Director of Public Prosecutions v Stone (a pseudonym)

[2017] VCC 921

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN STONE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2017
DATE OF SENTENCE:	6 July 2017
CASE MAY BE CITED AS:	DPP v Stone (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 921

REASONS FOR SENTENCE
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Subject:Indecent act with a child under 16; cultivate a narcotic plant; possess a drug of dependence; fail to answer bail

Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  3 years imprisonment with 2 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran
For the Offender	Mr P. Kilduff

Pages 1 - 7

 

 

HER HONOUR:

Charges

1Darren Stone,[1] on the first indictment before me you have pleaded guilty to three charges of indecent act with a child under 16.  The maximum sentence for indecent act with a child under 16 is ten years.  On the second indictment you have pleaded guilty to one count of cultivate a narcotic plant, one count of possess a drug of dependence.

[1] A pseudonym.

2The maximum penalty for cultivating a narcotic plant is one year or 20 penalty units if trafficking is excluded. The maximum penalty for possession of a drug of dependence is five penalty units if trafficking is excluded.  You have also pleaded guilty to two summary offences of failing to answer bail.  The maximum penalty for failing to answer bail is two years.

Circumstances of offending

3At the time the offending took place you were living in your family home in Corio.  You lived with your partner, your daughter who is known as Madison[2] and your son, Max.[3] At the time of the alleged incidents.  Madison was 11 to 12 years old and Max was eight to nine years old.

[2] A pseudonym.

[3] A pseudonym.

4Charge 1 relates to an incident when Madison was assisting you to clear up Max's bedroom by picking up bolts from the floor.  You bent down in front of her and pulled her shorts down to her knees.  You held her by the legs and licked and kissed the outside of her vagina for a short time.  You stopped when you heard your partner coming into the house.

5Charge 2 relates to an incident when you asked Madison to bring you a towel in the bedroom where you were naked.  You were seated on the bed next to Madison and you took her by the wrist and placed her hand on your erect penis.  You then moved her hand up and down your penis for a short while until you ejaculated.

6Charge 3 relates to an afternoon when Madison went into your bedroom and lay down in bed beside you.  You rubbed the outside of her vagina with your fingers.

7Moving onto the second indictment, that is the drug related charges, these charges are the result of a search warrant which was executed at your address.  In the search a small, unsophisticated hydroponic set up was located in your bedroom.  Police seized a small cannabis plant and tray of brown vegetable matter from a box that was fitted with a light and fan.

8You admitted that the brown vegetable matter contained 16 marijuana seeds in potting mix and that you were trying to germinate these seeds.  You told the police that the purpose of growing the marijuana was to save a lot of money and that it was for your personal use.  The prosecution accept that you were growing the cannabis and that you possessed the cannabis for your own personal use.

Personal Circumstances

9Your personal circumstances were contained in a report from Jeffrey Cummins dated 6 June 2017.  Your parents separated before you were born and you were raised by your mother.  You did not meet your father until you were about 13 or 15 and you have not seen him since you were about 16 when he refused to lend you money when you were unemployed.

10You have three elder siblings but you have had no contact with them since you were 20 or 21.  You have had no contact with your mother from around the same age, but more recently she has been in contact with you.

11As part of the standard psychological assessment Mr Cummins asked you if you had been sexually abused as a child.  I have noted your response to this question in paragraph 13 of Mr Cummins' report.  Out of respect for your wishes I will not refer to the matter further.

12You were bullied at school and left in Year 10.  After leaving school you obtained work as a sheet plasterer.  Since then you have been largely employed in this capacity.  Alcohol used to be a problem for you and you regarded yourself as an alcoholic between the ages of 22 and 27.

13Unfortunately you replaced alcohol with ice.  You informed Mr Cummins that you kept smoking ice until you handed yourself into the police in February.  You described yourself as being "in an ice haze for years".

14In Mr Cummins' opinion you were having difficulty accepting and coming to terms with having sexually abused your daughter.  Your offending was significantly reflective of the disinhibited effects of your dependency on ice.  You had been suffering from symptoms of a trauma related condition and adjustment disorder with mixed disturbance for over many years pre-dating back to your childhood years and you required assistance in relation to your problems with trust.

15You informed him that you were prepared to do the Sex Offenders program and in his opinion the overall risk of you committing a further sexual offence was low to moderate.  Your counsel relied on the matters I have just referred to as offering some explanation for your offending, in particular on your addiction to and heavy use of ice.

Defence submissions

16In mitigation of your offending your Counsel relied on your plea of guilty, the fact that you were a low to moderate risk of re-offending, and that your prospects of rehabilitation were enhanced by the fact that you had agreed to participate in a Sex Offender program.

17While it was acknowledged that your offending was serious and that a gaol sentence was the only appropriate disposition, your counsel submitted that in all the circumstances of your case the court should impose a short non-parole period.

Prosecution submissions

18The prosecutor submitted that a term of imprisonment was the only appropriate sentencing option and disputed that there were any circumstances which would justify a short, non-parole period.  It was submitted that the indecent assaults were a serious example of the offending, that your conduct involved breach of trust between a father and daughter, while there was no victim impact statement from Madison, that the court could take judicial notice of the likelihood of harm.

19General and specific deterrence was submitted to be important sentencing considerations.  In sentencing you I have taken into account all the mitigating factors referred to by your counsel. 

Sentencing remarks

20By pleading guilty you have saved your daughter the trauma of giving evidence in a trial and the State expense of a trial. I accept that your plea reflects your genuine remorse and I have given you an appropriate discount.  However, I must also take into account the importance of general and specific deterrence and the need for denunciation of your conduct.

21Your offending against your young daughter involved a grave breach of trust.  While there was no victim impact statement from Madison I have absolutely no doubt that your offending would have caused her great psychological harm.  It is apparent from Max's victim impact statement that he has been adversely affected by your offending and he said, "I wish dad didn't do what he did.  I feel angry."

22Pursuant to s.6B(2) of the Sentencing Act a person is a serious sexual offender if they have been convicted of two or more sexual offences, for each of which they have been sentenced to a term of imprisonment. This means that if you are sentenced to a term of imprisonment on Charge 1 and 2 you are to be sentenced as a serious sexual offender on Charge 3, and your serious offender status must be noted in the records of the court.

23Pursuant to s.6B in determining the length of the sentence on these charges the court must regard the protection of the community as the principal purpose for which the sentence is to be imposed.  To achieve this the court may impose a larger than proportionate sentence to the gravity of the offence.  The prosecutor has not sought such a sentence and I will not be imposing a sentence longer than that which is proportionate to the gravity of your offences.

24Further, every term of imprisonment on these offences or on Charge 3 must be directed to be served cumulatively upon the other two charges.  Taking into account the principle of totality there will be some concurrence with respect to your sentences.

Sentence

25If you would please stand up?  On Charge 1 of indecent act with a child under the age of 16 you are sentenced to 18 months' imprisonment.  On Charge 2 of indecent act with a child under the age of 16 you are sentenced to two years' imprisonment.  On Charge 3 of indecent act with a child under the age of 16 you are sentenced to 18 months' imprisonment.

26The sentence of two years on Charge 2 is the base sentence.  I cumulate six months of each of the sentences on Count 1 and three on Count 2, which means that the sentence on the first indictment is three years.  I fix a non-parole period of two years.

27With respect to the second indictment on the charge of cultivating a narcotic plant you are convicted and fined the sum of $600.  On the charge of possess a drug of dependence you are convicted and fined the sum of $200.  On the summary charges of fail to answer bail you are sentenced to an aggregate sentence of imprisonment of 14 days.

6AAA

28But for your plea of guilty you would have been sentenced to four years to serve three years. Pursuant to the Sex Offenders Registration Act you are a registrable offender and you have to comply I believe with reporting conditions for life. Is that correct?

29MS NGUYEN:  That is correct, Your Honour.

30HER HONOUR:  The court is obliged to provide you with documents for you to sign.  I will get my associate to approach you and to hand you the documents for you to sign.

31MR KILDUFF:  Thank you, Your Honour.

32HER HONOUR:  I also note that the prosecution has sought a forensic sample pursuant to s.464ZF.  Is that correct?

33MS NGUYEN:  That is correct, Your Honour.

34HER HONOUR:  They can use reasonable force to get the sample from you.  Given you have consented to it I do not see a problem.  It is a non-painful procedure, it merely involves taking a swab from inside your mouth.  Would you perhaps approach him with those documents?

35MS NGUYEN:  Your Honour, I have a forensic sample order and a disposal order for the items during the search warrant.

36MR KILDUFF:  Just one thing, Your Honour, just PSD?

37HER HONOUR:  PSD is ‑ ‑ ‑

38MS NGUYEN:  140 days, Your Honour.

39HER HONOUR:  140 days is declared as pre-sentence detention.

40MR KILDUFF:  Thank you, Your Honour.

41HER HONOUR:  Sorry the 6AAA was four years and six months to serve three.  Sorry, about that.

42MR KILDUFF:  Four years, six months, serve three?

43HER HONOUR:  Yes.  Does counsel want to approach?  Have you explained about the sex registration to him?

44MR KILDUFF:  I have, Your Honour, but I'd like to approach him with the documents and get him to sign them, if Your Honour pleases.

45HER HONOUR:  Yes, I think probably that is preferable if you do that rather than my associate.  I think that is probably more comfortable for the accused.  You can hand me the 6AAA.

46MS NGUYEN:  A copy was sent to the associate on the last occasion.

47HER HONOUR:  I'll sign it in chambers and it will be made on the grounds that it is consented to and the serious nature of the offending and it is in the interests of the community.

48MR KILDUFF:  Correct, Your Honour.

49MS NGUYEN:  As Your Honour pleases.

50HER HONOUR:  Disposal orders?  I can sign those now.  So the sentence on the second indictment is concurrent.

51MR KILDUFF:  Thank you, Your Honour.  May I approach my client,
Your Honour?

52HER HONOUR:  You may.

53MR KILDUFF:  Thank you, Your Honour, everything is done.

54HER HONOUR:  I will take the disposal order.  Is there anything else arising out of this matter?

55MS NGUYEN:  Nothing further, Your Honour.

56HER HONOUR:  In that case, thank you.

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