Director of Public Prosecutions v Ramirez
[2016] VCC 1972
•16 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-15-01900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODOLFO ALFREDAO RAMIREZ |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 16 December 2016 | |
DATE OF SENTENCE: | 16 December 2016 | |
CASE MAY BE CITED AS: | DPP v Ramirez | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1972 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton v R; Fitzgerald v R; Clements v [2014] VSCA 342; Sherritt v R [2015] VSCA 1
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms T. Bolton | Office of Public Prosecutions |
| For the Accused | Mr A. G. Burns | Stephen Andrianakis & Associates |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the victim and family or witnesses.
HER HONOUR:
1 Rodolfo Ramirez, you have pleaded guilty to one charge of indecent assault. The maximum penalty applicable to that offence is ten years’ imprisonment.
2 This crime arises out of events which took place on 23 July 2014 and involved the victim of your offending, Allison Peterson[1].
[1] Allison Peterson is a pseudonym.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts, as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts in this case are most disturbing. Your behaviour was obviously quite unacceptable. You now accept your offending was "uninvited" and inappropriate. You apparently now accept you misunderstood what you regarded as "cues". You now no longer, it seems, blame the victim for your offending.
4 I turn to a brief summary of your offending.
5 You and your wife had met Allison Peterson in 2012, when Allison was a hairdresser. In approximately 2013, Allison joined your gymnasium, “Fight Militia” and had been trained by you.
6 In July 2014, the victim injured her knee and was experiencing knee pain. On some occasions when she attended the gym, she told you of her injury and you offered her massages to relieve the pain. You do not have any qualifications as a massage therapist, such acknowledged by you in your record of interview (Question 79 and following).
7 The massages took place on the couch in the gymnasium. Initially you asked that she sit, then you progressively encouraged her to lie down while giving her a massage.
8 On several occasions you told Allison not to tell your wife about the massages, as she was a jealous person. You were clearly aware your behaviour was not appropriate.
9 Throughout the beginning of July 2014, you insisted on massaging Allison numerous times and on one occasion, pulled her leggings down, exposing the bare skin of her bottom.
10 On 23 July 2014, Allison attended the gymnasium and was again massaged by you. On that occasion, when Allison walked into the gymnasium, she saw you sitting down with two blankets over you. You asked how she was feeling and she said “I’m a bit a sore, but a good sore”, being a reference to the sore muscles she had from training.
11 You told Allison to lie down on the couch, placed a blanket over her and commenced rubbing her shoulders and lower back. She was lying flat on her stomach. You lifted her t-shirt and rubbed her skin, then slid her pants down underneath her bottom. She felt uncomfortable and tried to push her hips down low into the couch to prevent you from pulling her leggings down any lower. You started to rub and massage her in a very hard manner on her inner groin area, telling her to, "Just relax".
12 You told her to turn over and then commenced rubbing her groin area and quadriceps. Allison was becoming more and more concerned by your behaviour. You then made a comment to her, which caused her to become anxious and confused. You then rubbed her vaginal area under her clothing towards her pubic bone.
13 Allison pushed your hands away, told you to get off and that what you were doing was wrong and said "How dare you?" You apologised, saying "Sorry, sorry I’ve gone too far”. You certainly had. You then seemingly wanted to continue to massage Allison and remain professional.
14 Allison never consented to being touched in that manner by you and the prosecution case is that you did not turn your mind to whether she was consenting or might not be consenting. You now accept that that was the case.
15
Allison was in shock and felt paralysed. She said to you, “I don’t want to break up a family”, then ran out of the office to the treadmill. She was on the treadmill for about four minutes thinking about what had happened then said to you,
“I wanna get out of here”. You said the door of the gym was locked. Allison told you to unlock it and let her out. You eventually unlocked the door and she ran to her car.
16 Allison immediately called her friend, Benjamin Graham[2], and told him of the incident at about 6.45 am.
[2] Benjamin Graham is a pseudonym.
17 Allison subsequently met with another friend, Natalie Jordan[3], on 25 July and explained what had happened and sought her advice.
[3] Natalie Jordan is a pseudonym.
18 Allison then received a text message from your wife, accusing Allison of being with you. You were attempting to put the blame for your offending onto Allison.
19 You were arrested on 29 July 2014 and interviewed, during which you made a largely "no comment" interview, although you did say you were not a qualified masseur. Of course, to answer questions put to you with "no comment" is and was your right.
20 Your offending involved a type of breach of trust and you abused that trust.
21 The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject shortly.
22 I turn to your prior criminal history.
23
You have admitted a significant number of prior court appearances, although
I note none are sexually related offences and they are dated.
24 You first appeared on 24 July 1997 at Ringwood Magistrates’ Court on charges of behaving in a riotous manner in a public place and were convicted and fined $500.
25 On 12 April 1999, you were before the Magistrates’ Court on charges of hindering, and resisting police and you were convicted and fined $500 and ordered to pay compensation of $50.
26 You next appeared on 9 November 1999 on charges of possessing a dangerous article, described by you to Mr Burns, and assault in company and then to me. You were convicted and fined $500, suspended from driving for three months and ordered to pay compensation of $710.
27 You next appeared at Ringwood Magistrates’ Court on 16 April 2002 on a charge of unlawful assault which, I was told, related to an incident at soccer. You were convicted and placed on a community based order for nine months, to perform 75 hours of unpaid community work and to participate in an anger management case, and there has been some evidence and details provided regarding that order and a breach of it, in today's hearing.
28 You subsequently appeared on 15 May 2003 at the Magistrates’ Court for failing to comply with that community based order. The breach was proven and you were convicted and fined $360. The original order for the unlawful assault charge was confirmed.
29 You told Mr Burns you breached that order following being "injured" and said you had not been able to complete the work hours.
30
When having you assessed for a community corrections order before me,
I have requested and received further information regarding that breach.
31 A copy of that breach report was tendered as Exhibit C. That report disclosed your failure to attend for supervision on 4 September 2002, 10 September 2002 and 7 January 2003, with the explanations as described and elaborated upon today in evidence.
32
You had also failed to perform unpaid community work on 10 July 2002,
2 December 2002, 9 December 2002, 6 January 2003 and 13 January 2003. Again no reference to any injury affecting that ability to perform unpaid community work, although on 10 July 2002, you did say you were ill, but failed to supply supporting documentation.
33 There was also some reference to you failing to notify of a change of address and failed to complete community work within the three month timeframe.
34 The Breach Report described your attendance, at that stage, for supervision as "sporadic" and you cited alleged work and study commitments and ill health.
35 The author of the report notes you were afforded significant discretion due to your various commitments, but failed to take advantage of the discretion.
36
Of course, it must be stated to avoid any misunderstanding, you are not being sentenced again for that breach. Its significance lies in your description to
Mr Burns as to why the order was breached, your explanation being relevant to your rehabilitation prospects and your instructions, at least at the last plea hearing, was that you were injured and had not completed the work and so were breached. I am aware, however, that this order was made 14 years ago and that much has changed in your life since then.
37 This information also has some relevance, although is not definitive to Mr Burns’ submission that you can again be placed on a community correction order and should be placed on an order for this offending.
38 You then appeared at Ringwood Magistrates’ Court on 23 July 2004 on a charge of recklessly causing injury and were convicted and fined $1,000. I was told by Mr Burns that that offending also occurred at a soccer match. It is a shame you did not previously complete the Anger Management Program.
39 You then appeared at Ringwood Magistrates’ Court on 21 February 2006 on two charges of trafficking amphetamine; two charges of possessing amphetamine; one charge of possession of cannabis; and two charges of dealing with property suspected of being stolen. For those charges you received an aggregate of nine months' imprisonment.
40 Your prior offending history is very concerning and I note that you have also previously served a sentence in prison. You are certainly very familiar with the criminal justice system, albeit dated. It would seem those who had prepared the references for your initial plea hearing did not know of those prior appearances and your previous time in custody and in some respects, that has been addressed and I will come back to that in a moment.
41 Your counsel, Mr Burns, prepared a written outline of submissions for your plea hearing (Exhibit 1), and addressed those during the course of the hearing. As has been pointed out by your counsel, there are some mitigating factors. You have pleaded guilty to this offending.
42 You are entitled to have that fact taken into account in your favour, and I do so. The community, in particular the complainant, Allison Peterson, has been spared the ordeal of having to give evidence upon your trial. Whilst I note she was required to be cross-examined at a contested committal in October 2015, the prosecution accepts that the contested committal was conducted when you had been originally charged with rape. Following that committal and I assume the evidence given by Allison at that time, there were discussions between those representing you and the prosecution, in an attempt to resolve this matter. It has now resolved to the charge on the indictment and your plea of guilty to it.
43 In the circumstances, I am prepared to accept your plea of guilty indicates remorse for your offending.
44 I was told something of your background and history in the outline of submissions prepared by your counsel.
45 At sentence, you are 39 years of age and were 36 at the time of this offending.
46 You are married with one child from that marriage, a son 4 years of age. Your wife has children from a previous relationship who also live with you, a daughter, 15, and a son, 10 years of age.
47 You were born in El-Salvador with one sibling, a younger brother. Your parents have divorced and you described they had a "dysfunctional" marriage. You described a good relationship with your father, but a strained relationship with your mother. The family migrated here as refugees when you were 12.
48 You attended St Joseph’s College and completed your VCE. You worked as a petrol station attendant whilst at secondary school to help your father with the family finances and had also worked in factory hand-related jobs and in the retail sector. You studied and obtained your Advanced Diploma of Management (Human Resources) from Holmesglen TAFE.
49 Approximately six years ago, you opened a gymnasium under the name "Fight Malitia", where you trained boxers and mixed martial arts fighters. You continue to run that gym. Prior to this charge, you had obtained a Working with Children Assessment Notice, which is now suspended.
50 You have a drug history, albeit dated. You used amphetamines in your late 20s and instructed that you have been drug free for ten years, which seems consistent with your criminal history.
51 I am told you are remorseful for your offending and it seems no longer blame the victim. You have suffered anxiety as a result of this offending and its sequelae. There was some medical material before me, to which I shall shortly refer.
52 Mr Burns, in his written submissions, referred to the circumstances of your offending. You said the victim attended the gym for personal training purposes and that you believed she was flirting and making sexual advances to you. It was in that context and during a massage, you touched her genitals without giving thought about whether she was consenting. I discussed with Mr Burns my concerns regarding this attempt to deflect responsibility for your offending to the victim.
53 A number of documents were tendered.
54 There was a report from Dr Aaron Cunningham, Forensic Psychologist, dated 16 November 2016, in which further details were provided about your background and history. You described your life in El-Salvador as “sad and violent”. Your father worked in Australia as a tile printer and your mother as a seamstress. When you were 16, your parents separated and you and your brother then lived with your father. You described your father as a positive role model. You apparently continue to live in the home owned by your father. He lives a three-minute drive away and with your brother.
55 You reported five significant romantic relationships and your current relationship having continued for approximately six years, and that is with your wife.
56 Referring to your education and work history, you said you prioritised your work over study, in order to earn money. You did, however, attend Holmesglen TAFE and achieved the Diploma to which I have previously referred. While studying for that, you were also working part-time at a shoe store and various other places.
57 You have operated "Fight Malitia" for six years and described your gymnasium as your passion.
58 You were hospitalised at the start of 2016, having suffered a prolapsed disc in your neck, which will eventually require surgery, although no material was provided regarding that. I was, however, provided with some material today, which would tend to suggest you have had ongoing problems medically since about 2002, not currently an issue for you, as I understand it.
59 You had used amphetamines from your 20s with friends on weekends, although had not used that drug for ten years, you said.
60 You reported being stressed as a result of this court hearing, which of course has arisen because of your offending. In his opinion, you did not present with a mental illness, rather with significant anxiety in the context of this court case. There was no indication of an intellectual disability.
61 Regarding your offending behaviour, you told Dr Cunningham you perceived that there had been flirting between yourself and the complainant, Allison, believing that she had made romantic advances to you. This is not consistent with the description by Allison of the relationship. You said you did not want to pursue sexual behaviour with her, as you did not want to be unfaithful to your wife. Again, I repeat, you have sensibly abandoned the suggestion your offending was the victim’s fault.
62 In a phone conversation with your wife, Dr Cunningham concluded she was also stressed by the court process and potential ramifications. I have no doubt about that.
63 Turning to Mr Cunningham’s summary and opinion, psychometric testing indicated your cognitive functioning was in the average range.
64 In his opinion, you had a stable employment history, with little periods of unemployment. There did not appear to be any mental illness or drug or alcohol contributors to your offending and nor did you present with a sexual disorder or paraphilia.
65 In his opinion, there are a number of current protective factors that may reduce your future risk, your stable employment history and current employment; having a supportive partner; stable accommodation; and not presenting with mental health or drug and alcohol problems, although I note all those factors were present at the time of your offending.
66 Dr Cunningham thought you may benefit from offence-specific interventions aimed at increasing your insight into the inappropriateness of your offence behaviour. You presented with distortions regarding the cues that you felt were being forwarded by the victim.
67
Also before me was a medical report from Dr Hazra at Eastern Health, dated
6 December 2016. That was referrable to you having presented at Angliss Hospital Emergency Department on 5 December 2016 with chest pain. I was told that that was subsequently diagnosed as anxiety.
68 There were a number of references before me and I discussed with Mr Burns whether the authors were aware of your criminal history at the original plea hearing in this matter.
69 There was reference from Joanne Wilson, undated, who has known you since 2014, when she started training at "Fight Militia". She trusted and respected you as a trainer, colleague and friend. She had also sought your professional advice, often in a "one-on-one" situation. She has never felt uncomfortable or awkward in your presence and your behaviour has always been professional, understanding and comforting. She had not, in the last two years, questioned your motives or integrity.
70 A reference from Christina Aldea, undated. She has known you through her daughter, a member of your gymnasium for the past eight years. Your offending was out of character. She described you as a good person, a family man and always respectful towards her. She has visited your gymnasium several times and her experience was that you had conducted yourself professionally and was focused on the wellbeing of the gym’s members, including her daughter.
71 A reference from Alana Aldea, who has been a member of your gym for the past eight years. She has known you for many years and has never known you to do anything like this. This offending was out of character. She described you as a trustworthy person, a family man, honest and someone she could trust and rely on as a friend. She said you ran your gym in a professional manner and conducted yourself appropriately at all times. Over the years she had known you, you have been respectful to women and she felt safe and comfortable training with you.
72 A reference from Kylie Herriott, dated 7 October 2016, who has known you for about four years. She had also attended your gym. She found you to be professional at all times in training sessions, in group and private sessions. She had never known you to act inappropriately towards anyone. Ms Herriott said you had been respectful to her and anyone else she brought to the gym. You had never acted inappropriately towards her.
73 A reference from Collette Abicair, dated 7 October 2016, proprietor of Art of Beauty. She has known your family since November 2013 and has seen you on many occasions in her salon and also met your wife and daughter. She described your family unit as close-knit. Your offending behaviour was out of character. She has never questioned your honesty and integrity.
74
A reference from Con Margaritis, dated 9 October 2016, who met you in
early 2014 after his 9 year old son spent a week training at your gymnasium. His son wanted to pursue further training with you after that period.
Mr Margaritis then met you, your wife and family at the gym and as a result, was satisfied to leave his son with you. He described you as very honest, trustworthy and honourable. His 5 year old daughter also now trained at the gymnasium, as did Mr Margaritis. He said you had formed a great friendship and the families spent time together at social gatherings and events. He regarded you as a friend. In the last two years, you had not given him any reason to doubt your integrity or motives. This offending was out of character.
75 In a further reference from Mr Margaritis, dated 8 December 2016, he referred to your criminal record. With this information he would, nevertheless, continue to support you and attend your gymnasium with his children.
76 There was a reference from Irene Margaritis, dated 9 December 2016. Her husband and two children attend "Fight Militia" and I have just referred to them. She described you as much liked by those who know you. You are kind, dependable, hardworking and caring. She has always felt comfortable in your presence.
77 There was a reference from Erini Apostolellis-Kokakis, your step-daughter, dated 15 December 2016. You have always been encouraging in her schooling and fighting career. She regards you not as a step-father, but a father. She said you have treated she and her brother, George, as if they were your own. You are a role model to her.
78 A reference from Nadia Jacobs, dated 13 December 2016. She has known you for approximately 22 years from high school. I note she understood you had never been in trouble with the police prior to this charge. She described you as level-headed and striving to be the best you can.
79 A reference from Timothy O’Brien, dated 15 December 2016. He is aware of this charge and your prior criminal history. He has known you for ten years as a friend. He described you as a caring father, patient and loving. You are placid and patient in your dealings with adults. You offered support to him when he was recently ill, assisting him in his business. You dedicate your time to friends and clients.
80 A reference from Morganna Magee, undated, who has known you for twelve years and was aware of this charge and your criminal history. She described you as trustworthy, responsible and loyal. This offending before me, she said, was out of character.
81 Despite my concerns regarding your explanation for this offending and attempt to blame the victim, I am satisfied, on the evidence before me, that your prospects of rehabilitation are reasonably good if you undertake appropriate treatment. While I have noted your extensive prior criminal history, I again note that none of that relates specifically or at all to sexual offending. When sentencing you, I must seek to maximise your chances of rehabilitation, as they may be. It is clear you have "moved on" in your life and have, apart from this offending, not further offended.
82 There is a victim impact statement from Allison Peterson. There is no doubt she has suffered considerably in the manner described within the statement, as a result of your offending. Since your offending occurred, she has not been happy within herself and had previously loved going to the gym, exercising and having daily walks. She went to your gym to have a personal trainer to push her boundaries and for her to be challenged. As a result of your offending, she now felt trapped, unhappy and empty.
83 Over the last two years, Allison had basically worked all the time, not really having a social life. She had moved out of her home for a time, as she did not feel safe in her own neighbourhood, as you lived nearby and the gymnasium was around the corner. She said she had moved back home about six months ago, but did not feel one hundred per cent safe.
84 Allison had attempted to join other gymnasiums, but has cancelled memberships, as she did not feel the same after her experience with you. She felt terrified that something was going to happen to her.
85 Initially she had trouble sleeping and would feel anxious. She was vigilant about safety at home and anywhere else she might be. To move out of her home was a financial burden and she had to use her savings. That meant she had to work all the time to afford to live elsewhere. Cancelling gym memberships was also a financial burden.
86 Further, in her job as a hairdresser, Allison often has muscle soreness, but had found it difficult to go to massage places, for fear of what would happen to her. On occasions she would go to those premises, then burst into tears and have to leave.
87 Trusting new people that she met was very difficult. Allison felt angry, sick and disgusted over what you did to her. That you could do this without a thought for her and what effect the sexual assault would have on her.
88 Allison said that being sexually assaulted had changed the way she felt and her perception of safety and trust. She said the ongoing effects of your sexual assault upon her had left an imprint on her life that could not be minimised.
89 The courts have also referred to the importance of social rehabilitation and the effects upon a victim of sexual offending, including DPP v Toomey[4], in which his Honour Vincent J referred to social rehabilitation citing DPP v DJK[5], allowing of course for those factual circumstances and the case now before me.
“With respect to those statements, (victim impact statements), I repeat comments I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour, to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view, they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.” [17]
[4] (2006) VSCA 90
[5] (2003) VSCA 109, [17]
90 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious that I must not allow the effects upon a victim to swamp the sentencing process.
91 Your counsel, Mr Burns, urged that the appropriate disposition for your offending was on a community corrections order. He submitted that this would appropriately address general deterrence, specific deterrence and also assist in your rehabilitation. In that regard, he referred to a number of authorities contained within his written outline of submissions, including Boulton & Ors v R[6];. He also referred to Sherritt v R[7], that case, however, involving penetrative sexual offending against a child.
[6][2014] VSCA 342
[7][2015] VSCA 1
92 Mr Burns also referred to s.5(4C) Sentencing Act, of which I am aware. I am also aware that a term of imprisonment must always be the last resort of the court. In determining the appropriate sentence in your case, I have considered whether or not all the purposes of sentencing can be achieved by a community correction order, with appropriate conditions attached.
93 The prosecutor, Ms Bolton, submitted should I be considering a community correction order, then a condition of that would involve a sex offender treatment program. If I imposed a community correction order, it should be with a conviction recorded.
94 Ms Bolton did not have any specific sentencing instructions regarding a combination disposition (ie: imprisonment with a community correction order), repeating the appropriate sentence was ultimately a matter for me.
95 I am mindful of the decision in Boulton & Ors v R[8] and the subsequent pronouncements of the Court of Appeal, relevant to those principles and I am referring to community correction orders. A community correction order has both a punitive and a rehabilitative aspect to it, and in Boulton, the court was urged to "rethink the conventional wisdom about whether prison is really the only option".
[8] [2014] VSCA 342
96 Community correction orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[9], Alam v The Queen[10], Marocchini v The Queen[11] and Hutchison v The Queen[12], of course being mindful that I am, of the different offending in those cases from yours (and perhaps fairly recently Gul v The Queen[13]).
[9] [2015] VSCA 95
[10] [2015] VSCA 48
[11] [2015] VSCA 29
[12] [2015] VSCA 115
[13] [2016] VSCA 82
97 I did not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other courts, relevant to your offending, now amounted to nought. Nor did I understand Boulton’s decision to remove the instinctive synthesis when sentencing.
98 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to the charge. Further, I note Court of Appeal Priest JA observed in Hutchison that:
"It should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case, to satisfy the various purposes for which a sentence may be imposed.” [17]
99 I arranged to have you assessed for a community correction order to enable me to further consider both the submissions by Mr Burns and also the all other dispositions that might be available to this court.
100 I have received that report. Your non-compliance with a previous community correction order was noted, but I also note, as I have said many times, that that earlier order was made some years ago.
101 You have recently expressed a willingness to comply with a community correction order, if one was imposed and you have identify no difficulties which would impede your ability to comply. Despite your full-time employment and any illnesses you may have, there would be nothing, as I understand, that would prevent you from completing any such order, if it formed part of any sentence that I impose or if it was the sentence I impose.
102 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, which I regard as generally fairly good, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this.
103 There is also the need for specific deterrence when sentencing you, as you do have a prior criminal history, although I note dated and not for sexual offending.
104 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. Counselling to address your insight into the inappropriateness of your offending and your distortions regarding the cues you felt were being forwarded by the victim, (referring there to Dr Cunningham’s report), will hopefully protect the community from you in the future.
105 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
106 I have carefully considered your counsel’s submissions, however I have concluded that to impose a community correction order without any period of imprisonment to be served by you, would not appropriately or adequately reflect all sentencing considerations, including the gravity of your offending and all matters personal to you and in mitigation of your sentence.
107 In my opinion, to impose a disposition that did not involve a term of imprisonment to be served, would not be appropriate. I do, however, consider a community correction order can and should be part of the disposition imposed.
108 I propose to sentence you as follows.
109 Charge 1, you are convicted to a term of imprisonment of 3 months and then you will be subject to a Community Correction Order for 2 years.
110
Now, I need to tell you a lot about that Community Correction Order. The timing at the moment is probably not the best, but I ask you to listen carefully and
I assume Mr Burns has explained it to you anyway.
111 The Community Correction Order will be with a conviction recorded.
112 Before I ask you if you consent to being on a Community Correction Order, I am obliged to tell you a bit about the order, so that you understand what it means.
113 There are a number of core conditions that apply to a community correction orders:
·You must not commit, whether in or outside Victoria, during the period of the order, that is two years, an offence punishable by imprisonment. You have got to be extra careful. It might be a driving offence that has the potential. That could breach this order and you come back before me and I have to re-sentence you.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is for two years.
·You must report to the Community Corrections Centre at Dandenong within two clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change. Be careful, you have got to notify them about changing your addresses and jobs, all right? Remember last time, the last order you did not tell them about a change of address, so just be careful.
·You must not leave Victoria without the permission of the Secretary to the Department of Justice, or his or her nominee. No holidays, unless you get permission.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
114 Now there are a number of other conditions that are going to be attached to this order and they apply to you. These are discretionary conditions, but these are extra that I am putting on the order. Not core, these are extra ones. You have got to listen really carefully:
· You have to perform 200 hours of unpaid community work over a period of the first 18 months of the Corrections order, s.48C.
· You must be under the supervision of a Community Corrections officer for the full two year period, ie, 24 months.
·You are required to be supervised, monitored and managed, as directed by the Secretary. Well that is what I said, s.48E.
· You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager, and
I specifically refer to the Sex Offenders Program.
· Now, you have got to listen to this one. You must attend for review of your progress on that order or otherwise, by coming back before me on Friday, 15 December 2017 at 9.30 am. So if everything is going well,
I will be seing you on that date. If things are not going well, I will be seeing you well before that date.
· Another condition which I am adding, is that I direct that I be advised by your Corrections officer of any non-compliance of these conditions, or condition os the order, and I will then determine if the matter should be brought back before me for mention at that point. So you might remember, with the last breach you were on, there were - you had three failed - I might be wrong, three fails to attend supervision; four to not attend work, I think; and then there were a couple of other breaches, so it was not until after all of those things that you were breached.
115 The new order, if you consent to being on it, means I will be told the first time you do not comply, so there will not be the seven or eight chances, it will be the first time. Then I will have the matter mentioned before me and we would see where we go from there.
116 Now, I can only impose a community correction order if you agree to such an order being imposed. I have to tell you a little more about it, because the law says I have to tell you more about it.
117 I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.
118 You can also be re-sentenced for the offence that are before me. One of the options available to me is to sentence you to a further term of imprisonment. So you are going to have to be very careful in that 24 months/two year period. You have got to be extra careful or you will can find yourself back before me, being re-sentenced on this charge.
119 So I also have to tell you, if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections worker, a substantial fine can be imposed, so you can also end up with a monetary penalty.
120 Now, it is a lot to take in, I appreciate that. But you had the benefit, I suppose, of being on a community correction order before and having breached it before. So I guess you know both sides of the coin. Have you thought about whether you consent to being on the order? Do you want to chat to your counsel about it?
121 OFFENDER: (Indistinct words).
122 HER HONOUR: Are you sure? Do you want to have a chat, or are you right with that? Do you consent, because this is being recorded. Do you consent to the community corrections order being made, including all of those conditions?
123 OFFENDER: Yes I do.
124 HER HONOUR: And I might also add, material was provided to me today which would indicate that there is no health reason, as at today's date, that would impact upon your ability to complete that work.
125 OFFENDER: That's correct.
126 HER HONOUR: Yes.
127 Now, well before we move on, all right. You are satisfied, Mr Burns, that he understands and is able to consent? I have not finished yet. I have got a long way to go yet. I am talking about the order.
128 MR BURNS: Yes.
129 HER HONOUR: Are you satisfied he understands it?
130 MR BURNS: Yes, Your Honour, I am.
131 HER HONOUR: Yes, all right. Well now I confirm the sentence as previously stated.
132 On Charge 1, you are going to be convicted and sentenced to 3 months' imprisonment and after you have served 3 months' imprisonment, you will be subject to the community correction order for a period of 2 years, with all those conditions attached. That Community Correction Order will have a conviction recorded against it.
133 Pursuant to s.18(4) Sentencing Act 1991, I declare you have not spent any days, I would like that checked, in custody by way of pre-sentence detention for this offending. So there is no days to declare, as I understand it. I would like that checked.
134 Pursuant to s.6AAA Sentencing Act 1991, if you had pleaded not guilty to this charge and been found guilty of it, I would not have sentenced you the way I have today, but I would have sentenced you to a term of imprisonment of 2 years' and I would have set a non-parole period of 15 months.
135 The prosecution did not seek an order that you be placed on the Sex Offenders Register, pursuant to the relevant Act, therefore I do not make that order.
136 The prosecution made application for a forensic sample pursuant to s.464ZG Crimes Act. This was consented to by counsel on your behalf and I make the order in the terms sought and I make the order on the basis of the seriousness of your offending and your prior offending history, although I note it is not for sexual offending. It will be for a saliva sample and I must advise you, the authorities may use reasonable force in order to obtain that sample.
137 Now, are there any other orders that I needed to make?
138 COUNSEL: No, Your Honour.
139 HER HONOUR: All right. Now just let me clarify this. I do not know if I read this out correctly, but way back at paragraph 15, this was part of the prosecution opening that I read out. Allison never consented to being touched in that manner by you and the prosecution case is that you did not turn your mind to whether she was consenting or might not be consenting. That is what that should be. All right? No surprises there.
140 What is going to happen now is, your counsel is going to walk back to the dock where you are. This is the order, Mr Burns, this is the Community Correction Order which he has to sign, or not, but if he does not sign it, I will take that as a lack of consent and we are back to another day to have a think about it.
141 MR BURNS: Yes.
142 HER HONOUR: But if you want to go back and assist him.
143 All right, now, we have to be sure that PSD is right. Is there any PSD to declare? Are there any questions or anything about any figures? Everyone is right with all of that? All right. Well thank you very much.
144 All right, Mr Ramirez, thank you. You need to go out the door. Thank you, Mr Ramirez.
145 All right, thank you both for your assistance.
146 MS BOLTON: As Your Honour pleases.
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