Director of Public Prosecutions v Tabban

[2024] VCC 239

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -21-02356

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN TABBAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 March 2024
CASE MAY BE CITED AS:	DPP v TABBAN
MEDIUM NEUTRAL CITATION:	[2024] VCC 239

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:18 months adjourned undertaking with conviction and $1,500 payment to the court fund

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Offender	Ms P. Dunn KC Ms B. Kelly	Emma Turnbull Lawyers

HIS HONOUR:                  

1Steven Tabban, you have pleaded guilty to two charges of sexual assault contrary to s40 of the Crimes Act as amended by the Crimes Amendment Sex Offences Act 2016.  The maximum penalty for each of those charges at the time of your offending was 10 years' imprisonment.

2You have no prior convictions.

Circumstances of Offending

3A summary of your offending is as follows, as set out in the crown opening on plea which I marked as Exhibit A. 

4The first charge was a charge that you touched victim Ellie Sandover[1] on her thigh over her clothing, on the outside of her bra over her clothing and you touched the side of her head trying to kiss her.  This was a rolled-up charge.

[1] A pseudonym

5The second charge is that you grabbed Cassandra Peterson's[2] right hand and held onto it while you unzipped your pants in an attempt to compel her to touch your penis.

[2] A pseudonym

6The first offending occurred on Saturday 24 November 2018.  Ms Sandover had attended at your office for a job interview at your business as a real estate agent.  Ms Sandover was 21 years of age at the time. 

7You first met Ms Sandover the week before when she attended for a job interview at your estate agency.  There was a follow-up contact on 22 November 2018 and then you replied and she attended for an interview, or what she thought was an interview, at 4.50 pm on 24 November. 

8You began to question the complainant in relation to what she would do to get what she wanted from the work.  You told the complainant that there was no-one else around and when you asked her what she would do to get everything she wanted.  You suggested that she run around the office naked screaming.  The complainant said that she would not do that, she said that she would shave her head and that you said that you had a razor and asked if she would shave her head then and there. 

9You then asked her if there was nothing else that she could think to do and you said 'I have something in mind.'  You returned to your chair and told the complainant to sit on your lap.  The complainant agreed as she wanted to get things over and done with.  You then placed your left hand on the complainant's left thigh whilst your right hand went around her side and underneath her armpit.  You were moving your hand around her thigh while your right hand was touching the edge of her bra over her clothing.  You then grabbed the side of her head and tried to turn it towards you and you leaned closer and attempted to kiss the complainant.  You asked the complainant, 'Do you not want to kiss' and she said 'No.'  At that point your hand was further up her thigh.  The complainant pushed your hand away and she stood up.  Shortly after that she left the office and went down to her mother's workplace where she had a conversation with her mother about what had happened.

10The complainant went to the police that evening and on 25 November 2018 engaged in a pretext call with you for about 35 minutes.

11The second complainant, Cassandra Peterson, was 19 years of age and again attended for what she believed was to be a job interview. 

12After several follow-up contacts she attended at your office and there was some talk of her job prospects.  You told the complainant that there was another applicant who had offered a full body massage and a hand job.  The complainant said that she was not willing to do that for the job.  You told the complainant that you would tell the other applicant that the complainant made a better offer and she was not going to get the job.  You left the room and returned a short time later.

13You spoke to the complainant about a contract of employment.  She read over the paperwork and signed a document and you said that they needed to go into a back room.  You walked into the back room with the complainant and said it was for a full body massage to which she said 'Ah, okay.'  You removed your suit jacket and you sat on a couch.

14As she rubbed your shoulders and your back and hands you asked her to massage your quads.  She then massaged your quads as you lay down.  The complainant then asked when you were going to finish the contract.  You laughed and said, 'You have to finish your end of the bargain.'

15You then grabbed the complainant's right hand and held it tightly and unzipped your pants.  You said, 'You don't have to give me a blow job, just give me a hand job.'  The complainant refused.  You continued to hold her hand.  The complainant asked if she could go and get lotion, you said that she did not need any.  She kept resisting your conduct and left.  She left the office, called her mother; she was crying on the phone and told her mother what had happened.

Chronology

16It is necessary to set out the chronology in this matter.

17You were arrested and interviewed in relation to the first victim (that is
Charge 1 on the indictment in relation to Ellie Sandover) on 14 February 2019, with the assault having occurred on 24 November 2018. You made a no comment record of interview.

18Following the interview police made an application for a DNA sample from you.  You refused and police obtained a court order.  You attended to supply a DNA swab on 19 July 2019.

19The assault on the second victim, Cassandra Peterson, occurred on 25 November 2019.  You were again arrested and interviewed on 28 November 2019.

20There was a committal hearing on 2 November 2021, nearly two years following your second arrest, as COVID had intervened.  Originally you faced five charges of sexual assault. The matter resolved on the basis to which you have pleaded guilty on 15 June 2023 and your trial was vacated.

21The plea was first heard on 20 June 2023. At the end of the hearing, I determined it was appropriate for the matter to be adjourned for a period of time to allow you to complete the men's behaviour change program and for a report to be provided to the court from a suitable practitioner regarding your participation in a sexual offender treatment program. The matter was adjourned to a date to be fixed for further plea pending the compliance with these two requirements.

22Having received the material from Ms Turnbull’s office, the further plea was then listed and heard on 28 February 2024. The supplementary plea material, including the report of Peter Hanley, psychologist, and the certificate of the completion of the men's behavioural change program were put before the court.

Objective Gravity of Offending and Moral Culpability

23The first charge to which you have pleaded guilty is a rolled-up charge.  The rolled-up charge contains identifiable instances of offending and speaks to the instance not being a single isolated matter of conduct.  Nevertheless, you face only a single penalty on the one charge.  That is appropriate, given that all of the offending in relation to Ellie Sandover happened at the same time in a relatively short space of time.

24The offence of sexual assault in each instance involved considerable planning on your part and it was undertaken by the use of pretence and lure, that is, both the first and second complainant attended your office under the impression that they were attending for a job interview.  As such there was a power and gender imbalance between you as the prospective employer and the young female job applicants.

25It is apparent that you used your position as an older, established and successful estate agent and prospective employer; you used words to guide each complainant to what it is that you wanted and you used your economic superiority, that is, you held the prospect of a job.  In other words, Mr Tabban, you held all the cards.

26To this I add that on top of the gender there was the considerable age gap between you and each of the complainants, one was 21 years of age at the time, the other was 19 years of age at the time.

27Particularly in relation to Ms Sandover, there was the location of the offending, that is that it occurred in your office and on a Saturday afternoon with few or no-one else around.

28Although both instances of sexual assault may be described appropriately as being at the lower end of gravity when compared with many of the sexual offences that come before this court, and were characterised in the first instance by taking place over the clothes of Ms Sandover, and in the second instance you did not actually compel the touching of your penis by Ms Peterson, the circumstances in which the offences occurred can only be described as insidious.  Moreover, they were two occasions separated by a year.

29The victim impact statements I received from both young women make it apparent from both that the effect on them has been significant.  In each instance both describe it as a frightening, uncomfortable experience which has had a detrimental effect on their self-image and confidence. 

30It is comforting to note from their presence at both hearings on the plea that both young women are well supported by their family and friends but both of course have had to endure the same protracted delay in finalising the matters, that is, for one five years and the other four years.

31Your offending on the second occasion is made significantly more serious by the fact that you were interviewed by police in relation to the allegations made by Ms Sandover, the interview taking place in February 2019, yet you went on to commit the offence against Ms Peterson in November 2019, eight months after you were interviewed by police and only a few months after the police obtained a compulsory DNA order against you.

32In addition to the matters I have outlined as to the seriousness of your offending and your moral culpability, I note that you told Mr Hanley, psychologist, after you had pleaded guilty and after you had already appeared before me, that you did not realise at the time of your offending that it was against the law.  And yet, as I have already pointed out, on 14 February 2019 police arrested you and you were interviewed in relation to the allegations made by Ms Sandover and you had the presence of mind to exercise your legal right to make a 'no comment' record of interview.  Then on 19 June you were asked for DNA and on refusal the police obtained an order from the Magistrates Court of Victoria and you attended on 19 July 2019.

33I am satisfied that, if not before the time you offended against Ms Peterson, by the time you offended against Ms Peterson you were well and truly aware of the criminal nature of such conduct.  Your moral culpability is high for what it is that you did.

34The community has made it clear for many years now that repugnant male practices in workplaces will no longer be tolerated, whether those practices are sexual harassment, bullying, practices of inequality, discrimination or this, and this I characterise as predatory sexual conduct.  It must and will be met by the full force of the law. 

35In your case, Mr Tabban, your conduct was criminal and must be met by principles of deterrence, just punishment and denunciation.

Personal Circumstances

36You are 38 years of age being born in March 1985.

37You reside in the west of Melbourne with your wife in your own home. Your first child together was born in July last year.

38At the time of the plea hearing last year you were working full-time, running a real estate agency having done so for the previous eight years.

39You were raised in Melbourne by your mother and father and have no siblings. Your father migrated to Australia at age 18 and later commenced a relationship with your mother who was working for the local council.

40Your parents worked hard throughout your childhood operating a successful business. You attended private school and successfully completed your VCE despite describing yourself as an average student.

41Since the age of 15 you have maintained constant stable employment. You joined the workforce first at Baker’s Delight, then at the age 18 you commenced your career as a real estate agent at a branch of a well-known agency.

42In light of this, at age 21 you were able to purchase a block of land adjoining a block with your parents and built a home. This enabled you to visit your parents every day, highlighting the closeness of your relationship with both your mother and father.

43In 2012 your father was diagnosed with Parkinson’s disease and cancer. You ceased work for approximately two years to become your father’s full-time carer. During this period you met your first wife and worked briefly in hospitality.

44In 2015 and with your wife’s and family support you were able to return to your profession and you established your own real estate agency. Your ex-wife was heavily involved in this business and employed as the receptionist.

45Your mother was then diagnosed with stage four cancer in 2018 and you then separated from your wife in about 2020. You describe this period of your life to Mr Hanley as 'constantly trying to put on a smile', expressing that you had 'started hating everything about your life'.

46The COVID pandemic hit and you were able to retain all your staff with the help of JobKeeper assistance.

47Your mother passed away in 2021.

48You met your current wife and commenced your relationship in 2022.

49Your father's Parkinson's has stabilised but you still visit him every day in his retirement home.

50I have received a number of references from your family and business associates detailing your heavy involvement with the local community, particularly the community business association and local football club – the reference from Mr Johnson[3]. You continued to support and be involved in the local community in these roles through the majority of your court proceedings.  From about August last year you were required to step down in light of the charges that you had pleaded guilty to.

[3] A Pseudonym

51Both Mr Brown[4] and Ms Atkinson[5] speak of you as an honourable businessman who throughout the pandemic placed the immediate needs of your staff above your own and those of your business. Your current wife notes that your selflessness extends to outside the business sphere, offering support to your ex-wife and looking after your ailing father.

[4] A Pseudonym

[5] A Pseudonym

52After the plea in June 2023 and as a consequence of the short turnaround period, it was not possible for your defence team to prepare full materials.  It was apparent to me that needs had to be addressed.  As a consequence you were, in effect, ordered on a deferral of sentence to undertake the men's behavioural change program and the sex offender treatment program, which you have completed through Peter Hanley, psychologist.  I will say more about that in a few moments.

53Your world changed on 4 August 2023, even more so than when you were charged with these offences, when the Business Licensing Authority cancelled your real estate licence.  Moreover, you were asked by every group in the local community to which you had contributed solidly for the previous number of years, to step down or resign from your involvement in their community groups.

54I appreciate, Mr Tabban, that the lifeblood of a small business such as you operated is its integration into the local community.  That has been lost to you now and you have lost your real estate licence.  I appreciate the enormity of the impact on your life and career by the finding of guilt for these offences which was triggered by the plea of guilty.

55Moreover, your life has been made more uncertain by your relatively recent marriage and the birth of your baby which is now, I believe, about eight months old.

56I received the report of Peter Hanley, psychologist, who has supervised your undertaking of the sex offender treatment program. 

57Moreover, Mr Hanley in recent times and going forward into the future, has been treating you for relationship and personality issues.  Without formal investigation, Mr Hanley considers that you show signs or traits of narcissistic personality disorder.  Your statements to him such as you assume the power role and the fact that you give indications of positive impression management confirm these traits in his opinion.

58He said that you undertook a personality assessment inventory.  At Paragraph 13 of his report he states as follows:

'Mr Tabban's personality assessment inventory was valid but there was some evidence of positive impression management, that is, Mr Tabban tended to present himself in a favourable light and as being relatively free of shortcomings that most people will admit.  Taking those tendencies into account, the PAI highlighted several problems including excessive activity, physical signs of depression, inflated self-esteem, low frustration tolerance, rigidity, sensation seeking behaviour and suspiciousness.  His overall profile suggested that Mr Tabban is a power oriented grandiose man who tends to be obsessive and relentless in his pursuits.'

59Nevertheless, Mr Hanley states that you made good progress on the sex offender treatment program and that you took responsibility for your actions in relation to the two young women.

60At Paragraph 23 Mr Hanley wrote:

'Compared to the time of his offending, Mr Tabban has revealed a significant shift in his attitude such that he does not express offence facilitating attitudes about women.  There is evidence of improved self-awareness and the development of a more realistic self-evaluation and he is making progress in developing emotional and interpersonal skills that are foundational to healthy and respectful interpersonal relationships.'

61He continues:

'Mr Tabban has made good progress in targeted sex offender treatment and does not present as requiring additional offence specific intervention or sex offender treatment, per se.  However, Mr Tabban's personality related problems remain predominant in his thought process, emotions, relationships, behaviour and approach to stress and interpersonal conflict.  Further treatment is therefore warranted to specifically address the personality issues that appear to have played a role in Mr Tabban's offence process.  In the midst of stress related to his father's ill-health, running a business and adjusting to parenting, Mr Tabban may find it difficult to attend regularly but is likely to benefit from doing so.  On the basis of his therapeutic engagement with me, I expect Mr Tabban would continue to benefit from further treatment.'

62He then confirms that your treatment is ongoing and your next appointment is scheduled for 25 March 2024.

63On the last plea date Ms Turnbull told me that you have paid for a number of further sessions which you are committed to attending. 

64I say, Mr Tabban, that I find that very encouraging.

65Since the deferral, as I have mentioned with the conduct of the Business Licensing Authority and the requirement of local communities asking you to step down or resign from local positions, you find yourself and your business in a much more limited position.  You are now only able to work administratively in the business and not with authority.

Sentencing Submissions

66The Crown submitted that an adjourned undertaking is an inadequate sentencing disposition to deal with this matter. 

67Moreover, Mr Pirrie on behalf of the Crown submitted that you should be convicted for the offending.  Mr Pirrie read the material from the Business Licensing Authority and described it as ‘byzantine’ but nevertheless submitted that a CCO was within range and the minimum appropriate sentencing disposition in this case.

68On your behalf Mr Dunn with Ms Kelly at the original hearing and then eloquently and emphatically by Ms Turnbull at the last hearing, submitted that a financial penalty was appropriate and that your offending does not require the imposition of a community corrections order.

69Ms Turnbull submitted that this matter has been around your neck now since 2019.

70Furthermore, you have been under supervision and oversight since the deferral of sentence.  You have suffered a considerable deal of extra curial punishment and when one considers the sentencing objectives in this case of deterrence, just punishment and denunciation, Ms Turnbull submits that there has been a considerable punitive component meted out to you by the extra curial punishment.

71Ms Turnbull submitted that the core components of a community corrections order, which would be counselling for sex offence treatment and men's behaviour change, have already been completed, that you have in fact shown insight and remorse for your offending, and you have already been considerably punished.

Analysis

72In my view the plea of guilty in this case has utilitarian benefit.  Although it was not made at the earliest time, there were negotiations which resulted in you facing and pleading guilty to fewer charges.  It is apparent that the plea of guilty in this case has been a true saving to the complainants who have felt your actions deeply and for a long time, and still carry the emotional scars of your actions.  The plea of guilty saved them attending court as witnesses who would have faced cross-examination.

73I consider that the plea was made at a time when the principles in the Court of Appeal decision of Worboyes must be given effect.  You pleaded guilty at a time where there was still a backlog of cases from the COVID pandemic in the court.  The decision to plead guilty and save running a trial was a real saving to the court.

74I take into account your previous good character which is set out in the character references provided on your behalf.

75When I consider your prospects for rehabilitation, I conclude that your prospects are good.  You have not offended again but it is a true concern that you offended on the second occasion after the police arrest, interview and DNA sample, and that you told the psychologist, Mr Hanley, after the plea of guilty and after the first plea hearing, that you did not realise your conduct constituted a criminal offence.

76Nevertheless, in counting towards your rehabilitation you have undertaken the men's behavioural change program, you have undertaken the sexual offender treatment program and Mr Hanley says that he considers there has been a shift in your outlook and behaviour.  That is a gaining of insight.

77I am further encouraged that although you may still have difficulties with your personality, that you are committed to undertaking further psychological therapy.  It demonstrates to me that you take these proceedings and the course offered by Mr Hanley seriously.

78As to disposition, despite the Crown's strong opposition to such a course, I consider that in the circumstances an adjourned undertaking is the appropriate disposition.  This takes into account my assessment of the gravity of your offending, together with the matters personal to you and the punishment you have already suffered from the actions of the Business Licensing Authority and your loss of reputation in your local community.

79I do not consider that the imposition of a fine is appropriate. In the hierarchy of penalties set out in s7 of the Sentencing Act, the imposition of a fine is a higher penalty than the imposition of an adjourned undertaking.

80The issue comes down then to whether or not a conviction should be recorded. Section 8 Sentencing Act requires me to consider the nature of the offences, your character and past history, the impact on economic or social wellbeing or employment prospects.

81In my view, however, the planned, repeated nature of the offending on the second occasion, especially after the police brought the criminal nature of your actions to your attention, warrants the imposition of a conviction with the undertaking. 

82I have considered your previous character and the impact on your economic circumstances but I note that the Business Licensing Authority and the local community groups acted on your plea as a finding of guilt.  The actions of neither were predicated upon recording a conviction.

83In the circumstances, Mr Tabban, I intend to place you on an adjourned undertaking for a period of 18 months.  The adjourned undertaking is with conviction.

84As a condition of the bond, I order that within eight months and by 5 November 2024, you provide the court with a further brief report from Peter Hanley, psychologist, detailing the number of sessions attended since sentence today and his opinion on your progress towards rehabilitation. 

85I further order that you pay the court fund a sum of $1,500.

86What I will do, Ms Turnbull, is I will hand the bond down to you.  I will leave the bench so that you can have an opportunity to speak to Mr Tabban.

87MS TURNBULL:  Thank you, Your Honour. 

88(Short adjournment.)

89HIS HONOUR:  Thank you, Ms Turnbull, are you satisfied that Mr Tabban understands the effect of the bond.

90MS TURNBULL:  Yes, Your Honour, I read him the conditions and he indicated he understood.

91HIS HONOUR:  All right, thank you.  I have signed the bond.  Now, Mr Tabban, what the bond means is that for the next 18 months you must be of good behaviour which is no more than the requirement of any member of the community and it is a requirement which I expect that you fully expect that you would comply with in any event, bond or no bond. 

92Beyond that, given your commitment to undertaking further therapy with Mr  Hanley, what I want is a report to put on the court file so it says this is where you have reached in terms of your rehabilitation.

93The payment of an amount to the court fund has been relatively contained because I appreciate that you have suffered considerable financial detriment as a result of losing your licence as a real estate agent.  Nevertheless, it is a mark that the money is used by the court fund to fund social works.

94You do not have to appear back before me in 18 months' time.  It is only if the bond is called upon, and that is you commit further offences or in other ways breach the bond, that you would be called upon.  So that would be the end of the matter.

95So with that I will ask you to step down, I want to say a word to the victims who appear online.

96To Ms Sandover and Ms Peterson, I want to thank you again for your attendance by Zoom today.  The hearing had to be brought on at short notice because of a matter personal to me, so it wasn't possible to give you any further notice.  But I want to thank you for your courage and integrity in coming forward and I hope that you remain well supported by your friends and family and that you are able to now finally put this matter behind you.  So I want to thank you for your attendance.

97Mr Lew, is there any other matter from your perspective?

98MR LEW:  I beg your pardon, Your Honour.  No, there is not, Your Honour.  As the court pleases, that matter is completed now.

99HIS HONOUR:  All right, thank you.  Ms Turnbull, are there any matters from ‑ ‑ ‑ 

100MS TURNBULL:  (Indistinct)

101HIS HONOUR:  All right, thank you for your attendance.

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