Director of Public Prosecutions v Visser

[2024] VCC 276

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00694

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP VISSER

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF SENTENCE:	16 February 2024
CASE MAY BE CITED AS:	DPP v Visser
MEDIUM NEUTRAL CITATION:	[2024] VCC 276

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – common law assault, possession of drug of dependence - plea of guilty

Legislation Cited:      

Cases Cited:

Sentence:                  Community Correction Order – unpaid community work, treatment and rehabilitation - without conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Ms O. Stevenson, Office of Public Prosecutions
For the Accused	Mr N. Rudston	Mr J Burke, JB Criminal Law

HIS HONOUR:

1After an earlier sentence indication before me you pleaded guilty to one charge of common assault and one charge of possession of methamphetamine. You also pleaded guilty to two relate summary offences of commit indictable offence whilst on bail and trespass.

2On 16 February 2024, I sentenced you to a Community Correction Order without conviction on all charges. That Order was for a period of 18 months with special conditions that you perform 150 hours of unpaid community work and undergo treatment and rehabilitation for drug abuse. I ordered that 50 hours of any rehabilitative programs could count against the unpaid community work hours.

3I indicated that I would provide written reasons for that sentence. These are those reasons.

4The facts of your offending are set out in Exhibit A, The prosecution summary for sentence indication. Your counsel described that document as “essentially correct”. I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.

5In brief compass, in the early hours of 1 September 2022, the complainant 39-year-old Ms Viora, was asleep in her unit at Elwood. At about 4am she awoke to you crawling across the bottom of her bed. She saw you standing in the doorway. She was frightened and tried to keep you calm. You told her your name and said you were sorry for scaring her. You sat on the floor and handed her your drivers’ licence which she kept. You told her you had been visiting friends nearly and had climbed in through an open kitchen window. She talked to you for about half an hour before you left her unit. Ms Viora called police who arrived at her unit at 4.55am.

6You were arrested the next afternoon and denied the offences when interviewed. When police searched your home a zip lock bag containing the methamphetamine was located – this is the basis of charge 2 – possess methamphetamine. The assault charge is based on putting Ms Viora in fear by your presence. It is not suggested that you touched or otherwise assaulted her. You were on bail for an allegation of sexual exposure and possession of methamphetamine at the time and were released on a non-conviction bond for those two matters on 14 September 2023.

7Your victim completed a Victim Impact Statement (exhibit C). She has suffered considerable physical and emotional trauma as a result of your offending. She had to move house and feels isolated, anxious, and fearful. She suffers from nightmares, insomnia, and depression. Her work has suffered as a result. Pre-existing conditions have been aggravated by your crimes. She has incurred financial expense to obtain psychological assistance. She has found the legal process daunting and confronting. She does not feel safe.

8I take the Victim Impact Statement into account in sentencing you.

9The prosecutor filed submissions as to the seriousness of your offending. It was common ground that a Community Correction Order was appropriate for your offending, although the prosecutions submitted that your moral culpability was high and the principles of general deterrence, just punishment and denunciation are the principle sentencing considerations in your case.

10Turning to your personal circumstances, you are now 40 years of age, having been born in South Africa. Your parents separated when you were 5 years old. Your mother re-partnered but had a problematic relationship. You went to university in England when you were 18. On completion of university, you worked in England and in software systems engineering. You moved back to South Africa in 2011 before gaining employment in Melbourne in 2012. You worked in information technology becoming Director of Technical Operations for an international company.

11In 2016 you were in a relationship with a woman who introduced you to methamphetamine. At the age of 33 you quickly became an ice addict. At the time of offending, you had used both ice and GHB. You were heavily drug intoxicated and as you told your victim, were “tripping”.

12Since your arrest and after spending 20 days in custody (in maximum security) you have dealt with your drug addiction. You have been counselled and have provided clean drug screens since. (See exhibit 5). You have formed a new relationship and your partner supports you in your efforts to remain drug free.

13For five years you have owned a technology consulting business that provides IT contractors to large companies. You have invented and developed a data transfer device that has significant technical promise. You have obtained a U.S. Patent for the device and are also obtaining an Australian Patent. You are required to travel internationally to develop this device and its sale a conviction for criminal activity will make entry into the USA very difficult for you.

14Your counsel tendered a brief report from your drug counselling psychologist, Daria Sizenko (exhibit 3). She confirms your attendance at 32 sessions and your commitment to ongoing treatment.

15Other references attest to your remorse for your conduct, your abstinence from drug use and your commitment to remain drug free. Although not early pleas, they have significant utilitarian value. In particular your traumatised victim has been spared the need to give evidence at trial. I take into account your prior good character and lack of prior convictions. The reference material provides evidence that your prospects for rehabilitation are good – provided you remain drug free.

16I take into account the 20 days you spent in prison before being bailed. That experience has significantly frightened you and motivated you to deal with your drug problem.

17You are now 40 years of age, in a stable relationship and drug free. I accept that your business and financial future would be imperilled by a conviction for this offending. For these reasons I have acceded to your counsels submission that I impose a non-conviction order.

18Your offending was somewhat bizarre. You entered a woman’s home in the middle of the night in a drug addled state. You understandably terrorised your victim even though you assured her that you meant her no harm. You were substantially punished by the 20-day remand in custody. You will be further punished by the unpaid community work. If you fail to take the opportunity this court has given you and breach the order – either by non-compliance or further offending – you will find yourself back in custody and convicted.

19For these reasons I impose the orders I indicated on all four of the charges to which you pleaded guilty. I make the ancillary orders sought. 

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