Director of Public Prosecutions v Searle (a pseudonym)

[2022] VCC 946

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMPBELL SEARLE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	22 June 2022
DATE OF SENTENCE:	22 June 2022
CASE MAY BE CITED AS:	DPP v Searle (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 946

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual assault of a child under the age of 16 – gravity of offence low – high moral culpability – departure from the standard sentence

Legislation Cited:                Sex Offenders Registration Act 2004

Cases Cited:  DPP v Beck [2021] VSCA 88; Victorsen v R [2020] VSCA 248

Sentence:Convicted and placed on a Community Corrections Order for 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Mr A. Marshall	Stephen Peterson Lawyers

HIS HONOUR:

Introduction

1After a trial, Mr Searle[1], you were found guilty of Charge 1 on the indictment. You were acquitted on the other nine Charges.  

[1] A pseudonym

2The maximum penalty for the offence for that charge is 10 years’ imprisonment.

Circumstances

3Briefly, you travelled to your mother’s home on 4 May 2020, intending to stay overnight and celebrate your half-sister’s birthday on the next day.  Your half-sister being Suzie[2].

[2] A pseudonym

4That night, you, your mother and Suzie, who I will now call the complainant, had dinner together. Around midnight your mother went to bed. After she went to bed, you and the complainant drank some of the bourbon from a bottle that you brought with you. You drank far more than she did.

5After a few drinks, and while sitting on the couch talking, you moved over to her and grabbed her bottom and kissed her up and down her neck. These are the circumstances of the offence in Charge 1: sexual assault of a child under the age of 16.

Criminal history

6Between 16 February 2018 and 22 August 2019, a period of about a year and a half, you appeared in a criminal court on four occasions and were found guilty or convicted of 51 offences. Twice, you were sentenced to imprisonment with the longest sentence being six months’ imprisonment. At your last court appearance you were placed on a 12 month Community Correction Order.

Victim Impact Statement               

7On 20 June 2022, the complainant made a Victim Impact Statement. The prosecutor, Mr Sonnet, read it to the court.  It is interesting to note in that statement that the complainant speaks of the changed relationship that she has with both her mother and her younger sister, Zoe[3].

[3] A pseudonym

Standard sentence

8The offence of sexual assault of a child under 16 years is a standard sentence offence. The standard sentence is four years’ imprisonment.

9In his written outline, Mr Sonnet referred to DPP v Beck[4]  as to the way a court should use the standard sentence.

[4][2021] VSCA 88

10In previous sentences I have quoted from another decision of our Court of Appeal in Victorsen v R[5], where their Honours point out that the standard sentence is to be treated as a legislated guide post, having the same function as the maximum penalty; it does not affect the established instinctive synthesis approach to sentencing; does not require a permitted two stage sentencing and does not otherwise affect the matters which the court may, or must, take into account in sentencing.

[5] [2020] VSCA 248

Personal

11You are now 25. You were born and raised in the La Trobe Valley. Your parents separated when you were very young.  They shared your custody, which apparently worked well.  Your parents lived in the La Trobe Valley during your childhood. Your father worked various jobs and is now employed by a large organisation.

12You attended primary and secondary schools locally and left school during Year 10.

13You have been employed in a number of jobs, including working on a dairy farm, Video Ezy and bricklaying.  You were unable to continue with the bricklaying due to scoliosis, which is a condition of your spine. 

14Up until recently and for the last year, you have had permanent employment as a truck jockey with a furniture removalist.  Owing to the fact of this trial that has just concluded, you lost that job.

15You have lost contact with the complainant, with whom, as the evidence clearly showed, you were very close. As I have just mentioned, your relationship with your mother and sister, Zoe, is at present difficult.  So both you and the complainant are suffering difficulties in that regard.

16Your relationship with your father and your other half-sister is excellent.  You currently live with your father, I daresay you are no longer paying him board while you are unemployed.

17Notwithstanding what Mr Black, the Community Corrections Officer who assessed you today, says, Mr Marshall submits that apart from your back condition and the issues you once had with drugs, you are now in reasonable health, although you tell Mr Black that your physical health is not good and you have gained a lot of weight in recent times.  Secondly, your psychological health is not good either.  It would appear that you have been prescribed an antidepressant at a relatively low dose but you are not even taking that because you do not think it is effective.

18I can understand why Mr Black, in those circumstances, would recommend a mental health condition.

19You expect your relationship with your mother and your sister will improve once these proceedings have come to an end. That may be the case with your mother. I am less certain it will be the case with your half-sister, Zoe, having seen and heard her give evidence.

Prior History

20Your counsel submits your lack of similar previous convictions or findings of guilt and absence of current drug usage, that your likelihood of re-offending is low.  Mr Black using, I suppose the tests that Corrections have adopted in recent years, assesses you higher than that in a general sense.  That is in relation to general re-offending.

21Your counsel submitted you really commenced the process of rehabilitation by leaving the La Trobe Valley and going to live with your father in Greenvale[6] and by abstaining from your use of drugs.  I accept that that is the case.  That you have a stable home environment living with your father and it may well be in the current economic circumstances that you can find work in the not too distant future as a truck jockey or at least in physical work that is not impaired by your back condition.

[6] A pseudonum

22I reject your counsel's submission of imposing a fine.  Initially I thought the fine would be too low down the hierarchy of sentences set out in the Sentencing Act, in any event it is made considerably problematic by the fact that you no longer have employment.  It is not usual to impose a fine upon a person who is unemployed but has some optimism about gaining employment.

Sentence

23I will sentence you, with your consent, which you have already given, in relation to that charge by convicting you of the charge and placing you on a Community Correction Order for a period of 12 months with these special conditions: 

(a)   to perform 100 hours of unpaid community work over that 12 month period;

(b)   to be subject of the supervision of the community correction officer;

(c)   to undertake both assessment and treatment in relation to mental health issues;

(d)   to undertake such programs to reduce re-offending as are recommenced;

(e)   and finally that any hours that you perform in relation to the therapeutic component of this order will be considered hours for the purposes of the unpaid community work condition.

Departure from standard sentence

24This sentence is a very significant reduction if you like from the standard sentence for this offence. The gravity of the offence is low even though you are the half-brother of the complainant, you enjoyed a close relationship with her and there was an age difference of eight years between you and her. The latter three factors mean your moral culpability for the offending was high.

25After considering your age, your prospects of rehabilitation and the submission made on behalf of the Director in this regard, I consider the sentence I imposed as being appropriate.

Sex Offender Registration

26Under the Sex Offenders Registration Act 2004, the offence in Charge 1 is a registrable offence and you are a registrable offender. Your conviction on that charge means you must comply with the reporting conditions under that Act for eight years and in due course my associate will approach you with some documents for you to sign but also giving you information as to what is involved in reporting under that particular piece of legislation.

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