Director of Public Prosecutions v Saker

[2015] VCC 1895

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00099

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN SAKER

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July and 19 October 2015
DATE OF SENTENCE:	15 December 2015
CASE MAY BE CITED AS:	DPP v Saker
MEDIUM NEUTRAL CITATION:	[2015] VCC 1895

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – plea of guilty to one charge of indecent assault
Legislation Cited:     Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:            R v Ibbs (1987) 163 CLR 447

Sentence:Convicted and sentenced to a CCO of 2 years including a Justice Plan condition for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou	Solicitor for the Office of Public Prosecutions
For the Accused	Ms D. Lamovie (Plea) Mr A. Pyne (Sentence)	Victoria Legal Aid

HIS HONOUR:

1What I am going to recite now are the circumstances and reasons why I have decided to pass the sentence I intend to.  The most important reason for this is so you, Mr Saker, can understand it.  Whether you understand it all today or whether you get a copy to read is another thing, all right?  And in addition, of course it makes these matters public, not that these matters in the sense that they involve a sexual assault can be public, but public in the sense that albeit anonymised, this sentence will be available and of course it is available should there be any need for any further legal proceedings.

2Mr Shaun Saker is aged 27 and was 25 at the time of this offending.  He is unemployed, although currently he is performing nursery duties as detailed by the Disability Services.  In addition, he is doing work as detailed at the Ararat Day Program, as detailed in the report received today, Exhibit J. He is working and has successfully completed a six week trial period of full time work at the location known as the "Wooden Crete Campus".

3He pleaded guilty on 28 April 2015 to a short form arraignment to Indictment E1290831.1 and subsequently before me, confirmed that plea and the full form Indictment was detailed.  That matter was initially heard on 20 July. It was then adjourned to 19 October and then to today.

4The Indictment contained one charge of indecent assault, being an offence under s.39(1) of the Crimes Act 1958.  The indecent assault occurred on 1 January 2014 and involved the touching of the genitalia of the victim. 

5The victim, who was aged fourteen and a half at the time, is now 16.  The seriousness of this crime is demonstrated by the fact that the maximum penalty prescribed by Parliament is ten years gaol.  Mr Saker, through his counsel, admitted his prior offences.  The most serious of which of course was one for this very offence, for which he received a community based order for a period of 18 months in 2010.

6The full details of those matters were provided to the Court by way of Exhibit G, which was a police summary relating to that particular prior.  Mr Saker has never been to gaol for any of his prior crimes.  The prosecution summary was tendered as Exhibit A and details the particular circumstances of this offending.

7The background is an introduction of Mr Saker, apparently by telephone, to the victim by a person whom she had met on the internet.  It would appear that Mr Saker thereafter continued this internet association.  The victim lived in South Australia and was a person who attended a special school and had a low IQ.

8As a result of the relationship, they formed a plan for her to come to Melbourne for New Year's Eve. 

9As I said, the victim, arranged for Mr Saker to come to Mt Gambier and pick her up on 31 December 2013.  The unfortunate thing was that her mother knew nothing about this.

10They stayed that night at Glenroy, which was the New Year's night, and had gone to fireworks celebrating the start of the New Year.  The offence took place earlier the next morning in the lounge room of his friend's home.  He had told her that he wanted to penetrate her digitally, she refused.  However, he did thereafter touch her on the outside of her vagina with his hand.

11Ultimately, through the friends, these matters were reported when the victim handed herself into the police, through the intercession of the friends on 3 January 2014.  The victim impact statements of both herself and her mother were tendered as Exhibits B and C.  Insofar as her mother's statement, they show understandable concern for the circumstances in this matter.  Insofar as the prosecution summary, it went to summarise the details as I have indicated. 

12Ms Lamovie essentially set out the background of Mr Saker in her plea.  It is quite clear that the age relatively between the parties is much closer than it looks by way of first observation, albeit that he was 25 at the time and the victim was fourteen and a half.  The disability assessment and the details set therein present the difficulty of this type of case.

13Ms Lamovie and indeed the prosecutor, over now three hearings, took some care to ensure that the Court was fully informed as to the circumstances surrounding Mr Saker.  He has in fact, as a result of the breach of an earlier sex registration provision, subsequently served four months gaol, and was released in November 2014.

14Mr Saker was sentenced at that time to a period of one month for the breach and reporting provisions, and three months for the breach of the suspended sentence.  He served that period at Langi Kal Kal. 

15The exhibits relied upon were the report of the psychiatrist Cummins dated 15 July 2015, Exhibit 1.  The DHS letter which was one of the reasons why we adjourned this matter.  The psychiatrist Lechner's report, Exhibit 3 dated 23 April 2010 and Exhibit 4, as to details insofar as his prior history is concerned.

16His background is unfortunately consistent with a person who has suffered disablement from an early age.  He was fostered.  His mother died early.  He suffered depression as a result thereof.  As I say, his first offence or the first earlier offence of indecent act with a child is detailed as I have indicated and was dealt with by way of a CCO of 18 months and he was involved in a breach in regard to that, and that was the background that I detailed.

17He has had housing issues.  He has employment issues.  He has problems with lack of accommodation.  Clearly from Mr Cummins' report, there are issues of vulnerability and as was accepted by the learned prosecutor, such aggregation of issues create a particularly difficult task to determining the appropriate sentence, despite the crimes involved.

18Insofar as the determination of appropriate sentence, I called for a pre-sentence report which was tendered today.  That pre-sentence report is dated 19 October 2015 and was prepared by Steven Mullen, the senior parole officer at Horsham Community Correction Services.

19The conclusion at p.4 of that report, reads that the Writer:

"Respectfully recommends Mr Saker be considered for a community correction order for a minimum period of 18 months to ensure Mr Saker can be assessed and obtain the appropriate supports in the areas of education, employment, psychological health and a specialised offender treatment services. These actions and interventions will assist in lowering his risk to the community".

20The various recommendations as set out in p.4 are therein made.  The client overview report was also tendered, dated 19 October 2015, and it is noted at that time that Mr Saker, as of that date on the last hearing, had been cooperative in seeking appropriate services to assist him to remain offence free.  He had agreed to self-refer to the Salvation Army, Positive Lifestyle.  He was registered in regard to a housing program and agreed to be referred to Disability and Forensic Services for a six week trial, with a view to full time supported income.

21Fortunately, and the Court does not often have this, we have had a follow up.  That was because it was necessary to adjourn, certainly in my view, for a formal notice of disability entitlement to be signed and without going into the matter, we have now got that. 

22The report tendered today, Exhibit J, is a very positive report.  Mr Saker I say again, it is pleasing to see the efforts you have taken and it is important for you, because unfortunately, now you have committed two serious offences involving under aged children and it is necessary to ensure this does not happen again, all right?  Because if there is a next time, you might find yourself in a place that you do not like.  You have been there for four months recently, and no doubt you will not want to be there again.

23

Having got that justice plan, I thank very much the people who prepared that plan.  That is dated 12 October 2015, prepared by Ms Bev Stroet who is the prisoner’s case manager.  The recommendations of that plan, dated

26 January 1988, were that he attends Ararat Day Programs, takes the opportunity to show he is capable, attends and participates in scheduled work tasks, and reviews his progress with Disability Client Services.

24As indicated, Disability Client Services indicated that they would monitor such services and advise appropriate authorities if the justice plan requires review.  In Exhibit J filed today, the final conclusion was this. 

"To date, Mr Saker has attended all scheduled weekly appointments with the writer without the need for prompting or reminder.  Mr Saker is amenable to suggestions or advice, provided that can assist him not to reoffend.  Disability case manager will continue to coordinate services for Mr Saker, monitor his progress within these services and reinforce his taking personal responsibility for his obligations".

25The seriousness of this offence as represented by the maximum penalty imposed by Parliament.  There is a need for Courts to reinforce the will of Parliament to protect those who can't protect themselves, because they are under the age of sixteen.  However, this case is complicated by the very state of mental capacity of the victim herself.

26However, of course, balanced against those objective matters, the need for a sentence, which reflects such must also take into account the personal circumstances of each prisoner. A Court takes into account the grading as is required by the High Court in R v Ibbs (1987) 163 CLR 447 [452], as to the objective criminality of this offence.

27When comparing this crime to like offences that come before this Court, it must be in my view graded at the lower end of the scale of heinousness of such offences.

28All of such circumstances lead me to conclude that the recommendation made in the pre-sentence report, together with the matters set out in the material sought under s.80 of the Sentencing Act 1991 confirms that that is the step I should take.  I confirm that the statement of intellectual disability now by delegate dated 9 November 2015 is now tendered as Exhibit H.

29The client services report is Exhibit E.  The justice plan dated 9 October 2015.  The pre-sentence report is Exhibit F and as I have already remarked, the update is Exhibit J.

30If you would stand up, Mr Saker?  In so far as this offence is concerned you will be convicted and ordered to serve a community correction order pursuant to the provisions of the Sentencing Act 1991.  I will set the operational period of such order for a period of two years.  That will coincide with the justice plan which can go for a maximum of two years, which I am quite happy with.

31In so far as the conditions that attach I am happy to impose all of the conditions recommended.  As to community work, I will impose 100 hours over the two years, which should not be too hard for Mr Saker.

32There will be the treatment rehabilitation assessment.  I think essentially that has already been done in so far as the justice plan is concerned, but to the extent that it is required I will put all of those matters in.  Madam Associate, I think it probably does not hurt to have them in.

33And all the others, mental health assessment treatment, the supervision condition, offending behaviour program, justice plan and the community work of which I have detailed.  Mr Saker, as I have said, it is very important for you, especially now you are getting older, no doubt the persons you are meeting and socialising with are a lot older too, but it is very important that you do not make this mistake again and commit such a  crime, because next time there might not be much option for the Court.  All right?

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  Good luck.  We will fill out this document, you will have to sign it and once that is done we can let you go.  For the purpose of the transcript if I did not I should make the point that Ms Stylianou appeared on behalf of the Director and Ms Lenovo appeared on behalf of Mr Saker and Mr Pyne from VLA appears today.  Mr Pyne, if you would be good enough to have him sign that document or perhaps explain it first?

36MR PYNE:  I will, Your Honour, yes.

37HIS HONOUR:  I will stand down and give you a chance, Mr Pyne, to perhaps explain in more layman's terms what I have said.  Mr Saker, it is very important for you to make sure you keep yourself on the straight and narrow.  All right?

38OFFENDER:  Yes, sir.

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