Director of Public Prosecutions v Smith

[2013] VCC 1980

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01364

DIRECTOR OF PUBLIC PROSECUTIONS

v

DION SMITH

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2013
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2013] VCC 1980

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr B. W. Johnstone
For the Director of Public Prosecutions	Mr J. B. B. Lewis

HIS HONOUR: 

1Dion Robert Smith, you can remain seated for the time being.  You have pleaded guilty to one charge of indecent assault committed on 5 February 2012.  You have no prior convictions.  The maximum term of imprisonment for indecent assault is ten years. 

2The prosecution has tendered and relied upon the summary of prosecution opening for the plea hearing which is Exhibit A.  I am not going to read that again.  Suffice to say that in the early hours of the morning of 5 February 2012 you were at the house of some other people with the victim, with whom you had a brief sexual relationship some years previously.  Both of you had consumed a good deal of alcohol.  You knew that she was "very, very drunk".  She became tired and sleepy, as well as being very, very drunk, and you took advantage of that fact.   You indecently assaulted her by touching her vagina in circumstances when were you aware that she might not be consenting. 

3On your behalf your counsel helpfully provided me with a chronology of relevant events and an outline of plea submissions, together with a psychological report dated 21 November 2013 provided by Elizabeth Warren, consultant forensic psychologist, and a number of written references which show that you are highly regarded amongst your friends and family, and that you have a good reputation which is, of course, consistent with the fact that you have no prior convictions and have not engaged in any other criminal conduct since the event of that night.

4The psychological report paints you as a person with no, or no significant, problems although of course there has been anxiety in relation to this offence and symptoms which are associated with that.  This matter has been hanging over your head for not far short of 22 months. 

5You had a normal upbringing, although your mother has had some mental illness issues.  You got through school, finishing Year 12 and have worked regularly since then until shortly after this offence was committed.  So you have a good work record.  Latterly, you were working as a music teacher at a Seventh Day Adventist School and you were in that job between 2010 and shortly after these matters came to light when, as I understand it, there was a cancellation of your Working With Children check, and essentially you were required to cease your employment as a music teacher. 

6However, I note from the submissions that it is expected that your employer would take you back, subject of course to your being permitted to work as a teacher  again.  At least it can be said that you were apparently highly regarded and it is clear that you have talent as a musician and obviously as a teacher. 

7The plea submissions made on your behalf first of all address the factual basis for sentencing.   Mr Johnston stressed that this is a case which lacked many of the aggravating features that are often present in offences of this kind, I accept that submission.  However, the offence itself can be committed in a number of different ways or with different states of mind.  And although it might be said that actual knowledge that the victim was not consenting would be an aggravating feature.  It does not seem to me that carrying out this offence whilst aware that the victim might not be consenting amounts to mitigating circumstances.  It is simply another way in which this offence can be committed. 

8It is aggravating feature, that you were well aware that the victim was very, very drunk.  Although you may have had alcohol yourself, that does not excuse your conduct.  And you took advantage of the relationship you had with this young lady who was then aged 20 years which, although it had been a sexual relationship briefly in the then fairly distant past, had become one of friendship, in which she trusted you to look after her. 

9It is true you have pleaded guilty.   I, of course, am aware of the process by which pleas are tendered in cases such as this, where a more serious charge was initially laid.   I does not regard the time at which the plea was tendered as any indication that you lacked any desire to facilitate the interest of justice or otherwise as an indication that you lack remorse.  However, I frankly do not see a great deal of sign of genuine remorse. 

10It seems to me that, with respect to Mr Johnston's submission, that what you said about your offending conduct to Ms Warren, particularly at pp.5 and 6 of her report, do not suggest that you have accepted, or that you at least were prepared to discuss with Ms Warren, the full extent of your offending conduct or your state of mind.  What you said to her, in my opinion, is a long way short of a full and frank admission of what took place.  It is a long way short of showing insight into what you did, why you did it and what affect it was likely to have on your victim.  And it is a long way short of showing genuine remorse. 

11I note in that regard that the prosecution also relied upon a victim impact statement.   That indicates that although the victim thought at first that she could get on with her life "as if nothing had happened", that turned out to be far from the truth.  And these events, as they often do, have had a significant impact upon her.  And I am bound to take that into account in assessing an appropriate sentence in this situation.

12Whilst I accept that the circumstances were such that there was a good deal of light hearted banter going on that night, that the victim as well as being drunk may have been behaving in a way that was flirtatious, possibly with you and certainly it seems with others.  That in no way excuses indecently assaulting the person in circumstances where you were aware that she might not be consenting. 

13I am prepared to accept, however, that this was an isolated incident in an otherwise good record, unblemished history.  I regard your prospects of rehabilitation as good and I see no reasonable risk that you will re-offend in this way, or indeed in any other way.  You now have a girlfriend who is standing by you and the attendance of family and friends on the hearing of the plea would suggest that you have a good deal of support behind you. 

14I am aware that you have not been in work since the offending came to light.  However, I take it that that is a temporary situation and that you will soon be gainfully employed again, hopefully back in teaching.  It was submitted on your behalf that you will have learnt a significant lesson from the shame and embarrassment that the revelation of this offending conduct has involved, having to suffer the stigma of pleading guilty to a sex offence and losing your livelihood albeit temporarily. 

15It was also pointed out that there has been a significant delay, not it seems through any fault of anybody but, as I say, almost 22 months have gone past since the offending conduct.  I accept that that would have taken its toll in terms of the matter hanging over your head during that period of time.  And I take that into account in assessing an appropriate sentence. 

16It was submitted on your behalf that a custodial sentence is not appropriate, and further submitted that I should look to impose a fine or a bond without convicting you. And it is submitted that I should have regard to s.8 of the Sentencing Act which requires me to have regard to all the circumstances of the case, including the nature of the offence, the character and past history of the offender, which are obviously very much in your favour, and the impact of recording a conviction on the offender's economical, social wellbeing, or on his or her employment prospects.  And I am sure that a conviction will have its impact. 

17Although I note that so far as the teaching profession is concerned, the legislation - I think the Education and Training Reform Act of 2006 is the provision which prevails today. In particular s.2.6.9, makes it necessary for you to disclose either a conviction or finding of guilt. The legislation gives the governing body the discretion not to grant you registration, if that is the correct terminology, in circumstances where you have either a finding of guilt or a conviction for a sexual offence, the definition of which includes an offence of indecent assault contrary to s.39 and sub-s.1 of the Crimes Act 1958.

18Therefore, it does not seem to me that on that basis that a conviction or non-conviction is going to make the difference.  It will have impacts on other areas of your life if you are convicted; I accept that.  But on the other hand, I have to look at the serious nature of the offending and I do regard this as serious offending, even though I accept that it does not have many of the aggravating features that attach to offending conduct of this kind. 

19It is necessary for the court to express its denunciation of offences of this kind and to impose a sentence which punishes you justly, to deter you from committing further offences of this kind, although I do not regard that as a significant risk, or the necessity for individual deterrence as being of great significance in this particular case.  I do, however, regard general deterrence as being significant.  It seems to me that females are entitled to look to the courts to impose sentences which offer them a measure of protection, even in circumstances where they have had too much to drink.  And even in circumstances where they have rendered themselves vulnerable to persons taking advantage of them. 

20I am also bound to consider current sentencing practice.   The sentencing snapshot for sentencing trends in the Magistrates' Court has been provided to me, although it has been pointed out that this is not an offence that is in the Magistrates' Court and it is of limited value.  I take that into account in showing that there are a range of sentences imposed for offending involving indecent assault and therefore it is an indication that the courts have exercised sentencing discretion in a wide variety of ways.  I have also looked at the sentences imposed by this court in relation to indecent assaults.   It is difficult to discern any clear sentencing tariff from which to work.

21Mr Lewis referred me to one matter, although he conceded that the circumstances were of a different nature and I find that of somewhat limited value.  The prosecution was invited to put forward a range of sentences within which they submitted that I should consider sentencing you.  And that range was a sentence of between three months and six months imprisonment, although it was submitted that it was open to me to suspend that sentence and the prosecution certainly were not pressing for an immediate custodial sentence. 

22Having regard to the nature of the offending conduct, it seems to me that a term of imprisonment is certainly within the range.  However, I have to take into account more than that.   I think it is important to stress that you are not just a person without previous convictions, you are a person who enjoys a very good reputation within the community, and has many good qualities which you are entitled to pray in aid at a time like this. 

23For those reasons I am not persuaded that a term of imprisonment is the only available option and I propose with your agreement, to impose a community correction order with - apart from the core conditions, importantly that you remain out of trouble for the period of the order, which will be for 12 months.  I would be requiring you to perform unpaid community work during a period of 12 months, totalling 200 hours.  Would you be willing to consent to an order?  A community correction order on those terms?

24PRISONER:  Thank you, Your Honour. 

25HIS HONOUR:  You would be?

26PRISONER:  Yep, yes Your Honour.

27HIS HONOUR:  All right.  Mr Johnston, do you need to go and talk to him about that or?

28MR JOHNSTON:  No Your Honour, if I could just be there whilst he signs the order?

29HIS HONOUR:  Yes.  I do not propose to make any other conditions so there is no need for an assessment.  But, as I say, I would make it for 12 months and require him to perform the unpaid work during that 12 month period, 200 hours in total.

30MR JOHNSTON:  I have already explained to him what that will entail.

31HIS HONOUR:  Yes.  I do propose to convict him as well, I might say, to the extent that that influences his decision as to whether he consents to the order.  I think I should disclose that.

32MR JOHNSTON:  Your Honour, I can indicate that that will not have an impact as to whether or not he consents.

33HIS HONOUR:  Yes.

34MR JOHNSTON:  And I note that the nearest corrections office is Melton. 

35HIS HONOUR:  Melton, all right.  Mr Travis will just draw that up.

36MR JOHNSTON:  As Your Honour pleases.

37HIS HONOUR:  And once that is done - there was an order for a forensic sample, was that right?

38MR LEWIS:  No, that is not being sought, Your Honour.

39HIS HONOUR:  Nothing sought?  No ancillary orders at all?

40MR LEWIS:  No, that is correct Your Honour.

41HIS HONOUR:  That is right.  But for your plea of guilty I would have sentenced you to a total of nine months' imprisonment. 

42MR JOHNSTON:  As Your Honour pleases. 

43HIS HONOUR:  The order will be drawn up and I will make the community correction order formally when that element is done.

44MR JOHNSTON:  As Your Honour pleases. 

45HIS HONOUR:  I should say this before you sign the order.  That in addition to the condition that you perform 200 hours of unpaid community work, you must report to the Melton Community Correctional Services at 83-85 Unit Street, Melton within two clear working days after the commencement of this order.  So I think you are looking at four o'clock on Thursday basically.  Or at least four o'clock on Friday but there might be some debate about that.  I would get there on Thursday if I were you to make sure that you are within the time period. 

46In addition, you must not commit another offence for which you may be imprisoned during the period the order is enforced.  Now, the order will be enforced for 12 months or if you complete the 200 hours of unpaid community work within that period of time, then the order will come to an end at the conclusion of that period.  Do you understand?

47PRISONER:  I understand, Your Honour.

48HIS HONOUR:  So you finish the 200 hours, that brings the order to an end.  But if you do breach the order in that time by committing another offence punishable by imprisonment, not only would you be liable to sentenced for that further offence but you could also be brought back here before me, or some other Judge of this court.  You would be up for a sentence of up to three months for the breach plus the court could also sentence you again for this offence, and it may well be that it would be a term of imprisonment.  All right, do you understand?

49PRISONER:  I understand, Your Honour. 

50HIS HONOUR:  So do not breach it.  You must comply with any obligational requirement prescribed by the regulations.  Those will be explained to you.  You must report to and receive visits from the Secretary of the Department of Corrections or his or her delegate.  You must report to the Community Corrections Centre within two clear working days, I have said that to you already.  You must let a community corrections officer know within two clear working days of your change in your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary of the Department of Corrections or his or her delegate. 

51You must obey all lawful instructions from, and directions of, the Secretary or his or her delegate.  In other words, you have to do as you are told when you are given directions by the regional manager or his or her delegate at the Melton Community Corrections Centre, in particular in relation to the completion of your 200 hours of community work. 

52PRISONER:  May I elaborate on one of those, Your Honour?

53HIS HONOUR:  Do you follow all that?  Sorry?

54PRISONER:  May I elaborate on one thing? 

55HIS HONOUR:  Yes.

56PRISONER:  If I went on holiday to Queensland I'd have to inform - just hypothetically.

57HIS HONOUR:  Yes, you would have to do that, yes. 

58PRISONER:  Sorry, thank you.

59HIS HONOUR:  You would have to do that, yes.  Look, I would say there would probably be no difficulty about that but you will have to make sure that you comply with the condition that you inform the community corrections manager at the Melton Centre about that.  If you do that then you will comply.  All of that will be explained to you in more detail.  And you can raise that when you make your first report to the centre. 

60PRISONER:  Just hypothetically speaking, thank you.

61HIS HONOUR:  I would be upfront about that if I were you, yes.  All right, thank you.  Mr Johnston, do you want to go up there and ‑ ‑ ‑

62MR JOHNSTON:  If I may Your Honour, if I could approach?

63HIS HONOUR:  Just to make sure everything goes correctly.  Mr Smith, that order is now signed and I formally make the community corrections order for a period of 12 months commencing today and finishing on 9 December 2014 or at such earlier time as you complete your 200 hours of community work.  That order is now in place and I hope that you do not ever have to come back to this court again.  I think you can probably leave the Dock now.  Thank you.

64MR JOHNSON:  As Your Honour pleases.

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