Director of Public Prosecutions v Sugden (a pseudonym name)

[2019] VCC 334

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

AT MELBOURNE
CRIMINAL JURISDICTION

THE QUEEN

v

LEVI SUGDEN (a pseudonym name)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2019
DATE OF SENTENCE:	19 March 2019
CASE MAY BE CITED AS:	DPP v Sugden (a pseudonym name)
MEDIUM NEUTRAL CITATION:	[2019] VCC 334

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Indecent act with another person
Legislation Cited:  Crimes (Aviation) Act 1991 (Cth)
Cases Cited:  R v Merrett, Piggott & Ferrari [2017] 14 VR 392.

Sentence:Total effective sentence is nine months imprisonment and to be released on a recognisance release order in the sum of $2,000 to be of good behaviour for period of two years. 

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APPEARANCES:	Counsel	Solicitors
For The Queen	Ms K Breckweg	Commonwealth Director of Public Prosecutions
For the Accused	Mr D Dann QC	Pica Criminal Lawyers

HIS HONOUR:

1Levi Sugden[1], this morning you pleaded guilty to a single charge on Commonwealth indictment CR-18-02201: 

Charge 1, committing an act of indecency on another person under the Crimes (Aviation) Act1991.  This charge has a maximum penalty of five years' imprisonment. 

[1] A pseudonym name

2You have no prior convictions or subsequent convictions.

Circumstances of your offending 

3You commenced employment as a teacher in 1997.  You were an Indonesian language teacher.  On 15 September 1999, you accompanied six students on an excursion to Indonesia.  The victim of your offending was one of those students.

4The prosecution tendered a prosecution opening for plea.  This was marked Exhibit “A” on the plea.  The opening set out the lead up encounters and your offending as follows:

5On one evening during the excursion, you accompanied Imogen[2] and five other students to dinner.  You told Imogen that she could wear whatever she wanted, in contrast to the school's policy that students should not expose their shoulders or wear shorts.  While at dinner, you and Imogen sat next to each other. You placed your hand on her knee.

[2] A pseudonym name – Imogen Lasseter

6While on the excursion, Imogen was staying in a room with another student. 
You were in a different room but in the same hotel.  One evening, during the excursion and after the group dinner referred to above, you called Imogen's room phone and spoke to her.  You made sexual remarks to her, telling her that:

"If you come to my room now, I would put you in the shower and go down on you and take you to bed."

7The offending itself occurred on 25 September 1999, when you and Imogen boarded the flight home.  Imogen and a classmate were originally assigned seats that were separate from the remainder of the class.  However, at some point in the flight, the tickets were swapped so that you and Imogen were sitting next to each other, away from the remainder of the group.

8At one point during the flight, Imogen recalls that she was either asleep, half-asleep or had her eyes shut when she felt you place your hand on her vagina.  Imogen opened her eyes and reports she froze and was unable to react. 
Soon after Imogen opened her eyes, you removed your hand.

9Upon your return to Melbourne Airport, you bought your victim a watch as a present.  In the two following years - that is, 2000 and 2001 - you were the Indonesian teacher for Imogen Lasseter's class.  Your victim made her first complaint of your offending, as I understood it, in 2004.  That investigation stalled at a police level.  In 2016, Victoria Police reopened the investigation and you were charged on 20 July 2018.

10At the time of your offending, Ms Lasseter was 16 years old and you were
26 years old.  The offending occurred almost 20 years ago.  You remained an Indonesian teacher at the Secondary School until 2016. 

11On 20 July 2018, you were charged.  At a further committal mention hearing which was conducted on 26 October 2018, you pleaded guilty.  This is an early and significant plea of guilty.

Victim Impact Statement

12Imogen Lasseter filed a victim impact statement dated 11 March 2019.  She read it into evidence here in this plea hearing.  The victim impact statement was Exhibit “B” on the plea.

13Ms Lasseter stated that after your offending, she isolated herself and was bullied by her peers.  Ms Lasseter was diagnosed with depression and anxiety and was prescribed medication for those conditions. 

14She states how this offending affected her ability to relate to her intimate partners.  Her marriage broke down after 14 years.  Ms Lasseter is now receiving psychological treatment, she stated after this case is over, she will be able to put these events behind her and live her life in her way.

15Ms Lasseter, as I said, read her statement in court in front of you.  You can have no doubt what impact your actions have had upon her.  Regardless of the penalty I impose on you, Ms Lasseter knows that you now admit what you have done and that she can, as she says in her own words, she can leave it behind her and go into the future, living her life in her own way.

Personal Circumstances

16You are now 45 years old.  At the time of your offending, you were 26 years old.  You were born in Germany.  You have lived in the Netherlands and Indonesia before settling here in Australia with your family in 1987.  Your father worked as a welder and resides back in Indonesia with that work.  Your mother has remarried and lives in Queensland.  She’s in court today to support you.  Your mother has worked as a beautician.  Your parents separated in 1999, the year of your offending.

17Your education between Grade Prep and Grade 5 was conducted in a Catholic primary school in Jakarta.  You then completed Grade 6 whilst you were living with your parents in The Hague.  Your early high school years were at Delft in the Netherlands.  From 1987 onwards, you completed Years 10 to 12 at Burwood Heights High School.

18Your tertiary education was a Bachelor of Science at Monash University between the years of 1991 and 1995, followed by a Diploma of Education in 1996 at Monash.  In 2010, you completed a Certificate II in Logistics at Holmesglen TAFE.

19You worked as an Indonesian language teacher from 1997 until 2016.  After the police came to speak to you about these matters in 2016, you handed in your registration to teach.  Since that time, you have worked at Pressed Juices, Bulla Dairy Foods, and now work at a call centre at iSelect.

20Whilst you were employed as an Indonesian teacher, you engaged with World Challenge, an organisation to promote student volunteer programs at your school.  Your community work assisted orphanages in Ho Chi Minh City in 2008, Thailand in 2010, Laos in 2012, and school programs in Nicaragua and Costa Rica.

21A natural consequence of your admission to your offending is the loss of your career and vocation as a teacher.  You have also lost the opportunity to promote this community work, to which I have just referred.

22You have considerable health problems for someone of your age.  You have hypertension, which has been medicated since 2016, cardiac arrhythmia, severe sleep apnoea, and recently, have had a pacemaker inserted to assist your heart condition.  I accept these are significant health issues for you.

23You have no prior convictions.  You are a person of previous good character, and that is supported by the references which became part of Exhibit “3”.

Sentencing Considerations

24The most significant consideration when sentencing a federal offender such as yourself is, section 17A of the Crimes Act (Cth) sets out:

"… a court shall not pass a sentence of imprisonment on any person unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."

25A term of imprisonment is the only appropriate sentence for your offence. 
How it is to be dealt with is another matter. Section 16A of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and consideration when sentencing a federal offender such as yourself. There are many factors I must take into account when sentencing you, and they are set out in s.16A(2) as follows:

(a) the nature and circumstances of your offence;

(b) if the offence forms part of a course of conduct consisting of a series of criminal acts. That is not the case here.  

(c) any injury, loss or damage resulting from the offence, and I take into account the victim impact statement;

(d) the degree to which a person has shown contrition for the offence - in your case, the remorse is confirmed by your plea of guilty;

(e) that you have pleaded guilty to the offence;

(f) that the deterrence effect of any sentence or order under consideration may have on you - that is, specific deterrence;

(g) the deterrent effect that any sentence or order under consideration may have on another person - that is, the general deterrent factor;

(h) the need to ensure that you are adequately punished for your offending;

(i) your character, antecedents, ages, means, physical and mental condition;

(j) the prospects of your rehabilitation, and;

(k) the proper effect that any sentence or order under consideration may have on you or your family.

26I am required to take into account current sentencing practices now and at the time of the offending, when fixing your sentence.  The prosecutor nor Mr Dann, could not assist with any comparable cases.  It is not surprising, as this is such an unusual charge, that it would be possible that there is no relevant sentencing practices being established.  Of course, current sentencing practices is but one of the considerations I have to take into account when fixing your sentence, and is not the only factor.

27You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

28Your plea allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.  Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.

29Your plea also recognises that you are willing to facilitate the course of justice in the community, and I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part.

30In your case, the plea of guilty is indicated approximately 19 years after the offending.  The delay between the offending and your plea makes your plea more significant when there is only one witness, the complainant, or victim, in this case, to give evidence against you.  This has avoided the necessity of the complainant giving evidence.  It is a substantial proof of your remorse.

31In your case, the delay has meant that you remained in your role as an Indonesian teacher at the same school until 2016.  There is no evidence of subsequent offending or charges against you.

32In criminal proceedings, prospective rehabilitation may warrant mitigation. In a sentence where rehabilitation is not prospective, but has been shown to have advanced by the time of the sentence, as it had been in this case, also warrants mitigation.  The focus moves from the need to facilitate rehabilitation to the need to preserve the progress already made by you.

33The fact that you have engaged in the effective process of rehabilitation during a lengthy period, and have remained within the community without further infringing the law, may be an important mitigatory circumstance in this case. The authority for that is R v Merrett, Piggott & Ferrari [2017] 14 VR 392.

34You have engaged in significant and extensive community work in your time as a teacher.  Even though your profession of teaching was brought to an abrupt end in 2016, you have sought and maintained employment after that time. 
Your rehabilitation has been well-developed and maintained by the time you were at court for sentencing today.

35The offending is of a serious nature.  The indicia of the seriousness of your offending are: 

(a) you were a teacher of Your victim and you have breached that trust;

(b) you have breached the trust of her parents and your school, your employer;

(c) the age differential between you was some ten years, and;

(d), you took advantage of the circumstances of a school trip overseas in order to conduct this offence. 

36The protection of young and vulnerable people is a significant sentencing consideration in this case.

37In the course of the plea, a report from Dr Lisa Yoffa dated 14 March 2019, was tendered, which was Exhibit “2”.  You have been diagnosed with atrial defibrillation and severe hypertension.  You have severe obstructive sleep apnoea and use a CPAP machine to ameliorate that condition.  The report sets out a need for a pacemaker, which I have been told was implanted or inserted on 15 March 2019.

38Also, the opinion of Dr Yoffa was that if you are incarcerated, medical supervision was a necessary requirement.  It is well-settled law in which there are two different ways in which ill health of a prisoner may be a factor mitigating punishment. 

39The issue is not whether the imprisonment will make it more difficult for an offender to cope with his illness or disability, but whether the offender's ill health will make imprisonment a greater burden for him. The ailments outlined in Dr Yoffa's report would, in my view, render imprisonment more burdensome for you.  The very nature of your conditions would normally lead to the conclusion that imprisonment would weigh more heavily upon you.  I take this matter into account when fixing your sentence.

40You have no prior convictions.  There were three references who speak of your previous good character and their dismay at your offending.  Each of them confirm your remorse is genuine.  You have expressed it to them.

41In a case such as this, general deterrence is a significant sentencing consideration.  Teachers and others entrusted with the care and control of young people need to understand their responsibilities and the consequences of breaching that trust and responsibility. 

42I am satisfied you have learned your lesson from this single lapse of judgment and criminal behaviour on your part.  The principles of just punishment and denunciation of your actions can be best reflected in a term of imprisonment which is wholly suspended.

43Would you stand, please?

44On Charge 1, you are convicted and sentenced to nine months' imprisonment. 

45The sentence is wholly suspended for a period of two years upon you being released on a recognisance release order in the sum of $2,000 to be of good behaviour for a period of two years.

46Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 18 months' imprisonment to be released after serving 12 months of that imprisonment on a two-year recognisance release order.

47Further, I order that under the Sex Offenders Registration Act you be placed on that registration for a period of eight years.  You will shortly be given a document that sets out your obligations under the Sex Offenders Registration Act.  Mr Dann will take it back to you. 

48Does that cover everything?

49MS BRECKWEG:  Yes, I'll just ask my instructor to complete the recognizance.

50HIS HONOUR:  You can take a seat.

51MS BRECKWEG:  Thank you.  If I could hand that up to Your Honour?  And my learned friend's happy with it as well.

52HIS HONOUR:  Thank you.  I just wanted to make sure you understand,
Mr Sugden, what this means.  You have just signed a recognisance here to be of good behaviour for two years, and it is a $2,000 recognisance.  And effectively, you have a nine-month suspended sentence hanging over you in that period of time.  Do you understand that?

53OFFENDER:  I do, Your Honour.

54HIS HONOUR:  Yes.  Setting aside all of that, you must remember out of this is two things: 

(1), you have been convicted as a sex offender, and;

(2), you must remember what you heard here in court from the witness box, the impact of what you have done on your victim.  All right?

55OFFENDER:  Yes, Your Honour. 

56HIS HONOUR:  You can step out of there.  You will get copies of these orders.

57MR DAN:  As Your Honour pleases.

58MS BRECKWEG:  Thank you. 

59HIS HONOUR:  Thank you. 

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