Director of Public Prosecutions v Passlow

[2016] VCC 1009

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

AT WODONGA
CRIMINAL JURISDICTION

CR 16-00447

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK DANIEL PASSLOW

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Wodonga
DATE OF HEARING:	14 July 2016
DATE OF SENTENCE:	14 July 2016
CASE MAY BE CITED AS:	DPP v Passlow
MEDIUM NEUTRAL CITATION:	[2016] VCC 1009

REASONS FOR SENTENCE
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Subject:1 charge of grooming child under 16 years, 1 charge of common assault, 2 charges of failing to comply with reporting obligations under the Sex Offenders Registration Act, 1 charge of false imprisonment, 1 charge of attempted rape and 1 charge of recklessly causing injury – 18 year old offender with mild intellectual disability

Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  TES 3 years 11 months with a non-parole period of 2 years  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	Office of Public Prosecutions
For the Offender	Mr R. Kelly	Victoria Legal Aid

HER HONOUR: 

1Jack Daniel Passlow, you have pleaded guilty to one charge of grooming a child under the age of 16 years, which carries a maximum penalty of ten years' imprisonment; one charge of common assault, which carries a maximum penalty of five years' imprisonment; two charges of failing to comply with the reporting obligations under the Sex Offenders Registration Act 2004, each of which carries a maximum penalty of five years' imprisonment; one charge of false imprisonment, which carries a maximum penalty of ten years' imprisonment; one charge of attempted rape, which carries a maximum penalty of 20 years' imprisonment; and one charge of recklessly causing injury, which carries a maximum penalty of five years' imprisonment.

2The circumstances of your offending are summarised in the summary of prosecution opening (Exhibit A).

3Charge 1, which was committed between 25 and 31 May 2015, involved offending against a 14 year old girl who had attended a school which you had formerly attended, albeit that you did not know each other.  You were aged 18 years at the time.  You messaged her on Facebook on many occasions between these dates, asking if she likes sex, whether you could come to her home, telling her she was "hot" and asking her for a photograph in which she was not wearing a top.  Your victim initially said that she would not meet you, but ultimately agreed to do so.  You arranged a meeting place, but she was obviously reluctant and, at the appointed time, declined to tell you where she was.  You continued to send her Facebook messages, telling her that you wanted to have sex with her.  Your victim did not answer multiple messages from you and ultimately asked you to stop calling her. 

4After some importuning by you, your victim agreed to go out with you, and you told her to ring you on your mobile phone number, which you supplied.  In fact, your victim did not meet up with you and ended up blocking you from Facebook.  Over the five day period you had sent her 139 messages and also rung her on 34 occasions via Facebook in an attempt to meet up with her and have sexual intercourse with her.

5Charge 2 occurred in the context of you following the group in which your victim on Charge 1 was a part.  She and others returned home and you then kept asking the sister of your victim on Charge 1 for a hug.  When a young man who was part of the group confronted you, you pushed him in the chest and ran off.  Another member of the group telephoned police and you were located a short distance away.

6Your offending on Charges 3 and 4 involved you failing to comply with the reporting obligations under the Sex Offenders Registration Act.  You had become a registered sex offender on 9 February 2015, which involved an obligation to notify police of email addresses and social media accounts.  You failed to notify police that you were accessing or using a Facebook user name "Bob Shaw" and the email address [email protected].  These were the methods used to communicate with your victim on Charge 1.

7When interviewed by police, you essentially denied all your offending conduct, including using the Facebook username or email address.

8Your offending on Charges 5, 6 and 7 occurred on 26 June 2015.  On that date you were a client of Yooralla, residing at a unit for people with intellectual disabilities.  You were sitting on a couch with your victim of these charges, who was a 49 year old woman who worked as a disability services worker for Yooralla.  You got up from where you were sitting, obtained a black-handled carving knife and approached your victim from behind.  You forced her from the couch onto the floor and straddled her as she struggled to grab the knife from you.  She succeeded in doing so.  You then grabbed hold of her and forcibly moved her into the staff office, which contained a single bed for staff use.  You seized her keys and locked the door behind you.  This is the conduct comprising Charge 5, false imprisonment.

9Inside the room you pushed your victim onto the bed and attempted to pin her arms down as you groped one of her breasts.  You unsuccessfully tried to pull her pants down, but pulled your own down, revealing an erect penis and you attempted to force it into the victim's mouth.  This conduct constitutes
Charge 6, attempted rape.

10Your victim resisted by pushing you away and then you placed your hand around her neck and began to choke her.  Your victim suffered two abrasions to her bottom lip, scratches and bruising to the right side of her face, bruising around her neck and bruising on her upper left arm.  This is the conduct constituting Charge 7, recklessly causing injury.

11You asked your victim to drive you to Seymour and, once she agreed, you let her up off the bed.  You held her in a tight grip and led her to her car.  It became apparent that she was driving towards Wodonga Police Station and you forced the car into neutral gear and grabbed the steering wheel from your victim, forcing the vehicle to stop on the side of the road.  Your victim promised she would drive you to Seymour, but you then realised, once again, that she was heading towards the police station.  You grabbed the steering wheel again and pulled the car into the Coles car park in Wodonga and jumped out of the car and fled.

12On 29 June 2015 you were interviewed by police in relation to Charges 5, 6 and 7, but claimed that you had gone to bed after watching television at the unit and were unaware of the identity of the worker on duty that evening.

13You are presently aged 19 years, having been born on 3 October 1996.  You come before the court with one prior court appearance.  On 9 February 2015, at the Shepparton Children's Court, without conviction, you were placed on probation for a period of 18 months for three charges of assault by kicking, indecent assault, unlawful assault and committing an indecent act with a child under the age of 16.

14The offending for which you were sentenced in the Children's Court occurred on three separate dates.  In August 2013 you grabbed at 27 year old female while she ran along a bike track.  You came up behind her and bear-hugged her while you were not wearing any clothes.  There was a scuffle and you pushed her and she fell down an embankment and you kicked her in the crotch.  In January 2014 you assaulted a young woman in a park by hugging and kissing her and lifting up her T-shirt and grabbing her arm as she tried to leave; and in June 2014 you came up behind a female on a walking track and placed her in a headlock for ten to 15 seconds before breaking free.

15Tendered on the plea was a report from the Children's Court Clinic authored by Dr Steven Mihailadis, dated 9 February 2015 (Exhibit 1).  It is a lengthy report which details your family history.

16Your parents separated when you were two years old.  There was a report to Child Protection in 2002 which alleged physical violence towards you from your father's new partner.  You then continued to live with your mother until 2009, when it appears that she was suffering from depression and there were also concerns about her then partner who had prior convictions for sexual offending.  Accordingly, at approximately aged 13, you went to live with your father, but three years later you returned to live with your mother, with directions from your father that she should not send you back.

17  Yours is a sad history, as you struggled at school and from age nine you attended a special school.  You were teased due to your somewhat unusual facial appearance, poor slurred speech and dribbling, and were ultimately assessed as having a mild intellectual disability and you became registered as a client of Disability Services in 2007 and have been receiving a disability pension. Layered upon the difficulties of your intellectual disability has been the unhappy lack of stability in your family life. 

18Dr Mihailadis, formed the view that you had some innate predilection because or organic constraints on your cognitive capacities, which were in the mild intellectual range.  He considered that the separation of your parents and disrupted attachment imparted emotional harm and compounded the risk associated with your cognitive difficulties.  He noted that on the actuarial assessment device, Static-99, you received a score which placed you in the moderate to high level of risk of sexual reoffending, but stated that this assessment tool was limited as it emphasised past behaviour as a predictor of future behaviour.

19He tested you with another assessment tool, the risk of sexual violence protocol, but appears not to have actually recorded a risk category on the basis of that tool.  He voiced the suspicion that your intellectual functioning impacts on your sexual impulse control and considered your sexualised aggression was a crude means for you to adapt behaviour to your sexual needs.  He thought that you did not see how the world around you registered sexual violence and had a more limited capacity to know how people you had attacked felt about what you had done.  He concluded, "Therefore, denial and minimisation were improper terms to adapt to an analysis of Jack's psychology."  

20He described you as being unsophisticated and having a lack of real sexual insight, but stated you were not callous and emotionless.  However, he did comment upon your alleged lapses of memory, your claims of "blacking out" in relation to your offending conduct, and noted that your mother described your conduct as more premeditated than you had admitted at the assessment. 

21Dr Mihailadis recommended a probation order.  Obviously, his recommendation was acted upon by the Children's court in its disposition on 9 February 2015. It is an aggravating feature of the offending for which I must sentence you that you breached that order within three months by reason of your offending on Charges 1 to 4.  Further, notwithstanding that you had been interviewed by police on 31 May 2015 in relation to Charges 1 to 4, you offended against your victim on Charges 5 to 7, less than one month later.

22Also tendered at the plea hearing on your behalf was a report from Mr Martin Jackson, consultant clinical neuropsychologist, dated 26 February 2016 (Exhibit 2).  He recorded much of your background history which had been detailed in the report from Dr Mihailadis, but noted that you had been in custody since your offending on 26 June 2015. 

23Mr Jackson thoroughly reviewed a variety of psychological and medical reports going back to 2001.  He referred to reports in October 2014 and March 2015 authored by Dr Deon Gee, psychologist.  Dr Gee had considered that you did not present with a major mental illness but rather an intellectual disability of mild severity.  He had considered your "cognitive profile was indicative of an individual who has limited control or mastery over your cognitive emotional and behavioural states and who was highly prone to environmental influence and/or control." As far as your sexual offending was concerned, Dr Gee considered that you "appear to fall in an avoidance passive pathway characterised by under-regulation whereby offending is driven more by unsophisticated attempts at sexual expression and social connection rather than explicit desire to commit sexually abhorrent behaviour because of ingrown deviancy, that is, you presented with the desire to avoid offending but currently lack the requisite skills and competencies to meet your needs in a more adaptive and meaningful way." Dr Gee had assessed your risk of reoffending sexually in the future to be low but did not say why.

24Mr Jackson, in his assessment, conducted extensive testing.  He confirmed that your full scale IQ is 63, in the extremely low range, that is, a mild intellectual disability consistent with other assessments which have been obtained over the years.  Your verbal comprehension score was in the borderline range and your language skills were also in the borderline to extremely low range.  In particular, he assessed your reading at Grade 2 primary school level. Your perceptual reasoning, working memory index and processing speed index scores were all in the extremely low range.  Your executive functions of planning and organisation, verbal abstract reasoning and visual logical thinking were all in the borderline range.

25However, Dr Jackson noted that you performed particularly well in the average to high average range on tests of new learning and memory and that you responded well to structure and repetition and generally did not forget information that you had learned. Your delayed recall scored in the average to high average range and recognition memory in the high average range.  Also, contrary to the opinions of Dr Mihailadis and Dr Gee, Mr Jackson found no evidence of a disorder of impulse control.  He stated that your "basic concept formulation and flexibility skills were intact and therefore you have the basic ability to analyse the situation, weigh up possible outcomes, think of basic solutions and think of alternative ideas if necessary.  Whilst these skills are not at a high level, they are certainly at a functional level."

26Mr Jackson noted that previous reports had indicated that you had problems with memory and that the authors of those reports had difficulty getting particular details out of you about your offending.  He stated that he faced the same issue.  However, he stated:

"It became clear that what Mr Passlow was claiming is that he cannot remember the offences rather than stating that he has a global memory problem per se.  Given how good his memory is on assessment, it would be reasonable to consider that he actually does remember these offences, he just doesn't want to talk about them.  Therefore, I am of the opinion that his report of not being able to remember the offences is actually a form of denial and a defence mechanism.  This is also evidence that he understands that the behaviour is wrong or was wrong." 

Thus, Mr Jackson concluded that, although it is clear that you have a mild intellectual disability which is longstanding and permanent, there is no evidence that this contributed to your offending behaviour.

27As already mentioned, Mr Jackson rejected that you have any disorder of impulse control.  He stated that it is clear that you do understand that sexualised behaviour and threatening people with a knife is wrong and you do not have a memory impairment.  He stated that your claim that you cannot remember your incidents of offending is a defence mechanism and raises concern that you have an underlying criminogenic sexual behaviour disorder which needs further assessment.

28He noted that previous assessments had generally been focused on your mild disability and had based opinions, such as low risk of reoffending, on the basis that you had quite poor cognitive abilities and did not really have the memory skills or executive skills to be able to plan.  He stated:

"The results of this assessment refute those assumptions.  I am very concerned that Mr Passlow has a basic underlying criminogenic need which needs appropriate intervention and appropriate education regarding sexualised behaviour and appropriate sexual offender programs.  These would need to be aimed at a level at which he is able to participate in, low level, language and concrete concepts.  He certainly has the memory skills to learn from these programs."

29Mr Jackson considered that you would have no problem in being able to learn and remember alternative ways of behaving and acting.  His view is that formal forensic assessments of your risk of reoffending need to be undertaken on the basis that you do not have a cognitive condition that is a factor in your sexualised or violent offending.  He concluded that your prospects of rehabilitation and likelihood of reoffending are related to personality and underlying criminogenic issues rather than your mild intellectual disability.

30He also noticed that whilst you acknowledged the offending behaviour was wrong and could be hurtful to others, this did not bring about a remorseful response in you and he believed this was also part of your underlying personality criminogenic need issue.

31I accept the very thorough and careful assessment by Mr Jackson and note that it appears to concur with your own mother's assessment of your sexualised offending.  It is also consistent with you having lied to police on each occasion that you were interviewed by denying participation in the offences.

32Mr Jackson also stated that you may well find it difficult in prison because of your dysmorphic facial features, small chin and jaw, with some dribbling and poor speech, which makes it difficult at times for you to be understood.  He thought that you would be at risk of being picked on because of these features, but you had not reported any anxiety or depression during your time in custody over the last year.  He thought it was possible that you had not yet realised the gravity of your situation, but opined that your time in custody did not appear outwardly to have affected your mental health.

33In terms of rehabilitation, Mr Jackson considered that you do have the memory ability to conform with conditions with such things as community work that would benefit from oral reminders to help you comply.

34Also tendered on the plea on your behalf was an email dated 11 July 2016 authored by Kylie Bowden, psychologist with the Department of Health and Human Services, addressed to Helen Denny, Team Leader of Youth Justice in the Goulburn Area East Division (Exhibit 3).

35This is a rather unusual document to be tendered on a plea.  In essence,
Ms Bowden advocates for a disposition whereby you are kept within the youth justice area, and expresses a view that you would benefit most from a community-based disposition.  This is clearly an inappropriate opinion to put before a court.  However, she does state that, after initially having had some difficulty in settling into Port Phillip Prison, where you were "picked on” by some of the inmates, “(you are) now familiar with and comfortable with the Marlborough Unit, where (you are) a resident, and (have) made some social relationships and seem to be coping well."

36She considered that, although a Youth Justice Centre order like Malmsbury would be more appropriate, given your age, you would have difficulties moving into a new environment and may well be the subject of more peer-based ridicule and bullying at Malmsbury, with which you would have difficulty coping.  Further, she noted that you were highly suitable for cognitive behavioural therapy and, as Marlborough Unit is a specific disability unit and segregated from the mainstream population, the prisoners seem to be accepting of others' disabilities, albeit that she did express concern about you possibly being sexually victimised yourself within that environment.

37I asked your counsel, Mr Kelly, how you had been coping in the Marlborough Unit at Port Phillip Prison where you have been housed for over one year.  He confirmed the content of Ms Bowden's email that you are now well-settled there and get on well with the staff and other residents.  You had reported that you do not get teased and are engaged in some individual and group-based programs to improve your literacy skills.

38On direct questioning from me, you stated that living in the Marlborough Unit was “really good” and you enjoyed being out in the fresh air doing gardening, and also playing pool and table tennis.  You thought your reading was getting better as a result of the educational programs that you were undertaking.  You stated that you liked being in the educational group on Tuesdays, which is for a few people who are not as quick as the others.  You stated that you were not worried about anything in the unit and were sleeping all right.  You stated, "I'd rather not be there, but I've got used to it.  I've done the wrong thing, so I have no choice."

39Mr Passlow, the offending for which I must sentence you is very serious indeed.  You have shown a disregard for the law in committing these offences, particularly so soon after you had been given a probation order in the Children's Court.  You have shown that you can be very persistent and aggressive in pursuing what you want with women, and unhappily, in committing Charges 5, 6 and 7, your offending has greatly escalated.  That means it has got much worse and more serious.  Your victim in those offences was someone who worked to try and help people with disabilities and you attacked her in a vicious, relentless and terrifying way.

40In a Victim Impact Statement from that disability worker (Exhibit 2), she states that she thought you were going to kill her and how relieved she was afterwards that she was going to see her husband and daughter and son again.  She has suffered ongoing fear about leaving her house and has become suspicious of male strangers, so that it is difficult for her to even go about her weekly grocery shopping.  She, also, has found it impossible to work with clients at Yooralla and has been confining herself to office work doing only two shifts per week, which has been difficult for her financially and emotionally.  Overall, her social life has been deeply affected because of the fear of going out where there are a lot of people and she misses the normal family things that she used to do because she is frightened to leave her home.  She states that the incident has had a huge impact on her and on her family, and although she has a good counsellor, she cannot forget what has happened to her or see herself getting back to her life as it used to be before your offending. All of these are understandable and foreseeable consequences of your appalling conduct.

41In sentencing you, the court must denounce your conduct and place emphasis on general deterrence so that others who might be inclined to offend in the way that you have done will know that they will be punished.  Unhappily, you have now shown yourself repeatedly to be someone who preys on women sexually and with increasing aggression.  Hence, emphasis, also, must be placed on specific deterrence.  That means that this court must make you realise that if you do these antisocial and vicious things, you will be punished.

42I am mindful of the fact that you are not yet 20 years old and, as a youthful offender, rehabilitation should be the predominant principle in sentencing young offenders.  Yours presents as a particularly difficult sentencing exercise because your offending has been so repeated and so serious in a relatively short time. It is clear that I must place emphasis on protecting the community from you in the light of your persistent serial and increasingly serious sexual offending. Thus, I do not consider that your youth should be the dominant sentencing principle.  However, I am mindful of the principle of totality and the need to ensure that I do not impose a crushing sentence. 

43In sentencing you, I do take into account that you have pleaded guilty to the offences.  I find it difficult to gauge whether these pleas are remorseful, and I note that Mr Jackson comments that you appear to have a lack of empathy or remorse when talking about the offences, which is worrying.  However, because you have pleaded guilty and at a very early stage, you are entitled to a discount on the sentence which, otherwise, would have been imposed.

44In all the circumstances, I have determined, and indeed your counsel has conceded, that the only appropriate sentence is one of imprisonment.  However, I do take into your account your fractured family background and that life has been difficult for you with an intellectual disability, which has been the cause of bullying and teasing during your life.  As I have made it plain that I accept

[1](2007) 16 VR 269

Mr Jackson's opinion, I am not of the view that your intellectual disability is connected with your persistent offending and hence the principles in R v Verdins[1] do not have application.  Indeed, your counsel has not submitted that they should apply.  However, I do take into account your intellectual disability in a general way as part of your background, and acknowledge that it and its associated features may make serving time in prison more difficult for you, even though you do seem to be managing at the present time.

45One positive factor to emerge from Mr Jackson's report is that you do have excellent new learning and memory skills.  Hence, if you can undertake an appropriately pitched sex offenders program, there may be a real prospect of rehabilitation, provided you are closely supervised once you are released into the community.

46In the light of your youth, I consider that a shorter than usual non-parole period is appropriate.  In this regard I note that you are somewhat isolated and have had only five visits from your mother or sister in a period of over 12 months in custody.

47Would you stand up, please, Mr Passlow.

48On Charge 1, grooming of a child under the age of 16 years for sexual conduct, you are convicted and sentenced to be imprisoned for a period of 12 months.

49On Charge 2, common assault, you are convicted and sentenced to be imprisoned for a period of one month.

50On Charge 3, failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, you are convicted and sentenced to be imprisoned for a period of three months.

51On Charge 4, failing to comply with reporting conditions under the Sex Offenders Registration Act, you are convicted and sentenced to be imprisoned for a period of three months.

52On Charge 5, false imprisonment, you are convicted and sentenced to be imprisoned for a period of 12 months.

53On Charge 6, attempted rape, you are convicted and sentenced to be imprisoned for a period of three years.

54On Charge 7, recklessly causing injury, you are convicted and sentenced to be imprisoned for a period of 12 months.

55The basis sentence is that of three years on Charge 6.

56I order that three months of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 3, one month of the sentence imposed on Charge 4, three months of the sentence imposed on Charge 5 and three months of the sentence imposed on Charge 7 be served cumulatively upon the sentence imposed on Charge 6 and upon each other.  Save for such accumulation, all sentences are to be served concurrently.

57Mr Passlow, the total effective sentence is thus three years and 11 months' imprisonment.  I direct that you serve a period of two years before becoming eligible for parole. 

58I declare a period of pre-sentence detention of 383 days to be time reckoned as already served under the sentence imposed this day.

59Pursuant to s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence would have been seven years' imprisonment with a non-parole period of five years.

60As you have previously been sentenced in the Children's Court for a Class 2 offence under the Sex Offenders Registration Act 2004. Charge 2 on this indictment is a Class 2 offence and Charge 6, a Class 3 offence, is deemed to be a Class 1 offence pursuant to s.34(4)(a) of that Act. Thus, you are a registrable offender under that Act and, pursuant to s.8(3) of that Act, you are deemed to be a serious sexual offender, which I cause to be noted in the records of the court. Accordingly, you are obliged to comply with the reporting conditions under that Act for the rest of your life.

61Mr Passlow, I will have my Associate hand to you a document which sets out what your duties are, as far as those reporting conditions are concerned, and what the consequences are if you do not comply with them, that is, if you do not do what you are supposed to do under that Act. I ask you, please, to sign a document to say that you have got that information from my Associate, and I am sure that Mr Kelly will go through things with you to explain it to you. 

62Just finally, on Charge 1, I order, pursuant to s.78(1) of the Confiscation Act, the forfeiture to the State of a blue ZTE mobile telephone and a white and black Sony Xperia mobile telephone and an Optus prepaid SIM card.  I further direct that this property be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.

63Now I will just have my Associate hand that document to you, thanks,
Mr Passlow.

64Thank you, Mr Passlow, you can be seated.

65I will hand down to each counsel a copy of the disposal order, and I will hand down to you, Mr Kelly, the certificate under the Appeals Costs Fund.

66MR KELLY:  Thank you, Your Honour.

67HER HONOUR:  Thank you, Madam Associate, if you could take those. 

68I hope there is nothing I have left out, is there?

69MR MOORE:  No, no.  Thank you.

70MR KELLY:  Thank you, Your Honour.

71HER HONOUR:  I take it, Mr Kelly, you will go and see Mr Passlow over at the police station.

72MR KELLY:  Yes, Your Honour.

73HER HONOUR:  Mr Passlow, you will be taken back over to the police station and Mr Kelly will come and see you there and explain anything that is not clear about what I have said this afternoon, all right?

74OFFENDER:  Yes.

75HER HONOUR:  Thank you.  Thank you to counsel for your submissions, and thank you for staying on ‑ ‑ ‑

76MR KELLY:  Thank you, Your Honour.

77HER HONOUR:  ‑ ‑ ‑ under trying circumstances, Mr Kelly.  I wish you both and Mr Cecil a safe trip back to Melbourne.

78MR MOORE:  Thank you, Your Honour.

79MR KELLY:  Same to you, Your Honour.  Thank you.

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