Justin Jowett (a pseudonym)[1] v The Queen
[2017] VSCA 358
•5 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0158
| JUSTIN JOWETT (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Applicant.
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| JUDGES: | SANTAMARIA and COGHLAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 November 2017 |
| DATE OF JUDGMENT: | 5 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 358 |
| JUDGMENT APPEALED FROM: | DPP v Jowett (a Pseudonym) (Unreported, County Court of Victoria, Judge Dyer, 6 July 2017) |
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CRIMINAL LAW – Appeal – Sentence – Two charges of sexual penetration of a child under 16 (under care, supervision or authority) – Offending against step-sister in applicant’s house – 9 months’ imprisonment with 2-year community correction order – Objectively serious offending – Sentencing judge accepted significant mitigating factors – Whether sentence manifestly excessive – Whether judge erred by regarding breach of trust as circumstance of aggravation – Whether judge made factual finding unsupported by agreed facts – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R J de Vietri with Mr M A Reardon | Victoria Legal Aid |
| For the Crown | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA
COGHLAN JA:
On 9 June 2017, the applicant pleaded guilty to two charges of sexual penetration of a child under 16. On 6 July 2017, he was sentenced in the County Court as follows:
Charge Offence Maximum Sentence 1 Sexual penetration of a child under 16 (under care, supervision or authority) [Crimes Act 1958 s 45(1)] 15 years 9 months’ imprisonment and 2-year Community Correction Order (‘CCO’) 2 Sexual penetration of a child under 16 (under care, supervision or authority) [Crimes Act 1958 s 45(1)] 15 years 9 months’ imprisonment and 2-year CCO Total effective sentence: 9 months’ imprisonment and a 2-year CCO with 100 hours of unpaid community work, and drug and alcohol, mental health and offending behaviour assessment and treatment conditions. Pre-sentence detention declaration Nil Section 6AAA Statement 2 years and 6 months’ imprisonment with a non-parole period of 18 months Other relevant orders · Forensic sample order pursuant to s 464ZF of the Crimes Act 1958
· Reporting for 15 years pursuant to the Sex Offenders Registration Act 2004
The applicant now seeks leave to appeal his sentence.
Proposed grounds of appeal
The applicant has proposed the following four grounds of appeal:
Ground 1
The total effective sentence is manifestly excessive having regard to:
The unplanned and out of character nature of the offending.
The applicant’s early plea of guilty.
The applicant’s genuine remorse.
The applicant’s previous good character.
The applicant’s good prospects of rehabilitation.
The finding that as a result of mental impairment the applicant’s moral culpability was diminished, the weight to be given specific and general deterrence was reduced and imprisonment would be more burdensome and likely damage the applicant’s mental health.
The finding of exceptional hardship in relation to the applicant’s daughter.
The acceptance by the learned sentencing Judge that the applicant’s concern for his daughter would add to the burden of imprisonment.
Ground 2
The learned sentencing Judge erred in treating the breach of trust as an aggravating factor.
Ground 3
The learned sentencing judge erred in his assessment of need for specific deterrence.
Ground 4
The learned sentencing Judge erred in finding the applicant encouraged the victim to enter the spa bath.
By notice filed on 2 November 2017, the applicant abandoned the third proposed ground and amended his written case with respect to the second proposed ground.
The offending
The applicant was 33 years of age at the time of the offending.
The complainant is the natural daughter of the applicant’s step-father. She was identified as the applicant’s step-sister. At the time of the offending, she was 15 years and 10 months’ old.
On the evening of 7 September 2016, the complainant was staying at applicant’s home. She had been placed in the applicant’s care by her parents. She had just arrived in Victoria from Coffs Harbour in New South Wales that day but, as things turned out, she received news of the death of her grandmother and had to travel back to Coffs Harbour for the funeral.
When the complainant was at the house, she and the applicant began playing pool. The applicant offered her alcohol and encouraged her to drink some. The complainant had a ‘vodka mudshake’. The applicant ran a bubble bath in the spa. The applicant was first to enter, followed later by the complainant. He was wearing board shorts. She was wearing bathers.
The applicant commenced physical contact by giving the complainant a foot massage. He then placed his hand on the complainant’s knee and said that he was giving the complainant a leg massage. He then moved his hand up her leg and eventually placed his fingers and, later, his penis into the complainant’s vagina.
The applicant and complainant then got out of the spa and went to the applicant’s bedroom where he again inserted his penis into the complainant’s vagina.
The next day, they both went to Coffs Harbour for the funeral of the complainant’s grandmother.
The complainant told her mother about the foot massage on 10 September 2016. On 30 September 2016, she told her mother about the sexual matters.
On 7 October 2016, a pretext telephone call was made to the applicant. He made admissions to having had sex with the complainant. He said that it was not planned and that he knew it was wrong.
The applicant was interviewed by police on 11 November 2016. He told the police that he had picked up the complainant from the airport on the day that her grandmother had died. He told the police that he and the complainant had entered the spa and he had given her a foot massage and that she had taken her top off. He said that he had been very inebriated. He added that he thought that they had had sex. He knew that she was his step-sister and under his care. He said that she had leant over to kiss him and he had been under a lot of stress and booze. He said that he thought that the complainant had taken advantage of him.
A victim impact statement prepared by the complainant’s mother was tendered on the plea. It is fair to say that these matters had a dramatic detrimental effect upon the complainant.
There are no redeeming features about the circumstances of the offending.
The applicant had no prior convictions.
Proposed ground 1 — manifest excess
The particulars of this ground set out a number of the matters put on the plea which were accepted by the judge as being in mitigation. The matters personal to the applicant were powerful — in particular, his psychiatric condition and the exceptional circumstances in relation to his daughter. It was argued that, based on that material and the judge’s findings, the judge could and should have imposed a non-custodial sentence.
In his sentencing remarks, the judge accepted that the applicant was remorseful for his offending and took into account his early pleas of guilty. He dealt with the applicant’s mental condition at some length. He referred to two psychological reports which had been tendered on the applicant’s behalf. These reports evidenced the applicant’s serious psychological dysfunction, including suicide attempts and episodes of psychosis, and said:
I am prepared to accept that your moral culpability for your current offending has been diminished to some degree as a consequence of this psychiatric condition. In those circumstances the denunciation of your offending is less likely to be a relevant sentencing objective … Absent the impact of your acknowledged psychiatric condition on your offending, I would ordinarily have thought that an immediate and lengthy custodial sentence would have been the only just punishment that could be imposed upon you.
The concepts of general deterrence and specific deterrence are also impacted in my assessment, by your diagnosed psychiatric condition at the time of your offending …[2]
[2]DPP v Jowett (a Pseudonym) (Unreported, County Court of Victoria, Judge Dyer, 6 July 2017) (‘Reasons’) [14]–[16].
The judge adverted to the seriousness of the offences committed by the applicant, being, as they were, offences committed on a child under the age of 16. He referred to the positive character references tendered on his behalf, of which there were several, but also the fact that the applicant had been assessed by Corrections Victoria as being a medium risk of re-offending.
Dealing with counsel’s submissions about the deleterious effects that gaol might have on the applicant’s mental health, the judge considered:
I accept that these principles are relevant for my consideration, although they are not ultimately determinative of any particular sentencing outcome to the exclusion of a term of imprisonment.[3]
[3]Reasons [18].
The judge also found that the impact of the applicant’s incarceration on the applicant’s 11-year-old autistic daughter was a relevant factor in mitigation. He referred to authorities on hardship and concluded that the circumstances were ‘properly described as exceptional.’[4]
[4]Reasons [23].
It was accepted by the respondent, both on the plea and in this application, that the matters in mitigation were significant.
On the application, the respondent submitted that for the applicant to succeed on this ground, he would have to show that the sentence was wholly outside the range of sentencing options. It was submitted that, in the circumstances, were it not for the very powerful plea material, a much longer period of imprisonment with a non-parole period would have been appropriate.
Without resiling from the position that a wholly non-custodial sentence should have been imposed, the applicant accepted that, in the absence of the mitigating material, a significantly higher sentence could have been imposed.
The judge did have proper regard to the matters put and it cannot be said that the sentence was wholly outside the range. We would not grant leave on this ground.
Proposed ground 2 — breach of trust as aggravation
The written case on this proposed ground was amended to submit that, since the circumstance of the complainant being under the ‘care, supervision or authority’ of the applicant was a circumstance of aggravation that increased the maximum penalty from 10 years to 15 years,[5] it was not open to the judge to treat the applicant’s breach of trust as a separate aggravating circumstance. The judge had expressed his concern about the breach of trust when he said at the plea hearing:
But it seems to me the person that is being overlooked at this stage is the victim of this offending, and I’ve read the victim impact statement from her mother, so I regard this as a case involving a significant breach of trust …
[5]Crimes Act 1958 s 45(2)(b).
Counsel for the applicant on the plea did not seek to dissuade the judge from that proposition.
It was submitted that, in this case, there was no proper distinction between the breach of trust and the complainant being under the care, supervision or authority of the applicant.
The question is whether the aggravating circumstance of ‘care, supervision or authority’ is coextensive with breach of trust. It is not necessarily so.[6] The circumstances leading up to the offending were that the complainant had come from Coffs Harbour to stay with the applicant in Victoria because her grandmother was very ill. It appears that the complainant was to stay with the applicant as a result of an arrangement with her parents in order to give the complainant a break. Unfortunately, news of her grandmother’s death reached them on the day that the complainant arrived in Melbourne.
[6]R v Bradey [2009] VSCA 169 (Coghlan AJA with whom Redlich JA agreed).
The respondent submitted that there was a proper basis for treating the offending conduct as a breach of trust, and we accept that this was so. The trust which the complainant’s parents placed in the applicant was also important. The applicant, in his letter of apology to the parents, apologised for the breach of the trust of both the complainant and her mother.[7]
[7]Reasons [9].
The judge was entitled to regard the breach of trust as an aggravating feature, and we would not grant leave on this ground. Even if he was in error, we would not have imposed a different sentence.
Proposed ground 4 – error in the judge’s finding that the applicant encouraged the victim to enter the spa bath
The applicant contended that the judge’s remark that the applicant ‘encouraged [the complainant] to drink alcohol and join [him] in a bubble bath’ was not supported by the agreed facts. The relevant passage from the sentencing remarks is as follows:
The circumstances of your victim being placed in your care surrounded the impending death of your victim’s grandmother interstate and the obvious stresses caused to both her and her immediate family. In the course of her staying at your house you encouraged her to drink alcohol and join you in a bubble bath …
In the amended summary of prosecution opening, which formed the agreed facts at sentence, it was said:
[The applicant] and the complainant were playing pool and he offered and encouraged the complainant to drink alcohol which she did. The complainant had a ‘vodka mudshake’. He then ran a bubble bath. He got into the bath with his board shorts on and a few minutes later the complainant also got in with her bathers on.
We are not convinced that is it an unreasonable summary of that passage to say that ‘you encouraged her to drink alcohol and join you in a bubble bath.’ The applicant did run the bath and enter it. He took the initiative in relation to it. Given that it was common ground that the applicant did instigate the physical contact, whether or not he ‘encouraged’ the complainant to enter the bath is hardly to the point. It might rhetorically be asked: why did the applicant start the bubble bath at all if he did not intend the complainant to enter it?
Even if there is any possibility that the judge was in error, it was not an error of the kind which could have led to the imposition of a different sentence. This ground is entirely without merit.
We would not grant leave on this proposed ground.
For the above reasons, the application for leave to appeal should be refused.
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