Director of Public Prosecutions v Rolland (a pseudonym)

[2022] VCC 1363

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

AT Melbourne

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN ROLLAND (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF TRIAL:	8 -12 August 2022
DATE OF PLEA HEARING:	16 August 2022
DATE OF SENTENCE:	18 August 2022
CASE MAY BE CITED AS:	DPP v Rolland (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1363

REASONS FOR SENTENCE

---

Subject:   CRIMINAL LAW – Sentence
Catchwords:   Indecent act with child under 16 years old - breach of trust
Cases cited:   DPP v Dendy (a pseudonym) [2017] VCC 637; DPP v   Granieri [2019] VCC 1105; DPP v Unger [2019] VCC 1615; DPP v Peters [2016] VCC 1592; DPP v Bravery [2016]   VCC 504
Sentence:  Convicted and fined $10,000 with a two year Community   Corrections Order.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. McConaghy	The Director of the Office of  the Public Prosecutions
For the Accused	Mr J. Desmond	Furstenberg Law

HIS HONOUR:

1Dean Rolland[1], on 12 August 2022, a jury of 12 of your peers found you guilty of the following charges on Indictment No. C2013245.4:

·Charge 1, indecent act with a child under 16 years. 

·Charge 2, an indecent act in the presence of a child under 16 years. 

[1] A pseudonym name.

2The maximum penalty for each of those charges is 10 years’ imprisonment.

3The jury verdict was delivered after a trial lasting three days.  You have no prior criminal convictions.  You have no relevant prior criminal history in respect of sexual offending.

Circumstances of your offending

4For the purposes of this sentencing process, I find beyond reasonable doubt the following facts:

1.    On or about 29 January 2017, your victim HS was a 14 years old.

2.    HS was a friend of your stepdaughter and they regularly had sleepovers at one another's homes prior to your offending against HS.

3.    On 29 January 2017, HS came to your home at the invitation of your stepdaughter to stay the night.

4.    In the course of the evening, you were in your stepdaughter's bedroom with HS.

5.    At the time you were in the bedroom alone with HS, your stepdaughter was having a shower in the bathroom which was across the hallway in the home.

6.    You asked HS to massage your legs.  HS agreed to do so.

7.    Whilst HS was massaging your legs, you asked her to go higher or further up your leg.  She did not do so.

8.    You grabbed hold of her hand and placed it on your penis underneath your shorts.

9.    HS pulled her hand away and continued to massage your lower leg.

10. You then asked HS if you could 'jerk off', they were her words.

11. You were then taking your penis out of your shorts and started playing with it, in an act of masturbation in front of HS.

12. The masturbation action by you went on for approximately eight seconds, before HS snapped out of what she described her 'frozen state', and ran out of the bedroom.

13. You gave HS $50 for the massage.

14. You later gave HS $100 in not to say anything about your actions.  In effect it was a payment for silence from HS about the incident.

5The offending by you was in the circumstances of a breach of trust.  You were in the position of a parent in the home, where a 14 year old girl was staying for the night. 

6The actual offending was over a very short period of time.  The offending involved very limited physical contact between yourself and HS, in effect a quick touching of your penis.  Your act of masturbation was in front of HS, was also for a short time.

Victim Impact Statement

7HS filed a victim impact statement dated 15 August 2022, it was Exhibit “A” on the plea.  I have read the victim impact statement and noted the impact of your offending on HS.  She states she does not feel safe around male figures, as a result of your offending.  I note the other matters raised by HS in her victim impact statement, which was not read out here in court, when considering the just sentence in this case.

Personal circumstances

8You are now 37 years old.  At the time of the offending you had just turned 32.

9At birth you were adopted by your biological grandparents, and they have been your parents for your entire life.  You enjoy their love and support, as they do of your love and support.

10Your biological mother is their daughter, who was only 16 years of age when you were born.  You have full contact with your biological mother and her family.

11You were educated to Year 10 level in Tasmania.  You left school and worked for a number of years in your parents' supermarket business.  You later travelled to Western Australia and worked in the remote areas in a mining industry.

12In 2007, you then returned to home, to Tasmania, and eventually bought your own tip truck and commenced your own earthmoving business in Tasmania.

13In approximately 2008, you commenced a relationship with Indiana Duncan[2].  You have two sons aged 11 and eight with her.  Ms Duncan already had a daughter of a previous relationship.

[2] A pseudonym name.

14Your business in earthmoving was successful and you moved it and your family to Cardinia[3] in Victoria in 2011.  Your business expanded to a position where you had as many as seven employees and significant equipment.

[3] Location de-identified.

15In 2018 when the allegations were first raised about your behaviour, your business suffered a downturn.  You now have one permanent employee in the business and yourself.  In 2018, your family moved to Tasmania.

16In your time at Cardinia, you have been an active contributor to the local football club and motocross club.  Since 2018, you have not seen your two sons.  This has been a source of great stress to you.  The finding of guilt in this case, is not expected to improve your chances of seeing your sons in the near future.

17You have commenced a new relationship with Leah Sung[4].  Ms Sung is a Malaysian citizen on a student visa here in Australia.  Ms Sung is 11 weeks' pregnant with your child.  You live together in Cardinia.  Ms Sung studies part-time and now maintains your domestic relationship, including interaction and support from and to your parents.

[4] A pseudonym name.

18You continue to operate your business albeit at a lesser size than its peak in 2018.  Since 2018 you have been involved in court proceedings and the COVID pandemic have both impacted on your business.  You continue to deny the allegations made by HS in this trial.

Sentencing considerations

19The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and the denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.  I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society. 

20I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively, to the kinds of sentencing imposed in comparable cases and the statistics for those sentences at the time.

21I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case as indeed they are from one another.  Current sentencing practices of course, are only one of the sentencing considerations I must apply in this case.

22A just and appropriate sentence will be informed by the nature of the sexual acts, the surrounding circumstances and the offending incidents at the time of the offending, the frequency and persistent nature of the offending and the age and personal circumstances of your victim and the impact on your victim.

23The prosecutor handed up a summary of the sentencing snapshot 258.  Approximately 40 per cent of sentencing dispositions did not result in immediate custodial sentences.  Approximately 40 per cent were immediate custodial sentences and a further 20 per cent of them were a combination of immediate imprisonment with a Community Corrections Order (“CCO”).

24The prosecutor also handed up a summary of three cases; the DPP v Dendy, the DPP v Granieri and DPP v Unger.  Each of these cases were decisions of this court, but the factual circumstances were different from the offending by you.  The prosecution submitted that the appropriate sentence was a combination of immediate imprisonment followed by a CCO.  The prosecutor further stated this court would not fall into a pullable error if the CCO alone was imposed.

25

I ordered that you were to be assessed for a Community Corrections Order.  You have been assessed as unsuitable, but that is not the end of the matter.  I take into account all of the matters raised in the CCO assessment report, dated

17 August 2022, when finalising your sentence.

26You have no prior convictions, and now come to be sentenced for two serious sexual offences against the same victim.  In the range of offending for this offence your offending on this occasion is at the lower range of that offending.  The relevant factors in assessing the seriousness of your offending are as follows:

1.    The breach of trust of your victim.  HS was a child and a guest in your home and entitled to safely stay there overnight as she had done many times before.

2.    There are two separate events which occur very close together in time.

3.    The offending in Charge 1, is a grazing of her fingers on your penis after you have grabbed HS's hand to place it on your penis.

4.    The offending in Charge 2, is over a period of eight seconds by the time HS leaves the room.

5.    The offending is not persistent in nature.

6.    The offending is properly described as opportunistic and a one-off event; and

7.    you realise the wrongfulness of your actions when you paid HS a hundred dollars for her silence.

27You have conducted a trial and have been found guilty.  The conduct of a trial is your right.  You continue to declare your innocence, indeed many of the references tendered on your behalf which were Exhibit 1 on the plea, state you continued to protest your innocence after the jury verdict.

28After I heard the plea, I caused communication to be made to both the prosecutor and your counsel and those representing you, to make submissions about a financial penalty.  On the return date of your plea hearing, I heard further submissions from both the prosecutor and defence on the imposition of a financial penalty for this offending.

29

The prosecutor handed me further decisions of County Court judges of

DPP v Peters

and DPP v Bravery on the issue of financial penalty dispositions.  The prosecutor maintained that the appropriate sentence was a combination of a term of imprisonment with a Community Corrections Order.

30Without further descending into the details of your financial position, Mr Desmond submitted certain matters to me, and it is clear that you have a capacity to pay a substantial fine given your earthmoving business has in the past been successful and thriving and now that all of your litigation is completed, you can return it to its previous successful status.

31A financial penalty will satisfy the sentencing considerations of general and specific deterrence and just punishment, your rehabilitation and the protection of the community call for further consideration.

32I now go to an assessment of your prospects of rehabilitation.  I regard your prospects of rehabilitation as good.  You have no prior criminal history, you have a good work record, and you conduct your own earthmoving business employing other workers.  You have good family support from your parents who have been in court with you on every relevant occasion.  They continue to support you after the jury verdict.

33You also have a supportive partner who is expecting your child in the next six months or so.  Whilst you continue to protest your innocence I have decided that your rehabilitation will be reinforced by a condition on a Community Corrections Order and that you are to complete a sex offenders course. 

34The consideration of general and specific deterrence, just punishment, denunciation of your offending and the protection of the community are best affected by a combination of a substantial financial penalty, in combination with a Community Corrections Order with the condition that you complete a sex offenders course.

35In relation to the related summary matters, a financial penalty of moderate proportions is appropriate for the firearms offences. Charge 14 and Charge 15 are both administrative type offences in respect of the Firearms Act, arising from when you moved from Tasmania to Victoria and you failed to change details and registration of the firearms and the permits for your new abode here in Victoria.

36I sentence you as follows.  Would you stand please?

37On Charge 1, an indecent act with a child under 16 years; you are convicted and fined $10,000.

38

On Charge 2, an indecent act with a child under 16 years, you are convicted and placed on a two year Community Corrections Order with three conditions.  The first one is that you are to be supervised by Corrections.  The second one is that you are to complete a sex offenders course under the direction of Corrections, and the third one is a judicial monitoring - you are to attend a judicial monitoring on

18 November 2022 at 9.30 am.

39In respect of the CCO you are to attend at the Corrections Office within two working days of this day.

40On the related summary charges, Charge 12 was withdrawn, I think that has already been done.

41Charge 14, you are convicted and fined $300.

42Charge 15, you are convicted and fined $400.

43So the total effective sentence is a total of all the fines, is $10,700 and additional to that you have a two year CCO commencing today, with the conditions of supervision, a sex offenders course, and judicial monitoring.

44I have signed the forfeiture order sought by the prosecution and I further order that you are to be placed on the Sex Offenders Register for a period of eight years, from this day pursuant to the section, 34(1), 34(3) and s5(1) of the Sex Offender Registration Act.  And I think there are two sets of documents that have to be signed by you, before you can go.  I'll sign this one.

45Mr Desmond the full order of the Sex Offenders Registration Act goes for many pages, so I don't expect you to read them all out now, but have you had an opportunity to speak to your client about what it all means to him.

46MR DESMOND:  Yes, we did the other day Your Honour and we'll do it again.

47HIS HONOUR:  Yes, thank you.  I'll just have them - he has to acknowledge that he's got them and also the CCO.

48MR DESMOND:  Yes.

49HIS HONOUR:  Yes.

50MR DESMOND:  Can I just add on the fining matter, we used to always ask for an initial stay of three months, is that still appropriate or - - -

51HIS HONOUR:  Yes.  I don't know what Fines Victoria - I thought there was 'a stay of one month automatically' I thought there was, before they, when I say they, the person in your client's position deals with Fines Victoria.  I'll just check that?  Yes, all right, I can put a stay on, I'll put a stay of three months on it.

52MR DESMOND:  Thank you, Your Honour.

53HIS HONOUR:  Yes, that is, when I say it, all three fines.

54MR DESMOND:  Yes, Sir.

55HIS HONOUR:  Yes.  Thank you.

56MR DESMOND:  Thank you, Your Honour.

57HIS HONOUR:  Just while those documents are being copied Mr Rolland, I just want to make it really clear to you if you haven't already understood, that I've imposed this CCO and you'll come back for monitoring on 18 November, but if you breach the CCO, I will deal with you.

58OFFENDER:  I understand Your Honour.

59HIS HONOUR:  Thank you.

60

MR DESMOND:  Your Honour in the past the judicial monitoring, I've had clients where the judge doesn't expect them to be represented, I'm not sure whether

Mr - - -

61HIS HONOUR:  No, I don't - sorry, I'll be clear about that.  I don't expect that, though they can be represented, I do not expect them ever to be represented.

62MR DESMOND:  Thank you, Your Honour.

63HIS HONOUR:  But some people do come along represented.

64MR DESMOND:  Yes.

65HIS HONOUR:  But there's no expectation by me about that.  Usually, what happens is there's a representation from Corrections Office, when I say representation - the officer, and the person subject to the order.

66MR DESMOND:  Yes.  I think I got involved in one of them but then it became obvious that lawyers aren't really needed.

67HIS HONOUR:  Yes.

68MR DESMOND:  Rare attempt of no lawyers there.

69HIS HONOUR:  It is rare.  Before everyone goes, I'm about to go, I think I've finished here.  I want to thank counsel for their assistance in this matter, these cases have been very difficult and as we all know, there's a longer story than just this trial.  But, I want to thank everyone and particular I want to thank Ms Boylan because she's been in the case right from the beginning, and all of this case and everything's on time every time and I'm just grateful to her, so if you can just pass that along, she's not present.

70MR DESMOND:  Will do thank you, Your Honour.

71HIS HONOUR:  Yes, thank you.

- - -