Director of Public Prosecutions v Polglaise

[2020] VCC 838

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00913

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON POLGLAISE

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF SENTENCE:	11 June 2020
CASE MAY BE CITED AS:	DPP v Polglaise
MEDIUM NEUTRAL CITATION:	[2020] VCC 838

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence
Catchwords: Sexual assault
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Ms Y. Giannopoulos, Solicitor for the Director of Public Prosecutions
For the Accused	Ms J. Clark (for Plea) Mr A. Brand (for Sentence)	Slades and Parsons Solicitors

HER HONOUR:

1Jason Polglaise, you were tried in the County Court at Melbourne on one charge of sexual assault and were convicted by a jury of that offence on
6 March 2020.  I will briefly outline the circumstances of your offending.

2The victim was 16 years of age at the time of the incident and living with his mother in Rowville.  You were 44 years old at the time.  On Saturday
30 September 2017, the victim's mother and her partner invited a number of adult guests to their home for a party on grand final day.

3The victim was at home and had not met any of the guests before.  He was sociable and mingled at the party.  At around 7.15 pm you arrived at the party with other friends.  It was a happy occasion, especially after Richmond won the flag.

4Later in the evening, some guests drank shots made up of Chambord and Baileys.  The victim asked his mother if he could have one and she allowed him to.  Over the next couple of hours you passed the victim a few shots without his mother's knowledge.

5He also helped himself to a number of shots.  In evidence, the victim admitted drinking three beers and having at least ten shots.  There was no dispute at the trial that he became intoxicated. 

6The victim felt ill and went to the toilet, eventually vomiting. You followed him into the toilet and comforted him by rubbing his back.  You then rubbed the victim's face, neck, shoulder and chest area.  You tried to take off his shirt and put your hand on his bottom and his stomach.  You placed your hand on his inner thigh and on the area of his crotch, over his clothing.

7The victim agreed that you did not put your hand down his pants when you were rubbing his back and comforting him earlier on.  The victim told the jury that you touched him when he was sitting down on the floor with his legs out front, his back against the wall.

8You reached over and slipped your hand down the front of his pants, inside his underpants and started to rub, making ‘skin on skin’ contact.  You grabbed his penis and squeezed it for about three seconds.  You made pleasurable sounds and then put your fingers into the victim's mouth.

9The victim did not consent to being touched and felt like he had to get away.  He pretended that he was having an asthma attack and that he needed to find a puffer.  He left and went into his bedroom.  You had your arm around his shoulder or waist and helped him to get there. The victim pretended that his asthma attack was ongoing and that he needed to find his mother.  He wanted to get as far away from you as possible. 

10He went to the front of the house and told his mother's boyfriend that something was wrong.  When he was asked what the problem was, he replied, “Something is wrong down there”, touching his crotch at the same time. He said that you had touched him down there.  The victim and his mother's boyfriend then went into his mother's bedroom.  The victim was holding his crotch saying, “He touched me down there”, and at around that time his mother came into the room. The victim told her what had occurred.  The police were called and attended soon after, commencing their investigation. 

11On Sunday 1 October 2017, you attended the Knox SOCIT office by appointment and participated in a record of interview. You agreed that you had gone to the party and admitted giving the victim about three shots of alcohol, saying that you regretted doing so.  You said that when the victim went into the toilet you followed him, asking whether he was okay.  You agreed that you rubbed the victim's back when he started to throw up.

12When the allegations made by the victim were put to you, you said that you do not remember doing that at all.  You agreed that you touched him on the back but said that you did not touch him anywhere else at all during the night.  You said, “I would not do that, that's not my behaviour”. (question 334)

13You were released and the police continued their investigation.  The victim made a VARE statement on 3 October 2017 and you were charged on
10 January 2018. 

14The charge of sexual assault was initiated in the summary stream at the Magistrates' Court.  You elected to have it uplifted and a filing hearing was held on 26 November 2018. A contested committal was conducted on 10 May 2019.  The matter had been listed earlier in the year but had to be adjourned, due to availability of the court.  You were committed to stand trial and entered a plea of not guilty to the charge. The trial was initially fixed for 2 July 2019.  That date was vacated by consent, due to the unavailability of a police witness.  The trial was again listed to commence on 25 November 2019.  A further issue arose in relation to another relevant witness, which resulted in the matter being adjourned again.

15On 24 February 2020, a special hearing was conducted where the victim was cross-examined.  Your trial then commenced and you pleaded not guilty to the charge.  Your defence at trial was that the offending did not occur.  The jury, by its verdict, rejected your defence and you were found guilty on 6 March 2020.

16You experienced marked emotional distress when charged, requiring professional treatment at the outset.  There has been a delay in the resolution of this case of more than two and a half years.  This is not solely due to the fact that you elected to contest the charge in front of the jury.

17I accept that it has been a source of anxiety for you, notwithstanding your plea of not guilty.  I am also aware that the delay has been a source of significant anxiety for the victim and his family. 

18You continue to deny that you committed this offence, as you have done since the matter was first raised in October 2017. While you are not to be penalised for running a trial, you have not taken responsibility for your conduct.  In those circumstances, I am unable to conclude that you have shown any remorse.

19Sexual offences are crimes of violence that cause harm to the victims.  In this case, the victim was only 16 years old and you were 44 at the time.  There is a considerable disparity between your ages.  The offending occurred at the victim's home, where he should have been safe and secure.  He was in a confined space when you entered the room. You took advantage of him while he was intoxicated and had been vomiting. 

20You were affected by alcohol at the time and admitted to police that you were drunk that night.  It is accepted by the prosecution that you did not plan to commit the sexual assault, nor that you plied the victim with alcohol in order to achieve this outcome. You took advantage of an opportunity that presented when the victim was alone in his drunken state.  While the touching was only brief, it has had long lasting effects. 

21A number of victim impact statements have been provided.  The victim writes that his life has been disrupted and that he has developed insecurity from your conduct. He is unable to trust people, particularly males.  It has interfered with the relationships he has with other people and damaged the loving relationship he had with his mother.  He describes having lost motivation to achieve good results in Years 11 and 12 at school and is now dealing with the consequences of that and the impact it will have on his future.

22He feels as if his life has been on hold as a result of the legal proceedings.  He describes your conduct as a “blight” that unfortunately still affects the decisions that he makes, causing distress and uncertainty.  He is unsure how he will overcome the effects of your actions.

23His mother writes that she has been traumatised both by your conduct and the drawn-out court process and that her life, too, has been on hold.  She feels that she let her son down and is devastated that she was unable to protect him.  She believes that you have taken away his innocence and his teenage years without a care or concern.  She described that facing you in court and giving evidence was a confronting experience. She has developed mental health issues that have not abated. 

24The victim's grandmother describes the gut-wrenching impact this incident has had on her daughter, grandson and their family.  She has endeavoured to support them throughout this experience.

25The victim's father describes the resentment he feels for being unable to protect his son from the trauma that has resulted from your actions. 

26I take the victim impact statements into account.  I hope that the victim will not let this one event define him.  Now that the case has finished, I hope that the victim and his family can all put this behind them and look forward to a more positive future.

27You are 47 years of age and not currently in a relationship.  You are the youngest of four children and grew up in Melbourne as part of a close and loving family.  When you were 11 years of age, your mother died unexpectedly.  You maintained a close relationship with your father and continued to live with him until he died in 2014. Two of your brothers have also passed away. 

28One of your brothers and your sister-in-law have provided character references, which I have read.  They both describe you as a caring and loving family member who is equally loved by your siblings, nieces and nephews.

29Your family find it difficult to reconcile the act of sexual assault with the person that they know.  Both referees believe that the allegations are out of character.

30You attended Oakwood Primary School and then Cawartha College in Noble Park, leaving at the end of Year 11 to pursue studies in hospitality and marketing at Chisholm TAFE.  You have a strong history of employment working in the area of business development and administration since 1996.

31You have held senior management roles in large companies and have been employed as a business development manager at Hafele Australia since January 2018.  Your employer remains supportive of you and has written a character reference.

32He describes you as a valuable, resourceful and talented member of the company.  He holds you in high regard and you are well respected by your colleagues.  He is aware of your current circumstances and confirms that your employment will continue to be available to you, regardless of the outcome of the court proceeding.

33At the request of your solicitor, a psychological assessment was conducted by Patrick Newton, clinical and forensic psychologist.  He has prepared a report for the court dated 19 May 2020.  In the course of your consultation with
Mr Newton, you maintained your innocence and he described your mental status throughout the consultation as normal.

34You have not been diagnosed with any mental illness.  There is no indication that you had a mental disorder at the time of this incident.  You are not psychotic and have no symptoms of depression, nor is there any indication of cognitive decline.  You are of normal intelligence.  Both your personality and sexual adjustments are assessed as being normal.

35You describe that you are usually a light social drinker who very rarely becomes drunk.  Your consumption of alcohol would not meet the criteria for any alcohol use disorder, although you admitted to Mr Newton that you were affected by alcohol on the night of this incident.

36Mr Newton believes that it would be prudent for you to reduce your consumption of alcohol at social gatherings by at least 50 per cent.

37Mr Newton undertook an assessment for your risk of sexual recidivism.  In his opinion you would be categorised as a low to moderate risk. The most important rehabilitative factor in your case would be your capacity to participate in appropriate offence specific treatment.  If you can actively participate in such treatment, your level of risk would be reduced.

38The secondary goal of rehabilitation would be to ensure that your use of alcohol does not increase the risk of recidivism or other behavioural problems.  In Mr Newton's opinion, should you receive the treatment you require, your prognosis for full recovery is very good.

39You have no criminal history, nor have you committed any offences since this incident occurred.  You are entitled to call upon your good character in this case.  You do not suffer from any mental health disorder, nor have any antisocial personality traits.

40You have maintained the support of a loving family.  You have good employment skills and secure employment.  I am satisfied that this incident was an aberration.  In light of these factors and your age I accept that your prospects for rehabilitation are very good, notwithstanding your lack of remorse.

41I take into account the maximum penalty for this offence and current sentencing practices.  Although the consequences of your actions have been dreadful, the objective gravity of the offending itself is toward the lower end of the scale for this type of offence.

42The principles of general deterrence, denunciation, punishment and protection of the community are all relevant sentencing considerations.  I accept that specific deterrence has some relevance, notwithstanding your positive prospects.

43The defence submission is that a community correction order would adequately address all relevant sentencing considerations.  The prosecution agree that such an order is within range of appropriate dispositions.  You have been assessed by the Office of Corrections. I have read the assessment outcome report and the recommendations.

44You are suitable for a community correction order.  You are prepared to participate in programs and work as required and consent to the making of such an order. 

45Balancing these factors as best I can, I propose to impose a community correction order, with conviction for a period of 12 months.

46You must report to the Cranbourne Office of Corrections within two working days of the making of this order.  You are to perform 150 hours of unpaid community work, to undergo assessment, treatment and rehabilitation in relation to alcohol use as well as assessment, treatment and rehabilitation relating to programs to reduce reoffending.

47I make the mandatory order that you be placed on the Sex Offenders Register for a period of eight years. 

48I will now ask my associate to approach your client. Mr Brand, if you would assist Ms Cipollone in having your client sign the orders?

49MR BRAND:  Yes, Your Honour.

50HER HONOUR:  Thank you.

51MR BRAND:  Your Honour, there was one matter.  I notice in the report on the second page of the report from the Office of Corrections, the last paragraph indicated that there was some - it was recommended that a portion of the hours that Your Honour imposed be allowed to be by way of rehabilitative type dispositions.

52HER HONOUR:  Yes, I have read that and decided that 150 hours is the appropriate amount of unpaid community work.

53MR BRAND:  That is fine, Your Honour.

54HER HONOUR:  I have also read that Corrections recommended supervision.

55MR BRAND:  Yes.

56HER HONOUR:  But given your client's background and the findings, I don't believe supervision is required either, thank you.

57MR BRAND:  Yes, Your Honour.  I can indicate that I have been through this material with Mr Polglaise before Your Honour came on the Bench.  I will go through it again with him in some detail.

58HER HONOUR:  Thank you.

59MR BRAND:  But he does understand the thrust of this.

60HER HONOUR:  Your client can come up to the bar table if that is easier.

61MR BRAND:  Does Your Honour wish to sign this one too?  I notice it has got a provision for you to sign it.

62HER HONOUR:  I think it needs to be signed downstairs.  I will just sign the order. Mr Buckland, was there anything further? Mr Brand, is there anything further?

63MR BRAND:  No, Your Honour.

64HER HONOUR:  I will adjourn the court, thank you.

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