Director of Public Prosecutions v Riley (a pseudonym)

[2023] VCC 77

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB RILEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 January 2023
DATE OF SENTENCE:	18 January 2023
CASE MAY BE CITED AS:	DPP v Riley (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 77

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:   Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:

Sentence:  12-month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Mr C. Terry	Slades & Parsons

HIS HONOUR:

1.Jacob Riley,[1] you have pleaded guilty to one charge of sexual assault pursuant to s40 of the Crimes Act1958[2]. This offence carries a maximum penalty of 10 years imprisonment.

[1] A pseudonym.

[2] (Vic).

2.Sexual assault is a Class 4 offence pursuant to the Sex Offenders Registration Act2004[3], and the Court has a discretionary power to make a sex offender registration order. The Crown has not made an application for registration, and no order for registration will be made.

[3] (Vic).

3.You have no prior convictions.

Circumstances of Offending

4.The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:

(a)   On the evening 12 December 2020 the victim attended a 21st birthday party in a local café. After consuming various alcoholic drinks, she left at approximately 11:00 pm and walked to a nearby hotel;

(b)   There she met a close friend, Ms Hooper,[4] where you were also present. The victim was known to you, as you had engaged in consensual sex earlier in the year. This was a one off and although you had sent messages afterwards, the victim did not reply and the messages eventually ceased in the course of that year;

(c)   At the hotel you spoke to the victim just before she left.  The victim was staying with her friend that night, whose partner was an acquaintance of yours. You left the hotel at approximately 2:30 am with the victim, Ms Hooper and Ms Hooper’s partner, who was also an acquaintance of yours. As I say, the victim was staying with Ms Hooper on this evening;

(d)   After arriving back at Ms Hooper’s house, the victim gave permission for you to share a bed with her, however she made it clear to you and others present that she was not interested romantically and she was willing to share the bed if there was no touching. You agreed to the victim's request that no touching would take place;

(e)   The victim was then dressed in pyjama shorts and a T-shirt, and you entered the bed fully clothed, in a pair of jeans and a T-shirt;

(f)    Just before 6:00 am the victim woke to you spooning her, with your arm wrapped around her waist and your hand down her underwear. You touched the outside of her vagina with your fingers, which is the offence of sexual assault;

(g)   The victim then said 'what the fuck' and immediately jumped out of bed. You replied by stating that the victim had 'grabbed my dick'. The victim stated that she was asleep and then ran to Ms Hooper’s room waking her up and telling her about the offending;

(h)   The police were called and attended immediately. The victim was examined by a forensic officer. Fortunately, she did not suffer any physical injuries as a result of your offending;

(i)    You were interviewed by police and whilst you confirmed that the victim told you of the 'no touching', you denied touching the victim's vagina;

(j)    Your lawyers initially investigated whether you had acted under a condition known as sexsomnia, but this was expressly disavowed at the plea hearing; and

(k)   I accept that you offered to plead guilty to the charge of sexual assault in September 2021, but the offer was rejected by the prosecution. In the circumstances, I consider that the plea offer indicates an intention to plead guilty to this charge at an early stage.

[4] A pseudonym.

Objective Gravity and Moral Culpability 

5.I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. 

6.I consider this to be a serious example of sexual assault.  You took advantage of a vulnerable young woman who had consumed a reasonable quantity of alcohol the previous night and who was at the time of your offending asleep. You did so in circumstances where she made it clear that you were both sleeping in the same bed, not out of any desire to rekindle your previous interlude, but out of a desire not to inconvenience your host by making up a further bed, and on the express understanding and with your express acknowledgement that there was to be no touching. On this basis, you both went to bed, and to sleep, dressed.

7.Although you gave an explanation of some earlier touching and undressing, I am satisfied by your plea of guilty that you now acknowledge that Ms Dana did not consent to your actions.

8.I accept that in assessing the objective gravity of your offending, there was no evidence of premeditation; this was a relatively brief incident, there was no penetration, there is no evidence that you suffer from any sexual disorder, mental health issue or paraphilia.

9.In assessing the objective gravity of the offending, I have had regard to the victim impact statement of Ms Dana. It is readily apparent from her statement that she remains deeply affected by your actions and that she has developed a range of serious mental health issues as a result of those actions. Ms Dana wrote of her persistent, severe panic attacks, her physical and emotional discomfort and social isolation each time she returns to her home town, and her profound mistrust of men. It appears that she has given some thought to ending her life. Ms Dana has received psychological counselling and is now seeking psychiatric intervention.

10.I can only conclude that your actions have had a deep and profound effect on Ms Dana and that it will take hard work and time for her to achieve her own rehabilitation. I acknowledge the integrity and courage of the victim impact statement and the dignity with which her parents conducted themselves through the course of your plea hearing.

11.This type of offending must be met by principles of deterrence, denunciation and just punishment.  I will return to these principles after I have considered your moral culpability.

Personal Circumstances

12.You are 23 years of age, being born in August 1999. You were 21 years old at the time of the offending.

13.You were born and raised in Portland. Your parents never married and separated when you were 10 years old.

14.You have one older sibling and four half siblings. You have close relationships with all your siblings.

15.You report that you had a good upbringing. After your parents separated, you initially lived week-on week-off with both parents, but subsequently spent time living with your mother and then with your father in your teenage years.

16.You attended a local secondary school and completed Year 11.

17.Since your schooling you have maintained steady employment. You commenced a diesel mechanic apprenticeship and after two and a half years you transferred to work at a service station.

18.From the age of 22 you have had a full-time job as a labourer up until six months ago, and you are now currently working as a tyre fitter and casual weekend work labouring to supplement your income.

19.You have never had substance abuse issues and report never having issues with depression or anxiety. Following this incident in the course of 2021 you were diagnosed with sleep-deprived epilepsy.

20.You enjoyed sports as a child and currently play football in the local league and some cricket. You presently live with your partner of the last eight months. You visit your family on a regular basis.

21.I received a number of character references and an employment reference. I accept that you were otherwise of good character and that you have been fully employed since leaving school. I note your grandmother's insights into your character. She honestly appraised you as still being immature. This observation must be taken into account in my overall assessment of your age at the time this offence was committed.

22.In my view, your moral culpability for your offending is high – there is no one else you can blame for what you did. Alcohol consumption cannot excuse your actions or the judgments you made. Your previous attribution of partial responsibility to Ms Dana[5] cannot be accepted. On her account, she was asleep when you touched her on this occasion.  You must bear full responsibility for your actions.

[5] A pseudonym.

23.Nevertheless, I take account of the fact that you have no prior convictions, no drug, alcohol or mental health issues, and that you were 21 at the time of your offending. Taking into account your grandmother's assessment, I consider that your immaturity and probably your alcohol use had a role to play in the decisions you made leading to your offending.

Sentencing Submissions

24.Mr Terry who appeared on your behalf submitted that the following factors should operate to mitigate your sentence:

(a)   Your early offer to plead guilty (which I discussed earlier);

(b)   That you want to be considered as a youthful offender;

(c)   You have no prior convictions and no subsequent matters;

(d)   There has been some delay in hearing this matter which led to the weight of uncertainty of the outcome bearing on you; and

(e)   That when I take into account your consistent employment history, strong family support and your demonstrated connection to the local community, I should consider that you are a low risk of reoffending and that you have good prospects for your rehabilitation.

25.In the circumstances, Mr Terry submitted that a CCO would be an appropriate sentencing disposition.  In other words, Mr Terry submitted that the effective principles of sentencing that I mentioned before, that is deterrence, denunciation and just punishment would still be met by the imposition of a CCO.  Mr Terry provided a number of comparable sentencing remarks from judges of this court where a CCO had been imposed on charges of sexual assault.

26.Mr Pirrie, who appeared for the Crown, submitted that, taking into account the matters which I have outlined and having regard to the objective gravity of the offending, a CCO would serve as an appropriate sentencing disposition in this case.

Analysis

27.Although you were 21 at the time of the offending, I consider, as I have already stated, that you were a relatively youthful offender and remain so to this time. The law sets out three particular factors to take into account in sentencing youthful offenders:

(a)   First, the decisions made or judgement exercised by a youthful offender may be rash or ill considered. This may lead to the criminal offending;

(b)   Secondly, there is a general undesirability of exposing young persons to the adult custody environment of prison, where they may be more influenced by older, hardened adult offenders and influenced towards committing further criminal acts and to further antisocial behaviour, rather than being influenced to steer away from it; and

(c)   Finally, there is a presumption that a youthful offender when positively influenced can be steered towards a positive rehabilitation.

28.In your case, Mr Riley, there is also actual evidence in your circumstances, in your lack of prior convictions, your lack of subsequent convictions and the presence of pro social supports available to you that you can and will rehabilitate and go on to lead a productive life.

29.Taking into account the submissions of your counsel, those of Mr Pirrie, and having some regard to the sentencing remarks handed up by Mr Terry, and also the case of Attard provided by Mr Pirrie, I am satisfied that a non-custodial sentence is the appropriate disposition in this case.

30.In the circumstances, as I have said, of your plea of guilty and the factors I have outlined and had regard to, I ordered the assessment of your suitability to undertake a CCO.

31.The assessment report concludes that you are suitable to undertake a CCO and that you present as a low risk of reoffending.  I take confidence from the fact that in the assessment you took responsibility for your actions and you did not engage in victim blaming. The report concludes that it is appropriate to impose specific conditions of:

(a)   Unpaid community work;

(b)   Offender treatment; and

(c)   Supervision.

32.Your case officer will determine whether you should undertake a sex offender treatment program. On the recommendation of the assessing officer, I will also order that you undergo assessment and if necessary, treatment for alcohol use. After the plea, I was left with the impression that this condition was not required; however, the assessing officer has recommended that you at least undergo assessment for alcohol use treatment on the basis of your description of the offending.

33.I emphasise also that the offender treatment should include programs, so far as is possible, towards men's behaviour change and gender and cultural recognition, the need for respect.

34.Now before I can put you on a CCO and I understand that you have already consented, but I need to satisfy myself, Mr Riley, that you understand what the terms and obligations of a CCO are, what the consequences are of breaching the CCO, and then I need to determine for myself whether I am satisfied you agree to those terms and conditions, all right.

35.I am going to ask you a series of questions, so there is a series of general conditions that attach to every CCO that is imposed, and I am going to take you through them.

36.The first is that you must not commit, whether inside or outside Victoria during the term of the Order, any offence punishable by imprisonment.  So that means - most offences carry a term of imprisonment, even if one is not imposed.  So you must not commit any offence that could be punished by imprisonment.  Do you understand that?

37.OFFENDER:  Yes, Your Honour.

38.HIS HONOUR:  All right.  Just stay seated, that is all right, because we have got a few to go. 

39.You must comply with any obligation or requirement that is prescribed in the regulations of the Office of Corrections.  So they have got a whole list of rules and requirements and if they tell you, you must comply with them, you must comply.  Do you understand that?  All right.

40.The third is that you must report to and receive visits from Office of Corrections staff during the period of the Order.  So that is, they can order you to go to their office and they can come and visit you at your home and in some circumstances your work.  Do you understand that?  All right.

41.The next is that you must report to the Community Corrections Centre specified in the Order, which is Warrnambool.  All right, so the Warrnambool Centre within two clear working days, but the assessing officer is here and I am sure that you will hang around so that you can have a chat to Mr Riley immediately after.  So those arrangements will be made for you to clock in for that initial visit.  Do you understand that?

42.You must not leave Victoria except with the permission, either generally or on a particular case, of the Office of Corrections.  So if you wanted to scoot over the border, you cannot do that unless you have the permission of the Office of Corrections.  Do you understand that?  All right.

43.You must comply with any directions that is given by the Office of Corrections that is necessary by that office to ensure that you comply with the order, and that can be either given to you by them telling you or in writing.  Do you understand that?  All right.

44.Now in addition to those general conditions, I intend to impose a number of specific conditions and I am going to take you through them now.

45.Mr Riley, first of all I intend to make the Order for 12 months.

46.I intend to order that you perform 130 hours of unpaid community work over the period of the Order.

47.That I will further order that all the hours of treatment and rehabilitation that you satisfactorily undertake, are counted as hours of the unpaid community work.  So if you follow that, if you successfully complete hours of an offender reduction program, or alcohol assessment and treatment, those hours come off the top of your 130 hours. 

48.I propose to order that you be under the supervision of Community Corrections officer for 12 months.

49.I propose to order that you undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the Office of Corrections.

50.I intend to order that you undertake programs that may address offending as directed by the Office of Corrections.

51.Do you understand those specific conditions?  All right.

52.Now the next thing I have to tell you is this.  There are two ways that you can breach the Order.  The first is by committing any further offence that is punishable by imprisonment; and the second is by not complying with the Order.  That is, by not turning up when required, or not turning up for unpaid community work and having a sleep under a table, or something like that, by refusing to do the work, or by drug use or turning up drunk.  Things like that can cause non-compliance. 

53.If you breach the Order by either committing further offences or by not complying with the Order, then you can be charged with a further criminal offence, that is, failing to comply with the Community Corrections Order, and you will be brought back before me for re-sentence on the original offence of sexual assault, and for breaching the Order.  And I have to tell you that the likelihood is that if you breach the Order without any satisfactory reason, you face the possibility of a prison term on each of those offences.  Do you understand that?  All right.

54.Mr Riley, now that I have taken you through all of those factors, do you consent to undertaking a Community Corrections Order?

55.OFFENDER:  Yes, Your Honour.

Orders

56.HIS HONOUR:  All right.  That being the case I order that with conviction:

57.You are to be placed on a Community Corrections Order for a period of 12 months. 

58.That you are to undertake 130 hours unpaid community work.

59.That you are to undertake offender reduction programs as directed by the Office of Corrections.

60.That you are to attend for assessment of alcohol use and dependency, if or as directed by the Office of Corrections.

61.That you be subject to supervision for a period of 12 months.

62.That the hours of treatment and programs count towards the unpaid community work hours.

63.With that I am going to have - can you step out of the dock please, Mr Riley, come to the Bar table.  Have we got the Order there for Mr Riley to sign.

64.Mr Terry, are you happy for Mr Riley to sign the Order without you?

65.MR TERRY:  Yes, I am.  I have explained the operation of the Order, as has my instructor.

66.HIS HONOUR:  That Order is signed.

67.The 6AAA declaration is, but for the plea of guilty in this matter I would have imposed a period of nine months' imprisonment

68.Mr Pirrie, are there any other matters or orders sought?

69.MR PIRRIE:  No, Your Honour.  I will just double check.

70.HIS HONOUR:  Yes, thank you.

71.MR PIRRIE:  No, Your Honour.

72.HIS HONOUR:  All right, then.  The only other thing I say is this.  To Ms Dana[6] and her family, I want to thank them for their participation in this process. I wish Ms Dana well in her recovery. I am sure that she has received advice and I would sincerely hope that she is receiving support through VOCAT.  And I give the assurance that although there has been some reporting of this matter in the local press, her anonymity will be ensured, and the sentencing remarks will be anonymised.

[6] A pseudonym.

73.Is there anything else?

74.MR PIRRIE:  No, Your Honour.

75.MR TERRY:  No, thank you, Your Honour.

76.HIS HONOUR:  Thank you Mr Terry, thank you Mr Pirrie.

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