Director of Public Prosecutions v Watson

[2016] VCC 825

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-00035

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIGITTE ELLEN WATSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	14 June 2016
CASE MAY BE CITED AS:	DPP v Watson
MEDIUM NEUTRAL CITATION:	[2016] VCC 825

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Offender	Mr J. Lavery

HIS HONOUR:

1Brigitte Ellen Watson, you have pleaded guilty to one charge of indecent assault.  That crime carries a maximum penalty of ten years' imprisonment.  You have pleaded guilty to a settled indictment and I give you the benefit of remorse.  You clearly must get the utilitarian benefit of that plea of guilty.  Of importance in your situation there would have been no Crown case against you but for your own admissions and I take that very much into account.  Even on the admissions made, I am also satisfied that you may well have had a viable defence on trial and that gives extra weight to the, not only, utilitarian benefit of it but remorse as well.

2You are 46 years of age with no relevant prior convictions.

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 being made I advise you that should you refuse to provide a sample police may use reasonable force to take it from you and that order is made and handed down.

4The circumstances of the offending are unusual indeed.  Certainly at least insofar as matters coming before this court.  You, as I said are 46 years of age and were 44 years of age at the time of the offending.  The complainant is Mr A who at the time of the offending was 42 years of age.  He was apparently living alone in Outtrim, although his victim impact statement seems to indicate otherwise, and receiving a disability pension. 

5He, apparently, has an acquired brain injury and also suffers from epilepsy and depression for which he takes medication.  You and he had been in a relationship for something in the order of 13 years and have three children.  So each of you were well aware of each other.  I am also aware, from what I am told from the Bar table, which I accept, that he, in fact, had at one stage had five months - or been given a five month prison sentence for assaulting you.  There have also been intervention orders taken out by you against him over the years.  The relationship can only be described as extremely dysfunctional as are the circumstances in which this all comes about.

6The situation was that the relationship had effectively terminated in around about February 2014 although there had been contact between the two of you before the events I am about to describe and indeed, as I understand it, afterwards.

7On 22 August 2014 you went to his house, he was at home watching football.  You arrived and had apparently cans of bourbon with you.  You apparently asked him to have sex and he said he did not want to and he claims he told you he was in a relationship with another woman.  My understanding is you said you found that out by looking at his telephone.  Be that as it may.

8In any event you stayed the night and slept in his bed and he was asleep in his son's bed.  He went to bed at ten o'clock and fell asleep straightaway.  Based entirely on your admissions, you entered the bedroom sometime after this, climbed onto the bunk bed and began masturbating his penis.  You then, on one view, got on top of the complainant and inserted his erect penis into your vagina and had sexual intercourse with him.  You then got off and returned to the lounge room. 

9On the Crown opening it is put that at no stage did the complainant wake up or have any idea what was taking place. 

10You have said, during the course of your interview, that this situation was not abnormal in that relationship and obviously I take that into account in terms of the potential of the defence that you would have had.

11In any event the person, a Ms G, who he said he was in a relationship with receives a telephone call from you which is put on loudspeaker.  In that phone call you said that you had "fucked" the complainant on Friday night and you had done it before.

12On 11 September 2014 a pretext telephone call took place in which you admitted that you had had sex with him.  In any event when participating in a record of interview you made admission, at least, as to having had sexual intercourse with him on previous occasions and were aware of the circumstances he was alleging. 

13As the Crown opening points out there are very complex questions as to how this matter is to be put and what I sentence for you is on the basis that you gave no thought as to whether he was consenting or not in that scenario.  As I indicated to counsel I think it is a matter which has been very sensibly resolved and both parties must be given sufficient credit for that.

14In any event any form of sexual offending, on the face of it at least, has to be regarded as serious although I do take yours into account in the context in which it occurred.

15The concepts of general and specific deterrence must play some sort of part in it and there must be something of an appropriate punishment.  I have grave doubts whether the community would regard the need for denunciation is particularly high in this matter but in any event you have pleaded guilty and very sensibly got rid of the matter.

16I then look at matters personal to you.  You were brought up in Healesville.  You have four children who you are the sole carer of.  You have very little extended familiar.  There is a reference tendered on your behalf which really reports that you have been getting great assistance of North-western Mental Health and it is clear that you are making a real effort at getting on with your life.  It is also clear from the sworn evidence that I have heard in court by Ms Mail on your behalf that the relationship with the complainant in this matter was a very dysfunctional one and that you were abused within it.  I now understand that you are in a functional relationship now of some duration and are supported. 

17You are on a supporting parents benefit and are operating a small arts and second-hand shop on the basis of two days a week.  You have a good work record in that area though you are not formally qualified.  So you have stable accommodation, stable income, stable business.  As I have indicated, you have a stable relationship and you have those other matters in your favour.

18I have taken all those matters into account including the victim impact statement about which, I must confess, I have some reservations.  To everybody's credit no argument erupted around that and it is a situation that should always exist.

19The prospects of your rehabilitation should be good.  The risk of you re-offending, particularly where you have no relevant priors at all, would, I think, be very low indeed.  In those situations I think that a community corrections order is the appropriate disposition.  However I do think where the allegation is one of a sexual nature that a conviction should be imposed and it is well known that that is a punishment in itself.

20What I am going to do is simply put you on a community corrections order with conviction for a period of 18 months with 100 hours community work.  I will simply leave it at that.

21(At this stage the court proceeded with another matter.)

22So she understands that when the work is down the order is over.

23MR LAVERY:  Yes.

24HIS HONOUR:  I think that is why I cannot put supervision in it actually now in retrospect.  Because that may mean it would have to go the whole 18 months, yes.

25(At this stage the court proceeded with another matter.)

26Thank you, Mr Lavery.  Yes, you are excused.  You come out of there, Ms Watson.

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