Director of Public Prosecutions v Stroud

[2014] VCC 2231

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01012
CR 14-01013

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN STROUD
BRADLEY WILSON

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2014
DATE OF SENTENCE:	18 December 2014
CASE MAY BE CITED AS:	DPP v STROUD
MEDIUM NEUTRAL CITATION:	[2014] VCC 2231

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R.F. Pirrie	Office of Public Prosecutions
For Accused STROUD	Mr P.J. Hannebery
For Accused WILSON	Mr C.F. Thomson

1HER HONOUR:  Dylan Stroud, you have pleaded guilty to one charge of sexual penetration of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  The prosecution sought an order for the disposal of certain items, there was no objection to the making of that order. 

2Bradley Wilson, you have pleaded guilty to one charge of indecent act with or in the presence of a child under 16.  The maximum penalty for that offence is ten years' imprisonment.  Again, the prosecution made application for an order for the disposal of certain items and there was no objection to the making of that order. 

3The circumstances of the offending of each of you are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  In brief, the circumstances were as follows.  Both offences occurred in the early hours of 29 April 2012.  The complainant was a young woman who was then 15.  You and she were together at a house after having been at a party together.  She was very intoxicated.  The complainant was put into an empty bed in the house by her friend with assistance from others.  She was put to bed because she was so drunk that she was falling off the couch and passing out.  It was plain to you and all who were there that she was very drunk.  The complainant had been incoherent, touching herself and calling out for someone to "fuck" her. 

4You two and a co-accused, Aaron Nixon, went into the room.  Mr Nixon had intercourse with the girl.  Mr Stroud, you then had intercourse with her.  You, Mr Wilson, pulled out your penis, put it near her face and asked her to suck it.  There was no response from her, you put your penis back into your pants and left the room.  Afterwards, the complainant could not remember any of these events. 

5The plea of guilty from each of you was accepted by the prosecution to be on the basis that neither of you could establish, on a balance of probabilities, a reasonable belief that the complainant was 16 or over.  In that situation, consent is irrelevant. 

6Mr Stroud, you were arrested on 4 May 2012.  You made admissions as to the sexual penetration.  You said there was consent and that you did not know the complainant was under 16 as she had said earlier that she was 17.  You did say, in your record of interview, that she was very intoxicated. 

7Mr Wilson, you were also arrested on 4 May 2012.  You admitted your actions.  Your admissions were the only evidence of what you did.  You saw the others having intercourse with the complainant.  You were both charged in January 2014.  Mr Nixon was also charged.

8Mr Wilson, you entered your plea of guilty on 24 November 2014, Mr Stroud, you made an offer to plead guilty to the current charge on 20 October 2014 and were formally arraigned prior to the trial which commenced on 24 November.  That proceeded in relation to Mr Nixon only.  Mr Nixon was found not guilty of one charge of rape and one charge of sexual penetration.

9Mr Stroud, in sentencing you, I have taken into account your personal circumstances which were outlined by your counsel and described in a psychological report that was tendered.  You are now 21.  At the time of the offending you were 18.  You live with your mother and her partner.  You have worked since leaving school in Year 11.  You have no prior criminal history and no subsequent criminal history.  You have had a stable upbringing.  Very tragically, your sister and father died in a motor vehicle accident in 2010.  You have no drug or alcohol issues.  You have been in a relationship with a young woman for two years. 

10The psychologist reports that you have had counselling for a significant period of time.  She describes the impact of the charges on you.  She describes you are expressing remorse and insight into your offending.  There is no suggestion by her that you are in any way sexually attracted to under age women.  Through your counsel, you have acknowledged the seriousness of your offending. 

11This offending was serious.  You took advantage of a young woman who was very intoxicated in circumstances where moral considerations should have meant that you did not engage in this behaviour.  Parliament, in establishing these kinds of criminal offences in respect of children clearly intend that children be protected from others and from their own bad decisions.  It is very important that the courts do what they can to protect children from sexual offending by other people. 

12There are significant mitigating factors in this case.  There was a significant delay.  This apparently was due to the decision-making process within the police authorities.  It is difficult to understand this given that you made significant admissions at the time you were interviewed.  The matter has been hanging over your head for a considerable period of time.  During that time, you have continued to work and have had no subsequent offending. 

13You are entitled to a significant discount for your plea of guilty.  That has had some utilitarian benefit and is also, in my view, an expression of your remorse.  As I have said, you made significant admissions.  You have been of good behaviour in the past and since this offending.  The references speak very positively of your behaviour and character.  You are a young person, I consider that you have excellent prospects of rehabilitation and that there is no need to give weigh to specific deterrence in sentencing you.  I consider that the process so far has, in itself, been a significant punishment for you.

14I consider that a community correction order, in your case, would adequately meet the sentencing purposes of denunciation, just punishment and general deterrence.

15Dylan Stroud, on one charge of sexual penetration of a child under 16, you are convicted and sentenced to a community correction order for a period of 18 months.  The conditions I propose to impose are the core conditions plus that you perform 200 hours of community work of that period of 18 months.  The core conditions will require you to comply with the directions of the Corrections Officers and others.  You will also be required, for example, to notify of change of address and not leave Victoria without permission.  Are you prepared to consent to such an order?

16OFFENDER STROUD:  Yes, Your Honour.

17HER HONOUR:  I should also say that the order requires that you be of good behaviour for that period of 18 months.  If you breach the order by not doing what you are told or by any further offending, you can be brought back before me for re-sentencing.  Do you understand that?

18OFFENDER STROUD:  Yes, Your Honour.

19HER HONOUR:  Do you still consent to that order being made?

20OFFENDER STROUD:  Yes.

21HER HONOUR:  That is the order I am making and you are now placed on that community correction order.  In a short while you will be given the paperwork to sign in respect of that.  You will also be given paperwork to acknowledge that you have received the information required as a result of you now having to comply with the requirements of the sex offender registration legislation.  By your plea of guilty, you are convicted of one Class 1 offence and you will be required to comply with the reporting and other conditions for a period of 15 years.  There are processes by which applications can be made in respect of that and your counsel can advise you about those matters.

22Mr Wilson, I have also taken into account your personal circumstances in sentencing you.  You are now 24 and were 21 at the time of these offences.  You live now with your aunt and uncle.  Very sadly, your mother died in July 2014 this year after a long illness.  You are estranged from your father.  You have considerable support from your aunt and uncle with whom you live and from your two sisters.  Your sisters and your uncle were in court to support you.  You have had significant health issues with epilepsy over a number of years.  It appears that medication now controls that but it still has consequences for you including that you, at present, are not able to obtain a driver's licence.

23You have been enrolled in a health science course at Victoria University but put that off in order to deal with these matters.  It is to be hoped that you will commence that course next year and that you will be able to successfully complete that course.  You have been working since you left school.  You have no prior criminal history and no subsequent criminal history.

24Your behaviour was very poor but significantly less serious than the behaviour of Mr Stroud.  The only evidence in respect of your behaviour was admissions.  There was, as I have said, considerable delay before you were charged.  This matter has been hanging over your head as well and you have committed no further offences. 

25There is significant mitigatory material in respect of you including your plea of guilty and your admissions.  You are relatively young.  You have excellent prospects for rehabilitation.  The references provided for you also speak highly of your character.  Again, for you, I expect that the process of being charged and going through the court process has been a significant punishment in itself.  I do not consider that specific deterrence needs be given any weight in your sentence. 

26In this case, I consider that the sentencing purposes of denunciation, general deterrence and just punishment can be adequate met by placing you on an undertaking to be of good behaviour without conviction. 

27What I propose to do is adjourn this matter for 12 months on the basis that you undertake to be of good behaviour and pay $250 to the Royal Children's Hospital by 18 June 2015.  You will be required to provide a receipt to my associate to evidence that you have done that. 

28If you are not of good behaviour during the next 12 months, then you can be breached on this order and brought back to the court.  If there are no difficulties and you comply with the conditions, they you do not to come back to the court at the end of the 12 months.  Do you agree to that order being made?

29OFFENDER WILSON:  Yes, Your Honour.

30HER HONOUR: As a result of your plea of guilty, you are found guilty of one Class 2 offence. You will be required to comply with the requirements of the Sex Offender Registration Act for a period of eight years. In a moment you will be given paperwork, both in relation to the adjourned undertaking which you will need to sign and material in respect of the sex offender registration requirements. You will be asked to sign a piece of paper acknowledging that you have received that documentation. Again, your counsel can advise you about whatever applications and so forth might be made in the future in respect of that legislation.

31If I could ask my associate to show each of you at the Bar table the paperwork, could you please check it and if it is all right, if each counsel would go with Ms Ollquist to obtain a signature of Mr Stroud and Mr Wilson. 

32Mr Pirrie, is there anything I have not addressed that I need to deal with?

33MR PIRRIE:  No.  Formal making of the disposal order, I think Your Honour mentioned that.

34HER HONOUR:  I am sorry, I should add that too.  I do make the disposal order that was sought.

35(Bond signed and acknowledged.)

36Mr Wilson and Mr Stroud, that is the end of what has been quite a lengthy matter for each of you.  You do need to be of good behaviour but I anticipate you will be and that there will be no further problems. 

37I hope that in the future you take very much more care about your behaviour, particularly when you have been drinking.  I understand the circumstances of this case were ones that hopefully won't be repeated in future but please remember to be careful in the way you deal with yourselves and sexual matters in the future.

38I hope and trust that we will not see you back in the courts again for any reason at all and I wish you both well with your work and studies.

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