Director of Public Prosecutions v Victor (a pseudonym)

[2017] VCC 1724

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FINN VICTOR (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2017
CASE MAY BE CITED AS:	DPP v Victor (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1724

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	The Office of Public Prosecutions
For the Accused	Mr R. Davis	Rob Davis

Pages 1 - 5

 

 

HIS HONOUR: 

1Finn Victor[1], you have pleaded guilty to one charge of threat to kill and one charge of sexual penetration of a child under the age of 16 years.  Each of those crimes carries a maximum penalty of ten years' imprisonment, and the second of the two offences breaches a community corrections order which I gave you back in May of this year.  The offending giving rise to Charge 2 occurred within a matter of weeks of me giving you that CCO. 

[1] A pseudonym.

2You are still only 19 years of age and were 18 years of age at the time of the offending.  You pleaded guilty at the earliest reasonable opportunity.  Whilst remorse is highly problematic, you must get the utilitarian benefit of that plea of guilty.  You do have a limited prior history but part of it is against the same victim and therefore is of concern. 

3Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide the same, police may use reasonable force to take it from you. 

4Secondly, because of the sentence I am to impose on Charge 2 of sexual penetration, you will be placed on the Sex Offenders Register and I advise you that the reporting conditions will be for 15 years.  Would you just accompany my associate to the dock please, Mr Davis?

5MR DAVIS:  Certainly, Your Honour.

6HIS HONOUR:  As I have indicated, I have sentenced you previously and I do not intend to go through your background or anything like that.  Those sentencing remarks can stand in that stead though I do need to outline the nature of this offending. 

7You had been in a relationship with the victim for approximately two years.  I indicate that my recollection is that she is now around about 29 or so and that relationship started when you were about 16.  You apparently had a son together. 

8On 17 January 2017, a family violence intervention order was made preventing you from committing family violence.  That order was made because of the matters for which I sentenced you last time. 

9On 14 April of this year, you were at her home with her and the son.  You sitting on her bed in the bedroom and she was standing in the doorway.  The baby was in a bassinet.  You had a verbal argument in relation to you being paranoid about her having contact with other men.  You said to her, "One of these days soon I'm going to do something that's going to make you want to kill yourself."  She took her mobile phone recorded what happened next. 

10A conversation then occurred during which you threatened to suffocate the child.  During that conversation, the victim became upset and picked the baby up, rocked him and she did not want you to grab him.  She put him back in the bassinet and went into the toilet.  She came back to the bedroom minutes later and saw that you had placed a pillow over the bassinet about 5 cm above the baby's face.  You were standing nearby and laughing.  She removed the pillow and the baby was unharmed.  She went to a different room and you left the house the next morning. 

11That offending should be seen in light of what occurred back in September of 2016, that is the matters for which I sentenced you.  You had attended at her address and went over her back fence and knocked on the bedroom window.  When she opened the blind, you saw there was another male that you believed she was having some sort of relationship with.  You became enraged and demanded the male come outside and fight with you.  You then committed criminal damage and in any event, the victim, as she in this matter became, frightened and sent text messages. 

12Shortly afterwards, you, having gone away, re-attended. You had a knife.  You cut a hole in the security door, went around to the kitchen windows, slid it open and got inside.  You had the knife with you and you wanted to fight the young man who was in there.  My recollection, he was only about 15 or 16.

13In any event, the victim grabbed you. She was crying and trying to calm you down and after a while, you left.  That gave rise to aggravated burglary and assault.  This is what occurred in January of this year.  It is similar in the sense that it is the same victim and it involves domestic violence. 

14The second charge involved sexual penetration of a 13-year-old girl who you had known for some time.  You knew full well that she was way under-age.  In any event, on one occasion, at her house after her father had gone to bed, you penetrated her vaginally and ejaculated inside her, telling her not to tell anybody what had happened.  You were discovered by the complainant's brother who then told his father and you were able to get dressed and pretend that nothing had happened.  The complainant later disclosed the matter and it was reported to police.  She was 13, though you claimed you thought she was 14.

15It has given you little benefit, but bearing in mind you are still a very young age and whilst this is a concerning matter, it does not carry the same sort of penalties it would have had you been, say, 25 years of age in which case you would have received a very significant sentence indeed for this. 

16The offending has to be regarded as serious.  In your situation, specific deterrence is apparent insofar as both matters are concerned.  General deterrence is apparent and they must be - appropriate punishment.  You have now been on remand for 117 days because the reporting of the matters from January caused your bail on the second charge to be revoked.  That is unfortunate.  It is the first time that you have been in gaol.  It is the first time you have been in custody. 

17Were I able to start from scratch without you having done that time in custody, I would have been imposing a juvenile justice order in which I could have incorporated all these matters and you have an extended period of time on juvenile parole which would have made me feel more comfortable than what I am about to do.  However, you are in protection.  Because of the sexual offence, you have been held at Hopkins.  It is not the sort of place where too many 18-year-olds should be held in my personal view.  And I have no doubt that the custodial environment has been pretty much a lesson learned by you. 

18You have work and housing available upon your release from gaol and the prospects of your rehabilitation are really up to you.  It is of some comfort that you do not have a significant Children's Court history and your offending, to a certain level at least, appears to be involved with the use of ice. 

19Having discussed it with counsel and endeavouring to be pragmatic about it all, it seems the best situation here is that I give you a gaol sentence of not much more duration that you have already served.  I will then confirm the community corrections order which has been breached and to which you have admitted that breach.  That means that for the next two and a half years, you will be subject to a community corrections order which will be returned before me if it is breached.

20If it is breached in that period of time by an offending of violence or any sort of domestic violence or any sort of sexual offending, I will be revoking that order and I will be sentencing you to a term of imprisonment.  That term of imprisonment I can almost guarantee you, Mr Victor, will have a parole period attached to it and your counsel will explain to you exactly what that means.  I do not think I need to go into any other matters at this stage.  There is no victim impact statements before me and it is simply a matter of endeavouring to, in regard to the same authorities I referred to last time, get a result which benefits not only you but benefits the community.  But this is seriously last chance stuff, Mr Victor.  I make that very, very clear and this will be transcribed. 

21Accordingly, the community corrections order - I find the breach proven and you are convicted and discharged.  I otherwise confirm the breach. 

22On the charge of threat to kill, 60 days' imprisonment, concurrent. 

23On the charge of sexual penetration, 130 days' imprisonment.

24That gives a total effective sentence of 130 days and I direct that 117 days be reckoned as having been served under this sentence.

25I tell you that but for your plea of guilty, and it is so nonsense in one sense because I would have - very different.  I would have sentenced you to be detained in the youth justice for 18 months. 

26COUNSEL:  As Your Honour pleases.

27HIS HONOUR:  All right.  No other orders I have to make?

28MR TRIANDOS:  No, Your Honour.

29HIS HONOUR:  All done?  All right.  Thanks, gentlemen.  You can take him now.  Thank you.  All right.  Explain to him, Mr Davis, that gives him 13 days to get his head around getting out. 

30MR DAVIS:  Yes, Your Honour.

31HIS HONOUR:  But you can assure him that if he comes back, it will be a vastly different result.

32MR DAVIS:  Thank you, Your Honour.  As Your Honour pleases.

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