Director of Public Prosecutions v Silva

[2016] VCC 414

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01753

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN LEONARD SILVA

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 April 2016
CASE MAY BE CITED AS:	DPP v Silva
MEDIUM NEUTRAL CITATION:	[2016] VCC 414

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Stylianou
For the Offender	Ms K. Kothrakis

HER HONOUR: 

1John Leonard Silva, you have pleaded guilty to two charges of indecent assault.  The maximum penalty for that offence is ten years' imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening Upon Plea which was tendered as Exhibit A.  In brief the circumstances are as follows:

3On the evening of Friday 5 December 2014, you met up with the complainant and her female friend at a nightclub in Prahran.  You knew the complainant quite well because your girlfriend was a good friend of hers.  Your girlfriend was overseas at this time.  You had driven to the nightclub but decided to have some alcoholic drinks.  After some discussion it was agreed that you would stay overnight at the house where the complainant's friend was housesitting and where the complainant was also intending to stay the night.

4The three of you left the nightclub and went to a hotel in St Kilda.  You had some more drinks.  You and the complainant were both intoxicated.  In the early hours of the morning the three of you caught a taxi to the complainant's friend's home.  By this time the complainant was feeling very unwell. 

5When you got to the house, the complainant went and lay on her bed and asked her friend for a bucket.  Her friend took the complainant's clothes off except for the complainant's underpants and top.  The complainant was sick and her friend cleaned up.  You and the friend left the bedroom and had a chat.  It had been intended you would sleep on the couch.  The friend went to get bedding for you and returned to find you lying on the bed with the complainant.  You said that you could all sleep there and the friend said she would not and told you to leave a light on and she left the room.  The complainant woke during the night to feel someone touching her on the vagina under her pants.  That is the subject matter of Charge 1. 

6She tried to scream and pushed you away.  She realised it was you when you said, "What's wrong, we're friends?"  The complainant screamed for her friend and called for her repeatedly.  Her friend came and went to get water for the complainant after you suggested that the complainant needed some water.  When the friend returned the complainant was crying and telling the friend to get you out of the house.  After the complainant's friend and another person staying in the house told you repeatedly to go, you left the house.

7The police were called.  Later the next day the complainant went to the Monash Medical Centre.  On the way the complainant received a call from you.  She hung up and later received a text message from you asking her to forgive you.  Later the complainant took part in a pretext call to you.  Again you apologised to her.

8You were interviewed by police on 23 December 2014.  You denied touching the complainant on the vagina but said that you had rubbed her breast under her top.  This is the subject matter of Charge 2.  The complainant did not recall this because she was asleep at the time.

9In sentencing you, I have taken into account your personal circumstances.  You are now 44 years old.  You had a stable and unremarkable upbringing.  You completed Year 12 and then did a two year Associate Diploma in Accounting.  Since that time you have worked in your own businesses, principally in the selling of sought after music records, which you currently do online.  You share custody with your ex-wife of your daughter and you are in a relationship with a woman with whom you have been living since March 2015. 

10You have no prior criminal history.

11Your counsel, in sentencing submissions, relied upon a number of matters in mitigation of sentence, including your early plea of guilty, your remorse, your prior good character and your prospects for rehabilitation. 

12Your counsel said that general deterrence was accepted as a paramount sentencing consideration.  She submitted that in this case a community correction order could adequately meet the relevant sentencing purposes.

13The prosecutor, in sentencing submissions, said that a community correction order would not be outside the range for sentencing, but submitted that I should take a number of matters into account.  The prosecutor said that your plea offer to the current charges was rejected prior to the committal.  There was a contested committal which was a stressful experience but that should not impact adversely on you given that you had made your plea offer prior to the committal hearing.  The prosecutor said that general deterrence and denunciation ought be the paramount sentencing considerations.

14John Silva, your offending was very wrong.  You touched the complainant in an intimate way without her consent.  You took advantage of her state of intoxication and illness to share her bed and touch her sexually.  You breached the trust of someone who considered you her friend while she thought she was safe at her friend's house.  You made a very unwise decision to sleep where you did rather than on the couch, as had been intended. 

15I accept that your inhibitions were reduced because of the alcohol you had consumed but you are a mature person.  I accept that you do not usually drink alcohol, but you must on this occasion have been aware that you were intoxicated and you should have been on guard against doing something which you would later regret.  

16What you did was not at the more serious end of sexual assault but it has clearly had serious adverse consequences for the complainant as described by her in her Victim Impact Statement, which was tendered as Exhibit B.  What you did has seriously undermined her sense of trust and safety.  It is to be hoped that with support and time she will be able to recover much of her former resilience and capacity for enjoyment. 

17Your behaviour must be denounced and appropriately punished.  That punishment must be severe enough to deter others from similar offending.

18There are a number of factors which operate in mitigation of sentence and which also support a conclusion that specific deterrence and community protection need not be given significant weight in the sentence to be imposed. 

19You are entitled to a significant discount for you plea of guilty.  That plea was not made at the earliest stage but it was made at an early stage and the offer of a plea was made prior to the committal.  While unfortunately the plea offer did not stop a contested committal proceeding, that does not and should not impact adversely on you in terms of sentence.  Your plea of guilty has saved the trauma of a trial.  Your admissions to the police were particularly significant in respect of Charge 2, as the only evidence in respect of that charge is your admission to the police.

20I accept that your plea of guilty was entered as part of your expression of genuine remorse.  You apologised to the complainant soon after the incident and have expressed remorse to others, including the writers of the three character references which were tendered as Exhibit 3.  Those references speak very positively of your commitment to your daughter and your past behaviour.  Your partner says that you have stopped drinking alcohol and that you are "very remorseful, ashamed and sorry."  From her description, it is clear that you have taken this incident and its consequences very seriously.

21You have no prior criminal history.  You have no mental, health or drug issues.  You have support from your partner.  I accept that your prospects for rehabilitation are excellent.

22Having considered all of these factors, I am of the view that in this case a community correction order would appropriately reflect the relevant sentencing principles, including denunciation, general deterrence and just punishment. 

23You have been assessed as suitable for a community correction order.  If you consent, I propose to place you on a community correction order with conviction for a period of 18 months.  In addition to the core conditions, you would be required to do 250 hours of community work.  You would be required to undergo assessment and treatment in respect of alcohol abuse or dependency and to participate in programs or courses that address factors relating to the offending as directed by the regional manager.  Any hours that you would spend in rehabilitation programs would be deducted from the work hours.  I understand that the core conditions have been explained to you by the Corrections officer. 

24An important condition of such an order is that you not reoffend during the period of the order.  If you did reoffend or fail to comply with the directions, you can be brought back to court for breach of community correction order and I would have the power to resentence you in relation to this offence.  You must understand that there are important consequences for you if you breach this order.

25I propose to leave the Bench for a few minutes to enable your counsel, Ms Kothrakis, to go through the community corrections order again with you, just so that you are clear about it.  There is a copy that I will hand over which can be gone through.  I will just go off the Bench.  Once you are ready I come back and then ask you if you consent to that order being made.  Thank you.

26(At a later stage.)

27MS KOTHRAKIS:  Thank you, Your Honour, I took him through that document and he understands the obligations and consents to the order.

28HER HONOUR:  All right.  Thank you, Ms Kothrakis.  Mr Silva could you stand up please.  Do you consent to such an order being made in the terms that I have outlined?

29OFFENDER:  Yes, I consent.

30HER HONOUR:  Thank you.  John Leonard Silva, in respect of Charges 1 and 2, you are convicted and sentenced to a community correction order for the period of 18 months with conviction on the special conditions that I have outlined.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of 12 months with a non-parole period of six months. 

31I have now signed that community correction order.  Ms Kothrakis, if you would go with my associate and obtain Mr Silva's signature on that document, thank you. 

32(Community corrections order signed and acknowledged.)

33Thank you, Mr Liarno.  Thank you, Ms Kothrakis, for your assistance in this matter.  I hope that everybody is able to move on from this incident.

34MS KOTHRAKIS:  As Your Honour pleases.

35HER HONOUR:  Thank you very much.

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