DPP v Debenham
[2021] VCC 949
•12 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-21-00290
Indictment No. L10094472
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUGH DEBENHAM |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2021 | |
DATE OF SENTENCE: | 12 July 2021 | |
CASE MAY BE CITED AS: | DPP v Debenham | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 949 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sexual assault – early plea of guilty – prior good character – relative youth of offender – true remorse – offender’s personal efforts to rehabilitate – good prospects of rehabilitation – low risk of recidivism of sexual offending – contribution to the community – without conviction adjourned undertaking (good behaviour bond)
Legislation Cited: Crimes Act 1958, s40; Sentencing Act 1991, s5(4), s6AAA, s8, s75; Sex Offenders Registration Act 2004
Cases Cited:Worboyes v R [2021] VSCA 169; R v Angelopoulos [2005] VSCA 258; R v Mills [1998] 4 VR 235; R v Nutter (Unreported, VSCA, 8 November 1995); R v Better [2003] VSCA 71
Sentence: Adjourned undertaking (good behaviour) without conviction, with further conditions. Section 6AAA declaration: Conviction and sentence of six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Burnett | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms U Ebsworth | Doogue & George Pty Ltd |
HER HONOUR:
1Hugh Debenham, you are to be sentenced in respect of one charge of sexual assault contrary to s40 of the Crimes Act 1958. You pleaded guilty when arraigned before me on 30 June 2021.
2The maximum applicable penalty for this charge is 10 years’ imprisonment.
Circumstances of offending
3The circumstances of offending are well set out in the Prosecution Opening upon plea tendered as Exhibit A.
4By way of background, you and the complainant in this matter, Justine Castillo[1], met in August 2017 when you were roommates. You then became good friends. In the past you had shared a bed with Ms Castillo and had had sexual relations with her on a number of occasions.
[1]A pseudonym.
5On 16 August 2018, you phoned Ms Castillo and told her you would be travelling to and staying in Melbourne at a hotel and invited her to join you, to spend the night with you.
6The next day, you and Ms Castillo met with your former housemate, Nathan[2], at a bar. You and Ms Castillo spent most of the night in the outside smoking area of the bar. You were all consuming alcohol.
[2]A pseudonym.
7Sometime after midnight, you and Ms Castillo decided to leave and said goodbye to Nathan. You both went to your hotel.
8Ms Castillo had forgotten to pack her pyjamas, so you lent her a t-shirt to sleep in. After changing into your t-shirt, Ms Castillo climbed into the right side of the bed and lay on her back. You climbed into the bed next to her and the two of you spoke for some time. You then placed your arm around her and pulled Ms Castillo towards you so that your bodies were facing each other. Ms Castillo took your arm off her and rolled back onto her right side facing away from you. You placed your arm around Ms Castillo again and told her you wanted to tell her something and turned her so that she was facing you again. You then kissed her on the lips. She used her right hand to push you away and told you she did not want to have sex with you because she was seeing someone else.
9You left Ms Castillo alone for approximately five minutes before again trying to kiss her. Ms Castillo said “no” and pushed you away. You apologised, saying, “sorry, I’m just really horny and frustrated”.
10After this, Ms Castillo pulled the blankets up and rolled back onto her right side and went to sleep. Sometime later she awoke. She was still lying on her right side when she felt your hands between her legs touching her upper thigh. You stroked her inner thigh and her vagina on the outside of her underwear. You attempted to place your hand underneath Ms Castillo’s underwear; however you were unable to do so. Neither of you spoke. Ms Castillo moved her legs close together again and fell back to sleep.
11Sometime later, Ms Castillo awoke. She was now lying on her back. You had placed your hand on Ms Castillo’s inner thigh and had positioned your body close to hers. You then moved your hand on top of her underwear and partially slid it underneath. You then started stroking Ms Castillo’s clitoris with your fingers for a number of minutes. You then licked your fingers and again started stroking Ms Castillo’s clitoral region with your finger. Again, neither of you spoke.
12After this, Ms Castillo rolled back onto her right side and laid closer to the edge of the bed. She remained awake for some time, waiting for you to fall asleep. You made no further sexual advances towards Ms Castillo. The two of you slept in the same bed until the next morning.
13After leaving the hotel, the two of you walked to Southern Cross Station, where you invited Ms Castillo to take a taxi ride with you so that she could be dropped off at work. During the taxi ride neither of you spoke.
14At 3.33pm, you sent a text message to Ms Castillo stating:
“Hey I’m sorry for coming onto you the other night, I’m just going through some things at the moment, I’ll understand if you don’t want to talk to me.”
15Three days later, on 21 August 2018, Ms Castillo attended the Melbourne West Police Complex where she reported the matter to police. She then provided a formal statement detailing her complaint. On this day, Ms Castillo made a ‘pretext’ call to your mobile telephone number. She then recorded her conversation with you. During this conversation you apologised and expressed your remorse for what you had done. You said:
“I’m sorry Justine. I thought – I thought I could change your mind. I thought you were awake at the time. But that’s - yeah.
Yeah, you’re right Justine. It wasn’t the best idea of mine, was it?
… I can only tell you how much I’m sorry about what I did.
… I know what I did was fuckin’ horrible … .
I was thinking, well, we’ve had sex in the past, … we’re in a hotel [in the past], maybe she might want to have sex, maybe I can change her mind…
… there’s only so many amount of times that I can … say I’m sorry. I know what I did was… horrible, and despicable, and wrong … .”
[sic]
16Ms Castillo asked:
“… you knew you did something wrong and you know that you have assaulted me without my consent.”
17You replied:
‘Yes.
… I’m sorry for betraying your trust.
…
Justine, you don’t understand how… horrible I’ve been feeling since that night.”
18Ms Castillo then attended the Royal Women’s Hospital, where she underwent a forensic medical examination.
19At the time of offending you were aged 23 years. Ms Castillo was almost 19 years of age.
Arrest and interview
20On 3 January 2019, police arrested you at your family home in Wonthaggi. You were taken to Wonthaggi Police Station, where you were interviewed in the presence of your sister, who was acting as your lawyer. You made no comment but provided your DNA.
Gravity of offending
21The crime of sexual assault is very serious. So much is evident from the maximum applicable penalty. The law is clear: Ordinarily, all people have the right to determine who, if anyone, may touch them. What makes your conduct criminal is that after your first attempt to seduce Ms Castillo, she made it clear to you that she did not want to have sexual intercourse with you. Although in your subsequent contact with Ms Castillo she did not resist or protest to your further sexual advances, you knew your actions constituted an attempt to change her mind from ‘no’ to ‘yes’. That said, as your counsel pointed out, realising that your attempts at seducing Ms Castillo had failed, you pressed the matter no further.
22Ms Castillo has elected not to make a victim impact statement. Nonetheless, it is clear that she felt violated enough to report the matter to police, as was her right.
23Ordinarily, in cases of sexual assault, principles of general deterrence, denunciation and condemnation, and protection of the community are dominant sentencing considerations.
Plea in mitigation
24In a comprehensive plea in mitigation made on your behalf, your counsel, Ms Lacy, conceded the gravity of your offending. She submitted, however, that a number of circumstances combine to justify releasing you on a non-conviction form of sentence. I now turn to the factors advanced in mitigation of penalty.
Guilty plea
25As mentioned, you pleaded guilty to the charge.
26A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In your case, on behalf of the Prosecution, Ms Burnett conceded that you entered your plea of guilty at an early stage.
27The matter resolved at the committal stage and the case proceeded by way of straight hand-up brief.
28No witness has ever been required to give evidence against you. Importantly, Ms Castillo has been spared the ordeal of giving evidence.
29In determining the weight to be given to your plea of guilty, I take into account the following factors:
(a) the timing of your plea;
(b) you are entitled to a statutory discount because of your plea;
(c) I accept that your plea is indicative of your true remorse;
(d) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience, embarrassment and ordeal of giving evidence, both at committal and at trial; and
(e) there is enormous social utility involved in your guilty plea, and by taking this course I accept that you have facilitated the course of justice.
30Dealing with the question of the social utility inherent in your guilty plea, I note that there was delay in the matter proceeding, largely attributable to the world-wide pandemic of COVID-19.
31In the recent case of Worboyes v R,[3] the Court of Appeal emphasised the need to give more than mere lip service to the sentencing discount to be applied for a guilty plea in the current climate. As their Honours stated:
“34 It may thus be concluded that … the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea. Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts’ trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.
35 As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
36 There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards. As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed. That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea. These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.
37 Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic. The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution. In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one. The longer the delays, the more pronounced their plight.
38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.
39 For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[4]
[3][2021] VSCA 169
[4]Ibid at paragraphs [34]-[39] (citations omitted)
Delay
32I have mentioned that through no fault of either party, there has been some delay in bringing the matter to court. Importantly, in the period of delay you have stayed out of further trouble. Indeed, as shall soon be mentioned, in the period of delay you have done much to ensure that you will never offend in like manner again.
Personal history
33You are now aged 26 years. You were raised in South Gippsland, where you grew up in a loving household consisting of your parents and your twin sister. Your father has worked in the dairy industry for 30 years. Your mother is a former executive of the Victorian Agri-Business Forum and is now studying law. In short, you come from a good home.
34You were educated at Leongatha Primary School and then New Haven Primary School. You repeated Year 3 because of your reduced social development. You started your secondary education in a regional college until the end of Year 8. In Year 9, you transferred to Melbourne Grammar School, where you subsequently boarded for Years 11 and 12.
35Throughout your schooling, and particularly at Melbourne Grammar, you had difficulty socialising and forming friendships. You suffered from reduced self-esteem and you were lonely. Although you passed your VCE in 2013, your academic results were disappointing.
36In 2014, you began an undergraduate degree in International Relations and Marketing at the University of Canberra. The following year, you transferred to Deakin University, Burwood campus, living in halls of residence, before moving into a share house in Canterbury in late 2016. Ms Castillo moved into this share house in August 2017 and the two of you became friends and, at times, lovers.
37You struggled academically at university and returned home to Leongatha in early 2018. You were despondent and anxious about your future. A letter from your general practitioner confirms that in early 2018, you were suffering from depression with suicidal thoughts, anxiety and stress.[5] Your doctor referred you to a psychologist, Dr Couchman. You engaged in counselling with Dr Couchman for six months. You finally withdrew from your university course in late 2018.
[5]Exhibit 3
38While back in Gippsland for three years, you completed a TAFE Certificate in Building and Construction, you volunteered with the Country Fire Authority, and you worked in casual manual labouring jobs.
39Since leaving high school, you have worked in part-time and full-time positions, mostly in unskilled labour, in hospitality and in sales.
Prior good character
40You have no prior convictions.
41A number of character references were tendered on your behalf.[6] These references attest to your exemplary good character and the reputation you enjoy in the community. You are held in the highest regard by those who know you, and by all accounts you are a kind, generous, loyal, caring and devoted member of your family and your community.
[6]Letter from Ian Debenham dated 18 June 2021, offender’s uncle and Godfather (Exhibit 4); letter from Wayne Walker dated 14 June 2021, member of the Koonwarra Fire Brigade CFA (Exhibit 5); letter from Georgia Benjamin dated 14 June 2021 (Exhibit 6); letter from Elizabeth Ginters dated 15 June 2021, Special Education Teacher and mother of offender’s partner (Exhibit 7); letter from Erin Ginters dated 14 June 2021, offender’s partner (exhibit 8); and letter from Tony Giles dated June 18 [2021] family friend (Exhibit 9).
42I heard sworn evidence from your current partner, Erin Ginters, who is a disability support worker. You met Ms Ginters during the recent bushfires in New South Wales where you volunteered as a firefighter. After leaving New South Wales, the two of you remained in contact. In January 2020, you met Ms Ginters’ family and thereafter you formed a close and loving relationship with Ms Ginters.
43You spent the majority of 2020 with Ms Ginters in Victoria, where the two of you lived with your family until January 2021. Eventually the two of you moved to Newcastle, where you now live in a de facto marriage.
44Ms Ginters testified that you have spoken about your offending behaviour. In fact, very early on in your relationship you confessed to Ms Ginters what you had done to Ms Castillo as you wished to start your relationship on an honest footing. Ms Ginters stated that you were utterly remorseful for the way you had behaved. The two of you have discussed the topic of verbal consent. Ms Ginters stated that you respect each other’s decisions so far as intimacy is concerned. If anything, you go overboard to ensure that she is comfortable and consenting. In addition, you have conducted personal research about the meaning of consent and why it is so important in a relationship.
45Ms Ginters testified that you are very empathetic. You know that what you did was wrong and you have learnt a valuable lesson from your misconduct.
46Ms Ginters noted your commitment to your community and your dedication to firefighting, particularly in the 2019-2020 bushfires in New South Wales. In fact you have received a certificate and letter of thanks from the New South Wales Premier thanking you for your efforts in this regard.[7]
[7]Exhibit 10, copy of letter from Gladys Berejiklian MP, Premier of New South Wales; exhibit 11, NSW’s Premier’s Bushfire Emergency Citation Certificate
47When cross-examined, Ms Ginters confirmed that there are no other matters pending. She reiterated that you are kind, gentle, respectful, willing to help others, and generous. She noted that ever since childhood you have been involved in fundraising activities.
48Your good character is a matter I take very much into account when sentencing you today.
Contribution to the community
49I have mentioned your commitment to the community. You have been a member of the Koonwarra Fire Brigade in the CFA for several years.[8]
[8]See letter from Wayne Walker dated 14 June 2021 (Exhibit 5)
50As I have also stated, your firefighting efforts were recognised by the Premier of New South Wales, Gladys Berejiklian, MP. In her letter to you, the Premier wrote:
‘Dear Mr Debenham,
It is my honour to be able to recognise your contribution to the unprecedented 2019-2020 bushfire crisis.
The bushfires of last summer were undoubtedly the worst natural disaster in the living memory of our State. Without the actions and efforts of people like you, the toll would have been far greater.
Your selflessness, courage and resilience caused all of us to pause and think about the true meaning of family and community.
You should be incredibly proud of the part you played in protecting your community when it needed you most. Your compassion, courage and generosity have earned you a special place in the history of our State.
On behalf of the people of NSW, we thank you.”
51I was also told something of the fundraising activities in which you participated. Even as a child you raised funds for institutions including the Fred Hollows Foundation. You have contributed to the Richmond Football Club’s activities, raising money for underprivileged children. You have raised funds for Berry Street and you have been an active participant of the Rovers, a section of Scouts Australia.
52Your commitment to the community does you great credit, a factor I count in your favour.
Psychological assessment
53A psychological report prepared by Mr Patrick Newton, clinical and forensic psychologist, dated 22 June 2021 was tendered in evidence before me.[9]
[9]Exhibit 2
54Mr Newton opined that your symptoms are sufficiently severe to meet DSM-5 criteria for the diagnosis of an Adjustment Disorder with Mild Anxiety and Depressed Mood.[10] In his report, Mr Newton stated:
“42.Mr Debenham’s personality remains in the process of forming. He is still developing his views on major life issues along with his sense of personal identity. Among the developmental tasks still awaiting resolution are the determination of a career direction, the completion of study and the consolidation of the interpersonal skills necessary to support a fully mature relationship.
43.Mr Debenham’s early history was overshadowed by significant experiences of social anxiety. He lacked self-confidence and felt considerable fear at the prospect of rejection or humiliation in social contexts. These considerations left him socially tentative and led him to avoid opportunities where he might have developed better social skills. In turn, the absence of such experiences exacerbated his anxiety and led to a degree of awkwardness and tentativeness in his social interactions. While these issues have been significant, with the advent of his relationship with Erin [Ginters] Mr Debenham has been able to make significant progress toward developing self-confidence.
44.While his social anxiety has been noteworthy, it is also clear that
Mr Debenham’s personality development is now progressing well. In his interview with me, he was able to articulate a coherent set of personal values and he outlined a range of goals in terms of further study, career and family to which he is committed. It was clear to me that Mr Debenham has an emerging pro-social sense of identity and that he derives a sense of personal meaning from his involvement with others. These provide him with a good foundation for further personality development.”[11][10] Ibid, paragraph 37
[11] Exhibit 2, paragraphs 42 to 44
55In terms of your sexual adjustment, Mr Newton stated:
“47.In general terms, Mr Debenham was able to outline a sexual ethic based on mutual pleasure and shared connection. While he is now clear about the importance of consent, he acknowledged that at the time of the offending he had not understood such matters properly. Specifically, he noted that he had thought of consent more in terms of a ‘negotiation’ than in terms of a necessary pre-condition. Thus, Mr Debenham reflected that in regard to his offending against the complainant he had engaged in various behaviours designed (so he thought) to ‘convince’ her to have sex with him despite the fact that she had clearly articulated that she did not want to do so.
48. Mr Debenham said that through his reflections, reading and discussions with others he has now "learned a lot about these issues”. In his discussions with me, Mr Debenham was able to clarify that he now understood that consent must be constituted by an explicit, voluntary agreement by an individual to participate. He added that he now recognises that his behaviour had fallen well short of this standard and had therefore been unacceptable and blameworthy. He said that he now looks back on his conduct on the night with deep shame and regret.”[12]
[12] Exhibit 2, paragraphs 47 to 48
56Mr Newton conducted a risk assessment with regard to the likelihood of your reoffending in like manner. He was of the view that you presented a low risk of recidivism to further sexual offending.[13] Mr Newton considered that you would benefit from individual counselling, noting that your treatment goals could be met through attendance at a suitably qualified mental health professional community setting without placing the community at an unmanageable risk.[14]
[13] Exhibit 2, paragraph 55
[14] Exhibit 2, paragraph 56
Remorse
57I have referred to the evidence of your partner, Ms Ginters, and to the character references tendered on your behalf that attest to your true remorse.
58I should also note that in his report, Mr Newton was also of the view that you recognise the wrongfulness of your conduct, that you are ashamed of what you have done and that you are truly sorry for it. In a written exercise that you completed for Mr Newton, you wrote:
“I regret the fact that I have offended. It has not only caused grief and heartache in my life but also in [Ms Castillo’s]. I think about what I did every single day and wish I could take it back and make amends. I sincerely hope that the victim will lead a healthy and happy life. I am deeply apologetic.”[15]
[15] Exhibit 2, paragraph 34
59These sentiments are consistent with the apology you made to Ms Castillo very soon after your crime in the text message you sent to her, and with your repeated apologies made to Ms Castillo during the pretext phone call to which I have earlier referred.
60I am satisfied that you have accepted responsibility for your crime and that you are genuinely contrite.
Prospects for rehabilitation
61Taking account of the totality of the evidence, noting your acceptance of responsibility and your commitment to ensure that you will never again behave in like manner, I am satisfied that you have learnt from this experience and that you pose little risk of reoffending. Even so, I accept that you would benefit from further counselling and I note that you have agreed to do so.
Relative youth
62You are now aged 26 years. At the time of offending you were aged 23 years. As Mr Newton points out, even now your personality remains in the process of forming.[16] In the eyes of the law you are an adult. Nevertheless, I am entitled to pay regard to your relative youth and immaturity and, if appropriate, moderate your sentence.[17]
[16]Exhibit 2, paragraph 42
[17]See R v Angelopoulos [2005] VSCA 258 at paragraphs [56] and [66] and R v Mills [1998] 4 VR 235 at 241, Nutter v R (Unreported VSCA, 8 November 1995); Better v R [2003] VSCA 71 at paragraphs [5] and [12]
63In R v Mills,[18] Batt JA referred to three important considerations when sentencing youthful offenders:
“(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s5(4) of the Sentencing Act 1991.)”[19]
[18][1998] 4 VR 235
[19]Ibid, at 241
64These principles are relevant to my task in sentencing you today.
Submissions as to penalty
65Both the learned Prosecutor, Ms Burnett, and your Counsel, Ms Lacy, agree that in all the circumstances of the case, the imposition of a non-custodial disposition is appropriate. With respect, I agree. Both counsel also agreed that a community correction order is within the available sentencing range.
66Ms Burnett noted that you now live in New South Wales and that this would make it difficult to impose a condition requiring you to engage in unpaid community work. Ever-changing COVID-19 restrictions place an additional hurdle. Ms Burnett however submitted that conditions requiring you to attend for counselling and to be under supervision were required.
67Ms Lacy agreed that while it is open to release you on a community correction order, all sentencing purposes to which a community correction order could be directed can equally be achieved by releasing you on an adjourned bond with special conditions addressing the factors to which Ms Burnett referred.
Sentence to be imposed
68In sentencing you, I must consider which punishment is just, whether it will deter you or others from offending in like manner, the need to mark the community’s denunciation and condemnation of your conduct, and the best way to protect the community around you. These things matter, but, because you are relatively young, I must weigh these considerations up against giving you the opportunity to learn from your mistake and lead a law-abiding life, for if you do, not only will you benefit, but so will the broader community. You are still young enough to benefit from rehabilitation.
69As mentioned, it is common ground that a non-custodial disposition is warranted in all the circumstances of your case. The issue is whether I should release you on a community correction order or on an adjourned bond. Both of these dispositions can be made either with or without recording a conviction. Both require you to enter a bond to be of good behaviour for the period of the order. Both provide that if you breach the order you can be recalled to answer for the breach and be resentenced for the charge on the indictment. Both enable the Court to impose special conditions including a requirement that you undergo counselling. The option of a community correction order enables the Court to require you to undergo supervision, while the option of a bond enables the Court to require you to pay a monetary penalty by way of donation to a nominated charity. Both forms of sentence are capable of addressing all relevant sentencing factors, including marking the significance of general and specific deterrence, just punishment, denunciation and condemnation, protection of the community while taking account of all of the factors personal to you, including your relative youth, your exemplary prior good character, your guilty plea, your true remorse, and your excellent prospects for rehabilitation.
70Balancing all relevant considerations, I consider it is appropriate to order that you be released and that the further hearing of this matter be adjourned to 11 July 2023 upon your giving an undertaking with the following conditions attached. Now, I am going to discuss the conditions with counsel but this is what I propose:
(i) That you appear before the Court if called upon to do so during the period of the adjournment;
(ii) That you be of good behaviour during the period of the adjournment; and;
(iii) Upon the further conditions that –
(a)At your own expense you engage a psychologist to provide such treatment and counselling as the psychologist directs.
71Now, I will require the name of the psychologist for this purpose:
(b) At your own expense you instruct the nominated psychologist to provide a report to the Court within 12 months of the date hereof, specifying the treatment and counselling provided and your response to such treatment and counselling;
(c) Within 60 days of the date hereof, you contribute the amount of $3,000 to a charity – that I shall discuss with counsel – and that you provide a receipt to the Court acknowledging such payment.
72I am obliged, as a matter of law, to warn you that if you break the conditions of this undertaking you may be punished for the offence that has been adjourned on your agreeing to enter this undertaking; you may be punished for failing to be of good behaviour; and, in addition to being punished for either of these, you may also be fined.
73Do you understand, Mr Debenham?
74OFFENDER: Yes, Your Honour.
75HER HONOUR: All right. Let me just turn to your solicitor. The name of a psychologist?
76MS EBSWORTH: Yes, Your Honour, Julia Hastie.
77HER HONOUR: Yes, thank you.
78MS EBSWORTH: And I will spell the surname.
79HER HONOUR: Thank you.
80MS EBSWORTH: H-a-s-t-i-e.
81HER HONOUR: Yes, and the address?
82MS EBSWORTH: I do not actually have her - Wickham Clinic, Your Honour,
W-i-c-k-h-a-m Clinic.83HER HONOUR: Yes.
84MS EBSWORTH: Which is 5 Charles Street, Wickham, New South Wales.
85HER HONOUR: Now, so far as the charity is concerned, I will hear from
Ms Burnett as well as from you, Ms Ebsworth. The three that I thought of, but I am not wedded to any of these, Women’s Legal Service Victoria, or the Salvation Army, or Red Cross. Do counsel wish to be heard on which charity?86MS BURNETT: Your Honour, just in terms of the first charity suggested, it would be appropriate given it relates to a women’s legal service, in my submission, but it is really a matter for Your Honour.
87HER HONOUR: Thank you. Ms Ebsworth.
88MS EBSWORTH: I would agree with my learned friend, Your Honour.
89HER HONOUR: Very well. So, now let me clarify the terms of the undertaking. The conditions will be:
(i) That you appear before the Court if called upon to do so during the period of the adjournment;
(ii) That you be of good behaviour during the period of the adjournment; and;
(iii) Upon the further conditions that –
(a)At your own expense you engage psychologist, Julia Hastie, of Wickham Clinic, 5 Charles Street, Wickham, New South Wales, to provide such treatment and counselling as Ms Hastie directs you to address;
(b)At your own expense, you instruct Ms Hastie to provide a report to the Court within 12 months of the date hereof specifying the treatment and counselling provided and your response to such treatment and counselling;
(c)Within 60 days of the date hereof, you contribute the amount of $3,000 to the Women’s Legal Service Victoria, and that you provide a receipt to the Court acknowledging such payment.
90Again, I am obliged, as a matter of law, to warn you that if you breach the conditions of this undertaking you may be punished for the offence that has been adjourned on your agreeing to enter this undertaking. You may be punished for failing to be of good behaviour, and in addition to being punished for either of these, you may also be fined. Mr Debenham, I will ask you again to repeat whether you understand what I have said.
91OFFENDER: Yes, Your Honour.
92HER HONOUR: And do you agree to being bound by the undertaking on the conditions I have just mentioned?
93OFFENDER: Yes, Your Honour.
94HER HONOUR: Thank you.
Should a conviction be recorded?
95The next question is whether a conviction should be recorded. Ms Burnett submits that the gravity of your offending warrants the recording of a conviction. On the other hand, Ms Lacy submits that no conviction should be recorded, taking account the matters set out in s8 of the Sentencing Act 1991. Among the matters I must consider in the exercise of my discretion on this subject are:
(a) the nature of the offence;
(b) your character and past history; and
(c) the impact of the recording of a conviction on your economic or social well-being or on your employment prospects.
96Taking all of these matters into account and noting your commitment to continue to engage in community contribution, a conviction may impede your ability to engage in firefighting or in community fundraising, especially in causes involving children. If I do not record a conviction, that does not mean that your wrongdoing will necessarily be concealed. Depending on the nature of your employment or the activities in which you wish to participate, you may be required to submit to a police check or you may have to disclose the fact that you were charged with sexual assault and released on an adjourned bond.
97In all the circumstances, I agree with Ms Lacy that you should be given the opportunity of avoiding a conviction on this occasion. Accordingly, the disposition will be imposed without conviction. If you breach the terms of your undertaking and you are brought back before me, you should not expect to receive the level of mercy that was exercised today.
98Now, I will attend to the paperwork. Mr Debenham, do you have a machine that will enable you to receive a copy of the bond?
99OFFENDER: Yes, Your Honour.
100HER HONOUR: Well, while my associate is preparing the paperwork, I will turn to the question of the Sex Offenders Registration Act 2004.
Sex Offenders Registration Act 2004
101As Ms Burnett has correctly pointed out, registration under the Sex Offenders Registration Act 2004 is not mandatory. Ms Burnett has indicated that the Prosecution does not make application for an order under the Act.
102With respect, I agree with Ms Burnett and do not propose to make any order requiring you to be registered as a sex offender under the Act.
Statement under s6AAA Sentencing Act
103By virtue of s6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for your plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters to which I have previously referred as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentence I would have imposed is follows: You would have been convicted and sentenced to six months’ imprisonment.
104I direct, pursuant to s6AAA, that the sentence that would have been imposed but for the plea of guilty be noted in the Court’s records.
105Now, while I am waiting for the paperwork to be provided, I note that I have not referred to any of the footnotes or citations in the Reasons for Sentence. These appear in the revised reasons that will be provided to the parties. But do any of you wish for me to read out footnotes at this stage to cite the authorities that are referred to in the printed Reasons for Sentence?
106MS EBSWORTH: No, Your Honour.
107MS BURNETT: No, Your Honour.
108(Order prepared and sent to her Honour).
109HER HONOUR: Yes, you can send the form of the adjourned undertaking to counsel, to Ms Burnett, to Ms Ebsworth and to Mr Debenham. Could everyone please read it. Let me know when you receive it and I will go through the conditions again to make sure that the printed form of the undertaking is in accordance with my order.
110MS EBSWORTH: As Your Honour pleases.
111MS BURNETT: If Your Honour pleases.
112HER HONOUR: Thank you.
113(Order sent to and received by parties).
114HER HONOUR: All right, has everyone received a copy of the undertaking yet? Ms Burnett - - -
115MS EBSWORTH: Yes, Your Honour.
116MS BURNETT: Yes, Your Honour.
117OFFENDER: Yes.
HER HONOUR: - - - Ms Ebsworth, Mr Debenham? Very well. So let us go through it. What I ordered was that you appear before the Court if called upon to do so during the period of the adjournment, the matter being adjourned to
11 July 2023, upon your giving an undertaking with the following conditions: appear before the Court if called upon to do so during the period of the adjournment; be of good behaviour during the period of the adjournment; further conditions, at your own expense, engage Ms Julia Hastie, psychologist, of Wickham Clinic, 5 Charles Street, Wickham, New South Wales to provide such treatment and counselling as Ms Hastie directs should be addressed, at your own expense you instruct Ms Hastie to provide a report to the Court within 12 months of the date hereof specifying the treatment and counselling provided, and your response to such treatment and counselling; within 60 day of the date hereof you contribute the amount of $3,000 to Women’s Legal Service Victoria, and that you provide a receipt to the Court acknowledging such payment. All in order?118MS EBSWORTH: Yes, Your Honour.
119MS BURNETT: Yes, Your Honour.
120HER HONOUR: Mr Debenham, would you please sign the undertaking.
121OFFENDER: Yes, Your Honour.
122(Undertaking signed by the offender and emailed to associate).
123ASSOCIATE: I have received that and will forward it now.
124HER HONOUR: Thank you.
125HER HONOUR: At least we are able to have hearings in the current crisis. Mr Debenham is appearing remotely from New South Wales. I have signed the undertaking. I will just put that back on the scanner and send it to my associate who will distribute it to everyone.
126ASSOCIATE: I have received that.
127HER HONOUR: Thank you. So, please send a copy to Ms Burnett, to
Ms Ebsworth and to Mr Debenham. I note the undertaking does not – I cannot see where it says that it is without conviction but the order in the Court register will record that the undertaking is without conviction.128MS BURNETT: If Your Honour pleases.
129MS EBSWORTH: As Your Honour pleases.
130HER HONOUR: Have you received the undertaking yet?
131MS EBSWORTH: Not yet, Your Honour.
132ASSOCIATE: I think I am the slowest link today, my apologies.
133HER HONOUR: That is all right. Well, the border was shut with New South Wales last night and, as I said, Mr Debenham is appearing from New South Wales and we are doing the best we can to proceed with court cases in these difficult circumstances.
134ASSOCIATE: That should be coming through to the parties now, that is in my sent items.
135HER HONOUR: Does anyone require the undertaking to be redone, recording that it is without conviction, or are you satisfied that the order of the Court says that it is without conviction? Because we can provide you with a copy of the order of the Court as well.
136MS EBSWORTH: Your Honour, I am satisfied that provided the order of the Court indicates that it is without conviction, that should be sufficient in terms of - - -
137HER HONOUR: Thank you, Ms Ebsworth.
138MS EBSWORTH: - - - different authorities to reflect that disposition.
139HER HONOUR: Ms Burnett?
140MS BURNETT: Your Honour, I agree with that, but could we be please sent a copy of the record of order made.
141HER HONOUR: Yes.
142MS BURNETT: Thank you, Your Honour.
143ASSOCIATE: I believe that was in the first - - -
144HER HONOUR: I have it, I am signing it now.
145ASSOCIATE: That will be sent through this afternoon, your Honour.
146HER HONOUR: I will send it right now so everyone can get a copy.
147ASSOCIATE: That will also appear as the final order on the file, which will be sent to parties.
148HER HONOUR: I have sent the record of order – the first page of the order that indicates that it is without conviction. My Associate will no doubt receive that very shortly and send that to you. Is there anything else that the parties require?
149MS EBSWORTH: No, Your Honour.
150MS BURNETT: No, Your Honour.
151HER HONOUR: Ms Ebsworth?
152MS EBSWORTH: No, Your Honour.
153HER HONOUR: Thank you very much, and can I again thank counsel both
Ms Lacy and Ms Burnett for the comprehensive submissions in this matter and the sensitive way in which you have all approached the case. Thank you.154Adjourn the Court.
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