Director of Public Prosecutions v Passlow
[2024] VCC 1569
•3 October 2024
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01429
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK PASSLOW |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 8 August 2024; 30 September | |
DATE OF SENTENCE: | 3 October 2024 | |
CASE MAY BE CITED AS: | DPP v Passlow | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1569 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Assault with Intent to Commit a Sexual Offence — Sexual Assault — Plea of Guilty — Use of a weapon — Knife — Victim was a Disability Support Worker — Serious Sexual Offender — Relevant criminal history — Cognitive impairment — Intellectual Disability — Guarded prospects of rehabilitation — Remorse — Admissions to Police — Verdins principles — Bugmy principles
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Milson [2019] VSCA 55; Hogan v Hinch (2011) 243 CLR 506; Director of Public Prosecutions v Passlow [2016] VCC 1009; Worboyes v R (2021) 96 MVR 344; Bugmy v The Queen (2013) 169 CLR 571; Director of Public Prosecutions v Drake [2019] VSCA 293.
Sentence: 6 Years Imprisonment, 3 Years Non-Parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Moore | Office of Public Prosecutions |
| For the Accused | Ms S. Buckley | Emma King Criminal Law |
HIS HONOUR:
Introduction
Jack Passlow, you have pleaded guilty to one charge of Assault with Intent to Commit a Sexual Offence which carries a maximum sentence of 15 years' imprisonment, and one charge of Sexual Assault which carries a maximum penalty of 10 years.
Summary of offending
1Your offending was summarised by the Prosecutor at your plea.
2The victim in this matter was employed as a disability support worker for MLH Property Solutions and was contracted to clean your property in Mooroopna. She was 19 years old and did not know you.
3On 7 March 2023 she was cleaning your property. You watched her from the couch. This made her uncomfortable, and at one point she shut the bathroom door to protect her privacy.
4She changed rooms to locate a vacuum cleaner. You followed her and pressed your body against hers as she bent down. She stood up to create space between you. You wrapped your left arm around her ribcage and with your right you held a boxcutter knife to her neck.
5You told her to be quiet. She was shocked and incapable of responding.
6You stood in front of her and hugged her. In an attempt to placate you, she said, 'it's okay' and hugged you back. You said, 'let's go fuck now'. She replied, 'no, let's do it in the car'. She hoped to flee you before you reached the vehicle.
7You queried her sincerity and asked her to kiss you. She kissed you briefly before asking again to go to her car.
8You attempted to lift her and take her into the bedroom. Whilst doing so, you rubbed your hands over her vagina and the top of her clothes. She tried to defuse the situation by telling you a fictitious person named Michelle had arrived at the property. You asked her who Michelle was, and she told you that Michelle was another worker. You became frustrated and told her to act normal for Michelle. You placed the knife in a drawer.
9Your victim told you she needed to open the door for Michelle. She ran out into the street. You followed her out the door and told her to 'come here', before she waved down a nearby car and called the police.
10You re-entered your unit and called the police yourself, admitting you held the victim at knifepoint and tried to sexually assault her.
11Police arrived at the property, spoke to the victim, before entering to speak to you. You told police you wanted sex as you had been sexually frustrated, and that you held the knife to her back and told her to be quiet.
12You were arrested and interviewed at Shepparton police station. You made a number of admissions.
13
I was not provided with a Victim Impact Statement but your offending must have been extremely terrifying for your victim who showed great initiative,
self-possession and resourcefulness in escaping you.
Circumstances of offender
14
I was provided with a report of Dr Raj Darjee dated 6 August 2024, a report of
Dr Yvonne Maxwell dated March 2022, a Disability overview report dated
13 January 2020 and a Functional Report from Casey Parker dated 19 January 2024 which comprehensively delineate your personal circumstances.
15You are now 28 years of age. You were born in Wodonga to Glen and Jillian Passlow and have an older biological sister and five half siblings. Your parents separated when you were two years of age, and your mother retained primary custody. Your father remarried. You visited him and occasionally stayed overnight. You were found to have sustained significant bruising when you were seven years old. You reported that your stepmother had physically abused you. Your visits to your father stopped.
16You continued living with your mother until she re-partnered with a convicted sexual offender, and you were required to live with your father at age 13. You were again subjected to physical and emotional abuse at your stepmother's hands and reported being pushed through a glass door. You returned to live with your mother after three years and reported being exposed to cannabis use and excessive alcohol consumption. You witnessed violent altercations between your mother and stepfather and suffered physical assaults and taunting by your half-sister.
17You were placed in emergency accommodation at age 17 when your mother expressed concerns about your behaviour towards her and her daughter. You were moved around by DHHS and Child Protection. You eventually found yourself in the Marlborough Unit of Port Phillip Prison
18When released from custody, you returned to live with your mother, but your relationship again broke down after she warned your neighbours of the risk you posed to their children. You experienced threats, graffiti, a home invasion and property damage by vigilante neighbours. You were again moved to emergency housing in Shepparton.
19Your mother had serious pre and perinatal problems. You experienced significant developmental delays and cognitive impairments growing up, and struggled with speech and language, fine motor skills and behavioural development. You were diagnosed aged six with a mild intellectual disability. You were formally tested by neuropsychologist Martin Jackson in 2016. He recorded that your full-scale IQ is 63.
20You struggled academically and experienced persistent bullying. You displayed problematic behaviour including physical and sexual violence towards other students. As a result, you were moved between three schools, finally finding acceptance and support in Verney Road School which you attended from 2005 until graduation at the age of 18.
21You have never been employed in the community. You have worked in prison gardening programs, propagating plants and maintaining gardens. I am told you have acquired skills in horticulture and outdoor work and hope to pursue this kind of work upon your release from custody.
Defence Submissions
22Ms Buckley submitted on your behalf that you should be released on a combined sentence which includes a Community Correction Order with a Justice Plan. It was said such a tailored disposition would provide for your rehabilitation and community protection, deterrence and denunciation. She observed that the court can add another 12 months to the substantial period of pre-sentence detention you have served until now and your release thereafter on a Community Correction Order is the surest safeguard the community has of your compliance with therapeutic regimes designed to modify your behaviour. She told me that you have changed your attitude to being assessed for anti-libidinal medication.
23Ms Buckley conceded that the principal purpose for which you are to be sentenced is protection of the community pursuant to s6D(a) of the Act however submitted that ultimately the community is best protected by your rehabilitation.[1]
[1] Director of Public Prosecutions v Milson [2019] VSCA 55, [71]. See also Hogan v Hinch (2011) 243 CLR 506, 537 [32].
Prosecution Submissions
24Mr Moore on behalf of the Crown submitted that a head sentence with a non-parole period is the only sentence open given the objective gravity of your offending and the heightened need for community protection.
Gravity of Offending & Moral Culpability
25Mr Moore submitted that your offending is very serious and strikingly similar to the offending you committed in 2015 involving an attempted rape, assault and the use of a knife. Ms Buckley conceded that your offending is objectively very serious and would have been terrifying for the victim.
26
Your use of a knife elevates the gravity of your offending. Your victim was only
19 years old and had been dispatched, mystifyingly, alone without a supervisor to the home of a serious sexual offender with a known history of attacking women. You chose to offend against her in the course of her employment while she was helping you by cleaning your house. This is an aggravating feature.
27Your offending was opportunistic, but you armed yourself with a box cutter to threaten your victim and overcome her resistance. You told Dr Darjee that you were speaking to different girls on Snapchat, you were masturbating three or four times a day, using pornography and thinking about sex all the time. You told him that you were sitting on your couch, looking at your victim. You found her attractive and felt, 'turned on'. You kept looking at her. You thought about going for a walk to stop feeling aroused, but when she went to another room you grabbed a knife. When you put it to her throat you felt in control and sexually aroused. You told him that the knife was used to get her to do what you wanted. You caused her no physical injury, but that is thanks to her inventiveness in handling you. You thought for some time about how you would overcome her resistance before selecting the box cutter. There was therefore some planning. Your offending is in the mid to upper-mid range.
Remorse
28Ms Buckley submitted that your plea of guilty reflects your remorse which is underscored by your immediate disclosure to police. You told police in the immediate aftermath that you 'fucked up' and you made frank admissions in your police interview. You told Dr Darjee that you 'hated' yourself for what you did.
29You told the police despatcher that you had 'attacked a girl' and that you had held a 'knife to her throat'. You said you 'shouldn't have done it'. These spontaneous admissions demonstrate your willingness to take responsibility for what you did. I accept that you are sorry for your actions. You have demonstrated insight into the wrongfulness of your actions. However, your remorse must be set against your disturbing, repeated history of sexual offending. Your insight has not deterred you.
Prior Offending and Criminal History
30Your sexual offending dates from 2013. In February 2015 you were first sentenced in the Shepparton Children's Court at age 18 for assault related offences and one charge of indecent act with a child under 16. You were placed on probation for 18 months and placed on the Sex Offender Register for four years.
31In August 2013 you grabbed a 27-year-old woman when she ran along a bike path. You bear-hugged her from behind. You were naked. You pushed her and she fell down an embankment. You kicked her in the groin.
32In January 2014 you assaulted a young woman in a park by hugging and kissing her, lifting up her T-shirt and grabbing her arm.
33In June 2014 you came up behind a woman on a walking track and put her in a headlock. She broke free.
34I was provided with Hogan J sentencing remarks from 2016.[2]
[2] Director of Public Prosecutions v Passlow [2016] VCC 1009.
35Between 25 and 31 May 2015, you offended against a 14-year-old girl. You were 18 at the time. You bombarded her with inappropriate texts and asked her for revealing photos. You importuned her until she agreed to go out with you. You sent her 139 messages, and you called her 34 times to arrange to meet and have sex. You deployed the Facebook username Bob Shaw and a bogus email address to evade detection. You had an obligation to notify police that you were using Facebook and using an email address. You breached your Sex Offender Registration Act obligations by failing to notify the police of these activities.
36You were also convicted of one charge of false imprisonment, one charge of attempted rape and one charge of recklessly causing injury. That offending was also committed against a disability support worker. You were a client of Yooralla, living in a unit for people with intellectual disabilities. You were on the couch with your victim, a 49-year-old female disability worker. You picked up a carving knife and approached her from behind. You forced her to the floor and straddled her. You choked her. You forced her into the staff room which had a bed. You seized her keys and locked the door behind you. You pushed her onto the bed, attempted to pin her arms and groped her breast. You tried to pull her pants down. You pulled your own down and tried to put your penis in her mouth.
37She suffered abrasions to her lip, scratches and bruising to her face, bruising around her neck and bruising on her upper left arm. You asked her to drive you to Seymour. She instead drove towards the local police station. You eventually jumped out of the car and fled. You denied the offending when interviewed by police.
38
You received a sentence of 3 years and 11 months with a non-parole period of 2 years. You were required under the Sex Offender Registration Act to report for life. You were initially released on parole to the Intensive Residential Treatment Program (‘IRTP’), but you became physically aggressive. You discussed with a
co-resident tying up and raping a staff member. Your parole was revoked. You were released from custody on 2 September 2019 after completing your head sentence. You reoffended within nine days. You were convicted of three stalking charges in 2020.
39
To your credit, you completed a Community Corrections Order with a Justice Plan on 11 March 2022. Unfortunately, this offending was committed less than
12 months later.
40You have a history now of attacking women who provide support to people with disabilities. These women deserve to feel safe in the workplace. You target vulnerable women working or exercising alone. Your offending is predatory, violent and alarming.
Prospects of Rehabilitation
41
Ms Buckley conceded your prospects are guarded. Dr Maxwell's report notes that your intellectual disability is permanent, and you will require lifelong support.
Dr Darjee observed:
There is a high long-term risk of sexual recidivism, a moderate risk of serious physical harm if he was to reoffend, and in the community, there would be a potential imminent risk if he returned to similar circumstances to before he was remanded. Overall, he is assessed as ‘high case priority’, as he will need a high level of intervention, supervision and services to prevent further sexual offending.
42You have successfully completed a CCO and Justice Plan. That suggests your prospects of rehabilitation are not extinguished. You remained offence-free in the community for two years. You attribute your lack of offending in that period to becoming 'sick' of that lifestyle. Intervention and support were helpful, but you assert that you remained offence free because you 'decided to'. If that is true, you must have decided to reoffend, despite the interventions and scaffolding you had received.
43You were assessed in 2015 by Dr Stephen Mihalides who assessed that you were a 'moderate-high risk of sexual offending'. Ms Claire Ryrie assessed you in 2017 and also found you pose a 'high risk' for sexual reoffending. Mr Simon Candlish assessed you in 2020 and found you to have an unspecified paraphilic disorder with a high risk of sexual and violent offending. Dr Yvonne Maxwell assessed you in 2022, after your period of non-offending and assessed you as a 'moderate to high' risk of sexual recidivism. Notably, Dr Maxwell assessed that your view of being in control of your offending was 'both protective and risky in nature'. Dr Darjee assessed you as meeting the criteria for compulsive sexual behaviour disorder but held that you did not meet the criteria for a paraphilic disorder.
44I was provided with a further psychological report by Mr Peter Stanislawski dated 25 September 2024. In it, Mr Stanislawski writes:
During one particularly fruitful session Mr Passlow was able to map out his thoughts, feelings and justifications for his offending behaviour. Mr Passlow identified that in the leadup to his offending behaviour he was feeling lonely, that he wasn’t able to connect with his family, that he was sad about being away from his family, that he had sexual needs which he could not control, that he wanted sex, that he was angry with women at the time for preventing him from having access to his girlfriend, that he didn’t care because he was going to gaol anyway and that he thought he didn’t have an option other than to offend.
45Mr Stanislawski also opined that 'Mr Passlow appears to have a high sex drive with little interest in working around that or looking into more productive ways of relating'.
46There is therefore some tension between these professional assessments and your own belief that you can regulate your conduct.
47I was provided with a Justice Plan assessment report and a Disability Overview Report authored by Noeleen Smith from the DFFH dated 19 September 2024. Ms Smith also gave evidence at a further plea hearing. Ms Smith writes that you have always been willing to engage with the department, even when you are not on a court order and that you have remained engaged on a voluntary basis following the finalisation of your previous Justice Plan.
48I am told you have a current, funded NDIS plan that would continue irrespective of whether you are in the community or in prison. Your supports would include the following:
· A support worker to assist you in the home and community for approximately 3-4 hours a day once you are released;
· An occupational therapist who would work with you via video-link while you remain in custody and upon your release to provide and implement recommendations and strategies to assist with everyday living skills;
· A psychologist to assist you with building social skills and strategies to increase independence in the community;
· A speech therapist to assist you with developing your communication skills; and
· Job-finding and keeping.
49Ms Smith noted that your support workers are not tasked to supervise you. Supervision would need to be conducted by Corrections Victoria subject to a court order. She indicated that your involvement with the Department could continue whether you are subject to a Community Correction Order or a head sentence with a non-parole period, however if the latter is imposed, your involvement would need to be voluntary.
50Ms Smith noted that a referral will be made to the Glaser Clinic, formerly the Community Forensic Disability Mental Health Service, to determine your suitability for anti-libidinal treatment. You previously refused this referral but have recently advised Disability Justice that you would agree 'this time'’. She wrote that this referral will be made upon your release from custody. She believes that you are motivated to participate in the Disability Justice forensic program.
51I am satisfied that your prospects of rehabilitation are guarded but not wholly extinguished.
Guilty Plea & Worboyes
52Ms Buckley submitted that you pleaded guilty at an early stage, shortly after the first committal mention. Your plea has helped the course of justice and has spared your victim the ordeal of cross-examination. You get a discount for the benefit to the court of your plea of guilty. You also get the last drops of the Worboyes discount.[3]
[3] Worboyes v R (2021) 96 MVR 344.
Verdins
53Ms Buckley submitted that limbs 1-4 are enlivened because of Dr Darjee’s evidence regarding your intellectual disability. Dr Darjee acknowledges your intellectual disability and related deficits have not directly caused your offending through any particular symptom or condition. He writes, nonetheless, that your mild intellectual disability and impaired cognitive function have:
led to his sexual offending through their direct effects in terms of emotional regulation, impulsivity, disinhibition, ability to reflect, abstract reasoning and planning, and through their indirect effects, such as problems with communication, relationships and intimacy.
54Dr Darjee also stated:
In my view, due to his intellectual disability and resultant significant cognitive deficits and their impact, his judgment was significantly impaired, he had diminished ability to make calm and rational decisions, he was disinhibited, and his ability to make reasoned decisions was impaired. He also had a significantly impaired ability to deal with sensory overload which is relevant to his ability to manage himself in the context of the perceptual salience of sexually attractive and arousing stimuli.
55Neuropsychologist Martin Jackson assessed you in 2016. His report was provided to Hogan J. He concluded that there was a dearth of evidence to establish a connection between your intellectual disability and your offending behaviour on that occasion. No reliance on Verdins was made when you were sentenced by Hogan J in 2016. I was not provided with a copy of Mr Jackson's report.
56Dr Darjee does not say whether he reviewed Mr Jackson's report prior to authoring his own, but he finds the same absence of direct connection save the examples quoted above. The difference between them is that Dr Darjee is prepared to assert that your disability indirectly affected your judgement and decision-making at the time of your offending.
57The prosecution concedes that limbs 1-4 of Verdins are enlivened in your case. I note that you were less guarded in the history you provided to Dr Darjee. His opinion chimes with the others relied upon by the Defence. I am, therefore, satisfied that your moral culpability is reduced due to your impaired mental functioning. That said, these assessments point to your having a condition which renders you vulnerable to making dangerous, impulsive decisions when aroused. You appear incapable of regulating this conduct. The community needs to be protected from you.
58Ms Buckley also submitted that general and specific deterrence ought to be significantly moderated because of your intellectual and cognitive impairment. I accept that your impairments make you an inappropriate vehicle for general deterrence. I am unpersuaded that specific deterrence should be significantly moderated in your case having regard to your criminal history. You are entitled to some mitigation in respect of limb 4 due to your cognitive impairment.
Bugmy
59It was submitted that your childhood of profound deprivation enlivens the principles in Bugmy such that your moral culpability for this offending is reduced in the general sense.[4] This was conceded by the Prosecution.
[4] Bugmy v The Queen (2013) 169 CLR 571.
60You have suffered abuse, displacement, neglect and bullying all of your life. You were born to an unstable, precarious and loveless home. Your occupational therapist, Casey Parker reports that you suffered abuse from every caregiver entrusted to you. You fared poorly at school. You were the target of cruelty and unremitting bullying. You have not had a safe home or long-term accommodation for most of your life.
61There is insufficient evidence to establish a link between your sexual offending and your childhood deprivation. You have consistently denied being the victim of sexual abuse. Your moral culpability is reduced in the general sense discussed in Bugmy and Drake.[5] You were a vulnerable child, denied a safe and nurturing home environment. You were exposed to violence by your family, shunned and bullied by your peers at school, and hounded by your neighbours. Yours has been a harsh life.
[5] Director of Public Prosecutions v Drake [2019] VSCA 293, [32].
Sentencing Principles
62Pursuant to s5 of the Sentencing Act 1991, the purposes for which you are to be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
63You have previous convictions for sexual offending. You are, therefore, to be sentenced as a 'serious sexual offender' pursuant to the Sentencing Act. As both Charge 1 and 2 are 'relevant offences', I must regard community protection as the paramount sentencing consideration. I can impose a disproportionate sentence to achieve this purpose.[6] In addition, each term of imprisonment imposed for a relevant offence must be served cumulatively on any uncompleted sentences imposed on you.[7] The Prosecution has not sought a disproportionate sentence and I do not intend to impose one. However, I have concluded that your rehabilitation must now give way to denunciation, general deterrence and community protection.
[6] Sentencing Act 1991 s 6D.
[7] Ibid, s 6E.
Sentence
64Mr Passlow please stand.
65On Charge 1, Assault with Intent to Commit a Sexual Offence, you are convicted and sentenced to four years' gaol
66On Charge 2, Sexual Assault, you are convicted and sentenced to three years' gaol.
67Charge 1 is the base sentence. One year of the sentence on Charge 2 is to be served cumulatively, producing a total effective sentence of five years. I fix a non‑parole period of 2 years, eight months.
68You have served 576 days pre-sentence detention on these charges, and I declare this period as time served against the sentence I have imposed.
69Pursuant to s6F(1) of the Sentencing Act, I note on the court record that on Charges 1 and 2 you are being sentenced as a serious offender.
70Pursuant to s 6AAA I declare that but for your pleas of guilty I would have sentenced you to six years' imprisonment, with a non-parole period of four years,
71Mr Moore, are there any ancillary orders?
72MR MOORE: No, Your Honour.
73HIS HONOUR: All right. I want to thank you both for your assistance and you in particular, Ms Buckley, for the excellence of your written submissions and your oral submissions. Thank you.
74MS BUCKLEY: As Your Honour pleases.
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