Director of Public Prosecutions v Parker-White (a pseudonym)

[2024] VCC 1798

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH PARKER-WHITE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2024
DATE OF SENTENCE:	11 November 2024
CASE MAY BE CITED AS:	DPP v Parker-White (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1798

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sexual assault – Guilty verdict following trial – Low-level objective gravity – Considerable moral culpability – Previous good character – No conviction

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Cheung v The Queen (2001) 209 CLR 1

Sentence:                  Without Conviction – 12 Month Adjourned Undertaking

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A McKenry	Office of Public Prosecutions
For the Accused	Ms E McKinnon	MCD Lawyers

HIS HONOUR:

1Joseph Parker-White[1], on 5 October 2022, after a trial presided over by his Honour Judge Dyer, a jury of twelve found you guilty of one charge of sexual assault.[2] The jury was unable to reach a verdict in relation to two further charges of rape.

[1] A pseudonym.

[2] Crimes Act 1958 (Vic).

2At a trial presided over by his Honour Judge Mullaly, and held in September 2023, a second jury was also unable to reach a verdict in relation to the two rape charges.

3A third trial proceeded before me in July 2024. The jury was again unable to reach a verdict on the two rape charges.

4On 19 August 2024, the Director of Public Prosecutions filed a Notice of Discontinuance in respect of the two outstanding charges of rape.

5With Judge Dyer having retired, it is now my task to sentence you in respect of the sexual assault charge.

6The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced;  the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[3]

[3] Cheung v The Queen (2001) 209 CLR 1, 19 [38].

7The evidence before the jury at your third trial was identical to that presented at your earlier trials, as the evidence at your first trial was recorded. In other words, I heard the evidence that Judge Dyer heard.

8The facts relevant to this sentencing task are as follows.

9You were born in 1997. In 2016 you commenced an intimate relationship with Alison Rowe[4] who is the victim of your offending. Ms Rowe was born in 1997.

[4] A pseudonym.

10The relationship ended by mutual agreement on 22 April 2018. You remained friends.

11On 27 April 2018, the two of you socialised with mutual friends, first attending a party at Doreen and then returning to your family home in Eltham with a friend.

12At your house, the three of you consumed alcohol with Ms Rowe becoming quite intoxicated. Ms Rowe fell asleep while watching television before you woke her up so that she could go to bed.

13The two of you agreed that Ms Rowe would sleep in your sister’s bedroom as your sister was not home.

14However, Ms Rowe went to sleep in your room. She told the jury that this was ‘out of habit’. She was wearing tracksuit pants over her underpants as well as a t-shirt.

15In the meantime, you and your friend left the house to get some food. When you returned you watched television before you went to bed.

16Upon seeing Ms Rowe in your bed, you entered the bed beside her. You did not go to bed in your sister’s room, nor did you wake Ms Rowe up and ask her why she was in your bed.

17Rather, you got into the bed beside her. You did not go to sleep but placed your hand under her top and squeezed her breast. It was this conduct that constituted a sexual assault of Ms Rowe as she was asleep at the time. You then twice penetrated Ms Rowe’s vagina – once with your finger and once with your penis. You faced two charges of rape. As noted, three juries were unable to reach verdicts in respect of these two more serious charges. The Director of Public Prosecutions having filed a notice of discontinuance in respect of the rape charges, you are now to be sentenced in relation to the sexual assault. I have had no regard to your conduct after the assault.

18In the morning there was no discussion between the two of you about the events of the previous night.

19You drove Ms Rowe home at lunchtime on 28 April 2018 and later sent her a Facebook message checking if she was okay. She replied that she was and then ignored your further messages.

20On 21 December 2018, as part of the police investigation, Ms Rowe initiated a pretext call with you. During the call, you acknowledged that you had hurt Ms Rowe and apologised to her. You repeated this apology on 27 December 2018 during a recorded police interview.

21You were charged on 22 April 2019. There was a contested committal hearing in November 2019 and an initial directions hearing later that same month.

22There was a number of pre-trial hearings and adjournments caused by the pandemic. Eventually, the matter came on for trial before His Honour Judge Dyer on 27 September 2022. That jury found you guilty of one charge of sexual assault but was unable to reach verdicts on the rape charges. As noted the juries in two further trials were unable to reach verdicts.

Objective gravity and victim impact

23All sexual assaults are serious. This is reflected by the maximum penalty of imprisonment for 10 years.

24When considered against the range of sexual assaults, especially those prosecuted in this court, yours is undoubtedly a low level example of this serious crime.

25That categorisation is not intended to diminish in any way the impact of your offending on Ms Rowe. In her victim impact statement, she explains that your offending has impacted many aspects of her life. Ms Rowe states that she is now uncomfortable being alone with males and she has feelings of worthlessness.[5]

[5] Exhibit P1,Victim Impact Statement of [Alison Rowe] dated 10 September 2023, 2.

26Ms Rowe had every reason to trust you. You treated her disrespectfully. You took advantage of her drunkenness and that she was asleep. Your moral culpability is considerable.

27While the sentencing hearing and these reasons necessarily discuss the impact of the three trials on you, it must not be forgotten that Ms Rowe has also had to live through the three trials as the victim of your crime.

Personal Circumstances

28You are one of three boys born to Sue Parker[6] and Roger White[7]. Your father left your mother in 2001, leaving your mother to care for three young boys. Your mother re-partnered, and with this partner had another daughter in 2005.

[6] A pseudonym.

[7] A pseudonym.

29Your childhood was happy and generally unremarkable.

30You have the strong support of your mother who was in court throughout your trial and gave evidence on your behalf. Mrs Parker’s support has continued during the sentencing hearing. In an eloquent letter dated 27 October 2024,[8] your mother explains the toll the court proceedings have taken on you. Mrs Parker states that you are ‘in hindsight’ very remorseful and you wish you can change what you did.

[8] Exhibit D4, Letter from [Sue Parker].

31You are very fortunate to have the loving support of your mother. Many young men who appear in his court do not. I have taken this support into account in assessing your prospects of rehabilitation and in determining the appropriate sentence to impose.

32In 2015 you commenced a plumbing apprenticeship which you did not complete. You have worked various jobs since that time and in 2018 commenced your own business. More recently you have worked as a Floor Installer.

33Your counsel informed the court that you intend to take up an employment opportunity interstate in the near future.

Mental Health

34Your lawyers arranged for you to be assessed by Dr Mathew Barth, a forensic psychologist who specialises in sexual offending. Dr Barth spent two hours with you on 23 September 2024 and his report dated 21 October 2024 is before the court.[9]

[9] Exhibit D3 (‘Barth Report’).

35You told Dr Barth that you often felt unwanted by Ms Rowe during your relationship and felt disillusioned by the lack of intimacy. Dr Barth asked you about the offending and he reports that ‘consistent with his position at trial, Mr Parker-White maintained that his sexual behaviour with [Ms Rowe] on the night of the offending was consensual’.[10] This is concerning and demonstrates a lack of remorse for the offending of which you have been found guilty. It is difficult to reconcile this with what you mother says. 

[10] Ibid, [28].

36Dr Barth was unable to diagnose any psychological disorder either at the time of your offending or now.

37Although he was unable to detect any psychosexual pathology, Dr Barth concluded that you demonstrated ‘a rather immature approach to relationships’ which has led to a superficial understanding of mature adult intimacy.

38More concerningly, Dr Barth opines that the main issue which underpinned your offending was your ‘limited understanding of appropriate interpersonal boundaries’ with Ms Rowe.[11]

[11] Ibid, [35].

39Based on this assessment of you, Dr Barth concludes that you would ‘benefit from treatment which focusses on improving [your] ability to sustain healthy intimacy, psychoeducation regarding appropriate sexual boundaries and developing solid behavioural skills to prevent any relapse into unhealthy sexual behaviour’.[12] I will return to this topic later in these reasons.

[12] Ibid, [35].

40As far as the risk of you offending in future is concerned, Dr Barth administered both the Static-99R and the RSVP-V2 tests. Dr Barth assesses you as a low-moderate risk of sexual recidivism on both tests. In relation to the first test, this is based on your age, your relationship history and offence circumstances.[13] In relation to the second test, it is based on your denial of offending and poor insight and difficulties sustaining healthy intimacy.[14]

[13] Ibid, [37].

[14] Ibid, [39].

41Dr Barth is of the view that your future offending risk would be reduced further if you are able to participate in sex-offender treatment.[15]

[15] Ibid, [41].

42Finally, Dr Barth recommends that treatment should focus on helping you to gain insight into the factors which motivated your offending and about maintaining appropriate personal boundaries with women at all times. He opines that, provided you participate actively in the treatment ‘there are a number of factors which suggest that a degree of optimism regarding [your] long term prospects is warranted’. These include strong family support, stable accommodation and absence of psychological disorders. These bode well for your ultimate rehabilitative prospects in the community, according to Dr Barth.[16]

[16] Ibid, [44].

Submissions of the Parties

43It was common ground at the hearing of your plea that it is highly desirable that you participate in the sex-offender treatment as recommended by Dr Barth. However, the parties disagreed about the most appropriate court order to achieve this outcome.

44The prosecution submitted that you should be placed on a Community Correction Order with a condition that you complete the treatment.

45Your counsel submitted that it is inappropriate to place you on such an Order. Ms McKinnon referred to the lengthy period during which you have been involved with the justice system which commenced with the charges being filed in April of 2019. You have been through three lengthy jury trials.

46Ms McKinnon made the point that the five and a half years coincide with a large proportion of your adult life. You have been on bail throughout the entire period. She submitted that a further period on a CCO would be a further significant limitation on your liberty that is not necessary.

47Ms McKinnon ultimately submitted that your participation in treatment could be made a condition of an adjourned undertaking pursuant to section 75 of the Sentencing Act 1991 (Vic) (‘Sentencing Act’).

48Neither party submitted that you should be convicted. I accept, having regard to section 8 of the Sentencing Act that no conviction should be recorded. You have no previous criminal history, and no subsequent offending.

49Ms McKinnon submitted that a colleague of Dr Barth’s, Mr Geoff Burrows, was qualified and available to provide the treatment to you as recommended. I am familiar with the work of Mr Burrows. He is a well-respected practitioner in the field of sex offender treatment programs.

50At the conclusion of your plea hearing, I requested Ms McKinnon to provide the court with a proposal from Mr Burrows addressing:

(a)   The number of sessions you require; and

(b)   Given that you will be working interstate, whether the treatment you require could be adequately provided remotely.

51On 31 October 2024, your lawyers forwarded to the court an email from Mr Burrows which states that given your treatment needs, he would expect you to require approximately eight to ten sessions and that such sessions could ‘be conducted effectively either in-person or remotely’.[17]

[17] Email to court dated 31 October 2024 from Mark Martoccia of Melbourne Criminal Defence.

Consideration

52The principal purposes to be achieved in sentencing you are general deterrence, just punishment and the promotion of your rehabilitation. Your age makes the last purpose particularly important.

53I accept Ms McKinnon’s submission that specific deterrence has largely been achieved by your protracted experience of the court system.

54Section 5(3) of the Sentencing Act provides that ‘a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed’.

55Section 75 of the Sentencing Act relevantly provides:

(1)     A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceeding for a period of up to 60 months and release the offender on the offender giving an undertaking with conditions attached.

(2)     An undertaking under subsection (1) must have as conditions—

a)that the offender attends before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned; and

b)that the offender is of good behaviour during the period of the adjournment; and

c)that the offender observes any special conditions imposed by the court and  may include a condition requiring the offender to make a payment to an organisation that provides a charitable or community service or to the court for payment to such an organisation.

…

(6)   If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must dismiss the charge without any further hearing of the proceeding.

56I am satisfied that the sentencing purposes in your case can adequately be addressed in the manner suggested by your counsel. I accept that the further restriction on your liberty that would be effected by a Community Correction Order is unnecessary. It may even be that Corrections would assess you as unsuitable for the sex offender treatment program given the limited resources that are available to State-run programs. I consider it more likely that you will engage in the treatment if I impose an adjourned undertaking. The punitive purpose of the sentence is met by the matter hanging over your head for a further 12 months and the requirement to complete the mandated treatment.

57Having regard to all relevant sentencing considerations including that you were found guilty of sexual assault after pleading not guilty, the relatively low level of your crime, its impact on the victim, your personal circumstances and the lengthy period that you have been caught up in the legal system, I have decided that all relevant sentencing purposes are met by the imposition of an adjourned undertaking without conviction.

Orders

58Pursuant to section 75 of the Sentencing Act, the proceeding is adjourned for 12 months and you are released upon giving an undertaking with the statutory conditions as well as the following special conditions:

(a)   That you make a payment to the court of $500 which will be forwarded to an organisation that provides support for women who are victims of sexual offending;

(b)   That you participate in at least ten sessions of the Sex Offender Treatment Program with Mr Geoffrey Burrows; and

(c)   That you provide a letter to the court from Mr Burrows stating that you have satisfactorily completed the program.