Director of Public Prosecutions v Ramos (a pseudonym)

[2022] VCC 1943

IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RAMOS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2022
DATE OF SENTENCE:	8 November 2022
CASE MAY BE CITED AS:	DPP v Ramos (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1943

REASONS FOR SENTENCE
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Subject:Criminal law – sentence

Catchwords:              Sexual assault; trespass; contravene personal safety intervention order; contravene conduct condition of bail

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence: 1 year and 6 months’ imprisonment; non-parole period: 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Solicitor for the Director of Public Prosecutions
For the Accused	Mr T. Smurthwaite	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Joshua Ramos,[1] you have pleaded guilty to one charge of sexual assault that occurred on 18 July 2021.

[1] A pseudonym.

2This is a rolled-up charge, being two identifiable charges bundled together in a single charge.  In this case, it encompasses the touching of the victim’s breasts and the victim’s vagina.  The maximum penalty for this offence is 10 years’ imprisonment.

3You have pleaded guilty to one related summary offence that was committed on the same date:

·        

Trespass, the maximum penalty being six months imprisonment or

25 penalty units.

4You have also pleaded guilty to two related summary offences that were committed on 1 September 2021:

·        Contravention of an Interim Personal Safety Intervention Order, the maximum penalty being 2 years’ imprisonment or 240 penalty units; and

·        

Contravention of a conduct condition of bail, the maximum penalty being

three months’ imprisonment or 30 penalty units.

5You were 26 years of age at the time.  The victim, your next-door neighbour, was aged 22.

6The circumstances of your offending have been provided in the Summary of Prosecution Opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows.

7In July 2021, you lived at an address in metropolitan Melbourne.  The victim, her sister, and a friend, MR,[2] lived next door.  Your houses shared a common wall, and the backyards were separated by a fence, that was approximately five feet in height.

[2] A pseudonym.

8Prior to the date of your offending, you had met the victim’s sister but not the victim or MR.

9On the afternoon of 17 July 2021, the victim and her housemates were at home.  They were drinking alcohol, listening to music, and playing board games.

10At around 6.00pm, they went out into their backyard.  You were in your backyard, with your dogs.  You started to speak across the fence and invited them to pat your puppy.  The victim and MR jumped over the fence, into your backyard.  This was the first time you had spoken to the victim.

11Shortly thereafter, the victim and her housemates returned home.  At approximately 8.00pm, you knocked on their door to see if they wanted anything, as you were going to the bottle shop.  The victim decided to go with you to purchase drinks.

12You drove the victim to the bottle shop.  In the course of conversation, she asked if you were interested in her sister.  You responded, saying, “To be honest, I am interested in you.”  The victim laughed it off.

13When you came back, you accompanied her into their house.  You asked if your friend could come over too, and the victim and her housemates agreed.  Your friend, KD,[3] arrived at around 8.15pm.

[3] A pseudonym.

14At one point, you walked back to your house with KD, the victim, and MR to collect some cannabis.  You all stood in the kitchen chopping the cannabis, which you then rolled into cigarettes.  This uncharged act is not covered by the Indictment.  Its only relevance is that it forms part of the narrative, that places the charged acts into context.

15You all returned to the victim’s house and went into the backyard.  The victim had never smoked cannabis, and she and MR both “had a puff” before going inside.  You and KD stayed outside smoking.

16During the night, you were flirtatious with the victim, her sister, and MR.  You told the victim, “I’m interested in you”, and tried to kiss her sister.

17At around 10.00pm, the victim was affected by alcohol and fell asleep on the couch.  Approximately 30 minutes later, MR woke her up and helped her upstairs to her bedroom and into bed.

18Just before midnight, MR told you and KD that she wanted to go to sleep, and asked you to leave, which you did.  MR locked the front door.  She did not check the back door, as she assumed that it was locked.

19The victim’s sister and MR both went to bed.  A short time later, MR heard a dog bark and went downstairs.  She saw you through the glass panel as you knocked at the front door.  When she opened the door, you said you wanted to say goodnight, walked past MR and went upstairs.

20MR followed you.  You went into the victim’s sister’s bedroom.  MR told you that you needed to leave and followed you downstairs as you left.  She locked the front door and went back upstairs.

21A few minutes later, MR heard the dog bark again.  She went downstairs and saw you at the front door.  MR opened the door, and you said, “I’ve lost my phone”.  However, MR saw that you were holding your phone, and again told you to leave, which you did.  MR locked the front door.

22

On 18 July 2021, between 12.09am and 1.03am, you called the victim’s sister

13 times via her mobile phone and Instagram.  She did not answer.  You continued to make calls to the victim’s sister after MR had told you to leave.

23Sometime before 4.00am, you climbed over the fence, into the victim’s backyard.  You entered her home via the back door, which was unlocked.  You took your shoes off when inside.

24You walked up the stairs and went into the victim’s bedroom and got into bed with her.

25At approximately 4.00am, the victim woke up in her bed.  She was lying on her right side, facing the window and still dressed in her clothes from the night before.  She felt someone lying behind her.  You whispered, “Yeah baby”, and the victim realised that it was you.  The front of your body was pressed against her back.  You grabbed her breast while you whispered.

26The victim then noticed that her tracksuit pants were pulled down, below her buttocks.  You put your left hand down and touched the top of her vagina, under her underwear.  Your fingers rubbed the outside of the victim’s vagina.  You put your left hand inside the victim’s bra and touched her right breast.

27The sexual contact lasted for around one minute.  At first, the victim was confused, and wondered what was going on.  Once she realised what was happening, she rolled onto her back, pulled her pants up, and got out of bed.  The victim told you that she was going to the toilet.  You asked if she was okay; she responded that she was.  However, she was scared and tried not to aggravate you, so that she could leave.

28The victim ran into her sister’s room, jumped onto her bed, and told her sister that you were in her room.  The victim’s sister immediately confronted you, asking, “What the hell are you doing in here?” and “How did you get in here?”  You replied, “I must have fallen asleep”.

29The victim’s sister walked you downstairs and out the front door.

30The victim told her sister and MR what had happened.

31Approximately 20 to 30 minutes later, the victim was still in her sister’s bedroom, when you returned to the property.  You knocked on the front and back doors for at least 20 minutes.  Between 4.06am and 4.31am, you also called the victim’s sister four times, and sent her one text message.  She did not answer.  In her statement, the victim described that at this point, they were all terrified.

32Police were called at 5.00am. They attended your address at 5.21am.  You were searched and a condom, in its packaging, was located in the front right pocket of your pants.

33You were arrested and conveyed to the Dandenong Police Station, where a record of interview was conducted.  During the interview, you agreed that you had recently been in contact with your neighbours but denied your offending conduct.  In particular, you stated:

·        “I could see, because of the way she was talking, that [the victim] had some drinks already.  

·        “They invited me over and I was like, ok, why not, as any normal guy would.”

·        “I knocked on their door and asked if they wanted drinks.  So, she basically invited herself to come with me. I was like, all right, cool, keep her company.  Everything was fine then.  She was a bit touchy and very flirtatious.”

·        “We were having some drinks, chatting, watching TV, listening to music.  But [the victim] was always very, very close, very touchy, and she was saying some sexual references.”

·        “We just kept drinking.  We had a little joint and the girls had it. I advised them ……… just be careful because if you haven’t smoked and you’re drinking this much, it’s going to hit you.  They were still keen to do it.”

·        “Me and [the victim] were sitting next to each other most of the time and she was hanging over me, so I felt comfortable with her, and I got the same vibe off her.  And when it was time to go home, I said bye and [the victim] said cuddle.  I thought maybe she wants to cuddle.  I left back home, and everyone got into bed, and I was assuming from that word that she wanted me to come cuddle her.  So, I went to her room and laid next to her and said hello.  And we just laid there, and we fell asleep for a bit, we were cuddling, I was “spooning her”.  I started moving my arm to get comfortable and she started moving her body, so it was touching my body. I guess I thought she wanted to get closer.  I just hugged her tighter and started kissing her neck a little bit.  At no point did she say get off me.  

·        “Even if she didn’t want a cuddle or if I misinterpreted that, she knew I was in the bed with her, she could have just said go home or you misread that.  I didn’t do anything to her.”

·        “Absolutely not, I never put my hands in her pants.  No.”

·        “I come from a good family.  I have five nieces.  I am a very respectful, “consent” sort of person”. 

34

You were charged and remanded into custody.  You were released on bail on

19 July 2021.

35

On the same day, an Interim Personal Safety Intervention Order (PSIO) was made against you.  A condition of the order was that you must not go to, or remain within,

200 metres of the victim’s home.  Your bail included a condition that you comply with the intervention order.

36On the morning of 1 September 2021, the victim’s sister and MR went for a walk.  They saw you walking towards them.  You came within approximately 60 metres of their home.

37You were interviewed by police on 3 September 2021.  You said you did not realise that you were within 200 metres of the victim’s home.  You have admitted that your conduct breached both the PSIO and your undertaking of bail.

38A Victim Impact Statement dated 9 March 2022 has been provided and was read to the Court.  Your conduct left the victim feeling violated and had ongoing significant impact.  For many months after this incident, she was unable to spend time at home on her own, particularly at night.  On some occasions, she struggled to leave the house and was always anxious that she may see one of your family members, who live nearby.  The traumatic experience impacted her financially, emotionally, and affected her capacity to engage in her employment as required.

39She has sought professional assistance to try to overcome the residual effect of your misconduct.  Your behaviour affected her happiness and has been detrimental to her life.  I take the Victim Impact Statement into account.  I hope that she will be able to put your conduct behind her and look forward to a more positive future.

40Sexual offences are crimes of violence that cause harm to a victim.  Any sexual activity that takes place without consent is wrong and must be denounced.  It is conceded that the fact that this offending occurred within the complainant’s home in the middle of the night, is an aggravating feature of your sexual misconduct.  Both the prosecution and defence agree that, overall, your conduct falls within the mid-range of offending of this kind.

41While it is not suggested by the prosecution that you plied the victim with alcohol or cannabis in order to achieve this offending, you were aware that she was affected by alcohol.  You were present when she fell asleep on the couch and was helped upstairs to her bedroom.

42At the time you sexually assaulted her, the victim was completely vulnerable.  When you entered her home in the early hours of the morning, you took advantage of her vulnerability.  Your offending occurred in her bedroom, where she should have been safe and secure.  The victim did not consent to the sexual touching and was unaware of your presence, as she was asleep at the time you snuck into her bed.  Fortunately, your offending conduct was of short duration.  When the victim woke up and realised what was happening, she immediately got out of bed, despite feeling scared and went into her sister’s room.

43While your offending did not involve extensive premeditation and planning, I do not accept the submission made on your behalf that it was relatively spontaneous.  You sought entry to the victim’s home on two occasions at around midnight.  You eventually climbed over the fence and let yourself into the house through the unlocked back door at around 4.00am.  Upon entry, you immediately went upstairs and climbed into bed with the victim.  You were aware of her level of intoxication.  When you got into her bed, you pulled her pants down, touched her breasts, and her most intimate genital area.  There was no basis upon which you could have concluded that the victim consented to your actions.  I note that the charge of sexual assault in this case is a rolled-up charge, and I take into account the aggregate criminality of your offending.

44You accept and acknowledge the seriousness of your criminal misconduct.  I am told that you had been using cannabis and alcohol at the time.  This is provided as an explanation for your offending, as the use of substances had an impact on your judgement.  In my view, these factors are not mitigating and, in light of the seriousness of your offending, your moral culpability is relatively high.

45Your plea of guilty was indicated at an early stage in the criminal process, despite the content of your record of interview.  The matter was first listed in July 2021.  It resolved to a plea of guilty at committal mention, on 28 January 2022.  It is accepted by the prosecution that your plea of guilty was entered at an early stage.  Your plea has a significant utilitarian benefit.  You have saved the Court and the community the time and expense of running a trial.  You have spared the victim and the other witnesses the ordeal of giving evidence.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.

46Your plea of guilty has an additional benefit, given the delay in jury trials that has resulted from the COVID-19 pandemic.  I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered in January 2022.  It is generally agreed that the timing of your plea of guilty should attract a more pronounced amelioration of sentence than at another time.

47Your plea of guilty also demonstrates an acceptance of responsibility for your offending.  Your counsel submits that it is consistent with remorse.  Despite the fact that it was not immediate, I accept that you have now developed insight into your conduct and remorse.  I will return to the aspect of remorse later in these reasons.

48I turn now to your personal circumstances.

49

At the time of this incident, you were 26 years of age.  You were born in Melbourne in November 1994 and are now 27 years.  You are the youngest of

three children.  You grew up as part of a loving and supportive family who are all members of the Jehovah’s Witness faith.  You currently reside with your parents.

50You remain in a close relationship with all your family, who were present at your plea hearing.  They are aware of your current circumstances and remain supportive of you.  You are most fortunate in that regard.

51

You have been in an intimate relationship with your partner over the past

10 months, and she has very recently become pregnant with your child.

52

You grew up in the south-eastern suburbs and successfully completed Year 12 at

Hallam Secondary College, before commencing a business management course at RMIT and a science course at Swinburne University.  You did not complete either of these courses.  After discontinuing your tertiary education, you established a reasonably strong history of employment as a window installer/glazier and working in factories.  You were unemployed for a period of time during the COVID-19 pandemic.

53

After undergoing a period of probation, you commenced full-time employment in

August 2022, at a Rowville based company involved in the manufacture of display cabinets.  Your employer was unaware of your offending conduct.

54You began to smoke cannabis at the age of 18-19 years and have used it regularly since that time.  Your drug use ceased in 2019 following a court appearance, although you relapsed during COVID.  At the time of this incident, you were consuming around 1-2 grams per day.  You have not engaged in the regular use of any other illicit substance.  In relation to alcohol, you consumed it socially.  I am told that you were intoxicated at the relevant time, which was a departure from your usual drinking habit.  You have ceased substance and alcohol use since you were charged.

55Several references have been provided on your behalf.  Your father writes that you are generally a positive, confident and kind-hearted person.  He confirms that you have ceased your alcohol and marijuana use since this incident occurred.  You have shown remorse for your actions.  Your father also writes that your family regret your behaviour and wish to “unconditionally apologise”.  Your sister-in-law writes that she was troubled and surprised to hear of your offending conduct, as you have always been a trustworthy family member.

56In a letter to the Court, your partner writes that you regret and apologise for your misconduct.  You have provided her with support during your relationship and your planned future together is confirmed now that you are expecting a child.

57After reading the references, it is clear that your family supports you to improve your lifestyle and establish a positive future.

58You have two previous appearances in the Magistrates’ Court.  Your criminal history does not relate to sexual misconduct.  The current offences demonstrate an escalation in the seriousness of your offending.

59

On 11 April 2018, you were fined $800 without conviction for the offences of

traffick cannabis, possess cannabis and deal with property suspected of being proceeds of crime.

60On 24 September 2019, you were released on a 12-month Community Correction Order without conviction, for the offences of traffic cannabis and dealing in property suspected of being proceeds of crime.

61I accept that your criminal history is not directly related to the current offending.  However, the corrections order confirms that you have had ongoing issues with drug use for some time.  While you were able to complete this order, it appears that you did not derive any significant benefit from your compliance, given that you were affected by drugs and alcohol at the time of this incident.

62I note that all the current offences can be dealt with in the summary jurisdiction.  However, your application for this was refused in the Magistrates’ Court.  Regardless of the venue for the disposition of these charges, they involve serious sexual misconduct.

63

At the request of your solicitor, you were assessed by Ms Carla Lechner,

clinical psychologist.  In a report prepared for the Court dated 7 March 2022,

Ms Lechner noted that you emanate from a stable family background, and that your developmental history is unremarkable.  In Ms Lechner’s opinion:

·        You are of average intelligence;

·        Psychometric testing indicated that you are “likely to be mentally well”.  You do not present with symptoms of an underlying psychological or psychiatric disorder, including personality disorder;

·        Your criminal history is limited to drug and deception matters.  Your cannabis use disorder is now in early remission;

·        You are capable of reflective and consequential thinking, although your capacity for judgement and decision-making is likely to be impaired when you are substance-affected;

·        You have some insight into this impairment and have ceased use of cannabis and alcohol since the incident;

·        You are a fairly confident young person with an even temperament;

·        You do not have a clinical level of psychological distress, apart from some mild anxiety about your pending court case;

·        You have no history of mental health problems;

·        In respect of the charges, you acknowledge your actions, attributing them to “misinterpretation and alcohol”;

·        You told Ms Lechner that you misinterpreted the complainant’s “flirty” behaviour.  In discussion, you minimised the seriousness of your actions and, to some degree, blamed the victim;

·        You grappled to understand the seriousness of your actions and require further education regarding consent.  She expressed some concerns about your tendency to still minimise the seriousness of your actions and your belief that no intervention is necessary. 

·        You are assessed as a low to moderate risk of sexual re-offending and would benefit from involvement in treatment services to address this issue.

64As a result of the recommendation made by Ms Lechner, you commenced treatment with Ms Daria Sizenko, provisional psychologist.  A report has been prepared for the Court, dated 18 October 2022, which confirms that you have engaged in 10 sessions since 25 March 2022.

65In the course of consultation, you reflected on your offending, having a limited understanding of informed consent and the circumstances in which a person cannot provide consent.  Risk recognition and management strategies were addressed and developed to minimise potential re-offending.  You have developed a number of avoidance strategies.  You have focused on improving your lifestyle habits overall.

66In Ms Sizenko’s view, you were a co-operative and active participant throughout the sessions.  You demonstrated fair insight and acknowledged the need to change certain behaviours.

67I accept that as a result of your successful engagement with subsequent counselling, your risk of re-offending must have reduced since the time your assessment was conducted by Ms Lechner.

68In her report, Ms Lechner writes:

“Mr [Ramos] would benefit from involvement in treatment services...  He would not be able to access such assistance in prison and is unlikely to cope with the rigours of such an environment, this in turn leading to a downturn in his mental health.”[4]

[4] Page 8, paragraph 5.

69Your counsel has submitted that Verdins principles 5 and 6 are therefore arguable.[5]  I do not accept this submission.  There is no evidence that you suffer from impaired mental functioning.  There is no cogent evidence that a period in custody would significantly affect your mental health.  Further, you have now engaged in the treatment that was recommended.  However, I do accept that generally, a person who is a prisoner for the first time is likely to find incarceration to be difficult and it may cause some anxiety.  I take that into account.

[5] R v Verdins (2007) 16 VR 269.

70When considering the breach of the intervention order and the bail conditions, I accept that you were complacent in your obligation to comply with those court orders.  In my view, your attitude at that time is consistent with the finding made by Ms Lechner where you minimised the seriousness of your offending conduct.  You have not committed any further offences since charged with those offences.

71

References provided attest to your expressions of remorse and regret for your criminal offending.  You have also written a letter to the Court expressing your remorse.  You acknowledge the seriousness of your offending and the significant impact of your conduct on the victim.  You apologised to her and her family.  You have voluntarily engaged with treatment.  It is clear that you have undertaken a period of self-reflection and developed insight into your offending.  While it has not always been so, you are now remorseful for your offending.  
I accept that it is genuine.  This sentiment is consistent with your plea of guilty, which I have taken into account in your favour.  Your engagement with psychological treatment is a relevant factor when considering your risk of

re-offending.  Given your personal circumstances overall, it is agreed that your prosects are positive.  I accept that your prospects of rehabilitation are good.

72When considering the appropriate penalty, your counsel has submitted that a significant Community Correction Order (CCO) would be appropriate and satisfy all the relevant sentencing requirements in your case.

73The prosecution does not accept your counsel’s submission, saying that the circumstances are too serious and that an immediate term of imprisonment with a non-parole period is the only appropriate disposition.

74An assessment for a CCO was undertaken on 25 October 2022.  You showed insight into your offending conduct when in discussion with the assessing officer.  You were remorseful for your behaviour.  You reported that you are prepared to access appropriate intervention in order to address your issues when you are released.  You were assessed as a moderate risk of general re-offending and were found suitable for a corrections order.

75After careful consideration, given the objective gravity of this offending and the fact that you have already completed a therapeutic CCO, I am not persuaded that a further corrections order would form an appropriate part of this sentence.  If imposing a combination disposition, the maximum term of imprisonment must be one year or less.  I am not persuaded that this would be the appropriate outcome.

76I take into account the maximum penalty for these offences and current sentencing practices.  I have read the cases to which I have been referred by your counsel and the prosecution.  I note that each case turns on its own facts.

77The principles of general deterrence, denunciation and punishment are relevant sentencing considerations.  I accept that specific deterrence is of more limited relevance here.

78The duration of the more onerous conditions within the custodial environment is unclear, given the evolving nature of the COVID-19 pandemic.  It is conceded by your counsel that additional restrictions in custody are currently reduced.  Overall, I consider that any restrictions taken by Corrections may increase your level of hardship as a prisoner.  These hardships justify a sentencing benefit.  I take this into account, particularly as this is the first time you have been in custody.  The fact that you will not be available to support your pregnant partner also adds to the burden of a custodial sentence.

79I take into account the principal of totality which is relevant, and I have taken care not to doubly punish you for these offences.  I accept that the summary charge of trespass has some overlap with the sexual offending, aggravating the seriousness of the sexual assault charge.  The totality of the offending criminality must be appropriately reflected in the total effective sentence.  Given your future prospects, I have imposed a lengthier period on parole.

80I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.

81Balancing these factors as best I can, I sentence you as follows. 

Charge	Offence	Sentence	Cumulation
1	Sexual assault	18 months’ imprisonment	Nil
Summary charge 4	Contravene Interim Personal Safety Intervention Order	7 days’ imprisonment	Nil
Summary charge 5	Contravene conduct condition of bail	7 days’ imprisonment	Nil
Summary charge 6	Trespass	2 months’ imprisonment	Nil
Total Effective Sentence:		1 year and 6 months’ imprisonment
Non-Parole Period:		9 months
Pre-Sentence Detention:		17 days
s 6AAA:[6]		TES: 2 years and 4 months’ imprisonment NPP: 1 year and 8 months

[6] Sentencing Act 1991 (Vic).

82Thank you.  You can excuse Mr Ramos.

83COUNSEL:  As Your Honour pleases.

84MR SMURTHWAITE:  There was just one other matter Your Honour it relates to yesterday.

85HER HONOUR:  Yes.

86MR SMURTHWAITE:  Can I seek an appeal costs certificate?

87HER HONOUR:  Yes, I'll grant a certificate.

88MR SMURTHWAITE:  It was necessary for me to appear, thank you, Your Honour.

89

HER HONOUR:  Thank you.  That'll be sent through this afternoon

Mr Smurthwaite.

90MR SMURTHWAITE:  Sorry, Your Honour.

91HER HONOUR:  The certificate will come through this afternoon.

92MR SMURTHWAITE:  Thank you, Your Honour.

93HER HONOUR:  Thank you, I'll leave the bench, thank you.

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