Director of Public Prosecutions v Milford
[2014] VCC 1316
•19 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-13-01554
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW MILFORD |
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JUDGE: | HIS HONOUR CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2014 | |
DATE OF SENTENCE: | 19 August 2014 | |
CASE MAY BE CITED AS: | DPP v Milford | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1316 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – indecent act with or in the presence of a child under 16 – sexual penetration of a child under 16 – intellectual disability of both accused and complainant – accused IQ 75 – no prior criminal history – application of Verdins principles – imposition of a Community Correction Order (CCO).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S MacDougall | OPP |
| For the Accused | Mr D Holding | Doogue O’Brien George |
HIS HONOUR:
1 Andrew James Milford, you have pleaded guilty to two charges of indecent act with a child under the age of 16 years. The offending on Charge 1 occurred on 7 June 2012 and, on Charge 2, on 25 June 2012. You have no prior convictions.
2 The facts of the case were opened by Ms MacDougall and are contained in the Summary of Prosecution Opening, Exhibit A in these proceedings. I was also provided with a Victim Impact Statement from the complainant, Exhibit B. This matter proceeded by way of a sentence indication hearing pursuant to s 207 of the Criminal Procedure Act 2009. Once I had indicated that I would likely not impose a sentence of imprisonment to commence immediately, you agreed to plead guilty to the two charges. I will return, in due course, to the issue of the weight that I give to remorse, an issue that necessarily arises out of an accused pleading guilty following a sentence indication.
3 In brief summary, you contacted the complainant, who was a friend of your cousin, via Facebook shortly before her fifteenth birthday and the two of you exchanged phone numbers. You met in person about a week after the complainant turned 15. At this point, I note that both of you suffer from an intellectual impairment. After this initial meeting, you contacted each other regularly via telephone calls, text messages, and Facebook. On 7 June 2012, you both attended Etihad Stadium and whilst waiting at the gates to the stadium, you proceeded to rub your groin against the complainant’s crotch. You were both fully clothed. This act forms the basis of Charge 1.
4 On 25 June 2013, you took the complainant to Southern Cross train station where you talked and kissed. After leaving the station, you went to a lookout near North Melbourne station. You ask the complainant to have sex with you and she refused. You told the complainant that she had to give you a hand job, and she again refused. You removed a condom from your wallet, placed it on your penis, and masturbated in front of the complainant. This forms the basis of Charge 2. You were interviewed by police on 2 August 2012, following complaints made by the complainant’s aunty. In the interview you stated that you could not recall rubbing against the complainant at Etihad Stadium and denied that you had masturbated whilst at the lookout near North Melbourne station.
5 Mr Holding, who appeared for you tendered an outline of submissions, Exhibit 1; a report of Izabela Walters, neuropsychologist, dated 11 April 2014, Exhibit 2; Assessment for Eligibility Report by the Department of Human Services, dated 15 June 2001, Exhibit 3; a Salvation Army report, Exhibit 4; and a character reference from your father, Exhibit 5.
6 You are currently aged 26 years and were 23 at the time of the offending. In 2001, you were assessed as having a full scale IQ of 67 (see Exhibit 3). When tested this year your IQ was found to be 75, meaning you fall within the borderline impaired range (see Exhibit 2). The neuropsychological report of Izabela Walters outlines your various difficulties in addition to your low IQ, namely that in 1998 you were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and short-term auditory memory problems.
7 You attended a mainstream primary school but moved to a secondary school for intellectually impaired youth. You successfully completed Year 12. You were kicked out of home at age 18 and spent several years “couch surfing”, living on the streets, or in Salvation Army refuges. You are currently being assisted by a Salvation Army worker (see Exhibit 4). You used to smoke marijuana but have not done so for the past five years. You are unemployed and in receipt of the Disability Support Pension.
8 On your behalf, Mr Holding submitted that I take into account the following matters by way of mitigation:
(a) You are a youthful offender with an intellectual disability which makes you an inappropriate vehicle for general deterrence;
(b) Charge 1 involved touching the complainant over her clothes while Charge 2 did not involve any touching at all and, therefore, your offending is at the lower end of the spectrum in terms of seriousness;
(c) Neither offence was protracted or attended with violence or threats and, after each offence, you accompanied the complainant on public transport without incident;
(d) You were genuinely fond of the complainant and had asked her to be your fiancée;
(e) You have no prior convictions and are not an antisocial person, having learned to live independently with the support of the Salvation Army; and
(f) Your plea carries a considerable utilitarian benefit and means that the complainant is not required to give evidence;
9 Your counsel urged me to impose a Community Correction Order, to provide you with supervision and intervention as required. The prosecutor did not oppose that course. Given the agreement between the parties, I had you assessed as to your suitability to undertake a Community Correction Order. You were found suitable.
10 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
11 I take into account your plea of guilty. Whilst it was late in coming and was only so after a positive sentence indication hearing it nevertheless has utilitarian value and is evidence of some remorse and acceptance of responsibility. It is clear that in circumstances such as these the weight attributed to remorse and acceptance of responsibility is necessarily somewhat diminished.
12 Special considerations apply to the sentencing of youthful offenders, such as yourself. Rehabilitation is considered far more important than punishment and, where possible, the sentencing of youthful offenders should not be used for the purpose of giving messages of general deterrence. Further, I am satisfied that, on the basis of the reports tendered, Exhibit 2 and, to some extent, Exhibit 3, the principles espoused in Verdins case are applicable. Although Verdins did not specifically refer to intellectual disability, the subsequent cases of DPP v Patterson [2009] VSCA 222 and Ashe v R [2010] VSCA 119, make it clear that that the impact on sentencing of an intellectual disability required a determination of whether the condition had impaired the offender’s ability to exercise appropriate judgment, or impaired the ability to make calm and rational choices, or to think clearly at the time of the offence.
13 I am satisfied of the following:
(a)that your intellectual disability reduces your moral culpability for the offending and that denunciation is a less relevant sentencing objective;
(b)that your intellectual disability has a bearing on the kind of sentence I intend to impose;
(c)that general deterrence ought be significantly moderated as a sentencing consideration both given your mental functioning both at the time of offending and at the time of sentencing;
(d)that, given the impact of your disability on your mental capacity and the time of your offending and now, specific deterrence ought be significantly moderated; and
(e)that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health.
I agree with the submissions of your counsel that your offending, while serious, was at the lower end and does not warrant a period of imprisonment. I am satisfied that it is in the best interests of the community for you to continue to, as far as possible, be rehabilitated. Community Correctional Services will provide a level of supervision and involvement in offence-specific programs to warrant sentencing you to a community-based disposition. Such a disposition also takes into consideration your age, your lack of prior convictions, and your particular intellectual disabilities, as well as the seriousness of the offending.
14 Mr Milford, I propose to release you, with conviction, on a Community Correction Order for a period of 24 months. I have received a report from Corrections Victoria which indicates your willingness to comply with such an order. The order commences today.
15 Do you agree to comply with the order?
16 PRISONER: Yes I do.
17 HIS HONOUR, Very well. The core conditions of the order are as follows:
(1) that you not commit, whether in or outside Victoria, during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is Carlton Community Correctional Services at 444 Swanston Street, Carlton;
(3) that you report to and receive visits from a Community Corrections Officer;
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days of the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
18 In addition I intend imposing the following program conditions, namely that:
(1) you be under that supervision of the Community Corrections Officer;
(2) you perform 200 hours of community work over 24 months;
(3) you undertake the Sex Offender Program;
(4) you undergo treatment and rehabilitation, namely that you undergo mental health assessment and treatment and any program that will address factors related to your offending behaviour.
19 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 6 months imprisonment.
20 I make an order pursuant to s 464ZF of the Crimes Act1958. I do so because of the seriousness of the circumstances of the offending, and because the application is by consent. Notwithstanding that you have consented to the taking of a forensic sample, I am obliged by law to inform you that if you resist the taking of the sample, reasonable force may be used.
21 Is there anything further required?
22 COUNSEL:
23 HIS HONOUR: Thank you, Mr Milford you may step out of the dock.
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