Director of Public Prosecutions v Montague

[2019] VCC 1080

IN THE COUNTY COURT OF VICTORIA

Revised

          Not Restricted

Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUFUS MONTAGUE (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 July 2019
CASE MAY BE CITED AS:	DPP v MONTAGUE
MEDIUM NEUTRAL CITATION:	[2019] VCC 1080

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr W. Stougiannos
For the Accused	Ms K. Blair

HER HONOUR:

1Rufus Montague[1], a jury has found you guilty of two charges of sexual assault and you have pleaded guilty to one charge of theft.  The facts underlying the offending are as follows.  At the time of this offending, which occurred on

[1] Rufus Montague is a pseudonym.

[2] Bart is a pseudonym.

28 November 2016, you were 19 years of age and the victim, E, was 14.  She was in the care of the Department of Health and Human Services.  She became friends with your brother on Facebook on 5 November 2016.  That is your younger brother, Bart[2].  He used the pseudonym John Wicks.

2On 27 November 2016, via Facebook messenger, E and Bart discussed meeting up and it was discussed that they may have sex and that E's friend B might have sex with you.  At that stage it was believed you were only 17.  On 28 November 2016, you drove your brother to the Hoppers Crossing railway station where you picked the girls up and the four of you then drove around the Werribee area.  You drove to a local IGA store where E and Bart went in.  An allegation that you then touched B on the breast over her clothing was not accepted by the jury which returned a verdict of not guilty to Charge 1 on the indictment, a charge of sexual assault.  Ultimately you drove to your home in Werribee where you obtained two bottles of red wine, some of which was drunk by E.

3You then drove to the nearby Thirsty Camel Bottle Shop, where you and E stole three four packs of mixed spirits valued at $59.97, which offending underlies 2 on the indictment, theft to which you pleaded guilty.  It was the prosecution case that E drank about half of these as well as half of the two bottles of wine and became extremely intoxicated.  Sorry, can you just remind me Ms Blair, what was B’s evidence in relation to the wine that was taken from the house?

4MS BLAIR:  Initially her evidence was that - evidence in chief was that E had drunk the majority of it.  However, I believe during cross-examination that she came back from that a little bit, given that I had asked her about how they'd gone and parked briefly and as I understand it, her evidence came back to that she'd had some of it, but wasn't sure how much of it.

5HER HONOUR:  Yes I think that is right.

6MS BLAIR:  Because they threw some of it out.

7HER HONOUR:  All right.

8MS BLAIRE:  Because no one liked it.

9HER HONOUR:  Yes, all right.  Thank you.  I think that is right Mr Stougiannos.  You agree with that?

10MR STOUGIANNOS:  Well it was evidence that the victim - from dragging E was intoxicated.

11HER HONOUR:  No I understand that.

12MR STOUGIANNOS:  Yes.

13HER HONOUR:  But it is just in terms of - yes, very well.

14MR STOUGIANNOS:  I think that there is some doubt that that was all consumed.  It was not very tasty or palatable or something.

15HER HONOUR:  Yes, thank you.  In relation to the evidence on the trial, insofar as the wine bottles was concerned, the evidence of B in cross-examination retracted somewhat as to how much E had actually drunk of it and indeed, there was evidence that some of the wine was discarded because of the taste.  You then drove the group to the nearby Heathdale Glen Wetlands where you all got out, E going for a walk with you and B going for a walk with Bart.  Eventually you all went back to the car and drove off.  E at this stage was in the front passenger seat next to you and according to B, was visibly drunk and going in and out of sleep.

16This, however, was denied by you when you gave evidence.  Your evidence was that she had made sexual advances to you whilst in the Wetlands, telling you that effectively she wanted to have sexual intercourse with you and initiated the oral intercourse which then occurred.  That is, whilst you were driving, she placed your penis in her mouth.  I will return to the interpretation of the jury verdict at the end of my summary of the facts scenario underlying the case.

17In any event, that oral penetration underlay Charge 3 on the indictment, sexual penetration of a child under 16.  You then parked the car and got out of the driver's side.  You then got in on the passenger's side and proceeded to have penile vaginal intercourse with E.  Those acts underlie Charge 4 on the indictment, sexual penetration of a child under 16.  Verdicts of guilty were returned in relation to both charges 3 and 4.  It was B's evidence that whilst you were having vaginal penile intercourse with E, she was visibly intoxicated and going in and out of sleep.  It was your evidence that she was not in such a state and readily and consciously participated in that act of sexual penetration.  You and E then left the car.  It was B's evidence that sexual intercourse then took place again between the two of you on a sidewalk near the car and later up against a tree, further back from the car.  Those two incidents of sexual intercourse underlie Charges 5 and 6 on the indictment.

18It was your evidence that further sexual intercourse occurred between you and E, but that it occurred only once and in a different position than that outlined in the prosecution scenario.  In any event, verdicts of not guilty were returned by the jury in relation to both Charges 5 and 6.  You and Bart then drove the girls to McDonalds where they used the toilet.  Whilst they were inside, you and Bart absconded, effectively abandoning the girls in the carpark after placing their items which you took from the car on the ground.  Both B and E were under the care of the Department of Health and Human Services and eventually this offending was reported to police.  B and E were both medically examined and E had discussions with the doctor who examined her about her sexual encounter with you.  She refused, however, to make a VARE statement.  B did make a VARE statement and gave evidence and indeed was the source of evidence of the sexual activity between yourself and E.

19It was also allegedly the situation that whilst this activity was going on in the front of the car, B and Bart themselves were engaged in sexual activity in the back of the car, but no charges were laid in respect of this.  In a record of interview with police, you denied any contact with the two girls, essentially engaged in a series of lies, effectively saying that at the time of the alleged offending, you were at the gym, an assertion which was ultimately proved to be false in a consciousness of guilt argument which was relied upon by the prosecution in the trial on the basis of those lies that you told. 

20There is some difficulty in interpreting the jury's verdict.  You gave evidence that your brother told you that the girls were 16.  B gave no evidence about discussion of age insofar as she and E were concerned.  Her evidence was that there was some discussion that you first presented as a 17 year old and then as a 19 year old.  CCTV footage from the bottle shop which you and E visited prior to the offending, underlying Charges 3 and 4 and then the McDonalds where you dropped the girls off, a gap of time of about fifteen minutes certainly does not reveal any particular signs of intoxication on the part of E.

21It was argued by counsel therefore that I should interpret the jury's verdict as being a rejection of your assertion that you believed on reasonable grounds that the girls were aged 16.  Certainly the requirement is that any belief that you have, if you are to assert the defence of a belief in age, is based on reasonable grounds and it would seem to be the case that it was open on the materials for a jury to bring back verdicts of guilty against you in relation to Charges 2 and 3, on the basis that you had no such reasonable grounds and were simply indifferent to the age of these girls.  That is, you had no particular belief at all.  In other words, that they simply did not accept your evidence of belief in age as a defence.

22It would seem in all the circumstances that the most appropriate way to interpret the jury's verdict in the circumstances of this case, even though the issue of consent became relevant once the defence of belief in age was raised, that there are grounds to find that the jury's verdict should be interpreted as a rejection of your defence of a belief in age, rather than a finding that E was too drunk to be capable of consenting and that you knew that.  I accept Ms Blair's submission in relation to that, having regard to the CCTV footage and the time constraints relating to it.

23I now turn to your personal circumstances.  You are now 22 years old.  You had no prior convictions at the time of this offending, but have since been convicted of some driving offences which the prosecution agrees are not relevant to the sentencing exercise before me. 

24You are the third of five children born to your parents, who immigrated to Australia as refugees from - sorry again, I am jumping away Ms Blair.  Was it Albania or Kosovo?

25MS BLAIR:  Yes he's Albanian from Kosovo.  So Kosovo I suppose.

26HER HONOUR:  Very well.  To your parents who are Albanian, but who emigrated from Kosovo where they were living to Australia as refugees in 1999, following the outbreak of the Balkan War.  There was quite some trauma surrounding their arrival in Australia.  An older brother, the twin of your older sister Lenora, was killed soon after his birth, according to the ethnic cleansing policies that were rife at the time.  Your defence counsel informed me that according to those policies, newborn babies born in Kosovo who were not of Serbian extraction were removed, the boys killed and the girls farmed out to families of the preferred ethnic origin to be raised and married in that preferred community.  Your counsel told me that your parents were fairly poor, were unable to find work in those years and largely grew their own food.  But they got what money they had together in order to pay to retrieve their daughter, however, her twin brother was killed.  Your family spent some time in camps before arriving in Australia when you were two, at which time your mother was pregnant with your younger twin brothers of whom Bart was one.  The family were initially housed by the Red Cross in Wodonga, but eventually moved to Dandenong where there was a large Albanian community.  You described to psychologist Simon Candlish, whose report dated 11 June 2019 was tendered on the plea, a stable and overall happy childhood, despite the trauma your parents had experienced.  They had previously been unable to work for some years because of the wars, as I have said and they have been largely unable to work since arriving here.  But you said you were always well provided for, both emotionally and physically.  You reported no particular problems at school, but in your teenage years were far more concerned with socialising with friends than school work and eventually dropped out at the beginning of Year 11, simply it would seem from a lack of interest.

27Psychometric testing by Mr Candlish did not reveal any intellectual cognitive difficulties.  Indeed, you appear to be of good average intelligence.  You began working from age 16, first as a furniture removalist, then began a bricklaying apprenticeship, which you discontinued at about the six month point which again you seem simply not to have been interested in.

28You undertook a pre-apprenticeship electrician's course at TAFE but did not complete it.  Again, the impression seems to be that you were simply immature and not ready or able to commit to long-term employment.  Three years ago, however, you began a tiling apprenticeship which employment you still hold, although the time you have had to take off work because of these legal proceedings has led to you being employed there on a casual basis.  You hope, however, to complete your apprenticeship and eventually work for yourself as a sub-contractor.  You have no problematic history with drugs or alcohol and no psychological illnesses were detected.

29Your family relocated in recent years to the western suburbs because of gang elements your brother Bart was associating with, resulting in his detention for a while in a Youth Justice Centre.  Your sister who has always been gainfully employed, who is clearly a proactive and law abiding person, had married and moved to that area where her husband has a successful handyman business and on occasion you work for him.  Your brother Bart appears now to have settled down.  You reside with your parents.  Your mother has developed diabetes and a depressive condition, undoubtedly rooted in her pervious trauma and your father is now her carer. 

30In his written reference, your father described your helpfulness around the house and described you, as did your sister at trial, as a loving, helpful and genial family member.  You told Mr Candlish that you were unaware of the underage status of females until your arrest and police told you.  You told
Mr Candlish that you thought this was a good law and that girls under 16 did deserve to be protected in that way.  You also recognised that B and E had it 'more tough' than you, because they were in the care of the state rather than their own families.  However, you continued to deny, as you did to the Community Corrections assessment officer that you were aware or careless of the fact of whether the girls were under 16.

31You were assessed by Mr Candlish, according to the RSVP assessment, as a low risk of reoffending.  Mr Candlish stated, 'Should he engage effectively in various interventions offered, he is likely to increase his risk manageability'.  Other testing by Mr Candlish revealed a number of strong protective factors in your case.  They are your strong attachment to your family, which is pro-social, your stable employment, your steady income and financial management 'to some extent', your positive attitudes towards authority 'to some extent', and your positive life goals.  He said that a pro-social and supportive social network was also clearly present in your life.

32I note that these circumstances described by Mr Candlish appear largely to have evolved, or come about, in the last three years resulting in a considerable added maturity, with the undertaking of steady and stable employment and which has also resulted in you being able to demonstrate commitment to employment and to long-term plans for yourself.  Your counsel told me you are very proud of your Albanian heritage.  You are attentive to Albanian customs and ceremonies and hope one day to marry an Albanian wife.

33As the eldest boy you also intend to live with and care for your parents, which is also an Albanian custom.  Importantly in my view, Mr Candlish wrote that you have had a number of sexual encounters in the past, mostly in nightclubs, stating:

'It would appear his offending represented an extension of his engagement in casual sexual activity'. 

34He continued:

'His social and emotional immaturity appeared to contribute to a lack of attention or concern for the age of the victim, or a disregard for any impact if he was in fact aware of her age at some stage'.

35He said that your own social and emotional underdevelopment appeared likely to lead to poor recognition of the vulnerability of your victim by virtue of her age.  Mr Candlish also wrote:

'Mr Montague has the support of his family and described having close friendships.  He does not have a history of prior offending or any signs of an anti-social orientation.  He appears highly capable of maintaining a stable and pro-social orientation, including the maintenance of employment and a positive lifestyle in general'.

36He said that you had good prospects of rehabilitation.  Again, these sorts of features described by Mr Candlish appeared very much to have developed in the past three years and in one sense this is not surprising.  In my view the ages between 19 and 22 can represent a considerable gaining of maturity in young men.  At the time of the offending, indeed you were unemployed and clearly emotionally immature.

37Mr Candlish does appear to have some concerns about you having future interaction with underaged females.  Overall, however, it seems to me that you would benefit in that respect, as was recommended by the Community Corrections assessment, in offence specific treatment such as a Sexual Offenders Program. 

38The prosecution position was that a combination disposition comprising an immediate term of imprisonment was within the range available for this offending.  Mr Stougiannos pointed out that you have shown no remorse for your offending.  You lied to police in your record of interview and told another story in the witness box.  He said your witness was young and vulnerable, albeit it would seem happy to meet up with you, in the terms discussed between her and Bart in the Facebook messages.

39He also pointed out the fact you and Bart simply abandoned the two girls and left them stranded.  It was my understanding from your evidence that you had no money and had promised to drive them somewhere which you could not afford to, petrol wise.  That is an explanation.  It is not an excuse for treating those girls in that way.  Your counsel submitted that you had matured greatly in the past three years, that you are still a young offender for the purposes of offending, you had no previous criminal history, no drug alcohol or mental health difficulties, you had strong protective social factors, all resulting in good prospects of rehabilitation.  She submitted that interruption of your employment and placement within the outline protective factors would be counterproductive, not just to you, but ultimately for the community as a whole.

40Despite the lack of remorse and ongoing belief that you should not have been convicted of these offences, I am impressed by the gains that you have made in the past three years.  Offending of this type is always serious, involving as it does, a sexual exploitation of a vulnerable young girl.  This was, however, I am satisfied, the work of an immature and heedless young man, who also took the view that if these girls appeared to be 'up for it', then so were you.

41I am satisfied, as I have said in the circumstances, that the verdicts of guilty brought back against you were on the basis that you simply did not make enquiries of age and had no reasonable grounds to believe they were 16 or older.  In those circumstances, it is my view that because of the factors I have outlined and which were enumerated by your counsel, a term of imprisonment, (and this is unusual, because ordinarily someone who is convicted of a charge of sexual penetration of a child under 16 can only ever expect a term of imprisonment), is not appropriate in your case.

42As I have said, this case differs to those where you have an older more mature person who is, more frankly, predatory.  You were certainly exploitative; I do not necessarily accept that you were predatory.  As I have said a number of times in these sentencing remarks, this whole sexual encounter smacks of immaturity on both sides.  That does not excuse you, because indeed you were the adult.  I say adult almost in inverted commas Mr Montague because really you behaved like a foolish teenager.  It was careless, it was irresponsible and it was extremely thoughtless.  You particularly covered yourself in dishonour in the way that you simply dumped those girls at the end of this incident.

43I do accept that you have good prospects for rehabilitation.  I do not find that you pose any particular threat to the community, but it is my view that you should undergo a Sex Offenders Program.  Had you been an older offender, had you been less obviously immature, I would have had no hesitation in gaoling you and I doubt that I would have considered a community corrections order at all, even in combination with a term of imprisonment.  In my view, a community corrections order adequately answers the principles of general deterrence which have particular importance in the sentencing exercise before me, as well as dealing with the other matters to which I have had regard.

44I therefore propose to place you on a community corrections order.  Now I can only do that with your consent.  Do you consent?

45OFFENDER:  Yes, yes.

46HER HONOUR:  Stand up please sir.  Before I place you on this order I have to explain what the conditions are.  The order will last for a period of two years.  Whilst on this order, you must not commit another offence by imprisonment.  That does not mean you have to commit an offence for which you are gaoled.  It means if you knock off grog from a bottle shop, theoretically you could be gaoled for that.  That will be a breach.  If you breach this order, I have got the power to re-sentence you on this offending and you will get gaol.  Do you understand?

47OFFENDER:  Yes.

48HER HONOUR:  All right.  Secondly, you must report to the Community Corrections Office within two working days of the making of this order, that is by Tuesday of next week.  Whilst on the order, you must report to and receive visits from the Community Corrections Office.  Whilst on the order, you may not leave Victoria without the permission of the Community Corrections officer.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol.

49You must report any change of address or employment within 48 hours of the making of this change and you must obey all the lawful directions of the Community Corrections Office.  I am going to order that you undertake 250 hours of unpaid community work.  There will be judicial monitoring.  What that means is, because I am going to be keeping an eye on you Mr Montague, every three months you will be coming back and I will get a report from Corrections to see how you go.  All right?  So I will be keeping an eye on that.

50You will be under supervision for the first six months of the order, which means they will be seeing you a fair bit and - actually no I will not order supervision.  I change my mind on that one.  You are also to undertake programs designed to reduce reoffending.  You have to undertake a Sex Offenders Program, all right?  You need to understand a bit more about sexual offending, Mr Montague and you need to understand the effects it has.  Now are you prepared to enter this order?

51OFFENDER:  Yes I am.

52HER HONOUR:  Good and do not make this mistake Mr Montague.  You sound like you are a bloke who has finally discovered what you want to do with life.  No doubt you work pretty hard and no doubt you are pretty keen to up that three to four days back to fulltime.  Is that right?

53OFFENDER:  Yep.

54HER HONOUR:  And then you want to set up your own business and I bet once you have set up your own business, you will work day and night at it, all right?  This community corrections order is the only thing keeping you out of gaol.  There is you, there is gaol, there is the community corrections order in the middle.  You may find it really annoying to have to report to the Community Corrections Office.  You may find it really annoying to have to go and do the sex offenders treatment and you may find it really annoying to do the community corrections at work, all right?  But if you do not do it, you will get breached.  You are just going to have to just take a deep breath.  If Corrections say jump, you say how high?

55I see blokes your age all the time, I put them on community corrections orders, off they go, you know and then beauty, I did not get gaol, everything is all right.  It is not all right.  You have obligations under this order.  They are going to annoy you, but you are going to have to meet them.  Am I really clear about that?

56OFFENDER:  Yep.  It's pretty much like invisible handcuffs.

57HER HONOUR:  Well done.  That is exactly what it is like.  Now I think you have reached a stage where you are going to turn into a very hard worker, you are going to get onto your life and do all those sorts of things.  Do not put work ahead of the community corrections order, all right?  It is the order that is keeping you out of gaol, not your work.

58OFFENDER:  No, I'll make sure I work on this before work.

59HER HONOUR:  Yes I mean look a bloke like you, if you are sensible, you will knock off those 250 hours as soon as you can and I bet you do too.  But the other thing is, you have to go to the Sex Offenders Program and you will not like it, in many ways, initially I reckon.  There will be other men there, people who you will regard as much worse offenders than you, those sorts of things and I know you have got your own view about what happened on this day.

60OFFENDER:  Yes.

61HER HONOUR:  Nevertheless, this is what you are stuck with.  Make sure you complete that, all right?

62OFFENDER:  Yep.

63HER HONOUR:  It can take a while.  I think it is an hour a week for a while, but you have to go to it and it is actually good for you, all right?

64OFFENDER:  Yep.

65HER HONOUR:  Thank you.  All right, have a seat, we will prepare the documentation.  When you go to the Sunshine Community Corrections Office and when you have got judicial monitoring, you do not have to come back to court, you just go to the Community Corrections Office and we will beam you in.

66OFFENDER:  All right.

67HER HONOUR:  All right?  Just to make it easier for you, all right?  Now is there anything else I need to attend to?

68MR STOUGIANNOS:  There is a disposal order that is sought, Your Honour.

69HER HONOUR:  All right.

70MR STOUGIANNOS:  There's been a copy filed of that order.

71HER HONOUR:  My associate's very good at filing these and I am very good at losing them.  I do not think we have got it.

72ASSOCIATE:  I can print it now.

73HER HONOUR:  We will print it now for you.  Anything else?

74MR STOUGIANNOS:  No, no Your Honour, that's the only matter.

75HER HONOUR:  All right.  Yes, I have - in relation to this offending and to your age, I have the discretion as to whether or not to place you on the Sex Offenders Register.  I am satisfied this is not necessary and I note that the prosecution do not disagree with this conclusion, so I am not placing you on the Sex Offenders Register.  Your first judicial monitoring will be at 9.30 on 31 October, all right?  So just go to - yes.

76OFFENDER:  Um, I was just asking ‑ ‑ ‑

77HER HONOUR:  Just stand up sir.

78OFFENDER:  I was just going to ask, for the stuff that I got, um confiscated for when my house got raided, is there a chance I can get that back anytime soon?

79HER HONOUR:  This is part of the disposal order.

80MS BLAIR:  It's not actually part of the disposal order, so it's something that my instructor will be able to negotiate with the police now that the matter's resolved.

81HER HONOUR:  Yes.

82MS BLAIR:  And I can talk to Mr Montague about that. 

83HER HONOUR:  That is all right.

84MS BLAIR:  This is some incidental - like there's I think a hairband, a condom wrapper and a few things like that that we don't want back.

85HER HONOUR:  I should also add - I will put this in the sentencing remarks to be noted that when you did have sexual intercourse with E, you did use a condom, which is also important.  Let us have a look.  All right, yes that is fine.  We will get you to sign that please Mr Montague.  Yes, so your solicitor will look after the items that were taken.  There you go.  Yes, thank you.  Good luck
Mr Montague.

86OFFENDER:  Thank you.

87HER HONOUR:  I am very glad your sister has been here throughout this.  I hope you will have something to say to your brother on the way home. 

88VOICE (from body of the court):  A long conversation, yep.

89HER HONOUR:  Pardon?

90VOICE:  There's going to be a long conversation, yes.

91HER HONOUR:  Excellent.  I am always very happy when young men have got older sisters.  It is very helpful to the aims of this court long term.  A lot more you are going to be able to say than I will, but he really needs to stick to that order and no matter what his view of what happened in court, it is really important that he sticks to it.

92I thank counsel very much for their assistance in this matter and we will adjourn to 9.30 Monday morning.  Thank you.

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