Director of Public Prosecutions v O'Leary (a pseudonym)

[2016] VCC 1681

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB O’LEARY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	6 June 2016
CASE MAY BE CITED AS:	DPP v O’Leary (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1681

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr S. Moglia

Pages 1 - 12

 

 

1HIS HONOUR:  Jacob O’Leary[1], you were tried at Geelong in December last year on two charges of rape and one charge of indecent assault.  On 3 December, the jury acquitted you on the two charges of rape but convicted you on a single charge of indecent assault.  You come before the court with some prior criminal history, including a previous conviction for indecent assault.  The circumstances of this previous conviction are very similar to the alleged circumstances against you in this trial, in relation to the charge on which you were convicted; that being, Charge 2.  That previous charge was heard in the Magistrates' Court on 6 May 2013. 

[1] A pseudonym.

2The offence constituting Charge 2 on the indictment was committed in May 2013.  It follows that the offence was committed at a time either just before or just after that court case; that matter has caused me significant concerns. 

3Your criminal history demonstrates that when you were placed on a community corrections order, in relation to that prior incident of indecent assault, you were twice dealt with in the courts for having breached that order, by failing to comply with it.  On the first occasion, the order had been breached by failing to comply with the conditions. On the second occasion, the breach was due to reoffending; the re-offending was against the complainant Ms Swan[2]. In this case you assaulted the complainant and breached an intervention order.

[2] A pseudonym.

4In relation to the charge in which you have been convicted, the circumstances of your offending was set out in the prosecution opening. The matter is summarised as follows.  In April 2013, the complainant moved in with you.  You and the complainant had been friends for a period, prior to her moving in in to your home. During the period of time that you lived together, you did have a sexual relationship; however, there were occasions on which she had asked you not to touch her sexually when she was asleep.  It was her evidence that you had a tendency to do that.  On one occasion, in May 2013, the complainant was having an afternoon nap after she had finished work.  She was asleep on the lounge room floor, she had been watching television.  You were in the lounge room with her watching television when she fell asleep.  Sometime later, she woke to feel you licking and touching her on the outside of her clothing, in the area of her vagina.  She immediately got up and went into the kitchen. She heard you in the lounge room watching television.  This summary very briefly sets out the circumstances of the charge.

5A victim impact statement was tendered as Exhibit 1 and was read to the court.  It spoke, in some graphic detail, about your relationship with Ms Swan and the impact that had on her.  The victim impact statement refers to matters much broader than the circumstances that are set out in the charge. I put those matters to one side and do not take them into account as a part of the victim impact, pursuant to this particular offence.  However, I do accept that this offence, in itself, had a particular emotional and psychological impact upon the complainant; I do take that into account.

6A very carefully prepared plea in mitigation was delivered on your behalf by your counsel, Mr Moglia.  The offence in question was short lived in terms of its timing; it was a matter of seconds and you stopped the offending conduct immediately when Ms Swan got up; there was no persistence on your part, nor any threat, nor any attempt to continue; the gravity and impact of the offence are to be seen, it was submitted by Mr Moglia, in the context of the fact that at the time you were living together in an ongoing sexual relationship. Your relationship with the victim continued for some time after this offence.  I do take those circumstances into account. I accept that the relative gravity of your offending is at the lower end of the spectrum, in relation to this type of offending.

7I take into account your personal circumstances at the time, as summarised by Mr Moglia.  At the time of the offending, your lifestyle was significantly affected by drugs, cannabis and ice in particular.  It was submitted that they had an impact upon the way in which you were living and the way in which you acted.  Following a complaint to the police, in relation to a subsequent incident between you and Ms Swan, you were charged and there has been no ongoing contact between you and Ms Swan; apart from an incident in which you breached the intervention order against you.  As far as your background and previous personal circumstances are concerned, Mr Moglia tendered a bundle of references from family members and friends who have known you for many years.  They all say that you come from a good family; that you have been a hard worker; that you have been devoted to your own family, especially your young daughter, who is aged eight.  They talk about your remorse.  Ms Corke, in particular, speaks about you being "extremely remorseful" about these events and says that you are now determined to put the past behind you, wanting to move on with new friends and realistic goals. 

8I have been told that you have now moved away from Apollo Bay, where you were hanging around with unsavoury friends and using drugs. I was informed that you have moved back to Colac, where you came from, and where your family live; your mother and sister, as well as, other members of your extended family and friends.  You have re-engaged in sporting activities whilst being back in Colac; you are a talented sportsman.  You play with the local football team and cricket team and you are engaged in competitive wood-chopping. 

9Your sister today has given evidence and told me that you have re-engaged with decent people; that you are no longer hanging around with "druggies".  You are engaged in sport and are behaving yourself appropriately.  Your sister has given evidence consistent with what you told Ms Corke, that you have changed.  As Ms Corke has put it, you appear determined to put the past behind you and to move on.  You are living with her and her family;  you are conducting yourself properly; you are engaging in employment when you can; and, you are heavily involved in the local community through your sporting activities.  Only yesterday, you were engaged in a wood-chopping exhibition as a fund raising event, to raise funds for your football team.  This is a long way away from the conduct of a drug-affected sex offender. 

10As a result of the submissions that were made by Mr Moglia in March, I ordered a pre-sentence report for the purpose of having you assessed for a community corrections order.  The assessment sets out, in some detail, your personal history and background, which I will now summarise.  You were brought up in the Colac area.  Your parents separated when you were aged nine.  You were raised by your mother until the age of 17.  You have four siblings. You have contact with all of them and with your parents, and you have good relationships with all of your family. You attended a local primary school in Colac, and then the Colac Technical School.  You were only able to complete Year 10 because, as you told the Office of Corrections worker who assessed you, you struggled at school.  Your grades were low, you preferred hands-on tasks.  Since leaving school, for most of the time you have been able to engage yourself in employment.  Initially, you had your own lawn-mowing business.  You then worked at Woollen Mills in Colac; later, at a local abattoir in Colac. Over the years you were employed by a timber company, off and on, in the Otways, where you engaged in tree planting and collecting timber. After you moved to Apollo Bay, in 2008, you set up your own window cleaning business and you were able to keep yourself busy cleaning windows locally.  I am told that since moving back to Colac in recent times, you have been able to obtain employment with a bookselling business.  That is casual employment, but recently you have been offered a few weeks' full-time work. 

11You had a relationship with the mother of your eight-year-old daughter for about ten years. That relationship eventually broke down.  The mother of your daughter, in fact, gave evidence on your behalf during the course of the trial.  Although you have broken up, you have maintained an appropriate relationship with her.  She has the custody of your daughter and you have regular access to her, seeing her fortnightly. Your most recent relationship lasted for nine months and ended in October 2015.  Your sister, Ms O’Leary[3], has told me today that although that relationship has come to an end, you remain on good terms.

[3] A pseudonym

12I am told, and I accept, that you have ceased the use of ice.  Your sister has given evidence of what she observes of you physically, as well as, in your conduct.  She believes that you have given up using ice.  It seems that you are still struggling to put an end to your cannabis habit.  You must do that.  You will never be confident that you can stay out of trouble and move forward, which is what you want to do, until you have stopped smoking dope.  Even for someone like you, who might only use it occasionally, it has a cumulative effect and can cause people to become psychotic, or at the least to act in ways that are uncharacteristic.

13The assessment reports describe you as being at a moderate risk of general reoffending.  It suggests that, given your history in relation to the non-complJacobce with your previous community corrections order, that any order should have conditions requiring that you be strictly supervised, and that you undergo assessment and treatment for drugs; programs to reduce reoffending, including the sex offender program; and, it recommends that you be required to perform unpaid community work. 

14I have heard further submissions from the prosecutor in regards to whether or not you should serve some time in gaol, in addition to a community corrections order. I have serious concerns about that proposition.  He relies on the fact that you, amongst other facts, had a relevant prior offence; and, that offence was dealt with at about the time of this offending; and, that your persistent denial of the offending reflects poor insight on your part; and finally, he emphasises that you had been warned by the complainant not to engage in this sort of conduct.  Mr Moglia has urged in opposition; that I should not lock you up.  Mr Moglia made the following submissions:

i.His first point, which I think is a strong point, is it is now more than three years since you offended and, as I understand it, more than four years since the previous offence.  In the last three years, you have not committed any further sexual offence.  In fact, apart from the incident giving rise to the breach of the intervention order, there has been no further offending on your part;

ii.Secondly, he emphasises that to the contrary you have moved back to Colac and changed your life in the ways I have already summarised;

iii.Thirdly, he emphasises that this offending is at the low end of the spectrum and must be seen in the context of your life at the time;

iv.Finally, I take into account that, in the intervening period, you have actually been locked up for the first time in your life.  I infer that that must have had a salutary effect on you; that is, your sister did say that you have decided to change your ways. This is consistent with what Ms Corke already told me in the written reference that she had submitted.  I have got no doubt that gaol must have been a terrible experience for you, and that has added to your determination not to reoffend.

15By reason of a combination of the matters I have mentioned, I have decided not to impose a sentence of immediate imprisonment upon you, rather to impose a lengthy and onerous community corrections order.  That order is designed not only to achieve rehabilitation, but to punish you, in terms of its length and conditions.  This time, you will not only be supervised by Corrections, but I will also be imposing a judicial monitoring condition.  I am not going to let this order get away without you taking it seriously. If you breach this order, you will be brought back before me and you will be resentenced for this offence; in that circumstance, this would then involve, as it did last time, a period of immediate incarceration.  I am not threatening you, I am just giving you fair warning.  You understand that Mr O’Leary, do you not?

16OFFENDER:  Yes.

17All right, on the charge of indecent assault, you are convicted and sentenced to serve a community corrections order for a period of three years.  The first two years of that order will involve a period of intensive correction.  For the first two years of the order, you will be under supervision.  You will be required to perform 200 hours unpaid community work.  You will be required to undergo assessment and treatment in relation to drug addiction, and you will be required to be assessed for and to undertake programs to reduce reoffending; such as the sex offenders program.  For the first two years, you will be subject to judicial monitoring.  The judicial monitoring hearing will take place on 6 September at Ballarat. On that date, you will be required to attend and I will have a report from Corrections which will inform and update me of your progress.  I expect that report to tell me that you have strictly complied with all of the conditions; that you have already commenced and are undergoing community work; and, that you have undergone assessment and treatment for drug addiction; as well as, having complied with all the supervision requirements.

18I am obliged to inform you, as you have been previously warned, I know you will be listening more carefully today since you have since been to gaol, if you breach any condition of the order by failing to comply, you will be brought back before me. The conditions of the order include that you not reoffend for the full three year period commencing today.  Do you understand?

19OFFENDER:  Yes.

20HIS HONOUR:  If you reoffend in any way punishable by imprisonment, you will be brought back before me and liable to be resentenced.  In that sense, this matter hangs over your head for three years, as would have, once upon a time, a suspended sentence.  Further to that, if you fail to comply with any of the other conditions about attending for supervision, about informing Corrections of any change of address or change of employment, or leaving Victoria without permission, if you fail to comply with any of those conditions, you may be breached.  If you fail to attend for assessment or treatment or for any program, you may be breached.  If you fail to perform the community work or to attend for community work, you may be breached.  Any such breach may well result in me resentencing.  Do you understand all of that?

21Have a seat.  You may be released from the dock.  Come forward and just sit immediately behind Mr Moglia.  The order will be printed and you will be asked to sign it. 

22The Crown have informed me that this offence constitutes a Class 4 offence. It is discretionary under s.11 of the Sex Offenders Registration Act as to whether or not you are registered under that act. As a matter of law, I must engage in a reasoning process which involves two stages.

i.S.11 of the Act requires that I may only make an order that you be registered as a sex offender under the Act if I am first satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community; and,

ii.if I am satisfied that you do pose such a risk, I must then decide whether or not I should exercise the discretion, in light of a number of factors.

As to the first stage of the process, I am satisfied that you do pose a risk.  However, as to the second stage of the process, in my view, the magnitude and nature of that risk is at a relatively low level.  The gravity of the harm to potential victims, relatively speaking, when compared with what the order would involve, is at a relatively low level. I regard the likelihood of the risk eventuating as being low, given that you have one prior conviction for such offending and have not reoffended in any way in the last three years of a similar kind. Therefore, whilst there is a risk, it is a risk of relatively low magnitude, that is, causing relatively low harm; and, of a relatively low likelihood of eventuating.  Accordingly, when these considerations are balanced against the onerous nature of the reporting conditions, which include; you reporting for a period of eight years; and, having to report all sorts of details about your life; and, not being able to engage in activities involving children which would involve sports, coaching, attending your daughter's school fetes, helping out at school fetes, fund raising involving schools, and all conduct of a similar nature would be, if not prohibited, significantly impaired by placing you on the Sex Offenders Register.  The reporting conditions and the requirements under the Act are truly onerous and when I weigh them against the magnitude, gravity and likelihood of the risk, I determine that it is not appropriate for me to exercise that discretion.  I will not make an order placing you on the sex offenders register. 

23I will make an order under s.464ZF of the Crimes Act that you provide a buccal swab of your saliva for the purpose of your DNA being placed on the database. I make that order in light of the gravity of your offending and the fact that it was not opposed by your counsel. You will be required to attend at the local police station during a period of 28 days commencing 28 days from today. Do you understand? You wait a month and then wander along with the paperwork to the police station and tell them you have come along to provide the buccal swab. If when you attend you do not cooperate with the police, they may use reasonable force to obtain a blood sample.

24I will order that 100 hours of any rehabilitation program that you undergo may be credited against the community work.  Thank you.  I have to sign the order.

25All right and thank you gentlemen for your assistance,
Mr Bourke, Mr Moglia.

26MR MOGLIA:  As Your Honour pleases.

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