Director of Public Prosecutions v Plucke

[2018] VCC 1085

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01716

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM PLUCKE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 July 2018
CASE MAY BE CITED AS:	DPP v PLUCKE
MEDIUM NEUTRAL CITATION:	[2018] VCC 1085

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough (For Plea) Ms B. Kelly (For Sentence)	Office of Public Prosecutions
For the Accused	Mr D. Sexton	Michael Brugman

Pages 1 - 9

 

 

HIS HONOUR:

1William Plucke, on 28 May 2018 you were arraigned before a jury panel in the County Court sitting at Geelong.  You pleaded not guilty to one charge of rape and guilty to one charge of sexual assault.  After a short trial, the empanelled jury found you not guilty of the charge of rape.  Thus, now I am required to impose sentence for the charge of sexual assault, to which you pleaded guilty.

2The uncontested evidence in relation to the charge of sexual assault, was that on 7 May 2016, you and the victim, went to the Torquay Hotel for a night out with some other mutual friends.  You went first to the victim's house, had some drinks with her, and then went to the hotel by shuttle bus.

3You had ridden your skateboard to her house, and left it there while you went to the hotel.  You drank alcohol, as did the victim over the whole night.  It seems she had more to drink than you.  You left together in a taxi just before midnight.  In your evidence, you said you intended to stop at the victim's house, get your skateboard, and head to your house, as you had an early start the next day.

4The victim was concerned about you skateboarding home so late, and effected by alcohol.  She suggested you stay over at her house.  There was a dispute in the evidence between you and the victim about where you were to sleep.  She said you were to sleep on the couch, as other young friends did routinely in the student house that she lived in with two other friends.

5You said that she invited you to sleep with her in her bed.  In any event, you ended up in her bed.  Whatever the position, you fully acknowledge that what you did thereafter, was without the victim's consent.

6You lay behind her, spooning her.  You reached over her and touched her breasts.  You then put your hand on her vaginal area.  You had by this point, exposed your own erect penis.  Your evidence was that the victim indicated then that she did not want you to do, what you were doing and you then immediately stopped.

7The evidence of the victim, as to what she said happened thereafter, was not accepted by the jury beyond reasonable doubt.  So what I must punish you for is the sexual touching as described by you and by the victim in both your evidence.

8You had given this account, that is, the account that you gave in your sworn evidence from the outset, commencing in your record of interview, which occurred or the interview was taken by the police on 14 June 2016.  Indeed, I was told you offered to plead guilty to the sexual assault, shortly after being charged.  As noted, you maintained that attitude, taking the unusual course of pleading guilty before the jury panel.

9I pause to indicate that your plea of guilty is of significant value, and your sentence will be much less severe, and indeed, of a different kind, then had you pleaded not guilty to this charge and being found guilty of it.

10As acknowledged by your counsel, Mr Sexton and his very realistic and helpful plea, there were concerning aspects of your offending.  It occurred in the sanctity of the victim's home and bed, where she was entitled to feel safe.  You were a trusted friend, and you abused that trust.

11Those matters do stand in contrast to the evidence and general circumstances of your character, and your attitude to others; in particular, women.  At this point, I need to add to my analysis of the gravity of the offending, by referring to the adverse impact your crime has had on the victim.  Her heartfelt victim impact statement was read on the plea.

12She was at the time of the offending, a young woman with a zest for life and much potential.  She enjoyed her friends, socialising, her studies as a medical student, and much more.  Following the sexual assault, things changed.  I am mindful that the victim alleged that you committed rape by digital penetration, and it is hard therefore to disengage what she said happened, and what you have pleaded guilty to in relation to the impact upon her thereafter.  I have taken that into account.

13But as you know, she said in her victim impact statement,

"That without any doubt, my quality of life is significantly worsened, compared to my life before the trauma.  To give an overview, previously, I was far more social, bubbly, independent, and relaxed person, who brought the people in her life together.  Immediately after, I became socially withdrawn, depressed, and within one month, was contemplating suicide.  I lost all enjoyment for life.  I've never suffered any mental illness before this".

14And she said the quality of her life is still reduced, as a direct impact of this trauma in all fields, being her health, her social wellbeing, her emotional wellbeing, and the energy and time that she has lost with regards to study and work.

15She further indicated that in respect of her studies, things were extremely difficult and she deferred the second semester in 2016.  However, she would go to the university where she was studying, just remain there, because she depressed and unhappy at home.  She further indicated that her plan to head overseas in July 2016, there were concerns expressed as to whether she should do that by her medical practitioners, given her mental state.

16But she pressed on with it.  She had saved a lot of money for it, and had had much expectations but a good deal of it, was undermined by the trauma that she was suffering.  She says that her, and important to her, the crime has affected her relationship with her family.  She says just as significantly, she has found it difficult to engage in her own intimate relationships or engage in intimate relationships.

17She doesn't feel comfortable around most males.  She says she especially is distrusting towards males of similar personality traits to you.  She does not feel safe around males, as a direct result, has not pursued a relationship since that time.

18What she does add is that after two years, she feels her mental health is improving.  She is on edge, things are becoming a little bit better.  Let us hope that that continues.

19As to your own personal circumstances, you are shortly to turn 27.  You were 24 at the time of the offending, thus a young man, with your life ahead of you.  You were raised in the Ballarat area in a close and loving family.  I heard evidence from your father and from others, which made it clear that you have had all the significant benefits that come from a stable upbringing.

20As important is that you have very significant ongoing support from your parents and siblings, who attended and provided support throughout the lengthy process of this trial.  I do not propose to go into much detail as to your upbringing.  What is relevant is that you were, to this point, that is, to the point of your plea of guilty, a young man of good character, having never been in trouble before, and indeed, since.

21You have displayed many fine attributes that have impressed friends, families, and your employers.  You have studied, and now have established a career in environmental management; all that is to your credit.  You have displayed fine qualities in supporting a close friend, in respect of that young man's personal problems; again, to your credit.

22In my view, there is little doubt that you have excellent potential prospects, that is, prospects to resume a lawful contributing life, now that these matters have come to an end.  Your own psychological health, deteriorated very significantly under the stress of facing the allegations, most particularly the allegation of rape.

23I heard evidence from your treating psychologist.  She outlined the extent of your anxiety and stress, which got to the point, as the trial approached, of you being a risk of suicide.  You were highly emotional throughout the process of the trial.  Taking into account your early plea of guilty, your previous good character, and your prospects for the future, together with the circumstances of your offending, and the impact of it on your victim, your counsel urged that I impose a community corrections order and no more.  The prosecution did not argue against that outcome.

24I have had you assessed and not surprisingly, you were found to be suitable for a community corrections order.  The important sentencing purposes, that of denunciation of your criminal conduct, and deterrents to other men, who may be minded to exploit situations, and impose their own sexual gratifications on non-consenting women.  These are the important sentencing purposes, but also important is your rehabilitation.

25All these sentencing purposes can be satisfied by the imposition of a community corrections order.  It is not in my view, necessary or appropriate or just, to move to the punishment of last resort, that is, punishment by way of incarceration in a gaol.

26With that said, any sexual assault is degrading.  It is a violation of the victim's bodily integrity, and as is the case here, it is likely to leave ongoing psychological damage.  It is always serious criminality.

27In this case, the order that I will make, and I will outline it in detail shortly, is to impose a two year community corrections order.  It is set at that length of time, because on the advices of the Office of Corrections, that is a period of time, that will allow you to do the important rehabilitation program of the sex offenders program.

28It is also in my view, a proportionate punishment for the crime that you committed.  I will also set conditions for unpaid work and supervision.  The unpaid work component that I will set can be met by physical unpaid work, but also by participation in the sex offenders program.

29For committing the crime of sexual assault upon the victim, Mr Plucke, you are sentenced to a community corrections order of two years.  The conditions of it will be that you are required to do unpaid work, 150 hours of unpaid work.  You will also have to undergo programs that will address your offending, and establish conditions so that you do not re-offend.  Those hours in that program, which will be determined by the Office of Corrections.  But it will be a sex offenders program.

30The hours you are required to be involved in that can be taken into account in respect of the unpaid community work hours.  Mr Sexton will probably make it clearer than I have.  But I am sure that it is clear enough.  You have to do 150 hours, but work out with the office of corrections, what is involved in the sex offenders program, that they will ask you to do, and you reduce the hours, the hours that you take to do that program from the 150 hours.  You also have to be under the supervision of the Office of Corrections.

31I have also considered whether or not there should be a conviction recorded.  In my view, this is a serious crime, albeit, you have good character and likely continue to be a law-abiding citizen.  But it is part of the punishment and recognition of the gravity of the crime, that the community corrections order that I impose will be with conviction.

32Had you pleaded not guilty to this offence, and been found guilty of it, I would have imposed a sentence of 14 months' imprisonment, with a non-parole period of six months.

33There are other applications, one being in respect of the taking of a forensic sample.  Just remind me Mr Sexton, if you can, what your attitude to that was?

34MR SEXTON:  Consent, Your Honour.

35HIS HONOUR:  Yes.  All right.  The application is made by the prosecution you provide a forensic sample, that is likely to be a scraping of your mouth, to ensure that your DNA can be extracted and placed on a database.  Considering that application, I tend to grant it.  The reasons for that are the seriousness of the offence, albeit, it does not drive the matter as much it might in other instances.

36Also, it is in the interests of justice; that is, your DNA will add to the database, making it easier for that database to operate as a detection for other crime, unlikely to involve you, but generally others.  Also, I take into account that you do not stand in the way of the taking of that sample.

37So what you have to understand is that a window will open up, and it is this.  Four weeks from now, the window will open, and you have another four weeks to get down to the police station and have the sample taken.  If you do all that, but when you get there, you do not cooperate, then the police have got authority to use reasonable force to get the sample.  Obviously, the way through is to stand by what you have said through your counsel, and that is cooperate.

38The terms and conditions as it were of the community corrections order, will be red to you formerly shortly, when the document is produced.  Is there anything else required.

39MR SEXTON:  No, Your Honour.

40MS KELLY:  No, Your Honour.

41HIS HONOUR:  Thank you.  You can come out of the Dock, Mr Plucke, and be up by counsel there, so that you can sign the document.  Mr Plucke, the order that I will ask you to look at with your counsel and sign, is in relation to a community corrections order that will commence today, 13 July, and go for two years, until 12 July 2020.  The conditions that apply to every single community corrections order, and therefore obviously apply to you, are these.

42You must not commit another offence, for which you could be imprisoned during the time the order is enforced.  Obvious enough, do not commit any crime.  Within the time that the order is in force, obviously do not commit crime at all.  But if you do commit any crime, even if it is not dealt with, in the
Magistrates' Court, of any sanction that is severe, you might get a fine or something.  But you will come back here, and all the things that I have said about you likely to neve be back before the courts will sound naive, and I will be none too happy and impose the appropriate penalty for the breach.  Do you follow all that?  Yes.

43The next thing is that you have to comply with a range of things that the
Office of Corrections will ask of you.  One of them is that you may need to, following certain regulations, they will have to take photographs of you to know who you are, and those sorts of things.  You have got to comply with all that.  You have got to report to and receive visits from the Office of Corrections.  You must report to the Office of Corrections within two clear working days of this order starting.  That is down there in Little Malop Street in Geelong, the community corrections service.  You will see the address.

44You must let the community corrections officer know within two clear working days, if you change your address or your job.  You must not leave Victoria without getting permission to do so.  That is work as well, if you have to go on other tasks interstate or conferences or something.  You must obey all lawful instructions from the Office of Corrections.  So you will discern from that, just tell them what you are doing, and cooperate with what they ask you to do.

45The next part of it is the conditions that apply just to you.  So you must perform 150 hours of unpaid community work, as directed by the regional manager.  I order that all hours or treatment and rehabilitation, satisfactorily undertaken, are to be counted as hours of unpaid community work.

46The treatment and rehabilitation program that you must do, you must participate in programs and courses that address factors relating to the offending as directed by the regional manager, the sex offenders course.  You must be under the supervision of the community corrections officer for the full two years.  They will want to know what you are doing, there will be meetings and telephone calls and the like throughout.

47All right, if you sign that, it will bring the matter to an end.  You will get a copy of the document you just signed, and the document relating to the forensic sample as well.  Is there anything further?

48MR SEXTON:  No, Your Honour.

49HIS HONOUR:  I thank counsel for their very considerable assistance throughout this matter.

50MR SEXTON:  As Your Honour pleases.

51HIS HONOUR:  Thank you.

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