Director of Public Prosecutions v Page (a pseudonym)

[2022] VCC 579

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUGO PAGE (A PSEUDONYM)

---

JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 July 2022, 30 September 2022, 11 October 2022, 13 April 2023
DATE OF SENTENCE:	13 April 2023
CASE MAY BE CITED AS:	DPP v Page (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 579

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence  

Catchwords:   Sexual Assault

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169

Sentence:  6-month Community Corrections Order

75 hours unpaid community work

No conviction

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr I. Gwynn	Doogue & George Criminal Lawyers

HER HONOUR:

1Hugo Page,[1] you have pleaded guilty to one charge of sexual assault.  The maximum penalty for this offence is 10 years’ imprisonment.

[1] A pseudonym.

2You were 20 years of age at the relevant time in 2018.  The victim in this matter was 18 years of age.

3The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows:

4You met the victim when you attended the same school in New South Wales.  In April 2018, the victim moved to Melbourne.  You contacted her, having also moved to Melbourne.  You began to see each other socially, then regularly, before you commenced a casual, sexual relationship.

5In June 2018, you and the victim identified as boyfriend and girlfriend.  You moved into the victim’s share house.  The residence was an open-plan warehouse, divided into different rooms by semi-permanent walls. 

6On the morning of 29 July 2018, you and the victim were asleep in bed.  The victim was naked.  You woke up and said, “I do so much for you.  I feel like you don’t give me anything back.”  The victim responded, “Whatever dude.  Just leave me alone.  Can we just leave it?  You made me feel empty and unlovable because you are always saying these things to me.  Fine.  Just let me go to sleep.”  You apologised.

7Shortly afterwards, you tried to initiate sex with her.  You put your hands on her body, vagina, and inner thigh.  You did this three or four times, and each time the victim removed your hand before you forcibly put it back.

8You started to kiss the victim’s face.  She told you, “Don’t kiss my face.  I feel really empty right now.”  You continued to touch the victim with your hands and tried to kiss her.

9You began to position your body on top of hers.  The victim looked straight up at you, and said, “I don’t want to have sex with you.”  You said, “I am just climbing on top of you to cuddle you”, which she accepted.

10You lay on top of the victim, with your back to the ceiling.  You then touched the victim’s vagina, and she started to cry.

11You touched her vagina for about three minutes.  The victim remembers staring at the ceiling and thinking, “Don’t feel it.  Just zone out until it is over.”

12You stopped touching the victim when you looked at her face and asked why she was crying. The victim rolled away from you and said, “I said no.”  She sobbed for a period of time, before eventually leaving the room and taking a long shower.  You left the residence at around that time.

13You returned the next day.  You asked the victim why she was sad, and she confronted you about what had happened the previous morning.  During this conversation, you and the victim broke up.

14In the following days, the victim refused to sleep in the same bed or bedroom with you.

15You both continued to reside in the share house and discussed the incident.  On one occasion, you said to the victim, “Yeah, but any time you wanted to have sex with me I could have just rolled over and started crying and labelled it like you did.”  She said, “Really?” and wrote your words on the walls of your shared bedroom with a permanent marker.

16Within a week of the offending, the victim told one of her housemates that you tried to initiate sexual contact when she did not feel like it.  You continued to try to initiate sexual contact, and she said, “No”.  The victim explained that you climbed on top of her and touched her vagina with your fingers. This continued, despite her crying. It eventually stopped when she was crying hysterically. 

17You and the victim exchanged SMS and Facebook messages, following the incident.  You sent a message to the victim on 1 August 2018, stating, “I made one mistake whilst I was trying to put you in a better mood.”

18On 2 August 2018, the victim overdosed on anti-depressants. You accompanied her to hospital. She informed the doctor that you had sexually assaulted her.

19You and the victim continued to exchange messages, discussing your offending. 

20On 13 August 2018, the victim attended the Melbourne East Police Station.  She enquired about removing her ex-partner from their share house as she was having problems with him. She said that her psychologist had encouraged her to report the matter to police.

21The victim told you she was at the police station.  You again exchanged a series of messages, including, “I am your rapist”, and, “I deserve jail”.

22Around two weeks later, you moved into a different room in the share house.  Your housemates observed that you and the victim were fighting, not talking, and not sleeping in the same room.

23At around this time, the victim told one housemate that you had done something that had really upset her, but she had not told anyone.  She said that you had been in the same bed and touched her vagina, despite being told to stop.

24The victim told another housemate that you were in your room and going to have sex, but she said no and you “carried on going”.  The housemate subsequently asked you what happened, and you told him the victim said “no”.  The housemate’s impression was that you believed you didn’t do anything wrong, because, “in [your] mind [you] didn’t know that [she] definitely didn’t want it.”

25On 25 February 2019, the victim provided a written statement to the police.  You were arrested and interviewed on 24 April 2019.  You told police that the victim was your girlfriend, that you had dated for a while and lived together.

26You were charged with one count of rape on 3 December 2019. You were released on bail and have not spent any time in custody. Your matter was listed for a contested committal.  This hearing was vacated as a result of the COVID‑19 pandemic.  The committal eventually proceeded, and on
4 March 2021, you were committed to stand trial.  The trial was listed to commence on 11 July 2022.  Several days prior to the hearing, the matter resolved, and you have now pleaded guilty to an updated indictment.

27I accept that your plea was entered at the earliest opportunity.  You were originally facing a far more serious offence.  Your guilty plea was immediately forthcoming when the lesser charge was agreed to be appropriate.  You are entitled to receive a substantial benefit for your guilty plea.  It has a highly significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence again.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.

28I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered during the pandemic.  Your plea of guilty demonstrates an acceptance of responsibility for your offending and is consistent with remorse.  There is no dispute that you immediately acknowledged your misconduct and that you consistently expressed your remorse in  messages to the victim.  I accept that your plea of guilty is consistent with remorse and will return to this aspect of the sentence later in these reasons.

29All sexual offences are crimes of violence that cause harm to the victims.  Any sexual activity that takes place without consent is wrong and must be denounced.

30Your relationship with the victim was initially casual, but soon developed. This was the first time you had lived with a romantic partner and your relationship included regular sexual activity. It is conceded that your offending represented a breach of trust within your relationship.

31I am told that your motive for offending was not for your own sexual gratification but rather, the desire to make the victim feel better.  You did not plan to commit this offence but took advantage of the opportunity when you were lying in bed together.  You completely disregarded the victim when she removed your hands from her body and told you not to kiss her.  You continued your sexual activity and touched the victim’s vagina for around three minutes before you realised that she was crying.  You then stopped.  You will be sentenced on the basis that your offending was the external touching of the victim’s vagina, without digital vaginal penetration. The victim did not consent.

32While the sexual activity was only brief, it has had a long lasting and substantial effect on the victim.

33In a victim impact statement, dated 28 September 2022, the victim writes that your conduct is the worst thing that anyone has ever done to her. She felt physically displaced within her own body after the offending occurred. Further, her “life was in complete emotional and financial disarray for months”.  It is clear that you betrayed her trust in you and that she is still stricken and repulsed by your misconduct. It has an ongoing impact that has continued to shape her life, as she does not enjoy her previous normality. She is now unable to trust people, particularly males. She has accessed professional assistance to overcome the residual effect of your offending.  She writes that your conduct, “has been a stain on my past that can never be completely removed.”

34Fortunately, the victim writes that she has now, “managed to find happiness and self-compassion amongst the pain and the shame.”  I hope that this path will continue, that she is able to put your conduct behind her and look forward to a positive future.  I take the victim impact statement into account.

35Immediately after the event, you acknowledged the betrayal of trust in your communication with the victim.  In the following weeks, you maintained your communication, in order to understand the impact of your conduct. The exchange of messages contained in the prosecution opening confirm that you acknowledged your conduct was wrong.  You said, “I hurt you.  I deserve to be shamed.” You showed considerable remorse, prior to the police becoming involved in this investigation. I am told that you continue to look back with a deep sense of shame and regret.  I accept that the remorse you have expressed is genuine and I am prepared to moderate your sentence to reflect that.

36Despite your offending, you maintained a strong desire to support the victim.  You were aware that she had previous metal health issues and when she overdosed on antidepressants, you attended the hospital with her.  You continued to communicate with each other until she moved out, around two months later.

37Apart from the incident that occurred on 29 July 2018, you have led an unblemished life. You have no criminal history, nor have you committed any subsequent offences.  You are entitled to call upon your good character in this case.  You do not suffer from any mental health disorder, nor have any antisocial personality traits.  You have maintained the support of a loving family. I am strongly influenced by the fact that it is almost five years since you committed this offence. You have reorganised your life and remained out of trouble.  I am satisfied that this incident was an aberration.  In light of these factors, I accept that your prospects for rehabilitation are excellent. 

38At the time of this incident, you were 20 years old. Your age is a relevant consideration.  You are to be sentenced as a young or youthful offender.  Despite the serious impact of your offence, the mitigating effect of your age and youth remains relevant when considering your prospects of rehabilitation.  In light of your age at the time of offending in the context of not having a criminal history, I consider that the principle of rehabilitation must strongly feature in the sentencing mix. 

39The delay in these proceedings is a highly relevant consideration.  You immediately acknowledged your offending conduct, although the matter was not reported to police until February 2019.  An investigation commenced, and you were interviewed two months later.  It took another eight months for you to be charged.  Issues related to the COVID-19 pandemic resulted in a substantial  interruption to court proceedings. You were not committed to stand trial until March 2021.  Your trial was eventually listed to commence in July 2022. 

40The significant delays associated with the pandemic had a real impact on fixing the ultimate hearing of this case, as it was not listed to proceed until four years after the incident occurred.  You were aware of the risk of incarceration, which was hanging over your head for a lengthy period.  I accept that you must have suffered considerable anxiety about the potential outcome of this case, which has been distressing and had a heavy burden on you. I take the delay into account. It weighs heavily in your favour.

41Regrettably, your case could have been dealt with in a more timely way in the Magistrates’ Court, had the matter resolved earlier to the current charge.

42As a direct result of your offending, you have been publicly shamed and vilified on social media. You endured being categorised as a “rapist” within your social and peer network, for over four years.  This has caused you to withdraw from social networks and activities, leaving you isolated from the community.  There is no dispute that you were condemned in the posts on social media, although the source of this information is unclear. The informant in this matter assisted you to have several social media posts taken down in 2020. The parties agree that this has resulted in a form of extra curial punishment, as it has exposed your alleged offending to the broader community.  I take that into account as a mitigating factor.

43I also take into account that you have been on bail for a lengthy period, with restrictions on your freedom of movement.

44I turn now to your personal circumstances.  You were born in April 1998, and you are now 25 years of age.  You have been involved in subsequent sexual relationships since this incident and are currently in a relationship.  You are a member of a loving and supportive family.  Your parents separated when you were around two years of age.  You were raised by your mother and had a very close relationship with her, until she died from cancer in 2021.  You maintain regular contact with your father, although it is a more distant relationship than with your mother. 

45You describe your early years in positive terms. Your history of development was unremarkable, although you were diagnosed with ADHD and treated with medication until the age of 18.  You have an older half-brother and an older sister, both of whom were present at the plea hearing. 

46You attended primary school in New South Wales.  Unfortunately, you were bullied by your peers which resulted in your being home-schooled.  You returned to secondary school in Coffs Harbour.  Your problems related to the bullying eventually ceased and you completed Year 12, achieving a highly creditable ATAR score.  You enjoyed your progression through senior school and excelled, becoming vice-captain of the school in Year 12. 

47You relocated to live in Melbourne and commenced a Bachelor of Science degree, majoring in physics at the University of Melbourne in 2018.  You are currently in the third year of your studies.  While your progress at university has been adversely affected by this prosecution, you hope to pursue post graduate study in the field of electrical engineering. 

48You have undertaken various forms of employment while you have been a student, working as a delivery driver, a soil tester and as a guitar repairer.  You now work part time, as a photographer for a real estate business. You have always enjoyed sport as well as being a talented musician, playing guitar in bands in the past.  You are keen to travel overseas when this case is finalised.  A bundle of references from your family and friends have been provided.  It is clear that they all support you; you are most fortunate in that regard.  The references that have been provided attest to your previous good character and to the fact that you have shown genuine remorse for your misconduct.  It is clear that your family and friends were shocked to learn of your conduct and your referees expressed their surprise at your offending behaviour. 

49In August 2022, you commenced psychological counselling with Ms Robyn Begg to deal with the reactive anxiety and depression that has plagued you since you were charged.  You agreed to participate in fortnightly therapy for as long as required.  You are described as having been consistent in your attendance, openness, and participation in therapeutic sessions. I am told that you feel you have benefitted from therapy and intend to continue.

50At the request of your solicitor, you participated in an assessment with Mr Patrick Newton, clinical and forensic psychologist.  He has provided a report, dated 13 September 2022. The content of his report was not challenged.

51You have a very limited history of engagement with mental health services, despite being treated for ADHD and being the subject of bullying in your early years at school.  You reported that you have suffered strong grief as a result of your mother’s death.  You expressed consistent regret and remorse for the offending.  You confirmed that you had tried to support and assist the victim to work through her feelings and the emotional impact of your conduct.  You expressed some anxiety and concern about the potential implications of this prosecution. 

52Mr Newton made the following findings.

·        You are an intelligent man.

·        You have developed good insight into the effects of your conduct upon the victim. 

·        You are diagnosed with an adjustment disorder with mixed anxiety and depression, being a reactive diagnosis to being charged and ruminating about your future. 

·        You remain an immature person for your age.

·        You do not suffer from a personality disorder.

·        You do not suffer from any form of sexual paraphilia or deviant behaviour. 

·        You are classified as a low to moderate risk of recidivism to further sexual offending.  With appropriate treatment and further maturation, it is anticipated that your level of risk would fall within the low-risk range.

·        Mr Newton noted that you are likely to undergo assessment for participation in a group sex offender program.  In light of your persisting immaturity and the absence of clear indications of psychosexual deviance, you would benefit more from the provision of individual counselling than from involvement in a standard group-based sex offender program.

53In his opinion, Mr Newton noted:

·        Your symptoms of anxiety and depression are focussed on your prosecution.  You meet a DSM-5 diagnostic criteria for an adjustment disorder with mixed anxiety and depression. 

·        It is recommended that you continue with counselling, to assist with the resolution of your emotional distress.

·        Your personality is still in the process of developing. Your experiences of harassment and ostracism as a younger person have resulted in your considerable social anxiety and uncertainty about your attractiveness and adequacy.

·        These features do not meet the criteria for a personality disorder, but are noted as prominent features of dependent and avoidant personality

·        You do not manifest antisocial or psychopathic traits.

·        You acknowledge that your understanding of consent has previously been limited.  With the benefit of discussion with the complainant and others, you now understand the requirements for consent.  Your insight into these matters has formed the basis for apparently genuine remorse. 

·        Overall, you are assessed as a low to moderate risk of sexual recidivism. 

·        Assuming you participate in appropriate treatment to address the risk factors, your overall risk of recidivism is expected to trend towards the low-risk range relatively quickly. 

54I accept Mr Newton’s unchallenged opinion regarding the most appropriate treatment to address your risk of reoffending. In light of that, your sentence was deferred for a period of six months, to engage privately in an appropriate Sex-Offender Treatment Program (SOTP). This has been funded at your own expense. 

55A report dated 6 April 2023 from your treating counsellor, provisional psychologist Mr Geoffrey Burrows, has been provided. You engaged productively in 10 sessions of consultation, which included the consolidation of your understanding of sexual consent. You demonstrated good insight into your offending conduct and made very good additional progress. You have also implemented a relapse prevention program. You have complied with treatment and completed the SOTP.

56Accordingly, I consider that you are now a low risk of reoffending.

57When considering the appropriate penalty in your case, the prosecution position is that a Community Correction Order would be within range of appropriate sentences.  Your counsel has submitted that an undertaking to be of good behaviour or a financial penalty would be a more appropriate disposition.

58I agree that a term of imprisonment is not required.  While I accept that your plea was entered at a very early stage, and that a significant Worboyes[2] discount is appropriate, in combination with all other matters in this case, I am not persuaded that an undertaking to be of good behaviour or a fine adequately reflects the objective gravity of your offending.  I am satisfied that it would be disproportionate to the nature and extent of your criminal conduct, particularly when considering the impact of your offending on the victim, which has been substantial. 

[2] Worboyes v The Queen [2021] VSCA 169.

59There is no dispute, however, that the objective gravity of your offending is at the lower end of the scale for matters of this kind.  I take into account the maximum penalty for this offence.  I have broadly considered the sentencing statistics, the current sentencing practices, and the cases to which I have been referred. I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct. 

60Balancing all of these factors as best I can and after careful consideration, I have eventually concluded that a limited corrections order is the appropriate disposition.

61You are sentenced, if you agree, to a six-month corrections order, with one condition that you perform 75 hours of unpaid community work. You are required to report to the Box Hill Community Corrections Centre within two days, to sign up for the order.

62When fixing the number of work hours, I take into account that you have already undergone substantial additional punishment: in particular, anxiety associated with the lengthy delay and the impact on you of the allegations becoming known on social media.

63Having regard to the criteria set out in s8 of the Sentencing Act,[3] including:

·the parties’ position, with which I agree, that the offence is at the lower end of the scale;

·your age;

·your previous good character, and;

·your future goals,

[3] Sentencing Act 1991 (Vic).

I have determined that no conviction will be recorded in this matter.

64Mr Page, do you agree to the imposition of the corrections order?

65OFFENDER:  Yes, Your Honour.

66HER HONOUR:  I need to advise you that if there is an issue with your compliance, you may be required to return to court. I am sure your counsel and solicitor will explain that to you. I will ask my associate to print out a copy of the order, and I will ask if you could step down from the dock and come and have a seat behind Mr Gwynn.

67Ms Ebsworth and Mr Gwynn can then have a word to you about the corrections order, before you sign it, if you agree to the order.  Thank you.  Mr Gwynn, I think six months is enough time to do the 75 hours given his employment and his university commitments?  If he needs further time I can extend it, but I think six months should be sufficient.

68MR GWYNN:  I hope so.  I know that Corrections have limits on how many hours they will allow someone to do a week.  I am not quite sure where that is at, at the moment.

69HER HONOUR:  If there is a problem bring it back, but I would have thought six months should be okay.

70

MR GWYNN:  Thank you, Your Honour.  That has been signed by

Mr Page, Your Honour.

71HER HONOUR:  Thank you.  Is the Box Hill Correctional Office still the appropriate office?

72MR GWYNN:  I would have thought so. 

73HER HONOUR:  So he has not moved since that assessment was done last year?

74MR GWYNN:  No.

75HER HONOUR:   I do not think it says on that document there that it was a corrections order without conviction and I do not want to sign it until that is clear.

76MR GWYNN:  Thank you, Your Honour, we are grateful for Your Honour's diligence.

77HER HONOUR:  What we will do is I will sign it and then I will give you both a copy. If either of you would like a copy of the sentencing remarks, we have a draft that is available.

78Ms Ebsworth, Mr Gwynn and Ms Pillai, can I thank you very much for your assistance.  This matter has been going on for a long time and I appreciate the level of commitment that you have both had to the running of this case.  Can I also thank Mr Page for his patience?

79I know that the delay of six months may have been difficult for you, but I think it was a beneficial part of the ultimate sentence, not just for you but also for the community.

80MS PILLAI:  Your Honour, just one final matter.  Would Your Honour be addressing s6AAA?

81HER HONOUR:  I do not need to, with the corrections order.  Thanks very much, I will leave the Bench.

- - -