Director of Public Prosecutions v Traeger (a pseudonym)

[2017] VCC 1999

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN TRAEGER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v TRAEGER (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1999

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

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APPEARANCES:	Counsel	Solicitors
For the Offender	Mr A. Lavery
For the Director of Public Prosecutions	Mr D. Cordy

Pages 1 - 12

 

 

HIS HONOUR:

1John Traeger[1]; your sentence will carry a pseudonym in terms of your name, and I will anonymise the names of those involved to protect their privacy and anonymity.

[1] A pseudonym

2You pleaded guilty to two counts of indecent assault.  At the time of the offending you were 29 years of age.  You are now aged 35.

3The circumstances of your offending are as follows, contained in the summary of the prosecution opening for the plea, which was exhibited and will be retained on the court's file.

4On 18 May 2012 the victim in this matter, whom I shall refer to as "X", was at home with her husband and five children.  At approximately 8 pm four of her children went to bed.  Her husband followed later, at approximately 10.30 pm.  "X" and her youngest daughter remained awake watching a movie.  At approximately midnight you arrived and knocked on the front door.  She turned on the outside light and answered the door.  She did not recognise you.  You asked her if her husband was home and she replied that he was, but was sleeping.  She then went to check on her husband in the bedroom to make sure that this was still the case, and when she returned you were speaking to her daughter.  She heard you ask her whether Mummy or Daddy could come out to speak.  "X" told you that her husband was still asleep and that you should come back the next day, however you did not leave.  You asked her whether she could come outside to speak with you and she complied.  You continued speaking, but "X" could not understand precisely what you were saying and she could smell alcohol on your breath.  You then grabbed her arm and tried to pull her towards you, but she pulled back and broke your grip.  She moved back towards the house; the front wall to her back.  You then moved towards her and placed your hand on her breast briefly.  You then lifted her pyjama top with one hand whilst, at the same time, slid your other hand down the front of her pyjama pants and into her underwear.  You then slid your hand down the front of her vagina.  That was Charge 1.

5"X" squeezed her legs together, forcing you to remove your hand from her pants.  You then dropped to your knees and used both of your hands to pull her pyjama pants all the way down to her ankles.  You then used both arms to hold her in place as you licked her vagina.  That is Charge 2.

6"X" tried to pull away but you held her forcefully in place.  After some time you ceased the assault and rose to your feet to smoke a cigarette.  You said to her that her husband had set this up.  She did not respond and she remained there, standing against the wall, with her pants at her ankles.  You then asked whether she could leave with you.  She, again, did not respond, and eventually you left.  "X" then pulled her pants up and went back inside.  She saw that the youngest daughter, who had been with her earlier, was still watching television.  She sat next to her and started crying.  Shortly afterwards she put her to bed and went to wake her husband.  When he woke he could see that she was distressed and crying and asked what was wrong.  She told him what had happened and he immediately called the police.

7Although the victim was examined by a registered forensic nurse examiner from the Victorian Institute of Forensic Medicine, and she gave an account of the assault, it appears that nothing came of her complaint.

8In early 2015 "X" was at home alone when she heard a knock on the front door.  She had just finished having a shower and answered the door wearing a towel.  She opened the door to find you standing there.  She recognised you but she could not place from where or how.  You began chatting.  You asked her several questions which made her feel uncomfortable.  She would later state that she believed you were trying to chat her up.  Eventually you left, and soon afterwards she realised that you were the same person who had assaulted her back in May 2012.  She immediately called her husband to tell him what had happened and he instructed her to call the police, which she did.

9On 11 April you were taken into custody and a record of interview was conducted at the Shepparton Police Station.  During that interview, amongst other things, you stated that you knew both husband and wife, having worked with the husband before; you knew the street they lived in, but not the house number; you had been to the house on possibly three occasions; the first two times you had been to the house had been during the day and the husband had been present.  The last occasion you had been to the house was approximately March 2015, and this was also during the day.  You went there to speak to the husband about obtaining some work, however he had not been home, and you spoke to "X" briefly before leaving.  During the interview you denied that you had ever spoken to "X", or any of her children; that you had ever made arrangements with her husband to engage in these sexual activities with X; that you had ever kissed her; that you had ever engaged in any sexual acts with her, and that you had ever touched her vagina or seen her in her pyjamas.

10The DNA sample provided by you provided extremely strong support for the proposition which identified you as the perpetrator of the assault, with you being a significant contributor to the DNA evidence found.

11A victim impact statement was read to the court by "X".  The statement endeavoured to express the feelings of trauma and the impact which your conduct has caused.  In sexual offending of this type it is typical that the perpetrator's life reaches a point of reckoning and retribution that, irrespective of the outcome, there is a resolution which generally allows for some progress.  Instead, often victim’s lives remain damaged and traumatised.  Even aspects unrelated are affected; from the social to the vocational, psychological and physical, accompanied by loss of trust in others, fearfulness, hypervigilance, and a change in the life they have known.  I take the impact of your behaviour on "X" into account.

12The maximum penalty for each of these offences is ten years' imprisonment.  By this maximum the legislators have indicated the seriousness of the offending.  Charge 2, in particular, which involves the licking of the victim’s vagina, is in circumstances of an oppressive and most intimate interference with "X's" bodily integrity, accompanied by deep embarrassment and fear.  The nature of the offending is objectively serious - well beyond acts of mere frottage, but clearly in the middle range of offending - and particularly Charge 2 lies in the high reaches of that range, in my view.  Despite your apparent intoxication your moral culpability in this abhorrent behaviour is high.  It is of concern that even after the significant passage of time you then showed up at her house to speak to her in a suggestive and inappropriate fashion.

13I take your plea into account.  It was conceded that you pleaded at what could be described an early frame within the circumstances of this case; circumstances which warrant some brief detail.  Originally you pleaded guilty at committal to a rape charge.  The plea was sought to be led in evidence when you pleaded not guilty upon your trial.  Application was made to exclude such evidence of the plea before me, which I rejected.

14Application was made to exclude the evidence of such a plea before me, which I rejected.  A jury was empanelled and then the matter resolved with a plea to the two charges on the current indictment.  There was no cross-examination of the complainant and the plea represents a high utilitarian value.  The plea, therefore, will attract a discount upon your sentence appropriate to this value.  It is, of itself, some evidence which may go to the issue of remorse, however such an emotion is often difficult to assess, and in this respect I have no real confidence that you are remorseful, given the matters I will come to in a moment.

15You have prior criminal history of relevance.  This history begins when aged 18 with driving and dishonesty offences, and proceeds into your 20s, with further dishonesty dealt with by community-based orders.  In 2002 in particular - aged 20 - you appear a number of times for such offences, receiving either community-based orders or youth training centres orders; including for armed robbery from this court in December 2002.  In 2003 you were dealt with for failure to comply with the community-based order, then in 2004 and 2005 a suspended sentence for driving offences and an intensive corrections order was imposed, which you also breached.  You received another intensive correction order in 2007 for driving offences, then - and most relevantly - in 2008 you were sentenced to four and a half years with a two year non-parole period for rape.  You were released in 2010 and you committed these offences in May of 2012 - in the meantime, in 2011, having returned to court for more driving matters.

16I recite this extensive record to indicate not only the high relevance of the rape prior, but your clear recidivism in relation to the court's sanctions - each of which, up until the rape sentence, have given you opportunities for rehabilitation and a change of behaviour.  This history emphasises, in my view, the need for specific deterrence in your case.

17I was provided with a summary of the rape offence and with Her Honour Judge Douglas' sentencing remarks for her sentence, which, given the circumstances, I would regard as very lenient.  Her Honour's sentence reveals certain peculiar and particular similarities to this current offending.  You went to the victim's home on that occasion, late at night, like in this case.  The victim was married and knew you.  You knocked on the door, as you did here, and with the pretence of being in some trouble, you entered the house.  In this case you effectively lured the victim outside her front door.  In the rape case the victim thought she was helping you out, as "X" here thought she was dealing with your enquiry.  You had been drinking and went there for the purpose - for the rape - of having sexual intercourse for your own sexual gratification.  Her Honour noted your decision to choose her was on the basis that you had heard she was promiscuous.  You then grabbed the victim, pulled off her pyjamas and had non-consensual sex with her.  The evening before that night's event you had celebrated your de facto giving birth to your child that very day.  In her sentence Her Honour noted that you were 25 and living with your parents.  You began to drink alcohol aged 12 and became a binge drinker.  She noted you found school difficult, but that you completed Year 11.  She recited the contents of a psychologist's report and your work history, as well as your continuing heavy drinking with friends from work and the football club you frequented.  She found circumstances of the rape committed in the victim's home in the early hours of the morning a matter of aggravation, as I do here in this case.  She noted you inveigled your way inside her home and you clearly had no insight into the consequences of irresponsible ingestion of drugs and alcohol.  At paragraph 36 of her sentence she said:

"Unless you no longer drink alcohol, and only drink responsibly, and no longer take drugs of dependence, your chances of rehabilitation are low".

18She thought that because of your age, supportive family and partner, that your prospects of rehabilitation then were reasonable.  It is clear that the hope which the judge expressed in dealing with you in 2008 has been unrealised by you.  I mention this prior because it is clearly relevant in the assessment of your prospects of rehabilitation, and because, in my view, it involves and enlivens specific deterrence as a significant sentencing purpose.  I make clear that I do not punish you again, or in any way, for that earlier offence for which you have been already dealt with.

19The next matter with which I deal with is the delay.  That time is primarily accounted for firstly by the matter not reaching the phase of a charge, or charges, in 2012 or 13, and then largely, from 2015 onward, when you were able to be identified again as the offender due to the legal proceeding to a trial based on what had been your denials.  There has been effectively no delay due to anyone's lack of diligence which has disadvantaged you.  If anything, during that period you had the opportunity to demonstrate some insight and changed behaviour.  You did neither thing.  You continued to offend by way of driivng offences - some involving alcohol.  The centrality of the alcohol and drug problem was acknowledged during your plea.  It was submitted particularly drink has a highly disinhibiting effect on you, with consequent behaviour being characterised by perplexing recklessness and disregard for acceptable norms of conduct, whether involving fighting, theft, driving or sexual offending.  You know that you do bad things when you are drunk and drug affected.  The moral culpability of someone in this situation, in my view, is high.  Your attempts at abstinence were short lived and unsuccessful.  You still smoke cannabis and drink.  You acknowledged you had a way to go in this endeavour.  You told Mr Cummins, a consultant clinical and forensic psychologist, that you had stopped drinking alcohol between October 2016 and March 2017, but that you had resumed.  You told him also that you had not used ice in 12 months.  It is clear that even to the jeopardy to your own family, a supportive partner - some people's hope for others is truly remarkable - and over the presence of two young children, have not deterred you.  These facts were present largely at the time of this offending.

20Your jobs have been primary industry related.  You have persevered in work and have had numerous jobs in abattoirs in particular.  That heavy drinking as associated with such industries, in my view, provides little excuse once it is clear what the likely outcome of such indulgence produces.  The plea spoke of poor judgment in that you thought the victim "was up for it".  This is a recurring theme in your thought process and you were heavily intoxicated and drug affected, which renders your return to that address at a distance of even greater time to chat up the victim even more disturbing.

21Mr Cummins' report, dated 5 December 2017, was tendered to the court and exhibited.  He conducted an interview and made an assessment of you.  He took a personal history and made a risk assessment, as well as undertaking a mental health examination.  His report is very comprehensive.  The risk assessment using the Static-99R assessment tool placed you in the moderate to high risk category.  The Risk for Sexual Violence Protocol, which considers both static and dynamic risk factors, was also used, and found you assessed as moderate to high.  This makes participation in an offence specific treatment program imperative.  Your mental health was assessed as normal, although of low-average intelligence, but not having a disorder or being psychotic, or other mental illness.

22There can be little doubt your life has been adversely and seriously impacted by your dependency on alcohol, cannabis, amphetamine and methylamphetamine.  You have, in the past, seen some drug and alcohol counsellors, but invariably those attempts have floundered.  By age 18 you were dependent on morphine for a year.  Aged 18 or 19 you were injecting amphetamine.  You were so affected when you committed the armed robbery and your priors.  You commenced methamphetamine use in 2011.

23Though you have stated to Mr Cummins that you have regretted the offending you did not express any victim empathy.  He considered that in this event the offending escalated; with physical, psychological coercion, breach of trust and abuse of power.  As I have said, you have a supportive wife and two young children.  You have a reasonably close relationship with your parents, who are retired dairy farmers and now manage a supermarket and petrol station in Western Australia, and have provided you with a loving and caring home environment.

24Mr Cummins listed your numerous labouring jobs, and although for their very nature and number, it is clear you have had difficulty holding down stable employment; the unsurprising consequence of a life embroiled in alcohol and drugs.  I take your work history, as outlined, into account to your credit.

25You told Mr Cummins you have pending outstanding matters related to drink driving and drug driving.  There can be little doubt that your abstinence from drugs and alcohol, and participation in the sex offender program, are fundamental to your rehabilitation.

26It was submitted that a disposition involving a community corrections order was appropriate in this case, because it was said that would provide you with the opportunity to rehabilitate in a real world environment.  It was said the community's interest is in your rehabilitation.  I have reflected on the question of whether a community corrections order can play any part of the sentence, and in my view it cannot.  The only appropriate response here is a period of reclusion.  True it is that the long term benefit of the community may be found, in part, in the offender's rehabilitation, but there are other sentencing purposes which must take precedence in this case.  The first matter to note is that every community disposition in your case; from community-based orders to community correction orders to intensive correction orders, have failed because you contravened these orders.  Your past track record in that situation gives a clear indication of the likely outcome of any future community-based disposition, but that of course is not sufficient of itself.  The answer is that the punitive aspect of a community corrections order, or the available period of imprisonment to be combined with it, is simply not sufficient to dispose properly in this matter.

27Specific deterrence and general deterrence have primary position in this disposition.  Denouncing your conduct and imposing just punishment is in recognition that the offending is serious, and its objective gravity properly assessed as high in the middle range of offending.  The community rightly looks to the court for protection, and the most effective way of providing that outcome must come from imprisonment.  In my view Charge 1 is at the lower end of an indecent assault, but Charge 2 is in a different category.  However, they are connected in time and context, and there should be a significant measure of concurrency in relation to those two charges in this sentence.  Attendance at appropriate offence related programs and education courses available, together with abstinence enforced by a structured environment, can also assist in rehabilitation of this type.  A period on parole to reintegrate into the community is also appropriate.  Given that I intend to imprison you on Charge 1 by virtue of that, and also your prior for rape, you fall to be sentenced as a serious sexual offender on Charge 2, which means that the protection of the community becomes a primary consideration, which inverts the rules about concurrency and cumulation.  However, I will not deal with you in a disproportionate fashion, nor was such a sentence sought by the prosecutor.  I am satisfied beyond reasonable doubt that you are a danger to the sexual safety of members of the community, given this matter and your prior.  I intend to make an order under the Sex Offenders Registration Act that you be registered as a sex offender for life.  That period is discretionary, and I impose it because in my view it is warranted.  Such registration imposes various obligations on you for life, which you must observe and follow or risk being charged with breaches and receive additional punishment.

28On Charge 1 of indecent assault you are convicted and sentenced to twelve months' imprisonment.

29On Charge 2 of indecent assault you are convicted and sentenced to four and a half years' imprisonment.

30I order three months of Charge 1 cumulative on Charge 2.  This makes a total effective sentence of four years and nine months.  I order a non-parole period of three years and two months.

31In relation to Charge 2, I sentence you as a serious sexual offender and note that in the court's record.  As a consequence of this sentence I order that you be registered as a sex offender for life.

32I note in the records of the court that you have served, by way of pre-sentence detention, 13 days excluding today.  But for your plea I would have sentenced you to five and a half years with a non-parole period of three years and ten months.  Are there any other orders, Mr Cordy?

33MR CORDY:  No, Your Honour.

34HIS HONOUR:  Thank you.  Yes, Mr Johnson can be removed.  Thank you, Mr Lavery, and thank you, Mr Cordy, for your assistance.  I'm not sure that you are involved in any of the matters following, are you, Mr Cordy?

35MR CORDY:  No.  I'm in Judge Quin's court, Your Honour.

36HIS HONOUR:  Thank you for your assistance.

37MR CORDY:  Thank you.

38HIS HONOUR:  And best wishes for this season to both of you.

39MR CORDY:  Thank you.  And you too.

40HIS HONOUR:  I'll stand down.  I have a number of other matters to deal with today, so I will just stand down.

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