Director of Public Prosecutions v Mitchell

[2014] VCC 415

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-13-01203

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN MITCHELL

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Warrnambool
DATE OF HEARING:	26 March 2014
DATE OF SENTENCE:	26 March 2014
CASE MAY BE CITED AS:	DPP v MITCHELL
MEDIUM NEUTRAL CITATION:	[2014] VCC 415

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Doherty	Office of Public Prosecutions
For the Offender	Mr M. P. R. Turner	Dwyer Robinson

HIS HONOUR:

1Mr Mitchell, would you stand, please.  Adrian Mitchell, you have pleaded guilty to two charges of indecent assault.  The maximum penalty on each charge is 10 years' imprisonment.  I have heard a summary of the offending, and I do not intend to repeat the summary.  It will be attached to these remarks as Exhibit A.

2Briefly, the two offences were committed some time between 1 September 2008 and 5 September 2009.  On the relevant evening you were in a one-bedroom flat in Casterton with the two complainants.  You were all drinking alcohol and smoking cannabis.  The complainant on the second charge on the indictment became unwell during the course of the evening and went to bed in the bedroom.  She was wearing a top, bra and underpants. The complainant on the first charge on the indictment went to sleep on the couch some time later.  You moved to the couch where the first complainant was sleeping and placed your hand under the blanket.  You were told to move away.  You did so, but returned a short while later and placed your hand under the blanket again.  You grabbed the complainant's vagina on the outside of her clothing. This is the conduct that relates to Charge 1. 

3After this incident you went into the bedroom where the second complainant was sleeping.  You took your clothes off and got into bed with her.  You then fondled her vagina under her clothes.  This is the conduct that relates to Charge 2. 

4You were no doubt affected by drugs and alcohol at the time you committed the offences.  This may offer some explanation for your offending; it does not excuse it.

5The matters were reported to police in late 2010.  You were arrested and interviewed on 23 November 2010.  You made a no comment record of interview.  You were charged on 1 January 2013. 

6The matter was listed before me in the current circuit for trial.  The matter resolved with the prosecution accepting your guilty pleas to the two charges on the fresh indictment.  I note that you have pleaded guilty to charges that are frequently dealt with in the Magistrates' Court.  I mention this not to diminish the seriousness of what occurred, but to record the fact that you have pleaded guilty to offences that are much less serious than those that were on the original indictment. 

7In assessing the gravity of this matter, I note that you opportunistically imposed yourself upon two women who were significantly affected by the ingestion of drugs and alcohol.  You assaulted them when they were asleep or nearly asleep.  The first indecent assault occurred after you had previously been warned by the first complainant to move away from her.  In this assault you grabbed the complainant over her clothing.  The second indecent assault occurs after you entered the bedroom, took off your clothes and got into bed with the second complainant.  More seriously, you fondled her under her clothes.

8I have received victim impact statements from both complainants.  The first complainant feels embarrassed and ashamed at what happened to her.  Her trust in others has been undermined.  The second complainant has been more profoundly affected, describing feelings of anger, distress and isolation.  She is finding it hard to recover from what happened. 

9In determining an appropriate sentence, I have to balance your criminality against the matters in mitigation.  You will be given appropriate credit for your guilty plea.  As I have already said, you were originally charged with more serious offences.  Those more serious matters have not proceeded.  Your pleas of guilty have saved the complainants from the trauma of giving evidence at trial and it has also saved the time and costs that are involved in a criminal trial. 

10Importantly, you are a 37-year-old man with no prior convictions.  You have worked steadily throughout your adult life.  You are now in a relationship with Ms Raggett who was present at court to support you.  The offences are over four and a half years old.  The charges have been hanging over your head for this period.  There has been no further offending.  You have apparently stopped using cannabis and moderated your drinking.  The delay is significant and is highly relevant to sentence. 

11Mr Mitchell, I am satisfied that you are a good prospect for rehabilitation.  In determining an appropriate sentence I have to balance various sentencing considerations.  I am required to consider general and specific deterrence, punishment, denunciation and protection of the community.  In your case, general deterrence, denunciation and punishment are all relevant.  I must also consider those matters that are relevant to your rehabilitation.  In this regard your previous good character, your plea of guilty, the delay in prosecution and your subsequent good behaviour are all critical matters in your favour.  In weighing up these competing considerations, I note the prosecution concession that an order other an immediate term of imprisonment would be appropriate in this case.

12Mr Mitchell, you will be convicted and released on a Community Corrections Order for a period of 18 months.  The order will have a number of special conditions attached.  First, that you be under supervision for the period of the order; second, that you perform 200 hours of community work; third, that you undergo assessment and treatment including testing for alcohol abuse and dependency as directed; and fourth, that you participate in offence specific programs as directed.  In relation to this final condition I recommend you undertake an assessment for, and if suitable, participate in the Sex Offenders Program.  You are required to attend the Warrnambool Community Corrections Service before 4 pm on 28 March 2014. 

13Had you been found guilty after trial, you would have been convicted and sentenced to 12 months' imprisonment with a minimum term of six months before being eligible for release on parole.

14I order that you undergo a forensic procedure for the taking of a scraping from your mouth.  For the purposes of undergoing that procedure you must report to the officer in charge of the Warrnambool Police Station during the four week period commencing 28 days after today's date.  If you fail to cooperate in the taking of the sample the police may use reasonable force to obtain it. 

15This order is made pursuant to ss.464ZF(2) and 464ZF(2) of the Crimes Act 1958. I make the order for the following reasons: the seriousness of the offending; the order is in the public interest; and the order is consented to.

16Mr Mitchell, I have decided not to make an order placing you on the Sex Offenders Register.  Your behaviour was opportunistic and no doubt influenced by drugs and alcohol.  This may, as I have said, explain your behaviour; it does not excuse it in any way.  You have no prior convictions for sexual offences and there has been no subsequent offending.  The offences are now over four and a half years old.  You have apparently stopped using cannabis.  These matters are significant.  In addition you will be under the supervision of Community Corrections for the next 18 months.  For these reasons I have determined that you not be placed on the Register.  

17You can be seated there.  Mr O'Doherty, I will just sign the orders.

18MR O'DOHERTY:  Thank you, Your Honour.

19HIS HONOUR:  Any other orders needed in this matter?

20MR O'DOHERTY:  No, Your Honour.

21MR TURNER:  No, Your Honour.

22HIS HONOUR:  Thank you. 

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Exhibit A:

*** The prosecution summary is located on the court file, and access to it should be applied for in the usual way, through Registry.