Director of Public Prosecutions v Nicholls

[2010] VCC 1929

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -10-01095

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL STEWART NICHOLLS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2010
DATE OF SENTENCE:	9 December 2010
CASE MAY BE CITED AS:	DPP v Nicholls
MEDIUM NEUTRAL CITATION:	[2010] VCC 1929

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	Office of Public Prosecutions
For the Offender	Mr M. Gumbleton	Robert Stary Lawyers

HIS HONOUR:

1Michael Stewart Nicholls, you have pleaded guilty to one count of sexual penetration of a child under the age of 16 contrary to s.45(1) of the Crimes Act 1958, one count of indecent assault contrary to s.39(1) of the Crimes Act 1958, one count of causing serious injury recklessly contrary to s.17 of the Crimes Act 1958, one count of theft contrary so s.72 of the Crimes Act 1958 and one count of criminal damage contrary to s.197(1) of the Crimes Act 1958.

2By operation of s.242 of the Criminal Procedure Act 2009 you have also pleaded guilty to the related summary offence of contravening a Family Violence Intervention Order contrary to s.123(2) of the Family Violence Protection Act 2008.

3The circumstances of the offending were detailed in the prosecution opening which was tendered during the course of the plea.  In 1993 you met the complainant whilst you were both living in Emerald.  At that time you were 17 years of age and she was 13 years of age.  Shortly after meeting one another you commenced a relationship which developed into a sexual relationship.

4Between 1 January 1994 and 18 May 1996 you and the complainant had consensual sexual relations on four occasions.  The circumstances of those encounters are detailed in Schedule 1 attached to the Indictment in this matter.  On two occasions you penetrated the complainant’s vagina with your penis.  On one occasion you penetrated her mouth with your penis and you also penetrated her vagina with your finger.

5These acts constitute the facts relied upon by the prosecution in support of Count 1.  Count 1 is a rolled up count in which the four occasions of sexual penetration of the complainant by you are contained in the one count.  This procedure may only occur by agreement with the defence and only for the purposes of a plea of guilty.  It simplifies my task in sentencing you and works to your advantage as you are only to be sentenced in respect of one count.  Nevertheless it is incumbent upon me to take into account the fact that the count contains four instances of sexual penetration of the complainant and I have done so.

6In May 1996 at the instigation of her mother the complainant travelled to Scotland to live there with relatives.  You did not see her again 2008 after she had returned to Australia. 

7Upon her return to Australia you commenced a relationship with her that continued for approximately six months.  At that time you resided with her at premises located in Emerald.  Your relationship ceased, as I said, after approximately six months and you each went your separate ways and did not see one another again until the evening of 30 October 2009.

8On 30 October 2009 you were residing at premises located in Boronia, with Paul Hoffland.      On that day you and Mr Hoffland commenced drinking port from a two litre cask at lunch time.  According to Mr Hoffland, you consumed virtually all of the cask and at approximately 4.00 pm you were extremely intoxicated.  He stated that you left the house not saying where you were going. 

9At approximately 6.00 pm you arrived at the complainant's home in Emerald.  She described you as in a highly intoxicated state.  The two of you were talking and drinking wine and as the evening progressed you requested that the complainant kiss you.  At this time you kissed her on the neck after requesting that she have sex with you.  It is this act that constitutes the facts relied upon by the prosecution in support of Count 2.

10You were both highly intoxicated and altercation developed between you.  During the course of the altercation the complainant produced a knife and kneed you in the testicles.  In response you elbowed her in the face causing a serious injury to her constituted by bruising and a fractured cheekbone.  She also suffered injuries to her mouth.  It is this act performed by you that is relied upon in proof of Count 3.

11During the course of the altercation and immediately prior to you leaving the premises it would appear that you also stole the complainant’s purse and mobile phone.  This constitutes the facts relied upon by the prosecution in support of Count 4. 

12At approximately 9.45 pm investigating police attended at the premises in Emerald.  The police located you at the rear of the premises and placed you under arrest.  You were then conveyed to the Pakenham police station to be interviewed in relation to the incidents that had occurred at the house.  The police placed you in an interview room at the Pakenham police station and in those premises you kicked a steel roller door which was designed to protect a digital recording machine located in that room.   This act is relied upon by the prosecution in support of Count 5 on the Indictment.

13As a result of your offending investigating police successfully applied for a family violence intervention order to prevent you contacting the complainant.  In a series of telephone calls made by you from the Melbourne Assessment Prison to your mother, who was at that time residing in Fiji, you requested your mother to contact your ex-girlfriend, requesting that she, in turn, contact the complainant to ask her to drop the charges of rape that had been commenced against you.  It is this conduct that constitutes the related summary offence to which you have pleaded guilty.

14On 30 October 2009 you were charged and remanded in custody.  A number of bail applications were made on your behalf which were opposed by the Informant, Detective Senior Constable Mallia.  Detective Mallia also saw fit to appeal an order varying bail conditions that had been imposed on you to the Supreme Court of Victoria.  It is unclear to me why your release on bail was opposed having regard to the circumstances of your offending and the fact that your prior history is not significant.

15In any event you were released on bail at the conclusion of the committal proceedings on 21 June 2010.  You, at that time, had spent 234 days in custody.  You had never been imprisoned before.  Dr Mallia did not attend the proceedings before this court. 

16A comprehensive plea in mitigation was presented on your behalf by your counsel, Mr M Gumbleton.  You were born on 2 August 1976 and you are now 34 years of age.  You have an extensive criminal history and have admitted prior convictions in Victoria dating to 1994.  However the convictions are for relatively minor offences and I accept your counsel's submission that your convictions are a product of alcohol abuse by you since your early teens.  You do not have any significant prior convictions for offences of violence.

17I have received in evidence a report of Carla Lechner, a clinical and forensic psychologist who examined you on 16 September 2010.  The report details your family background and circumstances and Ms Lechner concludes that you have a longstanding alcohol and marijuana dependency condition.  She concluded that your earlier reliance on alcohol has significantly undermined your subsequent development and when intoxicated you had poor impulse control and judgment.

18She notes that you have been abstinent from alcohol and that has significantly undermined your subsequent development and when intoxicated you had poor impulse control and judgment.  She notes that you have been abstinent from alcohol since October 2009.  In Ms Lechner's opinion you require intensive ongoing community support in order to assist your rehabilitation from your alcohol addiction.

19I have also received in evidence a report from Anglicare Victoria, evidencing that you have undertaken alcohol dependence treatment with Alcoholic Anonymous and also with the Anglicare Greater Eastern Drug and Alcohol Service.  Your treating doctor, Dr Jay Cavanagh, has also provided a report to the court advising that you are currently taking medication to support your treatment for alcoholism.

20It is clear that you were highly intoxicated at the time of your offending and it is probable that the offending would not have occurred had you not been so intoxicated.  Moreover it would appear that the offending that took place between 1994 and 1996 also occurred in the context of alcohol abuse by you as a teenager. 

21

As I have noted you had pleaded guilty at the committal proceedings in this matter and I regard your plea as an early plea.  Whilst your offending has taken place in the context of a troubled relationship between yourself and

the complainant, I also accept that you are remorseful both for your offending when she was a young woman and the offences committed in October 2009. 

22Since your release from prison on bail you have been on onerous bail conditions and you have continued to reside in Boronia with Mr Hoffland.  You are in receipt of a Disability Support Pension as a result of physical injuries received by you in a motor vehicle accident in 2007.  You are also employed on a part time basis by Mr Michael Pershaval, the proprietor of Ace Pool Interiors assisting him with light labour and duties.

23I have also received in evidence a number of references from friends of yours who speak highly of you and all attest to the fact that you have recently endeavoured to rehabilitate yourself from alcohol addiction.  Whilst the offences of sexual penetration of a child under the age of 16, indecent assault and recklessly causing serious injury may properly be described as serious offences, in my opinion the balance of the offences that have been proceeded with against you do not fit that description.  In that regard the prosecution submitted during the course of the plea hearing that an immediate term of imprisonment was not required to be served in this case. 

24The maximum penalty for the offence of sexual penetration of a child under the age of 16 at the relevant time was ten years imprisonment.  The maximum penalty for the offence of indecent assault is ten years imprisonment.  The maximum penalty for the offence of recklessly causing serious injury is 15 years imprisonment.  The maximum penalty for the offence of theft is ten years imprisonment.  The maximum penalty for the offence of causing criminal damage is ten years imprisonment.  The maximum penalty for the related summary offence of breaching a Family Violence Intervention Order is two years imprisonment. 

25I have had regard to principles of general and specific deterrence and denunciation of your conduct.  I have also had regard to the contents of a Victim Impact Statement tendered on behalf of the complainant and a further Victim Impact Statement tendered on behalf of the complainant’s mother.  Any sentence I impose must deter like-minded persons from offending in this way and also deter you from re-offending.  It would appear from the material relied upon by your counsel that your prospects of rehabilitation are reasonable. 

26You are now aged 34 and it would appear that you have realised that you must now rehabilitate yourself from alcohol addiction.  Following the conclusion of the plea in mitigation I arranged for you to be assessed by a Community Corrections Officer as to your suitability to be placed on a Community Based Order.  I have received a report from a Community Corrections officer stating that you are suitable for such a disposition. 

27In the result the sentence of the court is as follows -

28On Count 1, you are convicted and sentenced to be imprisoned for seven months.  On counts 2, 3, 4 and 5 and the related summary offence you are convicted and sentenced to a Community Based Order for a period of two years on the following conditions.

29That you do not commit, whether inside or outside the state of Victoria during a period of the order another offence punishable on conviction by imprisonment.  That you report to the Ringwood Community Correctional Services Centre, 2 Bond Street, Ringwood, on Monday 13 December at 10.00 am. 

30That you report to and receive from a Community Corrections officer.  That you notify an officer the Ringwood Community Corrections Order of any change of address or employment within two working days of the change.  That you do not leave Victoria except with the permission of an officer at the Ringwood Community Corrections centre either generally or in relation to this particular case.  That you obey all lawful instructions and directions of Community Corrections officers.

31The Order is the subject of the following special conditions.  That you perform 100 hours on unpaid community work.  That you undertake assessment and treatment for drug and alcohol dependency as directed by a Community Corrections officer.  That you undertake assessment and treatment for psychological or psychological conditions as directed by a Community Corrections officer.   Finally that you participate in a Sex Offender's program as directed by a Community Corrections officer. 

32But for your plea of guilty I would have sentenced you to a term of imprisonment of two years with a minimum of 15 months.  I declare that you have served 234 days by way of pre-sentence detention. 

33I further order that pursuant to s.464ZFB(1) of the Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by the respondent, that is Mr Nicholls, on 31 October 2009 be retained for placement upon the database. My reasons for doing so are the seriousness of the circumstances for the offending and that the order is not opposed.

34I further order pursuant to s.78(1) of the Confiscation Act 1997 the forfeiture of the property referred to in the Schedule to this order. I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

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