kicked her in the abdomen – Sexual assault involved offender touching victim’s vagina with his fingers – Offender had tobasco sauce on his fingers during sexual assault – Offending occurred in context of heavy ice and GHB use – Limited criminal history – Plea of guilty following sentence indication – Strong family support – Subsequent offending involving serving terms of imprisonment – Totality.

Legislation Cited:      Crimes Act 1958, Sentencing Act 1991.

Sentence:                  17 months’ imprisonment followed by a 20 month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B. Nibbs (Plea) Mr T. White (Sentence)	Office of Public Prosecutions
For the Accused	Mr H. Rattray (Plea) Mr M. Kelly (Sentence)	Melsasecca Kelly & Zayler

HIS HONOUR:

Introduction

1Jonah Meyer,[1] following a sentence indication hearing, you have pleaded guilty to one charge of causing injury recklessly, one charge of sexual assault, one charge of common assault and one charge of possession of a drug of dependence.

[1]A pseudonym.

2Causing injury recklessly and common assault carry maximum penalties of 5 years imprisonment. Sexual assault carries a maximum penalty of 10 years imprisonment. Possession of a drug of dependence carries a maximum penalty of 1 year imprisonment.

3You have also consented to this Court hearing and pleaded guilty to a summary charge of committing an indictable offence whilst on bail. This offence carries a maximum penalty of 3 months imprisonment or 30 penalty units.

Circumstances of the offending

4An agreed prosecution opening dated 14 May 2024 was read out in Court.[2]

[2]Exhibit A.

5You were 23 years old at the time of the offending and your victim, Ms Sullivan,[3] was 30.

[3]A pseudonym.

6You and Ms Sullivan had known each other for several years and formed a close friendship at the beginning of 2022. While you were not in a formal relationship, you spent a significant amount of time together in 2022, much of which revolved around your mutual use of GHB and other drugs, at Ms Sullivan’s home.

7In the four years prior to the offending, Ms Sullivan had been dependent on GHB. She would use the drug every day, throughout the day, and to the point of becoming unconscious. It was a common occurrence for her to take her clothes off prior to becoming unconscious as a result of her GHB use.

8In around May 2022 after you both used GHB in her home, she woke up screaming, and you dragged her outside and across the cement, causing grazing to her back (uncharged). Following this incident, you told Ms Sullivan that her behaviour whilst she was under the influence of GHB was the reason for your actions.

9On another occasion around May 2022, after you both used GHB at her home, Ms Sullivan woke up naked on the floor between the bathroom and the toilet. You were rubbing chilli paste over her with your hands (uncharged). She began to yell at you, and you left the address.

10In early July 2022, you took possession of Ms Sullivan’s mobile phone, and only allowed her to use it for brief periods.

11On 4 July 2022, you and Ms Sullivan were present at her home, and were using both GHB and methylamphetamine. Ms Sullivan had become unconscious as a result of the GHB use, and began screaming when she woke. You were angered by the screaming, and began yelling at her to ‘stop screaming’ before dragging her off the bed. Ms Sullivan landed next to the cupboard mirror and you told her to ‘shut the fuck up’ before stomping twice on her face and kicking her to the abdomen (charge 1 – causing injury recklessly). Some of the events of this evening were captured on a mobile phone recording made by you. A video from 10.11pm showed you whip Ms Sullivan with an object whilst she was naked on the bed. She was uninjured at this point. A video from 10.30pm showed Ms Sullivan with a severely bloodied face. Later videos showed you attempting to clean the blood off her face.

12The following day, you showed the videos of her bloodied face to Ms Sullivan, and told her that she had fallen and hit her head. Ms Sullivan spent most of the day on 5 July 2022 icing her face, whilst you cleaned the house. You left that evening, taking Ms Sullivan’s phone with you, and returned early on the morning of 6 July 2022, with approximately two grams of ice. You and Ms Sullivan smoked the ice and then walked to the shipping container where you sometimes stayed at your parent’s property. You both then went to the pokies before returning to Ms Sullivan’s home.

13When you returned, Ms Sullivan noticed that a shopping delivery had arrived from Coles. Amongst the shopping was a bottle of tabasco sauce. Given the previous occasion where you had rubbed chilli paste over her body, she was concerned that this was what the tabasco sauce would be used for. She warned you not to put any of it on her, and that she ‘knew what you were thinking’.

14You and Ms Sullivan used GHB that evening. Ms Sullivan fell unconscious on the couch. She was naked at the time. Later, she woke to you touching her vagina with your fingers (charge 2 – sexual assault). She realised that you had the tabasco sauce on your fingers when you touched her vagina.

15She began yelling at you because the tabasco sauce was stinging. She got up and you chased her around the house, telling her that you were not going to hurt her. You caught up with her and slapped her to the face (charge 3 – common assault). You then left the address and told Ms Sullivan that you would be back, and that you would be angry if she was not there.

16Ms Sullivan fell asleep for a short period of time, before going next door to her neighbours at around 5.00am. The neighbour observed Ms Sullivan’s injuries and phoned the police. Ms Sullivan told her neighbour that you had assaulted her and also that you had put tabasco sauce on her genitals.

17Police attended and took Ms Sullivan to Bacchus Marsh Police Station. She consented to a search of her home for the purpose of obtaining evidence. When police attended to conduct the search, the victim’s aunt was present, as were you. You were placed under arrest and were searched. A small orange bottle containing GHB was located in the right side of your pants (charge 4 – possession of a drug of dependence). Several bloodstained items of bedding were seized from inside Ms Sullivan’s bedroom.

18Ms Sullivan was examined by a nurse and was found to have sustained blunt force trauma to her face, upper limbs, shoulders and abdomen.

19At the time of this offending, you had been on bail to attend the Melbourne Magistrates’ Court on 19 August 2022 to answer a charge of possession of a drug of dependence (related summary offence – commit indictable offence whilst on bail).

20During the police interview, you denied sexually assaulting her and using tabasco sauce. You stated that the injuries sustained by Ms Sullivan were as a result of her falling over. You also denied slapping her.

21I have had regard to the timeline of events[4] prepared by your counsel, Mr Rattray.

[4]Exhibit 2.

22Following your police interview on 7 July 2022, you were charged and remanded in custody. You were granted bail on 26 September 2022. As a result of further offending, you were remanded in custody on 10 October 2022 before being granted bail again on 25 November 2022. Your bail in respect of the matters before me, was revoked on 9 June 2023, and you have remained in custody since.

Impact of the offending

23I have had regard to the victim impact statement of Ms Sullivan declared by her on 15 February 2024.[5] Your offending has had a profound impact upon her. She feels betrayed and shocked by your treatment of her involving violence. She is struggling with anxiety and panic attacks. She struggles to sleep, waking up in fear due to constant flashbacks. She feels unsafe and finds it hard to go out in public. Thankfully, she spent some six months in residential rehabilitation and has been drug free since February 2024.

[5]Exhibit B.

Criminal history

24You have four prior appearances before the Magistrates’ Court between 19 October 2018 and 1 October. 2021. Your prior history includes offences of possess and use methylamphetamine, as well as offences of possessing other drugs of dependence. Your history also reveals an offence of contravening a family violence intervention order, criminal damage, possession of a weapon, aggravated burglary, two offences of theft, two offences of failing to answer bail and dealing with property suspected to be proceeds of crime. Your last appearance in October 2021 resulted in a no conviction adjourned undertaking. The offending before me occurred whilst you were subject to this undertaking. Your remaining three appearances resulted in financial dispositions.

25In addition to your prior history, your counsel took me through your subsequent matters on your record. You have appeared before the Magistrates’ Court on three occasions between 21 December 2022 and 8 February 2024. On 21 December 2022, you were placed on a 12 month Community Correction Order (‘CCO’) for two offences of stealing a motor vehicle, and fraudulently using a registration label.[6] You were also sentenced to an adjourned undertaking for possessing 1, 4 – Butanediol, and convicted and discharged for an offence of committing an indictable offence whilst on bail.

[6]The CCO had only one special condition requiring you to undertake 40 hours of unpaid work.

26On 24 January 2024, you were convicted of two offences of stealing a motor vehicle, an offence of shop steal, four offences of committing an indictable offence whilst on bail, three offences of contravening a conduct condition of bail, two offences of contravening a family violence order, negligently dealing with proceeds of crime and recklessly exposing a police officer to risk as a result of driving. You were sentenced to a total term of four months imprisonment. You were also fined for contravening the CCO and the order was confirmed.

27On 8 February 2024 you were sentenced to a total term of 270 days for an offence of theft of a motor vehicle, commit indictable offence whilst on bail and prohibited person possessing a firearm. You were fined in respect of an offence of possessing cartridge ammunition.

28You are currently serving this sentence, which will be completed on 14 September 2024.

29Your subsequent offending, which has involved terms of imprisonment, is relevant in assessing your rehabilitation and in emphasising specific deterrence. It is also relevant when dealing with the principle of totality.

Personal circumstances

30I have had regard to Mr Luke Armstrong’s psychological assessment report dated 18 December 2023. The report outlines your background, undertakes a risk assessment and sets out your diagnosis.

31In your early years you lived with your parents and older brother. You describe the family unit as close-knit. However, your parents separated when you were around seven years old. You continued to live with your mother and brother. Your mother re-partnered and he lived with the family for 11 years. However, following a physical altercation between you and your mother’s partner, where you alleged he had struck you, your mother ended the relationship.

32About five years ago, your parents reunited. Your father is a self-employed builder, and your mother runs a car wash established by your father. You have always had a good relationship with your parents and brother, and describe being well looked after both emotionally and materially.

33However, your schooling was difficult. You displayed significant behavioural problems involving disruption and defiance in the classroom. You were assessed by the Children’s Hospital and diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). You were placed on medication that you complied with until the age of around 19. However, you then turned to illicit substances, including ice and GHB and neglected your medication.

34You left school having obtained a Year 10 pass. You were told that if you did not leave, you would be expelled. Having left school, you worked full-time with your father until the age of 18 or 19.

35You began experimenting with cannabis from around the age of 14. By the age of 17, you were smoking cannabis daily. You also began using ecstasy and ketamine. By 19, you were abusing ice and GHB. This impacted upon your ability to work.

36There was a period between November 2020 and December 2021, when you maintained abstinence. During this period, you attended a residential rehabilitation facility for six months followed by outpatient treatment. However, you ended up relapsing at the end of 2021 and resuming daily use of illicit substances by March 2022.

37You have not used any illicit substances since your remand in June 2023.

38All your offending occurred in the context of heavy ice and GHB use.

Gravity of the offending and sentencing purposes

39You offended against a vulnerable companion with whom you engaged in mutual drug use. You took advantage of her vulnerability and unconscious state in sexually assaulting her by not only touching her genital region, but touching her having applied tabasco sauce to your fingers. This caused her to yell due to the stinging sensation. Two days earlier, you had assaulted her by dragging her off her bed and stomping on her face and kicking her in the abdomen. It is clear that your offending has had a significant impact upon your victim.

40Violence and sexual abuse of a vulnerable partner with whom you spent a lot of time, demands a sentence that sends out a clear message that any form of abuse against a friend, partner or acquaintance will not be tolerated and will ordinarily be met by sending the perpetrator to prison.

41The community expects such conduct to be denounced and appropriately punished. Any sentence should also seek to deter you from further offending.

Defence submissions

42In presenting a plea in mitigation, Mr Rattray relied upon the following material:

(i)Written submissions dated 21 March 2024.[7]

(ii)Timeline of events.[8]

(iii)Letter from Impact Recovery dated 29 September 2021.[9]

(iv)Letter of support from The Youth Junction dated 15 April 2024.[10]

(v)A reference from your parents dated 20 March 2024.[11]

(vi)As referred to earlier, a psychological assessment report prepared by Mr Luke Armstrong, dated 18 December 2023.[12]

[7]Exhibit 1.

[8]Exhibit 2.

[9]Exhibit 3.

[10]Exhibit 4.

[11]Exhibit 5.

[12]Exhibit 6.

43Mr Rattray emphasised your pleas of guilty following the sentence indication. I accept that whilst they were not entered at the earliest opportunity, your pleas must attract significant utilitarian benefit. By pleading guilty, you have facilitated the course of justice and saved court time and expense. More importantly, your pleas have avoided causing Ms Sullivan further distress by avoiding the need for her to give evidence. I was told that any trial would have necessitated Ms Sullivan watching confronting video footage. This would have involved observing mutual drug use, significant drug impairment and nudity. It would have potentially involved showing to the victim other extremely distressing acts. Not only would it have been confronting and distressing for the victim, but also for the members of the community on a jury. Accordingly, your pleas of guilty are valuable and deserving of a significant amelioration in sentence.

44I bear in mind that you were only 23 years of age at the time of the offending conduct. You are now 25 years old. At the time of this offending, you had a relatively brief criminal history resulting in sentences of an adjourned undertaking and financial penalties only.

45It is plain that your drug abuse has been instrumental in your offending. In addition to punishing you for this serious offending, I am required to bear in mind your rehabilitation.

46Mr Armstrong assessed your risk utilising the Spousal Assault Risk Assessment (SARA). At its highest, you were placed in the moderate range for future spousal violence.[13] Mr Armstrong has diagnosed you with ODD having evolved to anti-social patterns of behaviour, ADHD and Stimulant Use Disorder. You require long-term treatment to deal with these diagnoses.

[13]Moderate or low risk taking into account the matters before me which were not resolved at the time of Mr Armstrong’s assessment.

47I have had regard to your parents’ reference.  

48You have been free from all drug use since your remand on 9 June 2023. You have been receiving a monthly injection of Buprenorphine. Mr Rattray told me that you are determined to maintain abstinence upon your release into the community.

49You are fortunate to have strong family support. With the assistance of the Youth Junction program, you are undertaking a men’s behavioural change program. This program provides support to young men to assist with the development of safe and respectful relationships.[14] According to your parents, this program has had a positive impact on your mindset and you are optimistic about your future. Your parents and your brother visit you on a regular basis. You also speak to your parents or your brother on the phone daily. Upon your release, you will live with your parents and have employment available to you in your father’s business. Your parents state that they are fully committed to supporting you.

[14]See Exhibit 4.

50You are fortunate to have ongoing family support. It is hoped that you take advantage of that support and maintain abstinence. At this stage, I regard your rehabilitation prospects as guarded and very much reliant upon your ability to refrain from further drug use. If you return to using drugs upon your release then your future appears to be bleak.

51I bear in mind that over the last two years or so, you have spent a considerable time in custody. However, this is because you have committed further offending. You have served a term of four months imprisonment and are currently serving a term of 270 days. I am required to and will bear in mind the question of totality.

52There is no doubt that your offending conduct was serious and requires the imposition of a custodial sentence.

53The question that I had to determine at the sentence indication hearing, was whether the punitive sentencing purposes, along with your rehabilitation, could be met by a term of imprisonment followed by a CCO.

54In light of your pleas of guilty, the principle of totality, your youth at the time of the offending, your limited criminal history, your current optimism at avoiding further drug use and strong family support, I was persuaded that a combination sentence would adequately deal with all sentencing objectives. Such a disposition was submitted as being appropriate by your counsel and the prosecution did not disagree.

Sentencing

55Having considered all relevant matters and circumstances, Jonah Meyer, I convict you on all four charges and sentence you as follows:

·        On charge 1, causing injury recklessly, you are sentenced to 12 months’ imprisonment.

·        On charge 2, sexual assault, you are sentenced to 14 months’ imprisonment

56The sentence on charge 2 will be the base sentence. Three months of the sentence on charge one will be served cumulatively upon charge two. This makes a total effective sentence of 17 months’ imprisonment.

57In addition, on charges 1, 2, 3 and 4, you will be sentenced to a CCO for a period of 20 months. The order will commence upon your release.

58Every CCO has core conditions that you must comply with. They are as follows:

·        You must not commit any offence punishable by imprisonment.

·        You must comply with any obligation or requirement prescribed by the regulations.

·        You must report to and receive visits from the Secretary.

·        You must report to the community corrections centre within two clear working days.

·        You must notify the Secretary of any change of address or employment within two clear working days of the change.

·        You must not leave Victoria except with the permission of the Secretary.

·        And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.

59In addition to the mandatory core conditions, the CCO will also include special conditions. The special conditions are:

·        First, you must undergo any mental health assessment and treatment as directed.

·        Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.

·        Third, you must engage in programs that address factors relating to your offending behaviour.

·        Fourth, you will be subject to supervision as directed for the duration of the CCO.

·        Fifth, you will be subject to judicial monitoring. That means you will have to appear before me as directed so that I can monitor your progress. I direct the first judicial monitoring hearing will take place on 7 July 2025 at 10am.

60You must report to Melton Community Correctional Services within two working days of being released from prison.

61You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.

62The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence.  In those circumstances, you could also be re-sentenced for the offences for which you have been placed on the order. You would then face the very real possibility of being sent to prison.

63So, there are serious consequences attached to any breach. Do you understand Jonah Meyer?

64OFFENDER: Yes, your Honour.

65HIS HONOUR: Do you also understand all the conditions of the proposed CCO?

66OFFENDER: Yes, your Honour.

67HIS HONOUR:  Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?

68OFFENDER: Yes, your Honour.

69In relation to the summary charge of committing an indictable whilst on bail, you will be convicted and fined the sum of $400.

Pre-sentence detention

70Pursuant to s 18 of the Sentencing Act 1991, the period of 212 days of pre-sentence detention, not including today’s date, is declared as having been served.

Section 6AAA declaration

71Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted of these four charges, you would have been sentenced to a term of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 6 months.

Other orders

72I grant the forfeiture order sought by the prosecution.