Director of Public Prosecutions v Rozman

[2018] VCC 1524

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-17-01455

DIRECTOR OF PUBLIC PROSECUTIONS

v

PIERCE ROZMAN

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JUDGE:	HIS HONOUR JUDGE C J RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Rozman
MEDIUM NEUTRAL CITATION:	[2018] VCC 1524

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:             Trial – Sentence – Rape by compelling sexual penetration.

Legislation Cited:     Sentencing Act 1991 – Sex Offenders Registration Act 2004

Sentence:                 4 years’ imprisonment with a non-parole period of 2 years’ imprisonment; 58 days pre-sentence detention; Forensic sample order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Hammill (Plea) Mr R. Barry (Sentence)	Office of Public Prosecutions
For the Accused	Mr G. Steward (Plea) Mr T. Freeman (Sentence)	Tony Hargreaves and Partners

HIS HONOUR:

1       Pierce Rozman, after a seven‑day trial a jury convicted you of one charge of rape by compelling sexual penetration, committed on 6 February 2016.

2       The maximum penalty for this offence is 25 years’ imprisonment.

3       You admitted your criminal record that evidenced that you appeared at the Melbourne Children’s Court on 3 October 2014 and pleaded guilty to one charge of knowingly possess child pornography and one charge of use online information to publish child pornography.  You were then 18 years of age.  You were released on a 6‑month good-behaviour bond, and, whilst it is not recorded within the criminal record, I was informed that it was a condition of the bond that you undertake psychological treatment.  You complied with the terms of the good-behaviour bond, but I will return to this topic later.

4       

The facts that support the finding of the jury can be stated in summary form.  On 5 February 2016 you joined a number of friends at a holiday house at

Mount Martha.  When you arrived at the holiday house, already present were three of your male friends who I shall refer to as the victim, WZ, AS and his girlfriend GB.  After spending a short time at the beach as a group you all returned to the holiday house, where an evening meal was prepared.  After the evening meal the group participated in a number of drinking games.  All of your male friends were adversely affected by alcohol and markedly so.  Whilst you were affected by alcohol, it was to a much lesser degree.

5       Late in the evening AS and his girlfriend went to bed.  You and WZ and your victim remained playing drinking games.  Sometime about midnight or thereabouts you went into the bedroom occupied by AS and his girlfriend to inform them that the other two young men wanted to go for a walk to the beach.  The group attempted to walk to the beach, but your victim, together with WZ, were so drunk that they could not make the trip to the beach.  In colloquial terms, the victim and WZ were “falling down drunk”.

6       GB, who was sober, shepherded all of the young men back to the holiday house, and assisted in putting the two young men most adversely affected by alcohol, the victim and WZ, to bed.

7       It was anticipated that you would share a bedroom with WZ, a room that contained a number of single beds.  However, WZ managed to lock himself in the bedroom so that you were left without a place to sleep, and eventually it was agreed that you would sleep in the same double bed as your victim.

8       While your victim was in a drunken state, he lay in the bed naked, dreaming, but said in evidence that he was not asleep.  The victim was fantasising in his dream that a female character from a television show was performing oral sex on him.  Your victim said he woke and looked down, and just remembered seeing your head going up and down.  The victim swore that he just remembered seeing your black hair going up and down, and that your hand was on his penis, and he realised what you were doing – that is, performing oral sex on him.  He swore that he told you to “fuck off”, and also that he took a swipe at you, but that he was so intoxicated that he could do little else.

9       Very shortly after the incident, the victim of your act complained to AS and GB, but as he was intoxicated they told him to go back to bed.

10      The following morning you left Mount Martha to attend work.  That morning, the victim complained of your conduct to those still present at Mount Martha.

11      Tendered as Exhibit A on the trial was a jury book that contained a number of text communications between you and some of the persons who had been at Mount Martha.  It is plain from those text communications that you were aware of the victim’s complaint at the time at which he made it, in the early hours of 6 February 2016.  However, later in the day, in a communication with WZ, you feigned ignorance of any event that could have brought about disharmony between you and your victim.  Later, in a text communication with your victim, in essence you accepted that you were interested in having oral sex with him, but that it never actually took place.

12      Subsequently, in a pretext conversation that occurred on 16 March 2016, you admitted that the act of oral sex had occurred, but that the victim had consented to the act by uttering the words “look, you can, sure – whatever”.  The victim of your conduct denied any such conversation, and the issues in the trial were whether your victim did not consent to the act of oral sex, and whether the Crown could prove you did not reasonably believe that your victim was consenting to the oral sex.

13      It is plain from the jury’s verdict, based upon the instructions that they were given in my charge, that they accepted the victim’s version of events beyond reasonable doubt, and therefore you must be sentenced on the basis that the victim did not consent to the act that you performed upon him, and that you did not reasonably believe that the victim was consenting to the act that you performed on him.

14      

You were remanded in custody on 25 July and your plea was conducted on

10 September.  Accordingly, as at the date of your plea, you had spent 48 days by way of presentence detention.

15      Tendered as Exhibits A and B on the plea were the victim impact statements of the victim and his mother.  The victim’s impact statement centres upon the stress that was reflected in nightmares, paranoia, and fear that he experienced as a consequence of the trial process.  The victim felt like he was on trial.  Whilst the principal subject of the victim impact statement, Exhibit A, is the effect of the trial process on the victim, having seen him give evidence, I am satisfied that he has been adversely affected by your conduct.  I am fortified in this belief by the contents of Exhibit B, the statement of the victim’s mother.  While she has been adversely affected by your conduct, it is plain from her statement that the victim was traumatised by your conduct and that the trial process was but a reminder of that trauma.  She deposed that she and the victim underwent psychological treatment as a result of your conduct.

16      Your conduct represents a gross breach of trust.  You and your victim were part of a small group of friends who had been to school together.  Arising out of an incident that occurred at “schoolies”, you were ostracised for a period of time by the group.  Whilst attending a funeral of a fellow student, it was resolved amongst members of the group that you should be readmitted into that circle, and so it was that you found yourself at Mount Martha in February 2016.  While the victim, your friend, was adversely affected by alcohol, you took the opportunity to rape him by compelling him to penetrate your mouth with his penis.  You did so with scant regard for your friend, and as an act of sexual gratification.  In the pretext conversation, you said:

“I’m quite a sexual being, is probably the best way to put it. ...  And that can at times override the – the things I do and the things I say as – which makes me flirt a lot and it does a whole bunch of other things.”

17      Tendered as Exhibit 1 on the plea was a court book that contained an outline of submissions for plea, and the reports of Dr Danny Sullivan, consultant psychiatrist, dated 6 September 2018, and Dr Daniel Davis, consultant psychologist, dated 19 August 2018 and 29 September 2014.  I pause at this stage to identify Dr Daniel Davis as the psychologist who treated you as a result of your appearance at the Children’s Court.  Thereafter, under heading ‘C’, were a number of references and certificates from your school, your VCE results, and from Monash University.  Under the heading 'D' were some sixteen character references which I particularised during the plea hearing, although in the main they can be generally grouped into references from your family members, your current girlfriend and her parents, and friends.

18      In respect to your prior appearance, you were treated by Dr Davis, psychologist, as part of a court order, according to his report of 19 August 2018.  In Dr Davis’s report of 29 September 2014 he set out a history of your difficulty at school between Years 8 and 10.  This was corroborated by your father, who gave evidence on your behalf, although his recollection was that your difficulties commenced in or about Grade 6.  Dr Davis reported that you experienced difficulties finding your place in the social world at school.  You regarded yourself as being considered by other students as “nerdy” and "serious".

19      Your father advised you that to become accepted you should become involved in sport, and this you did, as well as becoming involved in other aspects of college life.  See reference, undated, from Scotch College, notification of being a prize winner in Excellence in Christian Education, a record of attainment as a school cadet, and a Gold Award Certificate of the Duke of Edinburgh International Award.  This involvement in non-academic life continued at university, where you have been a Peer Ambassador Leader and an active member and office-holder of the Snowsports Club at Monash University.

20      Returning to Dr Davis’s first report, you commenced viewing and exchanging child pornography when you were about 15 years of age.  You initially viewed adult pornography, but looked for images of persons of about your own age, which led to you viewing and exchanging pornographic images of prepubescent children.

21      Dr Davis reported that by the end of Year 10 you had formed relationships with other students at school, and your social life began to improve.  Dr Davis was of the opinion that you did not have a psychotic disorder, but that you exhibited narcissistic personality trends.  Despite the absence of any diagnosis, Dr Davis reported:

“It is arguable that the seriousness of Pierce’s offending is mitigated by several factors. Firstly, he originally sought pornographic material of girls that were close to his age. Secondly, his offending occurred during a difficult period of adolescence, when he was still psychologically immature. Thirdly, his offending would appear to be related to underlying psychological difficulties, which hindered his capacity to form close relationships with other adolescents. Finally, he reportedly ceased viewing and exchanging this material around March 2013, after he fully reflected on the harm caused by the exploitation of children, as well as the illegality of his actions.”

22      Despite the absence of a diagnosis, and the summary to which I have referred, Dr Davis recommended that you continue with psychotherapy for another 6 to 12 months to develop a more comprehensive understanding of the psychological underpinnings of your offending, to address the identified difficulties in your personality function, and ultimately to continue to develop your capacity to form close and intimate bonds. You did not take up this opportunity.

23      Dr Sullivan did not discern prominent narcissistic traits in you and thought that your articulate nature and seriousness may be a defence mechanism against underlying insecurities.  Dr Sullivan found no indication of cognitive impairment, psychotic illness or other serious mental illnesses.  You gave him a history of experimentation in drugs, but Dr Sullivan found no evidence of substance-use disorder.  Dr Sullivan did not consider that mental disorder will render incarceration more onerous for you.  He regarded you as resilient.  You did not meet the criteria for a sexual disorder such as paraphilia; however, your mild preoccupation with sexuality potentially led to adventurous explorations of sexual activity. (See paragraph 31 of the report)  Further, Dr Sullivan opined there is no indication that any mental disorder was causally associated with your offending.

24      Accordingly, you are an appropriate vehicle for the application of the principle of general deterrence.  However, at the time of your offending you were a young offender, and with the passage of time associated with the normal progress of this proceeding through the courts you are no longer a young offender, but are youthful, being aged 22 years.

25      You come from an observant Catholic family and you are loved deeply by your parents and your siblings, and indeed respected by your parents and your older siblings as a result of your conduct within the family unit.

26      As previously mentioned, your father gave evidence on your behalf on the plea.  He spoke of your involvement in his business, and that you commenced working part-time in that business, which is a chain of cafes or restaurants.  You have progressed from performing menial tasks within the restaurants to being a shift manager, as well as being instrumental in the implementation of a transition in what was described as “point of sale” system, which I understood to be the computerised cash register system that controls all aspects of stock and the like in respect of each of  the restaurants.  In this respect I refer to the reference of Mr Dean Salomone dated 5 September 2018, as well as the evidence of your father.  Mr Salomone described you as:

“... highly resilient, determined and highly motivated to succeed in any task he sets himself on.”

27      You are in a relationship with a young woman who is not yet 21 years of age.  She gave evidence on your behalf on the plea, as did her mother, both of whom provided character references for you, as did your girlfriend’s father.  You met your partner in July 2016 through the Monash University Snowsports Club, and a friendship developed between you.  She deposed that a sexual relationship did not commence until about Anzac Day this year, however you were remanded in custody on 25 July this year.  So, in respect to the relationship, it is, in my opinion, but in an embryonic state.  Despite this, your girlfriend spoke passionately in respect of you and that she regarded you as being her future.

28      Your girlfriend’s mother gave evidence on your behalf, and she swore as to your caring nature, that you are a thoughtful young man, and that you support her daughter by putting yourself out for her in simple ways like waiting for her to finish at university, and driving to university to pick her up and return her to her home in Kew East.  She wrote of her shock on hearing the nature of the charge that was brought against you and the finding of guilt by the jury.

29      Your girlfriend regularly visits you at the Hopkins Centre in the company of your parents.  She appears to be devoted to you.

30      A number of references were provided by your contemporaries, who regard you as caring, trustworthy, measured and warm.  You have provided assistance to a friend who last year went through a personal crisis.  As a consequence of the crisis he was asked to leave home.  He ended up living in his car and couch-surfing, which had the effect of causing his mental health to deteriorate, and he ended up in hospital in a psychiatric ward.  In his reference, the young man wrote that you were the first person to visit him, and that you spent entire days supporting him and getting him back on his feet.  You helped take care of him, which included helping him move into a new home.  You brought food to him on a daily basis, and he wrote that:

“I will never forget the support Pierce provided to me at such an important time in my life.”

31      Another of your referees writes that in September 2016 he was involved in an accident where one of his friends died.  As a result of this he developed post-traumatic stress disorder, and you were one of three people who were aware of the circumstances surrounding his compromised mental health.  He wrote:

“Pierce has been integral in helping me work towards overcoming and living with the condition – his trustworthy nature making him one of few I have been comfortable enough to share this with.”

32      Because of the situation in which you find yourself, you have deferred your study of psychology at Honours level.  You are plainly a highly intelligent and motivated young man.  You have the support of your family, friends, and your girlfriend and her family.  All of these matters result in a finding that I regard your prospects for rehabilitation as promising.

33      Your offending lacks many of the aggravating features that often appear in offending of this kind; however, this is the absence of aggravating factors, and not the presence of mitigating ones.  Your conduct was opportunistic.  At paragraph 7 of Mr Steward of counsel’s outline of submissions, he set out a series of factors that should result, he submitted, in a merciful sentence that would result in you being sentenced to a term of imprisonment combined with a Community Correction Order with conditions.

34      The Crown submitted that the only appropriate sentence in the circumstances was one which involved the fixing of a head sentence and a non-parole period.

35      Rape is a serious offence, punishable by 25 years’ imprisonment.  Breaching the bond of friendship, you raped your friend.  Your act was that of a young person, and was opportunistic in nature; however, in my assessment the effect of your conduct on the victim has been substantial.  You are not entitled to the benefits of a plea of guilty, and, whilst this does not result in a more severe sentence, you cannot pray in aid the benefits that attach to such a plea.

36      Whilst you expressed sorrow for your actions in the pretext conversation, you maintained in that conversation a positive belief based on utterances that you attributed to the victim that the victim consented to your actions.  I can discern little or no remorse in you.

37      Finally, I give little weight to your prior appearance in court, as you offended as a child, and I accept Dr Davis’s analysis of that offending to which I have already referred.  Will you please stand?

38      By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing this kind of crime.  I must look to your rehabilitation.

39      Taking into account the circumstances of your offence and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to four years’ imprisonment.  I direct that you must serve two years’ imprisonment before you will become eligible for parole.

40      I declare that you have spent 58 days by way of pre-sentence detention.

41 The Crown made application pursuant to s.11 of the Sex Offenders Registration Act 2004 that you be subject to the provisions of that Act. I can only make such an order if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons, or of the community. On the material before me I cannot be so satisfied, and I refuse the application. Please be seated.

42      The Crown made application for what is known as a forensic sample, that is, a scraping of your mouth, or a buccal swab.  I have granted the order on the basis of the seriousness of the circumstances of the offending warrant the order, your prior convictions, and the granting of the order is in the public interest.

43      Mr Rozman, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.  I hand down three copies of the order.  Are there any other matters that need to be attended to?

44      MR FREEMAN:  Your Honour, just perhaps for completeness - and I think it probably is of no moment, given that Your Honour has ultimately made an order of 58 days' presentence detention.  I think Your Honour did refer earlier on in the sentence to Mr Rozman having served 44 days of presentence detention as of the date of the plea.

45      At paragraph 7 of the outline of submissions, it was our calculation that it was in fact 48 days.  I simply raise that in case Your Honour wanted to review that for the purpose of your sentencing remarks.

46      HIS HONOUR:  Thank you very much, and when I settle the remarks, it will be amended.

47      MR FREEMAN:  Thank you Your Honour.

48      HIS HONOUR:  Are there any other matters?

49      COUNSEL:  No Your Honour.

50      HIS HONOUR:  Remove the prisoner please.  Adjourn the court sine die.

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