Director of Public Prosecutions v Watson

[2016] VCC 731

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-00054

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN WATSON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	20 May 2016
DATE OF SENTENCE:	27 May 2016
CASE MAY BE CITED AS:	DPP v Watson
MEDIUM NEUTRAL CITATION:	[2016] VCC 731

REASONS FOR SENTENCE
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Subject: sexual penetration of a child under 16

Sentence: Justice Plan, 2 year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Offender	Ms K. Youngson

HIS HONOUR: 

1Jordan James Watson, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16.  The maximum penalty for this offence is ten years' imprisonment.  At the time you pleaded guilty, you also admitted prior convictions from one previous court appearance in May 2014.  Those prior convictions were not for offending of this kind and can be largely ignored for the purposes of sentencing you.

2The circumstances of your offending are contained in the prosecution summary that was read in open court by the learned prosecutor, Mr Cordy.  Your counsel, Mr Patton, did not suggest that it was inaccurate in any way.  It is not necessary that I here again set out what is already set out in the summary. 

3Over a two day period in September 2015, you had penile vaginal intercourse on two occasions and you penetrated the complainant's mouth with your penis on two occasions.  Each of the charges is representative of two occasions of offending.  At the time of the offending you were aged 21 years.  The complainant was approaching 15 years of age.  All of the sexual acts you engaged in were consensual.  Your offending occurred because the complainant was not 16 years of age.  You told police you were not sure of the complainant's age. 

4You pleaded guilty to the charges and you indicated your intention to do so at the earliest available opportunity.  For that you are entitled to a reduction in sentence.  Not only do your pleas of guilty signify genuine remorse on your part, but they have also saved the time and cost of a trial and, importantly, they have saved the complainant from having to traverse the court system by giving evidence against you.  In passing sentence, I have taken all of this into consideration, as I must.

5I turn to your background.

6You are now aged 22 years.  You are a long-term client of Disability Services.  The client overview report dated 31 August 2015, which I admitted into evidence, reveals that neurological testing of you in 2000 and 2002 showed you to be functioning with a mild to moderate intellectual disability.  The report shows that whilst you have developed reasonable communication skills and you are in many ways able to lead an independent life, you do require a level of assistance with many aspects of basic daily living. 

7You receive a disability support pension as your only source of income and you have expressed the desire to live independently and to seek training to engage in meaningful employment. 

8I also received into evidence a psychological report from Dr Aaron Cunningham dated 25 April 2016.  He opined that at the time of offending, because of your intellectual disability, your ability to consider the consequences of your actions was impaired.  Because of your intellectual disability, I consider that in arriving at an appropriate sentence, all six principles in Verdins have application here.  In passing sentence, I consider that your moral culpability in the offending must be regarded as reduced and also your intellectual disability must be taken into account in deciding the kind of sentence I will impose.  For these reasons, I will be making a community corrections order.  That disposition was conceded by the prosecutor to be within the range of appropriate sentences. 

9I turn to other aspects of your background.

10You were removed from your mother's care at age three and you were placed into the care of your maternal grandmother.  You have never known your father.  Following your grandmother's passing in 2003, you were cared for by her partner, Mr Gary Jackson, whom you referred to as "Dad."  You have, for extended periods, experienced homelessness and living an itinerant life, staying with friends and acquaintances.  Mr Jackson passed away suddenly during an overseas trip in January of 2016.  It is reported by a Disability Services worker that you suffered significant adverse reaction to his passing.

11You completed Year 12 at Kalianna school and completed certificates and diplomas in information technology, food handling, woodwork, automotive electrical engineering, all through the Bendigo TAFE.  You have never had paid employment. 

12You have previously been a regular user of cannabis but self-ceased a number of years ago.  You historically abused alcohol, but you have remained abstinent for the past two years.  There is no suggestion that drugs or alcohol were in any way involved in the offending before the court.

13You suffer no mental health conditions nor any physical ailments.  You have been diagnosed, as I said earlier, as suffering from a mild to moderate intellectual disability and you are consequently under the care of the Department of Human Services Disability Services.  You have been assessed as being in the bottom five per cent of your peers in terms of intelligence, meaning that more than 95 per cent would be ahead of you.

14You currently reside in disability specific supported accommodation in the Bendigo area, and save for a limited social network, you do not have any close personal relationships nor any family connections.

15Because of your age, you fall to be sentenced as a youthful offender in the result that your rehabilitation must drive the sentence and sentencing principles which might in normal circumstances apply, such as, general and specific deterrence.  Here, they must play a lesser role.

16In all of the material that I have read about you, you are considered a low risk of reoffending again in this way.  For these reasons, I was persuaded by your counsel that I should consider the imposition of a community corrections order, and I have done so.  As I said earlier, the prosecution conceded, appropriately, in my view, that such a disposition was within the appropriate range of sentencing.

17You were assessed as unsuitable for a community corrections order, having been found not to have complied with a community corrections order currently on foot. The assessor was concerned about your lack of insight of a community corrections order and the requirement that you must comply with the conditions in order to comply with it. There is no one size fits all with dispositions of this kind. I will be making it a condition of the community corrections order that you also comply with the conditions of a justice plan, which I also order be prepared pursuant to s.80 of the Sentencing Act.  Corrections will have to make allowance for your intellectual disability.  If it means that office will have to go out of its way to make sure you understand all that is required of you, so be it.  I am not going to impose some other kind of disposition.  In my view, a term of imprisonment, whilst available as an alternative option, is entirely inappropriate in a case such as this.  So too is a fine, because you have no ability to pay it. 

18On each charge, I make a community corrections order, with conviction, for a period of two years.  There will be the following conditions: You are to complete 100 hours unpaid community work; you are to undergo supervision; you must comply with the justice plan prepared; and you must undertake programs for treatment and rehabilitation to reduce reoffending.  That will involve you undergoing the Sex Offenders program. 

19There has been 11 days pre-sentence detention, and I declare that 11 days be reckoned as having been served under the sentences passed this day and be deducted administratively, if necessary. 

20The prosecution has applied for retention of a forensic sample taken from you.  That was not opposed and, for reasons stated in the order itself, I have signed it.  Had it not been for your pleas of guilty to the charges, I would have imposed a term of imprisonment of 12 months. 

21Each of these offences is a Class 1 offence for the purposes of the Sex Offenders Registration Act.  In the circumstances here, they are treated as one offence, however.  Your registration as a sex offender under that Act is mandatory for a period of 15 years.  You  must take advice about this and comply with the registration provisions under that Act.

22A disposal order was sought and not opposed, and I have signed it.

23Any questions arising out of that, Mr Cordy?

24MR CORDY:  I just wonder whether that was in fact forwarded to Your Honour's associate, the disposal order.

25HIS HONOUR:  I think it was.

26MR CORDY:  No, no matters, Your Honour.

27HIS HONOUR:  Mr Watson, do you understand the orders that I have just made?

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  You understand, don't you, that the community corrections order will operate for a period of two years.  You must not commit any offence punishable by a term of imprisonment within that two year period.  Do you understand that?  And you must comply with each of the conditions of the community corrections order; you must attend for supervision; you must carry out the unpaid community work; and you must undergo any programs that you are advised to undergo.  Do you understand that?

30OFFENDER:  Yes.

31HIS HONOUR:  I have referred to the fact that it is mandatory that you be registered as a sex offender for the next 15 years, and that has very strict requirements, and I am going to call upon Ms Youngson, if you would, Ms Youngson, to please carefully explain that to Mr Watson after court.  I do not want a situation arising where Mr Watson breaches because he has not complied with his obligations under that Act, which can be quite complicated.

32MS YOUNGSON:  I'll speak to him.

33HIS HONOUR:  So it would be helpful if you could speak with someone who might also be able to assist him so that there is no chance of anything going wrong. 

34MS YOUNGSON:  I will, Your Honour.

35HIS HONOUR:  Very well.

36MS YOUNGSON:  Thank you.

37HIS HONOUR:  Come forward, if you would, please, Mr Watson.

38(Community Corrections order signed and acknowledged.)

39Mr Watson, what you need to understand is that if you do commit an offence or if you do not comply with any of these conditions, you will be brought back before me.  Do you understand?

40OFFENDER:  Yes, Your Honour.

41HIS HONOUR:  And you will be resentenced, or you could be resentenced on these charges.  Do you understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  So please make sure you comply with the conditions of the community corrections order in every way, all right?

44OFFENDER:  Okay.

45HIS HONOUR:  Very well, you are free to go.  Thank you.

46MS YOUNGSON:  If Your Honour pleases.

47HIS HONOUR:  Thank you, Ms Youngson.

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