Director of Public Prosecutions v Nader

[2017] VCC 355

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00917

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH NADER

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2017
DATE OF SENTENCE:	3 April 2017
CASE MAY BE CITED AS:	DPP v Nader
MEDIUM NEUTRAL CITATION:	[2017] VCC 355

REASONS FOR SENTENCE

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Subject:  Trial – sentencing
Catchwords:              Sexual assault
Legislation Cited:     Sentencing Act 1991
Cases Cited:     
Sentence:                  Without conviction, 12-month adjourned undertaking

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim	Office of Public Prosecutions
For the Accused	Mr G. Steward	Tricarico Lawyers

HIS HONOUR:

1Joseph Nader, you have been found guilty by jury verdict of one charge of sexual assault.  This offence carries a maximum penalty of ten years' imprisonment. 

2You are currently 19 years of age, having been born on 9 July 1997, and you were just two days over your 18th birthday when you committed this offence on 11 July 2015. 

3You have no criminal record.

4The circumstances of your offending can be briefly stated as follows. 

5It had been your birthday shortly before the event occurred.  A party had been arranged for you at a community hall.  An older brother, who should have had the maturity to know better, had arranged for a young woman - a stripper - to attend for the entertainment of you and the guests.

6The majority of the guests were young people of both gender: friends of yours from school, and some of their friends as well.  In addition there were your relatives, including your parents and some of their friends of their age group.  The party began at about 7 pm.

7At about 10 pm you were called in from outside and placed on a chair.  You had not been told what was to occur.  The guests formed a semi-circle about you.  Behind you was a DJ.  The stripper came into the room and commenced speaking with the DJ, making arrangements for the playing of music to accompany her strip.  At this stage you had become aware she was about to commence a striptease act.  You have said that you had never seen a strip show before, and had never had one performed for you.

8There was some delay as the performer was speaking with the DJ, and you noticed the crowd growing disinterested.  You decided to excite things up a bit.  You turned to her as her back was towards you, and gave her one slap over her skirt, as you described it, on the cheek of her buttocks.

9You gave evidence at the trial that the slap was a “soft slap on the bum” with an open hand, and since she was paid to put on a show you did not think she would mind.

10The performer described the slap as “nasty” and that it “stung”, and that it was a “hard” slap.  She said it was skin-on-skin because, although she had a skirt on, it was a short skirt.  She was otherwise only wearing a G-string underneath. 

11There is no clear evidence that the victim suffered any particular injury beyond stinging pain.  The performer stated that there were slap marks left on her, and evidence was led of a photograph of a red mark on one of her buttock cheeks.

12Constable Givney gave evidence that the performer had reported to her that the slap was to her right buttock, but examination revealed a red welt with a hand-like print on her left buttock.  Further evidence was that the performer had performed three earlier shows that night, and that nobody had touched her bottom.

13There being no other apparent cause for the red welt on her left buttock, and that type of mark being so likely to have been produced by a recent slap by an open hand, I am satisfied beyond reasonable doubt that the performer simply got it wrong as to the description of which cheek had been slapped when she reported that aspect of the complaint to the initial police officer.  By that time any stinging pain would most likely have subsided, she was emotional and her attention would most likely have been concentrated on the other matters of her complaint at that time.

14I accept that the slap had been harder than you had described.  The performer's evidence was that following the slap, she had told you to "keep your hands to yourself". 

15As to personal background: you have no history of prior offending and you are a young man aged 19 now with a stable and responsible employment record.  Character testimonials and references have described you in very positive terms, including being quiet, responsible, honest, respectful, considerate of other people, reserved in character, peaceful in nature and respectful towards women.

16This act was, of course, entirely inappropriate, and was unexpected by the performer.  She was there to entertain you and the guests in the way in which she had been engaged and was entitled to be treated with dignity and respect.  Your act was committed in public and I have no doubt that it would have involved some humiliation to the performer.

17In mitigation, I accept that the offending was spontaneous, occurred in the context of you having just been placed in an entirely unexpected and unusual situation, and that you are otherwise of very good character and have no previous history of violent offending.

18I accept that the act was done without malice and with the naivety of wrongfully thinking that such an act would be perhaps in the spirit of the erotic and perhaps lewd and bawdy performance that was to follow.  I accept that it was out of character and committed at a time where your better judgment was disinhibited by your state of intoxication.

19Because of your age, your relative youth is also important.  I accept that your prospects of rehabilitation are high, and that you have suffered a significant period of stress and anxiety from the prospect of the criminal trial that you faced.

20The basic purposes for which a court may impose a sentence are punishment, deterrence (being both specific to you and general as to other like-minded individuals), rehabilitation, denunciation and the protection of the community.  In sentencing I must have regard to a range of matters, such as the seriousness of the offence and your culpability for it, your personal circumstances and those of the victim.  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 re-integrated into society.

21Your counsel submitted that in the circumstances, particularly as regards the issues of your employment and future life, the recording of a non-conviction would be open and should be applied.  The prosecution submitted that a conviction is still necessary in light of the nature of the act, and for matters principally of general deterrence.  That submission also appropriately reflects current community standards and expectations insofar as issues of violence to women is concerned.

22In my discretion as to whether or not you are sentenced with conviction, I must have regard to various matters, including ss.5 and 8 of the Sentencing Act 1991 and all the circumstances of the case, including the nature of the offence and your character and past history, and also the impact of the recording of a conviction on your economic or social wellbeing or on your employment prospects.

23Whilst in your case it remains unlikely as to whether or not the fact of a conviction is likely to directly affect your current employment, the impact of a conviction on any future employment and on your economic or social wellbeing has a wider context.  Various persons in authority having an interest in the record of a conviction include potential employers or insurers, financial institutions and various government departments, including the immigration department, not only of this country but of other countries, as to whether visas are provided or not.  The simple note of the record of a conviction does not provide details of the whole of the circumstances, and great unfairness can result in punishment for the offence beyond the sentencing purpose and intent. 

24In the current circumstances, taking into account all of those matters that I have mentioned, I intend to exercise my discretion not to record a conviction.  In my view an adjourned undertaking - otherwise known as a good behaviour bond - will appropriately reflect the sentencing considerations of denunciation, punishment and deterrence.

25Mr Nader, could you please now stand?  In fact, you may leave the dock and come down and stand beside your counsel.  Just stand a little closer to the microphone, because you will need to reply to me.

26On Charge 1, without conviction, you are released on an adjourned undertaking for a period of 12 months. 

27The undertaking starts today and goes for a period of 12 months from today.  The conditions of the undertaking are that:

-    you must be of good behaviour during the period of the undertaking; and

-    you must attend before the court if called upon to do so during the period of the adjournment. 

28Do you understand and agree to those conditions, Mr Nader?

29OFFENDER:  Yes.

30HIS HONOUR:  If your circumstances materially alter, or if it appears that you are no longer willing to comply with the conditions of the undertaking, then either you, the Director of Public Prosecutions or the police may apply for a variation or cancellation of the undertaking.  I recommend that you obtain legal advice if any such application is made.

31However, I must warn you that if you breach any condition of this undertaking, you will be brought back before me to be re-sentenced on the original charge, and also dealt with for any breach.  So, do you understand the consequences of breaching an adjourned undertaking?

32OFFENDER:  Yes I do.

33HIS HONOUR:  The typed undertaking can be provided to Mr Nader, and through you, Mr Steward, if he has read and understands the consequences and signs it, then I will countersign it.

34MR STEWARD:  Thank you. 

35HIS HONOUR:  All right, that has been completed.  Any other matters from other counsel?  No?  Thank you again gentlemen - adjourn the court.

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