Director of Public Prosecutions v Weston (a pseudonym)

[2018] VCC 1927

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEXANDER WESTON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2018
DATE OF SENTENCE:	21 November 2018
CASE MAY BE CITED AS:	DPP v Weston (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1927

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	Ms J. Dunham	Office of Public Prosecutions
For the Accused	Mr B. Newton	Dribbin & Brown

HIS HONOUR: 

1Alexander Weston[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  That crimes carries a maximum penalty of ten years' imprisonment. 

[1] A pseudonym.

2You are 35 years of age.  You pleaded guilty at the earliest reasonable opportunity and I accept that that plea is accompanied by remorse and in some respects, even shame.  You must obviously get the utilitarian benefit of that plea of guilty.  Furthermore, in this given situation, where a trial would have been a, as known to the lawyers as a "one-on-one".  The plea gives added benefit for not having put the victim through the ordeal of that experience.

3You have no prior convictions of any nature, you have no subsequent convictions and you have nothing pending. 

4The offending occurred in 2006 when you were 22 years of age.

5Because of the nature of the offending, you will be placed on the sex offender's register and I advise you that the reporting conditions will be for 15 years.  If you could accompany my associate to get that signed please, Mr Newton.

6MR NEWTON:  Yes, sir. 

7HIS HONOUR:  Yes, thanks for that.

8Next, because you have consented to it, I make an order, pursuant to s.464ZF of the Crimes Act that you provide a saliva sample for DNA purposes.  That order having been made, I advise you that, should you refuse to provide such a sample, police may use reasonable force to take that from you.  

9A summary of the offending is as follows, that the complainant was your cousin.  At the time of the offending, she was 15 and you were 22.  You are the son of her father's sister.  Her parents separated when she was young and as a result, she lived with her mother and sometimes she would stay with her father. 

10In April of 2006, the Easter weekend, she was staying at her father's house.  She did not have a bedroom, but was sleeping on a sofa bed in the front lounge room.  At around about 11.30 pm, she was lying on the sofa bed and could hear her father talking with you.  I accept on the material before me that you had been out and had been drinking fairly heavily.  Not that that was put forward as an excuse, but it simply puts it into some sort of context. 

11She could hear that occurring in the garage, directly next to the lounge room.  You and her father also playing music.  She heard the backdoor open, you walked towards the front room where she was and she pretended to be asleep.  You sat on the edge of the bed, sat there for some time facing her and started to take the sheets off.  You pulled the pants she was wearing down to her knees on the left side and her underpants were also pulled down.  You rubbed your hand across her leg towards her vagina.  She leaned forward to try and get your hand away and pull the sheet up, while pretending to be asleep.  You moved the hand, but stayed where you were. 

12You then moved the sheet down again, touched her on the vagina.  You put your fingers over her clitoris and she began moving again, trying to look like she was tossing in her sleep to try and get rid of your hand.  That occurred approximately eight to ten times and you persisted.  You did not leave and ultimately she felt you penetrate her with one finger.  She became enraged at that point, sat up and told you to, "Fuck off".  You looked at her blankly, got up, stood there looking away and then left the room.  She laid there for some time and subsequently noticed it was 3.15 am when she went to the toilet. 

13The next day you were acting normally.  She told a friend of hers at school that it had occurred and by the victim impact statement, that turned into a disaster for her.  Apparently her counsellor was told, but that was not taken anywhere. It was not until some years later when the matter finally came to light.  And you were interviewed and essentially admitted the incident and the circumstances of it and did not deny that penetration took place.  It was, arguably, a situation where there is a breach of trust and I take that into account.

14The aspects that tend to mitigate, insofar as you are concerned, are that it was a single incident.  It was now some 12 years ago.  I accept on the material before me that it was unplanned and relatively spontaneous.  As soon as she told you to stop, you did and I accept that attempts were made by you in the days following to apologise, but understandably, those moves were rejected. 

15The offending has to be regarded as serious, despite those things.  Of course the application of general deterrence in your situation, I think that specific deterrence are not really required.  I would be very, very surprised if you ever did anything like this again.  There must also be denunciation, bearing in mind the nature of the relationship and there must be an appropriate punishment.

16The victim impact statement was read aloud by the prosecutor and indicates very clearly the dreadful consequences for the victim in this matter.  She said that she used to trust people, was close with all her family and saw only the best in people and felt safe, especially in her own home, which is with family.  She said that what happened that night put a stop to those feelings.  She wondered if it was her fault, as is so often the case in these circumstances, blamed herself, felt dirty and ashamed and sad and was too frightened to tell anybody. 

17She lived with that for years, eventually tried to tell your mother, as
I understand it and was not believed.  At that point she said her mental health took a downward turn.  She was diagnosed with anxiety and depression and started having panic attacks.  She thought in terms of suicide and spoke to her partner and parents about it and at that point in time, she went at one stage to the emergency department at the Dandenong Hospital.  She began to see a psychologist.  It was during that process that she decided that she would press charges and endeavour, I understand, to try and get some sort of closure in relation to the matter. 

18You, to your credit in all these circumstances, as I have said, have pleaded guilty, where you could have run a trial and taken your chances.  It then becomes a question of what the appropriate disposition is.  The Crown's submission was that an active custodial sentence was appropriate. 

19The original position of your counsel was that a community corrections order was appropriate but as I pointed out, I cannot see any point in a community corrections order here, where the psychologist's material suggest that you are not a risk and do not really require any further treatment, insofar as sexual offending is concerned.  A CCO would have a number of work hours with it, which would be difficult for someone who is working six days a week, in any event, with the rest of the programs, there would be no point to it. 

20It is my view in all the circumstances that a suspended or partially suspended sentence was the appropriate disposition.  Suspended sentences have now been discontinued, but clear at the time that they existed, that they were a very significant and a very effective punishment.  The circumstances are, as
Mr Nettle J said on one occasion, that once the level of the offending fits within a suspendable range, then it would be an unusual situation where it would not at least be partially suspended.  The test is whether it is considered to be in the interests of justice to do so. 

21Your counsel obviously argues for a wholly suspended sentence.  In terms of determining whether it would be in the interests of justice to do that, I look at matters personal to you.  I have already indicated, it is one charge, it is not planned and it was, to a degree, spontaneous.  You desisted when challenged and there was no use of violence or threats or anything along those lines. 

22The sentencing statistics indicate that even from that time, that the - in these circumstances of sexual penetration, it is about 50/50 as to whether people actually go into active custody and those statistics, of course, do not take into account people who may have prior convictions, who have been sentenced for multiple charges, who have pleaded not guilty and all sorts of those matters, so I would think that people in your situation of, at the time of 22 and nothing prior and noting since, the percentage of non-active custodials would be even higher. 

23I then look at matters personal to you and to the very helpful submissions put before me by your counsel.  I have the report of Pamela Matthews.  Essentially she confirms the shame and guilt that you feel about these matters.  There is a report from the treating - sorry, she is a psychologist.  A report from the treating psychologist, who you have attended on a voluntary basis and made good progress with.  Each of those regards the risk of you re-offending as being low indeed.

24I have read a number of references, which all speak highly of him, in terms of work ethic and you have presented, at least, a letter of apology, at this stage for what that is worth. 

25Your history is one of working ever since you left school.  You skipped Grade 1 at school, as your mother pointed out in a reference that was tendered on your behalf.  I think that, insofar as your childhood was concerned, I will just simply refer to what she said about you.

"As a child, Alexander was shy and an easy-going baby and toddler.  Never been an assertive person and when he started school, he struggled a little with maths and writing.  After many investigations, he was referred to occupational therapy to improve his coordination.  He was then prescribed glasses to wear, as he had an astigmatism in his eye.  He also wore an eyepatch to strengthen the muscle in his eye.  At this point it was decided he needed to repeat Grade 1, which I don't think did much for his self-confidence.  There was never a clear diagnosis given regarding his learning.  In Grade 5 he went to see Michael de Kumon for maths, which greatly improved the basics for him going into high school.  Alexander would never take risks or jump into any activities or sports.  He would go along and watch his younger brother and after a while, he would build up the confidence to join in, example, playing football, riding motorbikes et cetera.  He was always only had a small group of friends, usually the geeky outcasts.  When he started high school, he hated it and couldn't wait to leave, as he was bullied." 

26I interpose there.  The was a situation apparently where you broke a wrist. 

"We would only let him leave if he had a job, so he went cold-calling."

As your counsel pointed out to me.

"And he got a factory job as a sheet metal worker in the local area.  He was only there a short time, when two fingers were amputated by a faulty press machine that had the guard disabled.  Those fingers were successfully re-attached, but it was a very long surgery and recovery process with a lot of therapy.  He was 16 years old at this time and it left him with no self-confidence and he stopped playing football and golf and also developed alopecia.  He's always been a law-abiding and honest person and as an adult, very hard-working."

27There is nothing in the report of Ms Matthews or the psychologist who counselled you to dispute any of that.  What is of importance, is that you clearly still have strong family support.  You have stable accommodation.  Indeed, as
I understand it, are purchasing premises because of the payout that you received for the industrial accident that you had suffered.  You clearly have a very good work ethic, having worked since you were 16.  A furniture removalist at one stage and as a concreter, which you continue to do.

28I regard you as a very low risk indeed of re-offending and I take that into account.  The situation is that long delays in these matters, such as has occurred here and quite understandably have worked both ways.  They at least give an accused person the opportunity to display rehabilitation and make it difficult for a sentencing judge to do anything other than try and support that rehabilitation, no matter how serious some respects of the offending may have been. 

29In the treatment that you've been having, you have been dealing with anxiety and depression.  There is no suggestion that the principles in Verdins are enlivened, other than that I would have thought, an active gaol sentence for you would have been a very difficult experience indeed.  You have, if I can quote the vernacular, "done it hard" waiting for this trial - waiting for this plea to come up and awaiting the disposition of the court. 

30As your counsel pointed out in the matter of Tomguenen, Neave JA said,

"As this court recognises in the DPP v Leach, it's particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped, that after all may be a decision which  rebounds very much to the benefit of the community."

31Further, as Maxwell P said in the DPP v Tokava,

" A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."

32Obviously a significant amount of rehabilitation has taken place and I am very aware of the fact that you were still a young man, some 22 years of age, when this occurred. 

33The authorities are clear that suspended sentences act as - or acted and still do act, so far as general deterrence are concerned.  They are quite clearly a massive specific deterrence, if that was needed in your situation and they indicate the seriousness of the offending that occurred, in circumstances where the end result, it is in no one's real interest that you be incarcerated for a period of time. 

34Accordingly, I intend to impose a custodial sentence that will be wholly suspended.  It will be a significant suspended sentence to indicate the very serious ongoing and severe consequences that were thrust upon your teenage victim. 

35It is sometimes the case in these situations where it can basically wreck lives, it breaks families apart and I am sure those consequences are not in the mind of a 22 year old at the time that it happens, insofar as general deterrence are concerned, it has to play a significant part in the way that I view all this. 

36But, in any event, taking all those matters into account as best I can in this situation, you are sentenced to be imprisoned for a period of 15 months. 

37I direct that that sentence be wholly suspended for a period of three years, because I believe it to be in the interests of justice to do so.

38Just so that it is clearly understood, but for your plea of guilty, pursuant to s.6AAA, that is, if you had not pleaded guilty, you would have been sentenced to be imprisoned for a period of 24 months and I do not know what I would have done with that.

39That is a wholly suspended.  You must understand that if you breach it by any offending that carries gaol, and that can include a shoplifting, then you are brought back before me and you have to show exceptional circumstances why that sentence would not be fully restored.  If you were brought back before me for any offending, even remotely like this type of offending, you would be doing the lot, I can assure you. 

40All right, there are no other orders I have to make, are there? 

41MR NEWTON:  No, Your Honour, just three occasions in your sentence, sir, you referred to the defendant being 22 at the time of the offending, but at one moment in your sentencing remarks, I think you meant to say "22", but you said, the summary of offending, "The complainant, your cousin, was - she was 15 and you were 15" and I think Your Honour, clearly from your other remarks - you can ‑ ‑ ‑

42HIS HONOUR:  Well I suspect that if I said that, I will revise it out.

43MR NEWTON:  Yes, so just revise that to 22.

44HIS HONOUR:  I will do that.

45MR NEWTON:  As Your Honour pleases. 

46HIS HONOUR:  All right, yes, thank you, Ms Dunham.

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