Director of Public Prosecutions v Pace

[2019] VCC 1631

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00751

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON PACE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 25 March - 2 April 2019 Plea: 11 July 2019
DATE OF SENTENCE:	10 September 2019
CASE MAY BE CITED AS:	DPP v Pace
MEDIUM NEUTRAL CITATION:	[2019] VCC 1631

REASONS FOR SENTENCE
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Subject:  Abduct/detain for sexual purpose, sexual assault
Sentence:  One year imprisonment, community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss MacDougall
For the Accused	Mr P. Stefanovic

HIS HONOUR: 

1Simon Pace, you have been convicted after a trial of two charges. The first charge was that on 10 September 2017 you took away the victim, a woman, without her consent in circumstances where you knew that she did not consent to being taken away, with the intention that she take part in a sexual act with you. This is an offence contrary to s.47(1) of the Crimes Act 1958. The maximum penalty for this offence is imprisonment for 10 years.

2The second charge was a charge of sexual assault.  This offence also occurred on 10 September 2017.  In this charge it was alleged that you touched the same victim on her vagina, in a non-penetrative way without her consent and in circumstances where you did not reasonably believe she consented.  This is an offence contrary to s.40(1) of the same Act.  The maximum penalty for this offence is also imprisonment for 10 years.

3The jury found you not guilty on Charge 2, that was also a charge of sexual assault involving the same victim.  In that charge it was alleged that you touched the victim's breast.  The jury delivered its verdicts on 2 April 2019.  I remanded you in custody for plea and I ordered that a full pre-sentence report be prepared.  As at 11 July you had been in custody for 100 days pre- sentence detention.

4On the hearing of the plea, you also pleaded guilty to a related summary charge and you consented to me also sentencing you on that charge, which alleged that you intentionally took a photo of the victim's genital and anal region. You pleaded guilty to that charge which has a maximum sentence of imprisonment of two years. That summary charge was laid pursuant to s.41B of the Summary Offences Act 1966.

5Having regard to the way the prosecution put its case and having regard to the verdicts of the jury, your offending must be regarded as being very serious.  The victim was a woman aged 33 at the time of the offending.  At the time she was incapable of consenting to anything, because she was so affected by drugs and alcohol as to be incapable of consenting.

6On Saturday 9 September 2017 she socialised in the afternoon and early evening before going home at around 9 pm to fresh up before going out with her cousin.  Around 11.30 pm she arrived at the Alumbra nightclub in Docklands where she socialised with a group of women.  She had consumed several alcoholic drinks both before and after she arrived at the nightclub. 

7At around two to 3 am the following morning, she again went home and changed her clothes.  She also consumed some drugs.  She changed into black pants and a top, and flat shoes, and then she went to the Tramp nightclub in King Street to meet with friends.  She was heavily affected by the combination of illicit drugs and alcohol.  The victim danced at the Tramp nightclub where she consumed more alcohol and drugs. 

8The victim was asked to leave the nightclub and she can be seen on CCTV footage, tendered in evidence, leaving the nightclub around 8.10 am on Sunday morning, 10 September.  CCTV footage also shows the victim walking along King Street.  The victim passed out on the footpath.  Her only memory is of a man scooping her up off the ground and carrying her away.  A witness, Brodie Symonds, saw the victim collapse onto the ground in Flinders Lane on the east side of King Street.  He approached the victim to assist her, but you reached her first. 

9You were assisted in picking the victim up off the ground by another witness, Blake Meeney.  CCTV footage tendered in evidence, shows you being assisted by Symons and Meeney to put the victim into the back seat of your four-wheel drive Toyota vehicle.  The witnesses thought you were trying to do the right thing in getting the victim off the street, but you obviously had other ideas.

10Symonds gave evidence that he had said that an ambulance needed to be called to the victim, but you told him that you had already called an ambulance, at transcript 130.  In fact, no ambulance was ever called.  A short time after the victim was placed in the back seat of your vehicle you drove to a nearby car park.  CCTV footage shows you entering the car park.  You parked the vehicle against a wall in an upper level of the car park and at some point, placed cardboard posters that you had in the vehicle, against the windows.  Charge 1, taking away for a sexual purpose.

11The victim's next memory was of waking up in the back seat of your car.  She could not see out of the windows which by then had been covered by the placards.  She found herself sitting in your lap, and you had your arms around her shoulders to keep her upright.  You had obviously moved yourself into the back seat with the victim, having parked the vehicle.  You told the victim you had found her unsteady on the footpath and you had picked her up and taken her to your car.  You told her that you had been looking after her and that she was safe. 

12The victim noticed that her clothing had been disturbed.  The zip on her top was broken and her high- waisted pants were down around her hips and her shoes and socks had been removed.  She asked where they were, and you gave them to her.  You told her your name was Simon.  The victim asked for her handbag.  You told her that you had removed the contents of her bag whilst looking for her phone, which you noticed needed to be recharged, so you plugged it in to charge it. 

13Earlier you placed her phone on aeroplane mode.  You told the victim you did that so it would charge faster.  You gave the victim her mobile phone and when she looked at it, she noticed it was 10.30 on Sunday morning.  You told the victim she had vomited in the car and on her jumper, which you had removed from her, although there was no sign of vomit on the jumper or in the back of your vehicle.  Transcript 34.

14The victim composed herself and asked you to take her to her car, which you did.  You gave her your mobile phone number, which she added to her contacts.  The victim drove home with you following her part of the way.  When she arrived home she undressed, and she noticed that her underwear was twisted at the waist.  She gave evidence she then remembered that whilst in the car you had touched her breasts and genital area.  She remembered you having rubbed her vagina outside of her pants with one hand, whilst using the other to rub her breast over the outside of her top.  This evidence was uncharged and led as context evidence.

15The victim gave evidence she remembered you had then put your hand inside her top and touched her breast.  This constituted the allegation of sexual assault in Charge 2, upon which the jury returned a verdict of acquittal.  She also remembered that you had put one hand inside her underwear touching her vagina.  Charge 3.  She said and it was not challenged, she had not consented to any sexual activity with you.  In the hours that followed after the victim arrived home, you and she exchanged a number of SMS messages. 

16On the following Friday, 15 September 2017 the victim met a friend and explained to him what had occurred.  She was encouraged to make a complaint to the police, which she did.  On 20 September she made a statement to the police and provided them with the clothing she had been wearing.  A pretext phone call was made to you during which you admitted that the posters covering the windows of the car were so that no one could see inside the vehicle.  In this conversation, the victim asked you why you had been, 'Feeling her up?'.  And you admitted touching her over the top of her clothes.

17There was no issue in the trial that you had put the victim into the back of your car and that you took her to the upper floor of the car park and covered the windows with posters.  Your defence to the charges was that at the time that you put the victim into your car and took her away, your intention was to help her, given her obvious predicament and that you had no intention of taking her away for a sexual purpose.

18You denied the allegations in Charges 2 and 3.  The jury clearly did not accept your evidence.  By its verdicts, it was satisfied your purpose was to take the victim away for a sexual purpose and that you sexually assaulted her in the way alleged in Charge 3.

19DNA evidence was given in relation to testing of the G-string being worn by the victim.  Samples were taken from the hip region and rear waistband and from the inner front panel of the G-string.  A mixed DNA profile was found of which there were three contributors.  Statistical weighting resulted in the opinion being given that there was strong support for the proposition that you were a contributor to the DNA sample found on the G- string.  There was no DNA evidence relating to other garments.

20An analysis of your phone after it was seized by police, revealed a number of photographs taken by you with the victim in the vehicle.  The victim is depicted as passed out and asleep.  In two of the photographs, you are depicted with your head next to the head of your victim and with your left arm around her neck and your left hand dangling to an area approximately adjacent to her left breast.  Two of the photographs are of the victim's exposed bottom and G-string.  Those photographs could only have been taken by you, after having removed her pants well below her waist.

21The prosecution case was that from all of the evidence, a strong inference could be drawn by the jury that you put the victim into the back of your car - sorry - that when you put the victim into the back of your car, your intention was that you take her away for a sexual purpose.  In my view, that was a proper inference that could be readily drawn by the jury. 

22I am satisfied that your intention was to take the victim away to a place where you could perform sexual acts upon her.  Your actions in taking an unconscious and obviously vulnerable woman off the street for a sexual purpose, is obviously very serious offending and any sentence passed needs to properly reflect general deterrence and denunciation.  The same might be said for the sexual assault, the only redeeming feature of which, is there was no sexual penetration by you of the victim. 

23The summary charge is also a serious offence although in the circumstances here, the punishment must merge with the sentence imposed on the charge of taking the victim away for a sexual purpose.  Each of the offences that you have been convicted of, is a serious example of what are serious offences.  I admitted into evidence a victim impact statement from the victim.  She suffers from and is being treated for post-traumatic stress disorder and as a consequence, her level of ongoing anxiety is high.  She will likely never forget her experience at your hands.  This is perfectly understandable in the circumstances.  In passing sentence, I have taken the victim impact statement into account, as I must.

24Whilst you pleaded not guilty to the charges, except the summary charge as is your right, you cannot expect the reduction in sentence which normally would follow had you in fact pleaded guilty.  You have maintained your denial of offending and have no expressed remorse.  You are now aged 43.  At the time of this offending you were aged 41.  You have admitted a number of prior convictions from 10 previous court appearances between September 1994, aged 18 and August 2013, aged 37.  In fairness, none of those prior convictions are for sexual offending, they are for dishonesty and driving offences and for contravention of an intervention order in the context of a relationship breakdown. 

25In the past, you have received community-based dispositions and suspended sentences, each of which you have fully completed without reoffending.  Until I remanded you in custody, you had not before been sent to prison.  I was told of a subsequent conviction for low level drug trafficking that occurred post this offending, that resulted in your being placed on a community corrections order. 

26You have now been in custody for 161 days pre- sentence detention on these charges.  When I remanded you in custody, I ordered there be a full pre-sentence report prepared and that has now been received from Dr Albrecht, a forensic psychologist at Forensicare.  Her report is dated 17 May 2019.  She interviewed you for the purposes of preparing the report at the Metropolitan Remand Centre on 16 April 2019.  Dr Albrecht opined you showed no evidence of major mental illness or suicidal ideation or intent.  When you were a young boy aged about 14, you suffered a frontal lobe injury to the brain as a result of being struck by a car, which has left you with an acquired brain injury. 

27Dr Albrecht said you suffer from difficulties with short term memory, attention and finding the right words to convey your thoughts.  This was evident to me when you gave evidence.  Dr Albrecht thought you showed persistent effort with attempting to articulate your thoughts.  To Dr Albrecht, you denied some elements of the offences but acknowledged others, consistent with the way your defence was run at trial.  Dr Albrecht thought you did not have a good understanding of consent for sexual behaviour.  Dr Albrecht took a short background history from you.  You had a good family upbringing and your parents and partner were in court to support you throughout the trial.  You returned to live with your parents following the end of a long-term relationship with a woman, when you were in your mid to late 30s and your current partner moved in to live with you and your parents. 

28You told Dr Albrecht that academically you were considered quite bright prior to being injured in the car accident.  Your ability to attend to school work and your attendance at school declined considerably after that accident.  Your truancy increased and you began to engage in disruptive behaviour.  You left school at age 17 and spent a number of years unemployed.  You received a disability support pension.  Those years correspond with problematic alcohol use and early instances of offending.  From your early 20s you have had work in a range of roles as a labourer and in warehousing and hospitality.  Your longest time employed in one job was five years and your longest time without work six to 12 months, after the breakdown of your long-term relationship.  You told Dr Albrecht you will be able to return to your old job upon release.

29You were diagnosed ADHD in your late 30s and prescribed Concerta.  After your relationship broke down you turned to amphetamine use when you could no longer afford the prescribed medication.  In custody, you have reported lowered mood and difficulty sleeping, but despite your acquired brain injury from what I have read, you appear to have adjusted reasonably well to custody and you are using your time well. 

30You were twice before registered with Forensicare in 1997 and 2013.  You were diagnosed at those times with neurotic depression and adjustment disorder and stimulant related syndrome respectively.  There were provisional diagnoses at that time of bipolar, depression and adult ADHD.  During your teenage years you had a problem drinking alcohol to excess.  That has now resolved but in recent years you have been imbibing amphetamines.

31You have two adult daughters from a previous long- term relationship and an older, non-biological son whom you help raise.  You have been in a relationship with your current partner for about two years.  Dr Albrecht said you demonstrated a poor understanding of consent.  She said:

'He expressed that a person can consent to sexual interaction if they are intoxicated or substance affected, including when, "semi-conscious".  He however did grasp the concept of the inappropriateness of sexual contact in the absence of consent and I did not elicit any attitudes supporting deliberate violation of non-consent.  He identified that a person saying, "No", and/or pushing him away would indicate the absence of consent.  He acknowledges a sleeping or unconscious person cannot consent'.

32Dr Albrecht reported that there is no evidence to suggest medical or mental health concerns since Mr Pace's reception into custody on 2 April 2019.  Dr Albrecht carried out psychometric assessment of you.  She also thought there is definite past and recent evidence of major mental illness as defined by the RSVP, given your acquired brain injury and related sequalae, as well as sub-threshold difficulties with low mood.  She reported clear past and some recent evidence of problems with substance abuse.

33Having considered a number of matters and various tests, it was Dr Albrecht's assessment that you are a moderate risk of sexual reoffending.  Risk factors include your understanding of consent; poor awareness of your sexual needs and/or urges; the desire to help others which may place you in a high-risk situation; and a sexually poor coping in the context of relationship background or absence.  She added:

'It is unlikely that the future of offending would involve undue physical harm'.

34At paragraphs 45 to 47 inclusive of her report, Dr Albrecht reported as follows:

45 'Mr Pace has led a largely prosocial life with a focus on family development and support.  His early years were disrupted somewhat by an ABI which has had lasting impacts on his attention, memory, task completion, and thought articulation.  These difficulties may have contributed to his early justice system involvement, given increased difficulties with impulse control at the time and a disinterest in applied work due to his cognitive frustrations, but such involvement may have also related to his alcohol use and peer group.  Entering a relationship in his 20s and immediately assuming a father role, seemed to provide a stabilising function for him as he entered the workforce and gradually desisted from crime.  He found that he could self-manage his ABI- related difficulties with amphetamines and this did not appear to negatively impact his functioning, although he did trial various prescribed medications in an effort to legally manage his symptoms.  He found relief in his 30s, when treated for adult ADHD.  However, when his long-term relationship ended a few years later resulting in reduced child access, his mental state and functioning significantly declined.  He withdrew from his supports and work, struggled to pay for his prescribed medication, and so resumed self-medication and repeatedly breached intervention orders preventing contact with his children.  A general disposition towards prosocial behaviour, adaptive family contact and help seeking, seemed to help him return to adaptive functioning albeit with continued self-medication via illicit amphetamines'.

46 'Mr Pace's intimate relationship history suggests a strong family orientation and emphasis on emotional intimacy.  For him, sexual intimacy and satisfaction is closely tied to emotional connection, particularly in later adulthood.  He did not appear to have an overly elevated sex drive or deviant sexual interest.  His offending behaviour therefore seems quite at odds with his narrative.'

47 'Mr Pace's mental state appears to have been stable at the time of the offence, although his relationship status at the time is unclear.  It is therefore possible that his offending behaviour resulted from a combination of opportunity, sexual attraction and misguided ideas about consent.  The posters covering the car windows may suggest some preplanning however, we do not know if they were up prior to or following placing the victim in the car.  His offending was otherwise quite unsophisticated in giving the victim his contact details, saving photos of her and her driver's licence on his phone, engaging in this behaviour after witnesses could attest to him placing her in his car, and in acknowledging his behaviour during subsequent conversation with the victim.  This may relate to general deficits in consequential thinking and attention to detail but may also reflect his sense that he had not done anything wrong at the time.  Possibly influenced by his misunderstanding of consent.  His ability to understand social nuances and adapt his behaviour in response to interpersonal cues, as suggested by Dr Borg's assessment, may have also contributed.  Impulsivity can be an outcome of ABI.  However, there is no evidence of persisting difficulties with impulse control.  His increasing awareness of his behaviour as inappropriate and harmful likely conflicts with his internal self-concept as a help provider and family- oriented man.  It is a common response to deny less flattering internal experiences or behaviour in an effort to protect our self-concept, and/or to protect against uncomfortable emotions and we may interpret his denial of some elements of his offending in this light.  Positively, however, Mr Pace has acknowledged wrongdoing, at least in relation to his photo taking, and is willing to engage in intervention to prevent similar behaviour in the future'.

35I also admitted into evidence a neuropsychological report provided by Dr Linda Borg, a clinical neuropsychologist.  She assessed in February 2018.  Her report is directed to the effects upon you of the acquired brain injury.  Professor Andrew Carroll, a psychiatrist, confirmed a diagnosis of an acquired brain injury.  He was of the opinion, as was Dr Borg, that you do not meet diagnostic criteria for ADHD.  You did not display any symptoms suggestive of mental illness to Professor Carroll.

36Mr Stefanovic, who appeared as counsel at trial and on your plea submitted on your behalf that I should impose a combination sentence of imprisonment and a community corrections order.  He submitted that it is clear from the reports that you could benefit from such a disposition.  The prosecution submitted that I should impose a term of imprisonment and fix a non-parole period. 

37I accept the submissions made by your counsel as to disposition and I will impose a combination sentence.  I want to make it clear however, that I only do so because you suffer from an acquired brain injury and its sequelae, which in my view would make a lengthy term of imprisonment more onerous for you than for others.  Absent your acquired brain injury and its consequences for you, I would be fixing a longer term of imprisonment for this serious offending and fixing a non-parole period.  Mr Stefanovic relied upon a number of matters in making his submissions including your limited criminal history.  You have no prior sexual offending.  You are not at a high risk of sexual recidivism. 

38The fact you have sustained an acquired brain injury.  In relation to this, your counsel submitted this was connected to and the cause of the offending.  I do not accept that submission, but I must take that fact of your mental health generally into account, in deciding the kind of sentence that I should impose, and I have done so.  He also relied on your prospects for rehabilitation which I assess as being reasonably good and your demonstrated ability to comply successfully in the past with a community correction order and suspended sentences and with CISP bail obligations.

39Your counsel submitted that whereas in the past you have been a long-term drug user, you did not use amphetamines to such as extent that it affected your day to day living.  I received into evidence urine screen results which showed you tested negative to drugs whilst in custody.  In 2018 you successfully completed CISP bail and I received into evidence various progress reports verifying this. 

40I admitted into evidence eight references from your family and friends.  All speak highly of you and I have gained a distinct impression that your family is a big part of your life that will tend to direct you away from the lifestyle that you may see at risk of reoffending.  I have taken all of the references into account and I have taken into account the fact that I was told this morning, that your mother is not in good health.  It is significant, I think, that despite the nature of your offending your partner stands by you and still fully supports you.

41Whilst in custody you have done a number of courses and you have volunteered for work at the Melbourne Assessment Prison as a kitchen billet, serving food and cleaning the kitchen and general vacuuming.  At the Melbourne Remand Centre, you work in waste management.  You also do forklift driving, having been previously licensed to do so. 

42In sentencing you I have had regard to the seriousness of your offending, which I regard in all the circumstances as being of an opportunistic kind.  But having taken all of the evidence in relation to you into account, I am satisfied that in your case all of the purposes of sentencing, namely general and specific deterrence, denunciation, protection of the public, rehabilitation and just punishment can be met by the making of a combination sentence of a term of imprisonment and in addition, the making of a community correction order.  And that you have consented to the making of the order.

43On Charge 1, you are convicted and you are sentenced to a term of imprisonment of one year;

44On Charge 3, you are convicted and sentenced to a term of imprisonment of six months;

45On the summary Charge, you are convicted and sentenced to a term of imprisonment of one month.

46Each of these sentences imposed by me will be served concurrently.  I declare that has been 161 days pre-sentence detention already served under the sentences passed this day and I direct that 161 days be reckoned as having been already served be entered into the records of the court and be deducted administratively.

47On Charges 1 and 3, I also make a community corrections order with conviction for a period of two years to commence upon your release from custody.  There will be conditions of the community corrections order as follows:

48That you undergo treatment and rehabilitation for drug use;

49That you undergo treatment and rehabilitation for mental health;

50That you undergo treatment and rehabilitation programs to reduce reoffending, especially the Sex Offenders Program;

51That you undergo supervision; and

52That you undergo judicial monitoring by myself.

53I note that the prosecution does not seek your registration as a registerable offender under the provisions of the Sex Offenders Registration Act.  Accordingly, no order will be made.

54The prosecution seeks the making of a disposal order which was no opposed and I have signed it.

55Now, Mr Pace, the result of all that is that you have the remainder of a one-year sentence to serve.  You understand that?  And that when you have served one- year imprisonment, so on 2 April next year, you will be released back into the community subject to the conditions of a community corrections order.  You understand that?

56ACCUSED:  Yes, Your Honour.

57HIS HONOUR:  Now, you have completed community corrections order before and successfully, and you understand what those conditions mean, do you not?

58ACCUSED:  (Indistinct), Your Honour.

59HIS HONOUR:  you must not reoffend in any way for a period of two years whilst you are subject to this order.  You understand that?

60ACCUSED:  I do, Your Honour.

61HIS HONOUR:  If you do, you will be brought back by the Corrections Department before me and you will be breached, in which event I can resentence you.  Now, it is part of that order that you will be judicially monitored by me.  Do you understand?

62ACCUSED:  I do.

63HIS HONOUR:  And so if you step out of line in any way you will be brought back before me and dealt with.  Do you understand?

64ACCUSED:  I do, Your Honour.

65HIS HONOUR:  Now, I can only impose the community corrections order if you consent to me making it.  Do you do so?

66ACCUSED:  I consent, Your Honour.

67HIS HONOUR:  Thank you.  Are there any questions arising out of that, Miss McDougall or Mr Stefanovic?

68MISS MacDOUGALL:  No, Your Honour.

69MR STEFANOVIC:  No, Your Honour.

70HIS HONOUR:  Very well.  Could you have your client sign that, Mr ‑ ‑ ‑

71MR STEFANOVIC:  Yes, if I may?

72HIS HONOUR:  Yes, thank you.

73MISS MacDOUGALL:  Do you confirm that this is your signature, Mr Pace?

74HIS HONOUR:  I should say to you, Mr Pace also that you will have to report to Melbourne community Correctional Services within two days after being released.  You will probably be reminded about that in custody, but I just draw your attention to that.  Do you understand?

75ACCUSED:  I do.

76HIS HONOUR:  Very well.  Could you take Mr Pace back into custody please?

77Could I thank both counsel for your assistance with this matter throughout the trial and the plea.  Thank you.

78MR STEFANOVIC:  Thank you, Your Honour.

79MISS MacDOUGALL:  If it please the court.

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