Director of Public Prosecutions v Mitchell (a Pseudonym)
[2016] VCC 268
•8 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GERALD MITCHELL (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 11 and 22 February 2016 | |
DATE OF SENTENCE: | 8 March 2016 | |
CASE MAY BE CITED AS: | DPP v Mitchell (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 268 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – indecent act with a child under the age of 16 – third party hardship
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Markovic v R; Pantelic v R [2010] VSCA 105
R v Esposito [2009] VSCA 277;
Sentence: Convicted and sentenced to a period of imprisonment of 12 months. Further sentenced to a Community Correction Order of a period of 18 months after release from prison with certain conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P A D’Arcy | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr A J Lavery | Danos Lawyers |
HIS HONOUR:
1 Gerald Mitchell[1], you pleaded not guilty to the offence, that on 21 February 2015, you wilfully committed an indecent act with, or in the presence of, AB,[2] a child under the age of 16. In particular, it was alleged that you licked the vagina of AB.
[1] A Pseudonym.
[2] A Pseudonym.
2 You stood your trial, were found guilty of the offence by a jury on 9 February 2016.
3 The offence of committing an indecent act with a child under the age of 16 is contrary to s.47(1) of the Crimes Act 1958, and carries a maximum penalty of ten years’ imprisonment.
Circumstances of such offending
4 You were born on 25 June 1970 and were aged 44 at the time of the offending. You had been in a long-term de facto relationship with CC,[3] which had come to an end in 2014, and in particular, in June 2014, you moved out of the “family home”.
[3] A Pseudonym.
5 During such relationship, two daughters were born, namely, AA,[4] who was born in June 2003; and AB, who was born in May 2010, and the complainant in the proceeding.
[4] A Pseudonym.
6 At the date of offending, AB was four years old.
7 After the separation between you and CC, arrangements were made that your daughters would live with their mother during the week and you would have care of the girls during the weekend. On the weekend of 21 and 22 February 2015, both your daughters were staying with you at your then address in Cranbourne West.
8 On the evening of Saturday, 21 February 2015, you were with the complainant in the lounge room of your house, after she had taken a bath and was naked. At that time, she was lying across a chair with her legs over one arm rest and her head resting on the other rest.
9 AA, who was in a separate room of the premises, heard loud noises which she thought to be laughing or crying, emanating from the lounge room, causing her to enter the lounge room where she observed you kneeling on the ground licking the complainant’s vagina. When AA made that observation, AB was crying and screaming.
10 On making that observation, AA “grabbed up” her younger sister and said to you:
“What are you doing?”
To which you replied:
“I don’t know. This is really weird.”
11 AA took her younger sister to AA’s bedroom, where she placed a nappy and singlet on AB and both of them slept in a single bed until you came in later and took AB into her own room.
12 AA also gave evidence that you appeared “drunk” during the Saturday leading into Saturday night. She noted that there were a large number of bottles on the kitchen table.
13 You gave sworn evidence before the jury which was largely consistent with the evidence of AA, up to the time that AB had got out of the bath and lying on the chair in the lounge room. In particular, you gave evidence that you were kneeling and playing such games as “Cookie Monster” and “burpees” with your younger daughter, having your head in the area of her abdomen. You denied ever licking the vagina of the complainant.
14 Furthermore, you gave evidence that you had been drinking reasonably heavily that day, which was not uncommon, but considered yourself to be completely functional, as demonstrated by your ability to prepare dinner for your daughters and arrange for AB to have her bath.
15 Your daughters remained with you throughout the following day and then returned home to the care of their mother. Shortly after returning home, the complainant, prompted by AA, disclosed the offending to her mother and later than night, CC contacted the police. Both AA and the complainant made VARE statements at the Dandenong Police Station on 23 February 2015.
16 AB also gave evidence by way of her VARE statement and a special hearing. Although AB was easily distracted during the course of her evidence, such evidence was largely consistent with that of AA.
17 I consider the jury verdict can only be viewed on the basis that the evidence of AA, and to a lesser extent AB, was accepted, and your denial of the indecent act rejected.
Victim Impact Statement
18
The prosecutor read and then tendered a victim impact statement from CC, declared on 13 February 2016, Exhibit A. In that statement, CC described that late in 2015, it was very “tough” for the girls and herself, as each of the girls had to undergo a special hearing and be
cross-examined about their evidence contained in the VARE recordings.
19 In particular, CC describes AA being “very upset” about having to speak again about what she observed. CC notes that AA “reluctantly agreed” to see a counsellor on two separate occasions during 2015. CC reports that AA informed her that she felt “extremely uncomfortable, both times telling me that she doesn’t want to talk about what happened" and that she will "cry and get upset". CC noted that AA seemed extremely anxious.
20 CC also describes how their lives “changed dramatically” since the offending. She describes how she has been unable to work the 20 to 30 hours a week that she had been previously doing. She now works on a casual basis so that she can be with her daughters. She also reports of having re-attended a psychologist to help her cope within herself, and also attending a counsellor at CASA, to also help her handle different situations arising with the girls’ wellbeing.
21 CC is particularly concerned about AA and considers that her whole life has “changed dramatically”. In particular, she describes difficulties with AA not wanting to go to school, feeling as though she had no friends, preferred staying in her own room, and more recently CC has seen an escalation in the anxiety level of AA. She describes the fear that she sees in the eyes of AA is “quite frightening and heartbreaking.”
22 CC ends her victim impact statement by asserting:
“I know that if Gerald went to gaol, that it would make a huge impact on AA and her current wellbeing.
My personal request to be considered in the sentencing of Gerald is as stated below:
(1)Gerald, I want you to acknowledge that what the girls told was the truth and it did happen.
(2)Let the girls know that telling me what happened was the right thing to do.
(3)Most importantly
I want you to apologise to both AA and AB for what you did and for you to admit that you did the wrong thing.”
Victoria Police criminal history report
23
You accepted that you had one minor drug offence involving possession of a drug of dependence for which you were placed on a good behaviour bond without conviction. Furthermore, from the VicRoads database, you accept that you were convicted at the Frankston Magistrates’ Court on 23 February 1990 for exceeding the prescribed concentration of alcohol with a blood/alcohol reading being 0.04, and for which you were fined $500 and your probationary car licence cancelled with a disqualification period of six months. Similarly, on 28 March 1994 at Frankston Magistrates’ Court, you were convicted of exceeding the prescribed concentration of alcohol with a
blood/alcohol reading of 0.065, for which you were fined $400, your car licence cancelled with a disqualification period of 12 months.
Your personal circumstances
24 I was informed by your counsel that you left school in Year 11 to commence an apprenticeship as a butcher, following in the footsteps of your father, who was also a butcher. On obtaining your qualification, you have worked for others in the butchering trade and for most of your working life, you have been a butcher.
25 You formed a relationship with CC in teenage years and that relationship continued, as I have already recorded, until mid-2014. Over the years of the relationship, you assert there was a history of alcohol abuse by both yourself and CC. Although there was a mutual break-up in mid-2014, you found the stresses of the break-up caused your drinking to increase and in general, you note that both you and CC ever had difficulties after the separation.
26 The complainant, AB, was born with major physical disabilities, being a hole in the heart, necessitating two bouts of surgery shortly after birth. She was in hospital for a total of about six months as an inpatient at various times, which understandably caused great stress to you and CC.
27 Through your counsel, you described that at that time CC had a breakdown, which would probably be largely explained by the difficulties undergone by her younger daughter and over this period, CC was hospitalised on two occasions for alcohol detoxification. In general, you describe how CC had difficulty coping with AB when she was young. Also, during this period, AA was experiencing behavioural difficulties, manifesting in her refusing to attend school and not doing what was required of her.
28 During this period of time, AA was, from time to time, placed in the care of CC’s sister because of CC being unable to appropriately care for her.
29 In particular, your counsel advised that you ceased work for about a year when the complainant was born with her congenital heart issues, in order to assist her and CC. You were involved in the care of AB, which sometimes had to be done alone, given the state of CC. You assert that on one occasion you found CC semi-conscious from alcohol, with the children still in the house.
30 During the times that you have ceased being a butcher to help look after your daughters, you have either sold cigarettes or performed other work. In particular, at the time of the offending, you were working in a home business of trading video games.
31 Again, through your counsel, you assert that CC is presently functioning well and has overcome these past difficulties. I was also informed that you have a close relationship with your parents, who I noted were in court on occasion and also your sister, who also attended at court on occasion.
Plea in mitigation
32 Your counsel submitted that the following matters to be relevant in mitigation of any sentence to be imposed on you:
(a)There is no prior criminal history of any offending, save for the minor drug offence, and certainly no offending whatsoever related to sexual matters.
(b)That up to this event, you were a responsible father, as demonstrated by taking your time off work to help in relation to the care of both daughters, but in particular, the complainant, following her diagnosis of heart problems. In this respect it was submitted that you were a person of good character up to this offence.
(c)That it was likely the cause of such offending was the state of your intoxication, which removed inhibition, leading to the licking of the vagina.
(d)That you were remorseful. When queried by the court as to how the court could see you as remorseful in circumstances where you continued to deny any wrongdoing, it was submitted that you can continue to deny committing a wrong, but still be remorseful.
(e)That given your past record, the offending consisting of one short-lived event, and the likely cause of the offending being alcohol consumption, there were good prospects for rehabilitation.
(f)Although accepting that denunciation of the offending, general and specific deterrence were relevant sentence considerations, it was submitted by your counsel that:
(i)general deterrence has limited application, as this offence is not prevalent in the community;
(ii)specific deterrence is not a significant factor, as your offending has “destroyed” relationships, demolished your reputation, and affected your self-esteem, all of which will amount to good deterrence against any further offending;
(g)That if you were sentenced to a period of imprisonment, you would be at high risk, due to the nature of your offending.
(h)That there was no identifiable harm to the complainant as a result of the offending.
33 In particular, your counsel submitted that, based on the material in the victim impact statement of CC, and other material to which I shall refer, that exceptional circumstances in relation to third party hardship exists, as your older daughter has a “high risk”, so it was submitted, of a ”negative outcome”, if you were sentenced to a period of imprisonment.
34 The further material to which your counsel referred was a statement made by CC on 6 February 2016, which was not tendered. Such statement occurred in circumstances when there was discussion during the trial as to the need to recall the complainant and AA, in order that your counsel could put propositions to them which emerged during the evidence given by you, that is to say, you were playing “Cookie Monster” and playing “burpees” with the complainant at the time of the offending.
35 CC resisted the recalling of any of her daughters, and indeed, ultimately no application was made to pursue such course. In the statement, CC states in part:
“Since I have reported to police what AB and AA told me that Gerald did on their last access visit with him, AA has really been struggling emotionally. Socially she has been withdrawn. She began not wanting to go school from last year and isolating herself from friends. She had problems at after school care and refused to go back there. I have watched a slow decline since. She has no interest in spending time with her friends and spends most of the time by herself in her room. She is really struggling to reconcile her relationship with her father. She has become more withdrawn over this period of time and I would say she is depressed.
She never talks about what happened with her dad and
I don’t push that issue. She has begun to self-harm. This happened in early December 2015 and not long after she gave her evidence. I know that on occasion in early December, she was getting ready for school. She had put her jumper on with long sleeves, but the sleeves were too short. I was hurrying her up, as she was running late. I asked why she had put a jumper on, as it was going to be a hot day. She was trying to get out of going to school all morning. She had been trying to get out of school a lot in recent times.
She ended up showing me her right inner forearm and telling me that that was the reason she didn’t want to go to school. It had about six or eight cut marks between her wrist and elbow. They looked like they had small scabs, but still relatively new injuries. I was devastated, absolutely devastated. I knew straight away she had caused the injuries to herself. I gave her a huge hug and told her I loved her and we stood in the bathroom and just hugged and cried. We got into the car and were on our way to school. She reluctantly agreed to go and I wasn’t sure what was the right thing to do.
In the car I started asking her questions about it as why and she burst into tears and she told me she hated life. I didn’t make her go to school that day. I bought her a bandage and helped her cover the injuries so she could go to school after that day. I know that she could take the bandage off for her graduation which was on 18 December, and at the time, you could only see faint cut marks.
I found a razor blade taped to the wall behind her bed and I assume that is what she used to cut herself. I threw it out. AA has started high school this week. There has been seven days of school so far and she has only attended two days out of the seven. On the day she hasn’t attended, she has refused to get out of her bed and go. She tells me a variety of things, including that she is tired. Once she used her braces were hurting her. Once she said she had her period and refused to take Panadol. Another time she said she was scared of the crowds at school and she also just flatly refuses to go.
AA has refused to attend counselling, see a doctor or seek any help for what she is going through. She tells me she doesn’t want to do this because it just brings back the memories of what happened with her dad and she doesn’t want to be in that position, she doesn’t like to cry and talk about things in front of strangers and generally at all to anyone else. She has seen a counsellor twice, once in the middle of last year and once towards the end. I basically had to drag her there. She hated it. I’ve had a couple of appointments for her to see one more recently, but had to cancel because she wouldn’t go.
As a mother I look at AA and feel that her mental health is getting worse. I am really not sure what I'm dealing with, as her problems have become so complex and as her mother, I feel ill equipped to handle this and I am seeking support and advice so I can try to help her. I am attending SECASA for this.
AA is not eating meals either. She hasn’t for some time now. She lives on bits and pieces when she feels like it.”
36 Your counsel referred to the well-known decision of Markovic v R; Pantelic v R [2010] VSCA 105, which sets out the principles relevant to the application of exceptional circumstances being found to establish third party hardship. Furthermore, reference was also made to R v Esposito [2009] VSCA 277.
37 Ultimately, your counsel submitted that it would be appropriate for you to be placed on a community corrections order, which it was submitted could cater for all relevant sentencing requirements. Your counsel also submitted that rehabilitation would be difficult in prison, and furthermore, as already noted, it would be likely that you would be placed in protection, given the nature of your offence.
38 Counsel for the prosecution submitted that an appropriate disposition would be a short period of imprisonment, combined with a community corrections order. Ultimately Counsel submitted, it is a matter for the court to determine whether or not exceptional circumstances do exist, in order that third party hardship can be taken into account when determining an appropriate sentence.
39 Counsel for the prosecution accepted that the evidence would establish that prior to the offending, you were a good and loving father, but submitted that there cannot be remorse in circumstances where you do not accept that you committed any offence. Counsel for the prosecution accepted that there may be some amount of regret, but not remorse.
40 Furthermore, counsel for the prosecution submitted that the excessive alcohol intake on that day is not a mitigatory factor but is perhaps some explanation as to why the offending occurred.
Conclusion
41 I do consider that the circumstances of the offending are serious, in that you performed an indecent act with your then four-year-old daughter, who was at that time, totally dependent on you being her father and protector. Such offence does amount to a significant abuse of the trust which a young, innocent and dependent child has in a parent or parents.
42 Such offending must be clearly denunciated.
43 It is not totally clear as to why the offending occurred. It has been submitted by counsel for the prosecution that the degree of intoxication that you were under at the time of the offending, may have given rise to lessened inhibitions and thus prompted the offence. Indeed, that may be the case, as I clearly find that you were intoxicated at around the time of the offending.
44 As I indicated in court, I consider that there is some lack of clarity in respect of such explanation, in that it is one thing to be perhaps disinhibited through the use of excessive alcohol, but quite a different thing, I would have thought, that such disinhibition prompts you to lick the vagina of your four-year-old daughter. Furthermore, according to your evidence, although you accepted that you had been drinking heavily that day and that in general, you were a heavy drinker, you considered yourself functional as demonstrated by your ability to cook the meal for your daughters and prepared the bath for the complainant.
45 I reject the submission of your counsel that you are remorseful in relation to such offending given your continued denial of such offending. It may be, as counsel for the prosecution submitted, that you have a regret about what has occurred since your offending, but clearly, in the absence of any acceptance of your offending, there can be no remorse for something that you do not accept that you did.
46 However, I do accept that prior to the subject offending, that you were most probably a good and loving father as demonstrated by you taking time off work to help with the care of the complainant during what must have been very stressful circumstances, when the complainant was undergoing treatment for her heart condition. Also, there were no doubt further stresses preceding your offending relevant to your drinking and that of CC which on occasion caused difficulties on her part to look after the children.
47 I also refer to the evidence of CC during the trial, who accepted that you were a caring, loving and good father to the girls prior to the offending, and that what occurred was “at odds with what you understood he was like” (see Transcript 55 L6-25). I also refer to the VARE of your older daughter, AA, and in particular question 159, which states:
“What made you decide to tell your mum?---
I – I just thought it was just the right thing to do. This shouldn’t be going on, you know. It just shouldn’t be, it’s just horrible.”
48 Later in her VARE, AA stated that she did not want to get you into trouble. At question 135 she was asked:
“Why is that?---
"Because I love him and I just didn’t want him getting in trouble.”
49 Clearly, you have no criminal record relating to any sexual offence and your record only pertains to a minor drug offence for which you were placed on a good behaviour bond many years ago. However, I do note that you have been involved in two drink-driving offences, albeit many years ago. The circumstances surrounding the offending suggest that you had alcohol issues in 2015.
50 Notwithstanding your denial of committing the indecent act, you probably appreciate that the circumstances surrounding that night have led to tragic consequences where your relationship with your daughters and your former partner has forever changed. You will have to carry a conviction for this offence for the rest of your life, and also, given the nature of the offence, it is required by law that I direct that you be a registered sex offender pursuant to the Sex Offenders Registration Act 2004.
51 Clearly enough, your offending has had significant impacts on both your partner and older daughter, and perhaps also on your younger daughter, although I accept there is no clear identifiable evidence at this point. Your former partner has sought further referral for treatment, having been confronted with your offending, and more particularly, how to deal with her daughters in coping with this ongoing problem. Your older daughter, AA, has been distressed since your offending, and in particular, as a result of giving evidence in circumstances where it may well have been she was torn between doing the “right thing”, but not wishing on the other hand to get you into trouble.
52 I do accept the submission of your counsel that specific deterrence is perhaps not as strong as it otherwise would be, when one considers the burden you will have to carry as a result of your fractured relationship with your daughters and former partner. I do consider that general deterrence is a relevant sentencing consideration, in that the community at large must be deterred from performing indecent acts with children, particularly their own children, who have no practical means of even attempting to avoid contact with the person committing the indecent act. I do consider that the prospects of your rehabilitation to be reasonable.
53 I refer to Markovic v R; Pantelic v R [2010] VSCA 105. In that decision, the Court of Appeal consisting of (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) referred to, with approval, the observations of Winneke P (with whom Brooking and Charles JJA agreed) in R v Panuccio (unreported), Victorian Court of Appeal, 4 May 1998, wherein it was stated:
“Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be ‘exceptional’ or ‘extreme’ before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court’s primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent in one form or another upon the person imprisoned.
Thus, it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner’s family unless exceptional circumstances have been demonstrated. The principle has been so often stated that it does not need repeating ... It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.”
54 I also refer to R v Esposito [2009] VSCA 277 wherein Nettle JA stated at paragraph 14:
“... In order to establish exceptional circumstances, there must be cogent evidence that a prisoner’s imprisonment would impose exceptional hardship upon his family, one which is considerably more severe than normal for a family where the father is imprisoned, and the situation must be so highly exceptional that ‘it would be, in effect inhuman to refuse to do so".
55 After consideration of the material supplied by CC, and acknowledging that the issue is not free of difficulty, I consider that exceptional circumstances have not been made out. Based on the material from CC, I accept that AA has manifested various emotional problems resulting from, at least in part, her observing your offending against her younger sister, her being the instigator of the complaint against you, and her being the major witness for the prosecution in circumstances where she desired to do, as I say, “the right thing”, but avoid trouble for you. CC is seeking advice and potential treatment for AA to overcome and/or ease these problems.
56 It is in this context that CC asserts in her Victim Impact Statement that if you were sentenced to a period of imprisonment, “that ... would make a huge impact on [AA] and her current wellbeing”. Although accepting that it is not critically necessary that there be expert evidence to confirm such assertion, the fact is that no expert evidence was relied on in relation to any diagnosis or prognosis for AA, or indeed treatment for AA in the event that you are sentenced to a period of imprisonment. Although this is yet another sad aspect consequent upon your offending and the role that AA has played, I do not consider such circumstances to be exceptional. I should add that I consider that AA did do the “right thing”, stepping in to protect her sister, and having her sister report that matter to their mother, and ultimately giving evidence in relation to the circumstances of the matter.
Community Correction assessment
57 The court directed that you be assessed to determine the suitability of a Community Correction Order. Such an assessment was undertaken on 11 February 2016, at which time you were assessed as suitable for a Community Correction Order with the following conditions recommended:
· An assessment and treatment (including testing) for alcohol abuse or dependency pursuant to s48D(3)(b) of the Sentencing Act 1991;
· Programs that address factors related to your offending behaviour pursuant to s.48D(3)(f) of the Sentencing Act 1991;
· A supervision condition pursuant to s.48E of the Sentencing Act 1991.
58 In the report from the Community Corrections officer, it is recorded that you were assessed according to the Level of Service Risk Assessment Tool as having a low risk of reoffending.
59 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342, pertaining to the operation of Community Correction Orders, which have been available in Victorian courts since January 2012. As that Court stated, the Community Correction Order is a radical new sentencing option, with the potential to transform sentencing in this State. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and the sentencing court can attach to a Community Correction Order a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously”.
60 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991, which respectively state:
“(4)A court must not impose a sentence which involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
...
(4C)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
61 As the Court of Appeal has stated, s.5(4C) of the Sentencing Act 1991 prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a)the purposes for which the sentence is to be imposed on the offender; and
(b)whether those purposes can be achieved by a Community Correction Order to which one or more of the specified (onerous) conditions is attached.
62 I also refer to Appendix 1 of the Court of Appeal judgment which is headed ‘Community Correction Orders: Guidelines for Sentencing Courts’. Pursuant to that document it is necessary that I first assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, I consider the offence committed to be of a serious nature, with denunciation and general deterrence to be of particular importance. I am then called upon to consider whether:
(a)the crime as so assessed is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
63 After careful consideration, I consider that an appropriate sentencing disposition should be a period of imprisonment of 12 months, followed by a Community Correction Order for a period of 18 months with various added conditions.
64 Mr Mitchell, please be upstanding.
65 In relation to the charge, you are convicted and sentenced to:
(a)A period of imprisonment of 12 months; and thereafter to
(b)A Community Correction Order for a period of 18 months. Such order is to carry the following conditions in addition to the core conditions:
(i) pursuant to s.48D(3)(b) of the Sentencing Act 1991, you are to undergo assessment and treatment (including testing) for alcohol abuse or dependency;
(ii) pursuant to s.48D(3)(f) of the Sentencing Act 1991, any program that addresses factors related to your offending behaviour, and in particular, you be assessed and participate in the Specialised Offender Assessment and Treatment Service (SOATS);
(iii) pursuant to s.48(E) of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the duration of the order.
(c)I declare that you have served 26 days by way of pre-sentence detention. Such period should be administratively deducted from your sentence.
(d)Given the nature of your offence is a Class 2 offence within the meaning of the Sex Offenders Registration Act 2004, I direct that you be registered as a registrable offender within the meaning of that Act for a period of eight years.
66 Pursuant to s.464AF(2) of the Crimes Act 1958 (Vic), I order that you undergo a forensic procedure for the taking from the mouth, and/or a blood sample in accordance with Subdivision 30A of Part 3 Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I must inform you, that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable the forensic procedure to be conducted. Yes, anything counsel want to say?
67 MS MARGARONIS: No, Your Honour.
68 HIS HONOUR: Mr Lavery, anything you want to say?
69 MR LAVERY: No, Your Honour.
70 HIS HONOUR: Yes, take the prisoner. Well I'll allow the prisoner - yes, things have to be signed. I will also any family members to approach the accused at this stage. Yes, take the prisoner. Yes, we'll adjourn temporarily, thank you.
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