Director of Public Prosecutions v Papak

[2017] VCC 1880

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00963

DIRECTOR OF PUBLIC PROSECUTIONS

v

EUGENE PAPAK

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2017
CASE MAY BE CITED AS:	DPP v Papak
MEDIUM NEUTRAL CITATION:	[2017] VCC 1880

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

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr R. Gibson
For the Director of Public Prosecutions	Ms A. Hassan

Pages 1 - 8

 

 

HER HONOUR:

1Eugene Papak; you have pleaded guilty to one charge of sexual assault.  The maximum penalty for that offence is ten years' imprisonment.  The prosecution made application for the taking of a forensic sample from you.  The making of that order was not opposed.

2The circumstances of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  In brief, the circumstances are as follows.

3On 28 May 2016 you went to Goldfingers club in Lonsdale Street, Melbourne.  The complainant worked as an exotic dancer at the club.  She had done private dances for you before.  On this occasion she approached you and you engaged her for a private dance.  You went to a private room.  You paid $100 initially but kept the dance going, which cost you $600 or $700.  The complainant was naked during the dance.  You asked her twice if you could touch her vagina and she said "no".  She allowed you to touch her buttocks and thighs. 

4The complainant then bent forward, with you sitting behind her.  You groped her vagina with your fingers (Charge 1; sexual assault).  The complainant jumped away, said something to you, and left the room.  She became distressed and complained to the manager.  You re-attended the club on 30 July 2016 and were arrested.

5In sentencing you I have taken into account your personal circumstances.  You are now aged 34.  Your parents immigrated to Australia from Croatia and you grew up with them until your parents separated when you were a teenager.  From that time you lived at home with your mother and saw your father on weekends.  Your brother also lives with your mother.

6You had difficulties at school, although you did pass VCE, albeit with marks at the lower end.  You made some good friendships at school, but also experienced some bullying and teasing.  You later did a TAFE course in office management.  You are currently unemployed and in receipt of Newstart Allowance.  You have struggled to find work, although you have worked for brief periods in unskilled jobs in fast food restaurants.  You have no drug or alcohol issues.  I am told you rarely drink alcohol.

7You have never had an intimate relationship, although it is clearly something that you would like to have.  You wish to have both social and sexual contact with a female.  You have tried to meet women in nightclubs, and other places, but have not been able to form the relationship that you wish to have.  You have a longstanding diagnosis of bipolar affective disorder.  You have no prior criminal convictions.

8Two reports were tendered on your behalf.  A report from Associate Professor Andrew Carroll dated 15 March 2017 (Exhibit 3), and a neuropsychological report from Dr Karen Scally dated 5 May 2017 (Exhibit 4).  Professor Carroll confirms your bipolar affective disorder.  He says that appears to have responded well to mood stabilising medication, and you have been under the care of your general practitioner for many years without the requirement for any specialist support.

9Professor Carroll was of the view that your demeanour, and history generally, was suggestive of possible cognitive deficits, and he suggested that you should have a neuropsychological assessment.  Professor Carroll said there was no evidence of any disorders of sexual preference.  He also says that it is of concern that you gave an account of the relevant events which were quite different from those of the complainant.  I assume that this is in reference to you saying to Professor Carroll, according to his report, that the complainant had consented to you touching her in the way you did.  Professor Carroll says:

"Overall, I cannot confidently exclude the possibility that there is a significant risk of reoffending under similar circumstances".

10Professor Carroll strongly recommends that you be referred to a sex offender program.  Professor Carroll goes on to discuss the detrimental impact that imprisonment would be likely to have on you because of your bipolar affective disorder and your impaired social skills.  He is of the opinion that there would be a high risk of deterioration in your mental health if you were imprisoned, and that your mental illness would mean that you would find imprisonment more onerous than a person would without such an illness.

11Dr Scally, in her neuropsychological report, says that your neurological profile was "largely uninterpretable due to concerns regarding sub-optimal effort". 
Dr Scally was, however, able to form the opinion that you do not suffer from an intellectual developmental disorder.  She says that, however, there is a clear history of significant developmental delays in specific areas of motor skills and language.  She says these areas of deficit continue to contribute significantly to your reduced social and occupational functioning.  She recommends that you be further assessed by a forensic speech pathologist.

12Dr Scally says you have demonstrated limited insight into your offending, and she also recommends that you be referred to a sex offender program for risk assessment and treatment.  Dr Scally suggests that it would be preferable for you to receive individual treatment rather than group based treatment because of your language difficulties.  Essentially Dr Scally agrees with the opinion of Professor Carroll as to the potential impact of imprisonment on you because of your mental health and deficits in communication and social skills.

13Your counsel - in defence submissions in written form - submitted that the appropriate sentence would be a fine or a community correction order.  Ultimately the plea concentrated on a community correction order being the appropriate disposition.  Your counsel particularly relied on the circumstances of the offending and there having been what was described as a "fleeting" incident in respect of the touching.  Your counsel also addressed the context of the offending, and particularly your situation of socialisation and wish to form a relationship with a female.  Your counsel submitted that your bipolar affective disorder would make imprisonment more difficult for you, and should also reduce the application of general deterrence.  Your counsel relied in mitigation also on your plea of guilty.  Your counsel advised that you had made an offer to plead guilty to the current charge prior to the contested committal.  That offer had been initially rejected, but was revived by prosecution after the committal.

14The prosecutor, in sentencing submissions, addressed various matters and submitted that a community correction order was within range and was appropriate, given your limited insight.

15Eugene Papak; touching a person in the area of their private parts without permission is a serious offence.  The complainant said "no", and you should have complied with that.  The complainant was working and was entitled to set the rules for the work she did.  You crossed a boundary without permission and that clearly distressed her.  It is very important that you, and others, understand that you must not take advantage of such a situation to touch a person in an intimate area without permission.  I am of the view that your bipolar affective disorder and developmental delay do mean that there is reduced suitably of you as a vehicle for general deterrence. 

16I consider that you have reasonable prospects of rehabilitation.  You have no prior criminal history, but there are concerning aspects in the reports.  Both recommend that you undergo the sex offender treatment program.  It does seem, from what you told those writing the reports, that you have trouble grasping what it was that you did wrong, and why you might have done it.  It is clear that you want an intimate relationship and had become somewhat frustrated at being unable to achieve that.  Given your developmental delays it may have taken you to the relatively mature age of 34 to start acting on those frustrations.  That is a situation which, in view of the matters in the reports, gives rise to concerns in relation to re-offending.  It is very important that you do the sex offender treatment program,and that you understand that you must work out strategies to make sure that you do not do anything like this again.  If you want relationships with females then you must understand that when a female - or a male, for that matter - says "no", that is what it means, and you must respect that.

17A community correction order, in my view, would be an appropriate sentence, as it would require you to undergo the sex offenders treatment program.  It would also provide for appropriate just punishment and specific deterrence, with some, although reduced weight, given to general deterrence.  I should perhaps add, of course, that if there had been a charge involving penetration then the sentence would have been considerably more serious than that.

18You have been assessed as suitable for a community correction order.  I am going to explain to you the conditions of the order that I propose and then ask you whether you consent to that order.  What I propose to sentence you to is to a community correction order of 15 months with conviction.  You would be required to do 100 hours of community work, be under the supervision of Community Corrections officers and undergo programs to reduce reoffending as part of a treatment and rehabilitation condition.

19I understand that the core conditions have been explained to you.  You have had explained to you the conditions such as you cannot leave Victoria without permission, and those sorts of conditions.  It is very important that you understand that there is a condition that you not commit any offence during the next 15 months.  If you do commit any offence which breaches the order, or if you do not do what the Corrections people tell you to do, then you can be brought back before the court on a breach and re-sentenced.  Do you understand that

20ACCUSED:  Yes, I do understand, Your Honour.  Yeah.

21HER HONOUR:  Do you consent to that order?

22ACCUSED:  Ah, yes, Your Honour, I - I do consent to the order.

23HER HONOUR:  Thank you.  I have also decided, after some thinking, to make an order for the taking of a forensic sample from you.  I am making that order because of the seriousness of the circumstances, and that it was not opposed.  I did give this considerable thought, but I have decided that because of the possible future risk of future offending in similar circumstances it would be appropriate to make that order.

24I am required to tell you that you will need to go to a police station.  Mr Gibson will explain to you what it means, and I have got a piece of paper that I have signed about it.  The police at the police station will take a saliva swab from your mouth.  You are required to co-operate with them.  I am sure you will co-operate, but I have to tell you that if you do not co-operate they are entitled to use reasonable force, and to take a blood test instead of a saliva swab.

25ACCUSED:  Yeah.

26I should add, Mr Papak, that I have given you a significant discount in sentence because of your plea of guilty.  I did take that into account.  I will make a s.6AAA declaration, because it makes it clearer.

27But for your plea of guilty I would have sentenced you to a term of imprisonment of 15 months with a non-parole period of nine months.

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