Director of Public Prosecutions v Voigt
[2017] VCC 592
•17 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01298
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY VOIGT |
---
JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8-11, 14-18, 22-29 November 2016, 5 May 2017 | |
DATE OF SENTENCE: | 17 May 2017 | |
CASE MAY BE CITED AS: | DPP v Voigt | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 592 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Common Law Assault
Sentence: Community Correction Order for 2 years under supervision and to complete 50 hours of unpaid community work
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Fallar | OPP |
| For the Accused | Ms Z. Broughton | VLA |
HER HONOUR:
1 Ricky Voigt, on 28 November last year a jury found you guilty of a charge of common assault. The next day that jury found you not guilty of two sexual offences. The jury could not reach a verdict on the rest of the charges.
2 On 4 April this year, the prosecution announced in court that the rest of the charges would be discontinued. That means there will be no more court hearings about those other charges. The only offence that I am dealing with is the offence of common assault. I know that you say you did not do any assault, but because the jury said you did, I have to decide the penalty.
3 On 5 May this year, the last time we were at court, I had a discussion with the lawyers about the penalty and what acts I should say you did in that assault, based on the evidence that the jury heard.
4 Today I am going to announce what I say you did in the assault, then say some things to the lawyers and then give you the penalty, but I can tell you that you will not be going to gaol.
5 When I talk about the assault I will call the person you assaulted ‘the victim’, because the law says that I cannot publish her name.
6 I am satisfied that you pushed the victim, punching her on the chest. When she asked you what you were doing, you told her to shut up. She told you to stop and you told her that if she talked you were going to slap her. She began to scream and you slapped her hard or punched her on the jaw. She then fell to the ground.
7 Assaulting her in this way is very serious because she was then aged 11. You were age 26, and you were living in the house with her, her mother, her sister and the son you had with her mother. You were like a father figure to her and you used to get on well, but by the time you assaulted her you were not getting on very well at all.
8 I have some things to say to the lawyers now, and then I will talk to you again and tell you what the penalty is.
9 I confirm that the jury found Mr Voigt guilty of Charge 1 of common assault, and not guilty by majority of Charge 2 of rape and the alternative Charge 3 of sexual penetration, and were unable to reach a verdict on Charge 4 of rape and the alternative Charge 5 of sexual penetration, nor on Charge 6 of rape and the alternative Charge 7 of sexual penetration. As I have said, the prosecution later discontinued Charges 4 to 7.
10
The prosecution case originally was that on the one occasion in May 2012,
Mr Voigt assaulted the victim (Charge 1), and once she was on the floor following the assault he removed her clothing, punching her again to the stomach while doing so because she was struggling, and then proceeded to sexually penetrate her in three different ways. Mr Voigt took part in an interview with police in which he denied all of the allegations.
11
While it is not a matter for me, I do state my view that it would have been virtually impossible to produce a sensible account for a re-trial of Charges 4 through
to 7 by producing edited versions of the VARE and a Special Hearing of the child complainant, and the record of interview of Mr Voigt which fulfilled the multiple requirements of providing evidence of the allegations in the remaining charges, while giving full benefit to Mr Voigt of the not guilty verdicts on Charges 2 and 3, and not making a subsequent jury aware of either the earlier verdict of guilty on Charge 1 or potentially, the misconduct in Charge 1 which initiated the rest of the alleged misconduct.
12 Returning to the charge I have to deal with, I have made my findings of fact based on the evidence before the jury which is consistent with their verdicts on Charges 1, 2 and 3 taken from the VARE of the child complainant and her cross-examination at the Special Hearing. I received submissions from counsel as to what should be taken into account as the act or acts, the subject of Charge 1.
13 Although the jury was told that the prosecution case for Charge 1 was that the victim was punched on the stomach or punched on the jaw or slapped on the face or pushed down, my directions to them were that they did not all have to be satisfied as to the same act, but had to all agree that Mr Voigt applied force to the victim in at least one of these ways. Therefore it was open to the jury to find that any one or more of the violent acts took place in the application of force during the one episode of assault.
14 I have decided that because the alleged punch to the stomach was inextricably bound up with the allegations of the sexual offences that are alleged to have followed, which did not result in guilty verdicts, that allegation is not an act that I take into account as part of the assault. However, as I said earlier, I am satisfied that the other acts took place.
15 The victim was offered the opportunity of making a victim impact statement but she chose not to do so, which is perhaps not surprising in the circumstances of this case. It is not unusual for victims to find it difficult to express the impact on them of lesser events than they have alleged. However, I do take into account her evidence of the pain she suffered to her jaw as a result of the punch or hard slap to the face, and the pain she suffered from the punch to the chest. It is clear that she suffered physically, and given the nature of the relationship between her and Mr Voigt, which had initially been a good one, I accept that she would have been emotionally hurt by the assault on her by a father figure. Also, she was in and out of foster care and not always living with her mother and siblings, and this assault at the hands of her mother’s partner during an extended period of living with her own family is likely to have affected her psychologically.
16 The offence is a serious one because of the following factors:
· the age of the victim;
· the impact on the victim;
· the breach of trust; and
· the fact that the victim was effectively under his sole care at the time of the assault, as her mother and the other children were not present.
17 I now turn to the factors that must be taken into account in Mr Voigt’s favour as mitigating the seriousness of the offence. First, Mr Voigt is to be sentenced as a person who had not been proceeded against before this offence and so was a person of good character, and it is in his favour that he has not committed any offences since.
18 Next, I take into account his disrupted and disadvantaged background. As will be seen, he has no family connections or support, he suffered neglect, physical abuse and homelessness throughout his formative years, and he did not complete Year 8 at school.
19 Mr Voigt was placed with a foster family at a very young age in Queensland and remained in that system until he turned 17. Amongst other things, he reports being placed with between 10 to 20 foster families, running away on occasions due to neglect or physical assault. He had at least one very bad experience as a foster child, being hospitalised after an assault by the father in his final foster family with whom he had been living for two years. Apparently he did not return to care and so was homeless at age 17, after his release from hospital.
20 He was placed on a Disability Support Pension at age 16, but the basis for his eligibility is not known. He remains on that pension. At age 15 he met his biological mother for the first time, but she introduced him to heroin. He then used heroin consistently until the age of 26. At the time of the offence, Mr Voigt told police, he was using heroin, ‘ice’ (methylamphetamine) and pills, anything that he could get his hands on.
21 At the age of 18, Mr Voigt moved to Melbourne from Queensland with other homeless people, but they effectively abandoned him once here, and he was alone and homeless in St Kilda. It was there he met the mother of the victim, who was also a drug user. They moved in together in St Kilda and later moved to Boronia where they lived together for a few years with her children, the victim and her sister, and later had a son together. As I said earlier, the victim was herself in and out of foster care.
22
In 2011, Mr Voigt was apparently diagnosed with drug-induced psychosis, and was seen by a Crisis and Assessment Team for a two week period, but he did not engage further with his case manager. In 2012 Mr Voigt admitted himself to Box Hill Hospital reporting increasing distress and auditory hallucinations. The staff noted a previous diagnosis of Borderline Personality Disorder, and felt his reported symptoms were likely to be “quasi-psychotic symptoms due to
Cluster B personality traits, related to a history of severe early life trauma and impoverishment and apparent learning difficulties.”[1] There is no information as to when in 2012 this admission was or whether it bears on the assault in
May 2012.
[1] Noted in neuropsychological report, Exhibit 1, from Discharge Summary
23 Mr Voigt entered drug rehabilitation a number of times, the last being around 2014. During this period he successfully completed the Recoveroz Community Rehab Program over a 9 month period. He was living in supported residential rehabilitation accommodation and is described as being a model client[2]. He was subjected to around 40 drug tests and passed them all.
[2] Letter from Clinical Director of Recoveroz, part of Exhibit 2
24 He is currently living in a supported residential service where he has been for the last 18 months. In March this year, he was ‘taken up’ by NEAMI National, a community mental health organisation, and he now has a community rehabilitation support worker, who wrote a letter dated 4 May 2017.[3] Through them, Mr Voigt has been connected with a new GP, and it is proposed that his medication be reviewed and that he be referred to a psychiatrist. He has been on anti-psychotic medication, apparently without review, since 2013.
[3] Part of Exhibit 2
25 I also received a letter from the Manager of a Salvation Army Community Store[4], who met Mr Voigt when he escorted one of the volunteer workers, a vulnerable person, to work each day from the supported residence at which they were both living. The Manager offered him voluntary employment and Mr Voigt worked there until his trial took place in November 2016, when he stopped attending. Again, the reference was in glowing terms.
[4] Part of Exhibit 2
26 The references from Recoveroz and the Salvation Army, being from people who have worked closely with Mr Voigt, describe the offence for which he has been convicted as out of character and they describe a man quite different from the one described in the trial. It is not in dispute that Mr Voigt was using drugs heavily at the time of the offence, and this may provide some explanation for his offending, he having not been in trouble before or since.
27 I take into account that Mr Voigt has clearly undertaken rehabilitation in the time since the offence was committed. He has successfully got himself off drugs, has obtained employment, even though voluntary, and has shown himself to be a caring and responsible person when not taking drugs. He has not had as much contact as he would like with his son, and achieving more contact is one of the goals that he has, as well as returning to some form of employment.
28 I also take into account that five years have passed since the offence was committed in May 2012. Not only has Mr Voigt demonstrated a commitment to his rehabilitation over that time, but he has also had to live with the charges, which included serious sexual offences, hanging over him until last month.
29 Finally, I take into account that Mr Voigt has a cognitive impairment of some kind. He was assessed by a neuropsychologist, but she expressed a concern as to the validity of his performance on testing. However, her report[5] is useful as to his background and other matters she refers to. I note that Mr Voigt reports to her a number of diagnoses, but she says there is a “paucity of corroborative information about the accuracy or context of these diagnoses”[6]. The report writer noted that aspects of his history and presentation, such as his receipt of the Disability Support Pension and placement in several supported residential services over the years, appear consistent with some degree of impairment in cognitive functioning, which she considers low average at best.
[5] Exhibit 1
[6] Ibid
30 Ms Broughton, on behalf of Mr Voigt, submitted that his successful efforts at rehabilitation are not only mitigatory but also reduce the need for the sentence I impose to reflect specific deterrence. The prosecutor conceded that specific deterrence did not have much of a role to play, and also that in his particular circumstances, the need for general deterrence may also be slightly reduced. However, Ms Fallar, the prosecutor, also submitted that imprisonment was an appropriate penalty given the aggravating features, although because of the date of the offence, it was open to me to suspend any sentence of imprisonment. Alternatively, she submitted that a community correction order, alone or in combination with a sentence of imprisonment, was appropriate.
31 Ms Broughton initially submitted that a Justice Plan with either a community correction order or an adjourned undertaking was open to me; however after discussion it seemed that a Justice Plan might be difficult to access because of the lack of information about the nature and degree of Mr Voigt’s cognitive impairment.
32 I am satisfied that I do have an alternative to a term of imprisonment in all the circumstances of this case. Mr Voigt was assessed as being suitable for a community correction order, and I consider that meets all the sentencing objectives. I find that he is unlikely to commit this sort of offence again.
33 Mr Voigt, coming back to you, I am going to put you on a Community Correction Order for 2 years. When you had the assessment, the order would have been explained to you but I need to do that again. Your lawyers will also answer any questions you might have. There are parts of the order that you must agree to do and parts that you must agree not to do.
34 First, you must agree to stick to the conditions of the order for the next two years. You must go to the Community Corrections office at Ringwood - we will give you the address before you leave - and you must allow the officers from Community Corrections to come and check on you where you live. So do you understand that?
35 ACCUSED: Yes,
36 HER HONOUR: Do you agree to those things?
37 ACCUSED: Yes.
38 HER HONOUR: Next, you must tell them at the Community Corrections office if you change your address or if you get a job. So do you agree to doing those things?
39 ACCUSED: Yes, yes.
40 HER HONOUR: Next, you must do what the officers at Community Corrections tell you to do during the two years of the order. Do you understand that?
41 ACCUSED: Yes.
42 HER HONOUR: And do you agree to that?
43 ACCUSED: Yes.
44 HER HONOUR: Next, you must do some work as your punishment for the assault. That will be 50 hours of work over the two years. It may be that you can do those hours at the Salvation Army store where you have worked before, but you will have to talk about that with the Community Corrections people. So do you understand that?
45 ACCUSED: Yes.
46 HER HONOUR: So do you agree to doing 50 hours of work over the two years, wherever they might send you?
47 ACCUSED: Yes.
48 HER HONOUR: Now I will tell you what you must not do. You must not leave Victoria without the permission of the Community Corrections people. So do you understand that?
49 ACCUSED: Yeah.
50 HER HONOUR: And do you agree to that?
51 ACCUSED: Yes.
52 HER HONOUR: Next, you must not commit another offence. So do you understand that?
53 ACCUSED: Yes.
54 HER HONOUR: And do you agree to that?
55 ACCUSED: Yes,
56 HER HONOUR: Mr Voigt, if you get sick or something stops you from sticking to the conditions you must tell the community corrections people.
57 ACCUSED: Yes.
58 HER HONOUR: It is also a good idea to tell your lawyer if something stops you from sticking to the conditions.
59 ACCUSED: Yes.
60 HER HONOUR: Because I have to tell you that if you do not stick to all these conditions, and you do not have a good reason, you will come back to court, and I will have to look at your penalty again.
61 ACCUSED: Yeah.
62 HER HONOUR: And I might decide to send you to gaol instead.
63 ACCUSED: Yes,
64 HER HONOUR: So it is very important that you stick to the conditions but I will need to make sure that you understand what might happen if you do not stick to the conditions?
65 ACCUSED: Yeah.
66 HER HONOUR: So you understand what might happen?
67 ACCUSED: Yes, I do.
68 HER HONOUR: All right. Do you have any questions, Mr Voigt, about all of that?
69 ACCUSED: No.
70 HER HONOUR: All right, well, if you think of any then Ms Broughton will be able to answer those for you.
71 ACCUSED: Yeah, yes.
72 HER HONOUR: All of these conditions will be on a piece of paper that you can take away with you today and in a moment I will ask you to sign it to show that you do agree to stick to the conditions.
73 ACCUSED: Yeah.
74 HER HONOUR: And I will sign it too so that it is then an order of the court.
75 ACCUSED: Yes.
76 HER HONOUR: Mr Voigt, I will now make the court orders, and then we will sign the paper.
77 On the charge of common assault, Charge 1, Mr Voigt is convicted and released on a two year community correction order on conditions that he be under supervision and that he perform 50 hours of unpaid community work. Because of the supports that are already in place I do not propose to make it a condition that he return for judicial monitoring or that he undergo assessment and treatment for drug dependency.
78 Finally, application has been made for an intimate forensic sample to be taken from Mr Voigt and through his counsel he has objected to this. She submitted that as he has no prior convictions and has not offended subsequently and as the offence was an isolated incident lasting only minutes, I should not be satisfied that it is in the interests of justice to make the order. I agree, so the application is refused.
79 COUNSEL: As Your Honour pleases.
80 HER HONOUR: So, Mr Voigt, you can come out of the dock now and just sit behind Ms Broughton.
81 ACCUSED: Yeah.
82 HER HONOUR: We will just print out that paper so that we can both sign it. It has been printed out. So this is the paper that I have just been talking about, Mr Voigt.
83 ACCUSED: Yeah.
84 HER HONOUR: All right, so, Mr Voigt, I have signed that as well as you signing it.
85 ACCUSED: Yeah.
86 HER HONOUR: And so we will make sure you get a copy before you leave today.
87 ACCUSED: Yeah.
88 HER HONOUR: I will just check. Are there any other orders?
89 MS FALLAR: No. May I just raise one matter?
90 HER HONOUR: Yes, certainly.
91 MS FALLAR: I am being pedantic but just in relation to my submission as to the sentencing instructions, Your Honour has indicated that I submitted imprisonment but otherwise suspended sentence is open and then that I said time in CCO was appropriate. I do not recall submitting time in CCO was appropriate. I just need to be strict to my instructions on transcript.
92 HER HONOUR: Yes.
93 MS FALLAR: But that other - when there was an exchange that Your Honour was in fact considering or was minded to consider a CCO, then that is when I said if Your Honour is minded to do so then you may consider some of these conditions. Thank you.
94 HER HONOUR: Yes, I see, thank you. All right, Ms Broughton, no other matters?
95 MS BROUGHTON: No, Your Honour.
96 HER HONOUR: All right, thank you. So let me just check again, Mr Voigt. Do you have any questions before we finish today?
97 ACCUSED: No, Your Honour.
98 HER HONOUR: All right. Well, I hope that I do not see you again in court.
99 ACCUSED: Yes.
100 HER HONOUR: And if you have any questions do not forget that Ms Broughton can help you or any of the people that you have working with you now from NEAMI.
101 ACCUSED: Yes.
102 HER HONOUR: All right. I thank counsel for their assistance and we will adjourn now until 10.30.
- - -
0
0
0