Psaila v Johnson
[2025] VCC 606
•13 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-1673
| JARROD PSAILA | Appellant |
| v | |
| DETECTIVE LEADING SENIOR CONSTABLE REBECCA JOHNSON | Respondent |
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JUDGE: | Dempsey | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2025 | |
DATE OF SENTENCE: | 13 May 2025 | |
CASE MAY BE CITED AS: | Psaila v Johnson | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 606 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – conviction and sentence appeal
Catchwords: Sexual assault of young co-worker. Grabbing genitals over clothing twice, but in context of many uncharged acts of similar nature. Relatively youthful offender. Plea of not guilty. Serious victim impact. Continued denials. Degree of delay. Extra curial punishment.
Legislation Cited: Crimes Act1958, Sentencing Act1991, Sex Offenders Registration Act 2004, Criminal Procedure Act 2008
Cases Cited:DPP v Gorgulu [2023] VSCA 140; R v Verdins (2007) 16 VR 269; Tones v The Queen [2017] VSCA 118; DPP v Fucile (2013) 229 A Crim R 427; The Queen v Talia [2009] VSCA 260; Rezai v The Queen [2020] VSCA 106; DPP v Tennison [2020] VCC 343; DPP v Ramirez [2016] VCC 1972; DPP v Ikiz [2019] VCC 2146; Gibbling v Page [2024] VMC 10; Boulton v The Queen [2014] 342; Wakim v The Queen [2016] VSCA 301; R v Kenney [2000] NSWCCA 527; R v Gent (2005) 162 A Crim R 29
Sentence: Convicted and sentenced to combination sentence of 4 months imprisonment followed by 18-month CCO with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Alex Patton | SLKQ Lawyers |
| For the Respondent | Jessica MacKay | OPP |
HIS HONOUR:
OVERVIEW
1The appellant/accused Jarrod Psaila and his victim (A) met in mid-2021, when the latter started working at a pizza shop. A was 15 years old at the time they met.
2The accused was 24. He had been working at the pizza shop for about 10 years and was in charge of the dough-making area of the shop. The complainant/victim worked in the same part of the shop, and the two subsequently became friends.
3The matter proceeded before me as a re-hearing[1] on 5 and 6 August 2024, returning on 21 August 2024. Submissions were made on the evidence and the applicable law on the latter date. The matter was adjourned to 26 November 2024 for determination. I announced my decision to the parties on 26 November 2024. I found the accused guilty of two charges of sexual assault (11 and 13) under s.40 of the Crimes Act1958, at a time when A had turned 16. These sentencing remarks are intended to be read in conjunction with my reasons provided when deciding the conviction aspect of the appeal. [2] In summary, I found that;
(a) Charge 11 – On a date in February 2022, (the complainant’s birthday), the appellant invited the complainant to his home address to collect a birthday card. When the complainant arrived, the appellant gave the complainant a hug, and then sexually assaulted him by grabbing and squeezing his genitals, over his clothes.
(b) Charge 13 – On a date between 1 February and 30 April 2022, the appellant agreed to shout the complainant lunch. They got KFC and took it to the appellant’s house to eat. After lunch, they played video games in the appellant’s bedroom. They began to wrestle, at which point the appellant pulled the complainant on top of him, on his bed, and then sexually assaulted him by grabbing and squeezing his genitals, over his clothes.
[1]Section.256 Criminal Procedure Act 2009 (CPA).
[2]Section 254 CPA. He was sentenced to 18 months with a non-parole period in the Court below. For completeness I note that given the obligation to warn an appellant, as early as possible during the hearing that he faces the possibility of a more severe sentence being imposed, I thought it prudent to issue that warning under ss(3) at the commencement of the appeal.
4The accused now stands to be sentenced for those acts, each of which have a maximum penalty of 10 years. The available penalty is capped at a maximum of 2 years for any single offence or a maximum aggregate of 4 years because of the jurisdictional limit of the Magistrates’ Court and this Court on appeal. [3]
[3]s112A(1) Sentencing Act1991.
5I was genuinely assisted in this exercise by Counsel’s submissions.
6The accused’s Counsel has submitted that the appropriate disposition is one of a Community Correction Order, comprising both treatment and punitive conditions.[4]
[4]Exhibit A: Submissions on Sentence dated 26 February 2025.
7The respondent submits that a term of imprisonment combined with a CCO is warranted, given the importance of both general and specific deterrence, punishment and denunciation.[5]
[5]Exhibit 1: Brief Outline of Submissions dated 4 March 2025.
8For reasons that follow, I am going to sentence you to 4 months imprisonment, followed by an 18-month Community Corrections order (CCO) with conditions.
9These reasons are designed to make it clear to those who have an obvious interest in the case how that sentence is arrived at.
CIRCUMSTANCES OF THE OFFENDING
10I have already dealt with the offending in detail when considering the conviction aspect of the appeal. I will focus on pertinent aspects of the offending here.
11I think it important to state from the outset, I do not sentence the appellant on the basis that he was involved in workplace pranking and joking that simply went a bit far, or that this is a case where his inappropriate but innocent conduct has somehow been misinterpreted by an unduly or unreasonably sensitive young victim. Nothing about his conduct is accidental or has been taken out of context.
12I sentence him on the basis that on two occasions, he deliberately touched the victim sexually and without lawful excuse. Contextually speaking, these events were not isolated, rather they were part of a pattern of behaviour often repeated of a similar nature. They also occur in the context him asking the 16-year-old victim for a picture of the latter’s penis.
13On 9 June 2022 A sent the accused this Snapchat message, which is a graphic description of what had unfolded.
alright jarrod imma be straight up with you, your a really good mate of mine and i like you a lot but out friendship is just getting too far and i’m feelings way to uncomfortable in it, from touching my dick every work shift , to sending me pissing videos and getting your dick in the frame every couple of seconds, the one time you fingered my ass hole at work when [R] was watching like wtf , that time you asked me for a dick pic to prove that your really my best mate , to those photos of you taking a shit , to talking about dick size every second conversation , i cant do it anymore man so it’s either you change the way you act in this friendship or we both move on becuase it’s to far , idk why you’d still touch my dick every shift if i give you nothing back , every time you do it i call you a fag aswell like cmon jarrod im fucken 16 years old and your 25.
Victim impact
14This offending has had a seismic effect on the victim and his family.
15The complainant, his mother and his sister have each provided a victim impact statement (VIS). They were read in open Court. They speak to the physical, psychological and emotional impacts of the appellant’s offences.
16A says that the offences made him feel hopeless, scared, frustrated and angry, while the offender “was making out that it was all just a joke.”[6] When the appellant touched him, A would feel sick in the stomach; lose his appetite; and occasionally, he struggled to get to sleep. He wanted the appellant to stop, but could not talk about it to anyone.
[6]Exhibit 2: Victim Impact Statement of A.
17A also describes the feelings associated with having to give evidence in court:
I feel like my life has been a nightmare. My cross-examination affected me emotionally and physically. Knowing I would have to face the court again, I found it difficult to sleep, hard to concentrate, I became withdrawn again, and couldn’t control my anger.
18Much of his enjoyment of life has been eroded by this conduct. His behaviour and outlook were changed very much for the worse. The victim’s mother, L and sister R confirm that the offences caused the victim serious anger issues. He threatened to take his own life.
19His mother says that, when the appellant offended against A, “…he became withdrawn, angry and unrecognisable to us.[7] The change in him was sudden and extreme.” She also says that “[T]he stress, anxiety and pain my family has had to endure has at times been unbearable”.
[7]Exhibit 3: Victim Impact Statement of L.
20His mother feels guilty for what happened to her son. She ought not. The accused is to blame here, not her.
21The family are resilient and close, but the offending means that they all require professional support in dealing with a changed and damaged A and the aftermath of the offending.
22R is still somewhat in shock.[8] She describes in heartbreaking terms her brother's torment and decline. She says he is working hard to reclaim his life, but fears he will never be the same happy kid he once was.
[8]Exhibit 4: Victim Impact Statement of R.
23In short, the victim impact has been catastrophic and far-reaching. The offending has caused an enormous amount of suffering that still endures years after it was committed.
24The offending all but shattered the victim and his family. This inevitable and serious harm caused by the accused will be reflected in the sentence I impose, as the law requires it to be.
Gravity and culpability
25The appellant’s Counsel submitted that this is not a particularly grave example of offending of this kind. He says that the offending conduct was fleeting in nature, involved only touching of the complainant over clothing, and was not accompanied by other forms of violence or threat.
26The Crown says the following matters in response:
The offending involved an abuse of power and breach of trust
27At the time of offending:
(a) There was a significant difference in age between the 25 year old appellant and the 16 year old complainant. Mr. Patton accepts that this is a factor that aggravates the offending to some degree.
(b) The appellant had worked at the pizza shop for about 11 years; he held a managerial or supervisory role, of sorts, working in the same part of the shop as the complainant, and was responsible for teaching the complainant what to do. Mr Patton agrees that the employment relationship is also a feature that aggravates the offending to a degree
(c) Further, the appellant and complainant were friends. I am wary of treating this last matter of a breach of trust, given what the Court of Appeal said recently in Gorgulu.[9]
[9][2023] VSCA 140.
28During the contested aspect of the appeal, the complainant gave evidence that the appellant exploited their friendship due to his age and size. In particular, on one occasion after the appellant had touched the complainant’s genitals at work, the complainant said that he would ask their boss to check the security cameras, and the appellant responded by saying that the cameras did not reach into that part of the shop, so “I can do whatever I want to you.”
29The power imbalance discouraged the complainant from reporting the appellant’s behaviour. The respondent seeks to emphasise the Court’s finding,
…in the VARE, and in re-examination, the complainant gave compelling evidence about why he did not tell anyone that the appellant had grabbed and squeezed his genitals as soon as it happened. It was hard to tell anyone. He was embarrassed. He didn’t think anyone would believe him, especially after the appellant told him that none of the security cameras captured the dough making area at work.
30It was not put against the accused that the offending was committed by use of force or threats, but it didn’t need to be. Other social and interpersonal dynamics allowed the offender to offend.
31In so far as it was said that this was not offending within the workplace, that is true, though I am not sure that this is of much moment. The offending occurs in the appellant’s home after he invited the victim, who he worked with, there. The many contextual, uncharged acts occur in the workplace.
Each proven offence involved the appellant touching the complainant’s genitals
32Each offence involved the appellant touching a clearly intimate part of the complainant’s body. Despite Mr Patton’s submissions, I do not find that the touching is best categorised by the descriptor ‘fleeting’.
33The touching occurred in private, and it was committed under the pretence of some other innocuous activity:
(a) Charge 11 involved the appellant grabbing and squeezing the complainant’s penis and testicles over his clothes for a few seconds, on the pretence of giving the complainant a hug, to wish him a happy 16th birthday.
(b) Charge 13 involved an “ongoing squeeze” of the complainant’s genitals, over his clothes; on the pretence of wrestling with the complainant; in circumstances where the appellant had pulled the complainant on top of him, and the complainant could not push the appellant away.
34I do not consider the fact that the touching was outside of the victim’s clothes to be determinative of what the penalty ought to be. It is but one factor to consider, and though it might be thought to be more grave to make direct contact with another’s genitals under the clothing, the absence of that fact here doesn’t mean the offending isn’t serious. Other factors inform its seriousness, as should be evident by the topics I am dealing with now.
The offending was not isolated
35The two offences were committed in the context of the appellant repeatedly grabbing A’s genitals. During the appeal hearing, the complainant gave evidence that the appellant touched him inappropriately for months, and he could not really recall a work shift when it did not happen. The complainant estimated that the appellant grabbed his genitals 50 or more times at work, and on more than one occasion in the appellant’s car, when he was driving the complainant home from work.
36There was time for Mr Psaila to reflect and desist from this behaviour. He did not. And the repetition of this offending from February to April of 2022 accentuates its gravity; it adds to the overall harm to the victim.
The appellant has high moral culpability
37The respondent submits that the appellant’s moral culpability for the offending is high, having regard to the following matters:
(a) The appellant was well aware that his conduct was unwelcome and wrong. In particular, the respondent relies on the following findings of the Court:
(i)“At one of the early stages” when the when the appellant touched the complainant’s genitals at work (uncharged act) – the complainant told the appellant that he was going to get their boss, to check the security cameras inside the shop – making it clear to the appellant that the touching was not welcome.
(ii)Most of the time, when the appellant touched the complainant’s genitals (uncharged conduct), the complainant would either step back or push the appellant’s hand away.
(b) The offences were motivated by a sexual interest in the complainant and a willingness to act on that interest. In particular, the Court has found that:
(i)The appellant showed a serious interest in the complainant’s penis.
(ii)The area of the body touched (specifically the genitals), the way it was touched, the sheer number of times it was touched, over a relatively confined period of time, the way in which the accused spoke about it and the request for the complainant to send him pictures of his penis compel a conclusion that a sexual interest existed and what is more, that the accused was prepared to act on that interest under the guise of other activity.
Analysis
38It is hard to resist the conclusion that this is anything other than serious offending, for which the accused bears a high degree of moral blameworthiness. It involves an exploitation of power; it is not isolated and involved sexual touching of an extremely intimate part of a young victim’s body. The consequences of that touching are profound.
MATTERS PERSONALTO THE APPELLANT[10]
[10]Exhibit B: Fakhri Report dated 15 January 2025; Exhibit C: Addendum report dated 12 February 2025.
Family
39Mr Psaila is aged 28, and was 25 at the time of the offending. He is one of four boys to his parents’ marriage. He was raised primarily in regional Victoria, living in the family home until 2024.
40He enjoyed a largely normal upbringing, though he experienced domestic violence committed by his father against his mother. Their marriage ended when Mr Psaila was aged 18.
Education and employment
41Mr. Psaila completed secondary education to Year 12 in regional Victoria. From his early teenage years, he engaged in part-time and casual work to financially support his mother.
42At the age of 14, he commenced work at the pizza shop, routinely working other jobs around this. Save for a period of unemployment following being charged with these offences, Mr. Psaila has maintained full-time (or more) employment from the age of 18.
43He was also employed as a field umpire with the Ballarat Football League between 2017 and 2022. That ceased once charged, as could no longer have a Working With Children Card (WWCC).
Criminal History
44Mr. Psaila falls to be sentenced with no criminal antecedents. He has no pending, nor subsequent matters.
45The Crown agree the appellant has no prior criminal history, and has advanced evidence of prior good character which goes beyond an absence of criminal antecedents.
46I received evidence in form of references testifying to the appellant’s character:[11]
(a) Anthony Fiteni;
(b) Christine Hardie;
(c) Christopher Psaila;
(d) Kerry Lorraine;
(e) Peter Humphries; (who gave evidence at the conviction appeal)
(f) Tony Fakhoury;
(g) Wayne McLean.
[11]Exhibit D: Bundle of Character References.
47The authors of those letters describe the appellant as someone who is otherwise kind decent, and industrious, who has suffered emotionally and financially because of what he did.
Psychological Matters and Substance Abuse
48I was provided with two reports from Ms Rebecca Fakhri, psychologist.[12] That two reports were required is explained by the way in which the appellant still protested his innocence in the first. The second report was needed to clarify the apparent minimisation and denials in the first.
[12]Exhibit B: Report by Rebecca Fakhri dated 15 January 2025.
49Mr. Psaila has a history of comprised mental health, its genesis identified as workplace bullying that occurred in 2021 at the local shire council.
50Ms Fakhri reports:
During the period of offending, Mr Psaila described his mental health to be poor, given he was working excessive hours. He was working three jobs, including at [pizza shop], Moorabool Shire Council and umpiring on the weekends. He stated that his mind was often elsewhere, and he was so focused on work that he failed to “be in the present”. He was being bullied by his managers at Moorabool Shire Council at the time, which caused him anxious symptoms including nervousness and worry, as well as lack of motivation.
51It is hard to discern what role these events played in the present offending.
52He was prescribed medication to address these issues, and continued this until late 2024, despite no formal diagnosis being made. Unsurprisingly, Mr. Psaila’s mental health ‘dipped’ following charges being filed in respect of this matter.
53I was told that the treatment he has received was ‘less than necessary’.
54Despite the presence of anxious and depressive symptoms at the time of the offending and at sentence, it is not submitted that the principles in Verdins[13] are enlivened.
[13]R v Verdins (2007) 16 VR 269.
55Mr. Psaila drinks on an infrequent basis and does not use recreational drugs. This is a factor in his favour.
Present Circumstances
56Mr. Psaila has remained on bail since being charged, residing in his own home in regional Victoria. He has been wholly compliant with his bail conditions. This has meant that he has been unable to travel to visit his mother (who resides in Queensland), particularly over the Christmas/New Year period when he had planned to do so.
57He has resumed full-time work after experiencing difficulties obtaining employment due to the charges. He is employed by a garden/horticultural maintenance company, engaged to work on council parks, reserves and streetscapes. He presently works 6 days per week.
58He has experienced significant social ostracism and isolation following his conviction, with friends choosing to distance themselves from him. He has likewise been unable to maintain any connection to his football umpiring community and sporting clubs in which he was previously involved.
59He has, nonetheless, maintained connections with predominantly older friends and associates. He was supported at Court during the hearing by his mother and a number of friends and relatives who remain supportive of him, as I indicated above when dealing with his character.
60That he still has family and friends to draw on is informative and again speaks to his prospects.
MATTERS OF SENTENCING PRINCIPLE
Sexual offences
61Sexual assault is a serious matter. The law recognises that sexual offences are crimes of violence that cause appalling, and often irreparable, psychological and physical harm to the victims.
62Just punishment, public denunciation and general deterrence are of considerable significance when sentencing for offences that involve the sexual exploitation of children. The community regards such offences as extremely serious, and sentences serve to reinforce the standards which society expects its members to observe. General deterrence is particularly important because of the prevalence of sexual offences against children and the young, and the often catastrophic effects of those offences on the victims.
63The respondent submits that specific deterrence also has work to do, in circumstances where the appellant’s insight into the offending is still developing, and he continues to describe the offending conduct as “joking” and “normal” in the football community. The respondent accepts that rehabilitation is a relevant sentencing purpose. However, there is still an overriding need for the sentence to reflect the gravity of what it is that the offender has done.
Delay
64Mr Patton said that there has been a considerable delay in the resolution of the matter. As is apparent from the psychological report before the Court, this delay has had an adverse impact on Mr. Psaila’s mental health, in addition to his social circumstances.
65While a ‘systemic’ delay rather than one arising from the conduct of either party, the effect of this delay warrants moderation of sentence to recognise the stress and anxiety experienced while awaiting the decision on charges. This delay is not attributable to Mr Psaila in any way, and he is entitled to the full benefit of moderation.[14]
[14]Tones v The Queen [2017] VSCA 118, at [36]
66The respondent accepts that a significant delay between the police interviewing and charging an offender, and/or in the finalisation of a proceeding, may operate as a mitigating factor on sentence, if evidence is advanced on behalf of the offender, establishing that:
(a) The delay has caused unfairness to the offender, in the sense that they have suffered anxiety arising from having the charge hanging over them; and/or
(b) During the period of delay, the offender has made significant progress towards their own rehabilitation.29
67Ms Mackay says that there is no undue delay, and what is more
(a) The Court could not be satisfied on the evidence advanced for the appellant that the time it has taken for these proceedings to finalise has caused the accused particular anxiety. On 18 December 2024, the appellant reported feeling anxiety, stress and worry arising from these proceedings, in particular, being on the Sex Offenders Register.30 However, diagnostic testing of the appellant returned “non-minimal” symptoms of mental illness, including anxiety.31
(b) Although there is evidence that the appellant he has continued to seek and maintain employment, and it appears he continues to enjoy the support of some friends and family – these factors would not warrant any reduction in sentence beyond what would already be taken into account in the assessment of his prospects of rehabilitation.
68I am inclined to treat the effluxion of time since the offending and the anxiety accompanying that duration as operating in a way to reduce the penalty I impose, and also as a way in which I can gauge his prospects, given he has not re-offended in 3 years.
Remorse
69It was put on the appellant’s behalf that he exhibits remorse for his conduct,[15] and acknowledged the impact of it upon the victim. This is a vexed issue
[15]Exhibit A: Submissions on Sentence dated 26 February 2025 at [16].
70The reports of Ms Fakhri, psychologist, make clear that:
(a) The appellant continues to maintain his innocence.
(b) The appellant continues to deny that he grabbed or squeezed the complainant’s genitals. In particular, the respondent notes that:
(i)On 18 December 2024, when the appellant was first assessed by Ms Fakhri, psychologist, the appellant told her that the offences involved:
…Mr Psaila ‘tapping’ the victim’s genitals (on the outside of his clothing) ‘as a joke’. He stated that this was typical in the football environment and that he and his former teammates would ‘hit each others’ buttocks and genitals, as a way of ‘joking’.
(ii)On 12 February 2025, when Ms Fakhri assessed the appellant again, he maintained that the offending was “sack tapping”, being “gentle tapping of the genital area”, which he believes was misconstrued by the victim.
(c) The appellant continues to deny that there was any sexual intention behind his actions, noting that:
(i)On 18 December 2024, the appellant told Ms Fahkri that, “[w]hilst he is not denying that he engaged in the alleged behaviours, he is denying that his intentions behind his actions were sexual.”
(ii)On 12 February 2025, the appellant reiterated that the intent behind his behaviour was non-sexual, and rather a learned experience from his time spent as part of the football team. He characterised such sexual behaviour as “normal” within that context.
71In light of these matters, the respondent submits that the Court would not be satisfied that the appellant has demonstrated remorse for the offending. I agree. Whilst he expresses a degree of empathy for the victims sufferings, he does not appear to fully grasp that he is the cause of it in a criminal sense.
Punishment
72Mr. Psaila has experienced significant social consequences of his offending. In addition to losing his long-term employment and connection to sporting clubs, Mr. Psaila has been subject of torment and abuse from members of his local community. As a consequence, Mr. Psaila intends moving from the area.
73An issue arose as to whether or not this was in fact extra curial punishment that warranted consideration, or was it simply the inevitable consequence of his offending.
74It has been indicated that the charges which he has now been convicted of have come to the attention of members of the community, and as a result Mr Psaila has been isolated from the supports and network he once enjoyed. He can no longer work in a position that would require him to have a WWCC. This is impact has not been overlooked.
75An offender’s loss of reputation may be a form of punishment. However, it is unclear whether opprobrium as a result of conviction may be considered by the court in sentencing. There is a tension between the recognition of the additional loss that conviction will visit upon an offender, against the fact that, unlike many who come before the courts, the offender occupied a position of privilege or power during the term of their offending.
76There are only a few instances where this has been held to be relevant:
(a) if serious and/or significantly damaging publicity arising from a proceeding generated hardship to the offender;
(b) where an offender loses their career as the result of being convicted for criminal offending.[16] However, any mitigation may be less arguable if the offender used their career to commit the offending. Conversely, where the offending conduct is remote from the employment, the incidental loss of career may be mitigating. [17]
[16]DPP v Fucile (2013) 229 A Crim R 427, 445 [112].
[17]The Queen v Talia [2009] VSCA 260 [10,27]
77I am inclined to treat the societal and vocational consequences that flowed from the appellant’s own actions as a form of punishment for the offending that commenced before the sentencing process began. It is also relevant to the question of specific deterrence. Having said that, it does not stand as a substitute for the punishment the Court is to impose, nor can it be said to further the sentencing purpose of denunciation. I have calibrated the term of imprisonment, the duration of the CCO (which is itself punitive) and the express punitive aspect of the CCO (namely, community work) to satisfy this consideration fully.
Denunciation
78Public denunciation is a fundamental purpose of sentencing. It requires a sentence to communicate, through its type or duration, society’s condemnation and disapproval of the conduct; it is a collective statement that the offender’s conduct should be punished for encroaching on society’s basic values as embodied in the criminal law. Public denunciation of the offending conduct and reinforcement of society’s expectations are a central purpose of sentencing. It ‘serves to reinforce the standards which society expects its members to observe’. That is very much the case here.
Youthfulness
79While no longer a ‘youthful’ offender at the date of sentence, Mr. Psaila is a relatively young and somewhat naïve man. The offending and surrounding behaviour are opined to arise from his ‘misconceived humour’[18] – attributable to a degree of immaturity on his part. Immaturity may explain some, but not all, of his actions.
[18]Exhibit B: Report by Rebecca Fakhri dated 15 January 2025, paragraph 116.
Prospects and specific deterrence
80I need not repeat the lingering question on this issue that arises because of the appellant’s lack of real remorse or insight (though the latter may be a work in progress).
81He has lost his reputation, friends and two sources of employment and fulfilment. It is hard to imagine someone who has lost more as a result of their own actions. I find that he is largely specifically deterred from engaging in offences like this again.
82Mr. Psaila is assessed as a low risk of future sexual offending. Further, his personal history and circumstances are such that he should be found to have very good (if not better) prospects of rehabilitation, particularly in light of his willingness to engage in therapeutic treatment.
83In addition to an absence of prior convictions, there exists a substantial body of evidence highlighting Mr. Psaila’s prior good character. He has a history of community contribution through his involvement in football umpiring, and he has demonstrated an ability (and willingness) to obtain and maintain employment from an early age.
Community protection
84The community can be protected either by removing Mr Psaila from its number for a period of time or promoting his reform, which is, of course, the most durable and long-lasting protection the community has. Sometimes the application of the principle requires both strategies to be employed.
85I have found the appellant’s prospects to be good, and there is a decreased need for community protection to be reflected in the sentence. That does not mean imprisonment isn’t warranted.
Comparable cases
86While each case must, of course, be assessed on its own facts and circumstances, other sentencing cases may be of assistance in guiding the Court where such cases bear similar features or where such cases deal with relevant sentencing provisions.
87To that end, I was taken to the following cases:
(a) Rezai v The Queen;[19]
(b) DPP v Tennison;[20]
(c) Ramirez;[21]
(d) DPP v Ikiz;[22]
(e) Gibbling v Page.[23]
[19][2020] VSCA 106.
[20][2020] VCC 343.
[21][2016] VCC 1972.
[22][2019] VCC 2146.
[23][2024] VMC 10.
88The cases were dealt with in the Court of Appeal, this Court and the Magistrates’ Court between 2016 and 2024. Sentences imposed ranged from a 4-year CCO in the case of Gibbling, to 9 months imprisonment with a 2-year CCO in Rezai.
89Without descending to granular detail in the comparison process, it seems to me that the above cases confirm that it is within range to impose a combination sentence or straight CCO. Generally speaking, higher sentences were reserved for prolonged touching of the genitals or touching under the clothes. The many and varied subjective circumstances of offenders resulted in lower sentences, but one cannot underestimate the way in which a plea of guilty mitigated sentences in all of the above cases where the offender took that course (which was 4 out of the 5 cases). This offender does not get any such benefit.
90I have approached the use of other cases with caution. They are certainly informative and instructive, but I do not consider that they set the outer limits for the exercise of my sentencing discretion.
Totality
91I am mindful of the significance in this case of the application of the principles that require me, when sentencing for multiple offences, to ensure the total term I impose is just and appropriate, according to the measure of the total criminality involved.
Parsimony
92The sentence imposed must not be more severe than is necessary to achieve the purpose or purposes for which it is imposed. I am well aware of the fact that any term of imprisonment is a disposition of last resort.
DISPOSITION CONTENDED FOR
The appellant
93It is submitted that the appropriate disposition is one of a Community Correction Order (CCO), comprising both punitive and treatment conditions.
94As set out in the report of Ms. Fahkri, Mr. Psaila would benefit from engaging in treatment that addresses both the offending behaviour, as well as broader treatment for his mental health.
95Mr. Psaila’s mental health is such that there exists the likelihood that a term of imprisonment will have a detrimental impact on him, through his exposure to negative peers in custody, the social and vocational consequences, and the exacerbation of his anxiety and depression.[24] This is a question of fact and degree. The sentence I have imposed is of a duration such that I do not expect there to be unduly long exposure to the undesirable elements of prison. It will inevitably have consequences for his wellbeing and future, but that is unavoidable, given what he has been convicted of. I have attempted to mitigate the impact of imprisonment by imposing a comparatively short sentence, followed by a lengthy period of supervision, community work and treatment.
[24]Exhibit B: Report by Rebecca Fakhri dated 15 January 2025, [120-121].
96Offending of this kind warrants a sentence that gives due regard to both specific and general deterrence. Mr Patton contends that the punitive aspect of the sentence that would be applied to manifest the need for general deterrence, just punishment and denunciation can be achieved through the imposition of a non-custodial disposition.[25] The imposition of a CCO is, of itself, punitive[26] and the addition of significant community work hours makes it more so.
[25]Boulton v The Queen [2014] 342 at [124]; and Appendix 1 cl.14-19.
[26]Ibid at [138].
97The imposition of offence specific treatment and broader mental health treatment will necessitate an Order of considerable length. This would only serve to bolster the punitive nature of a CCO should it be imposed.
98The extent of the extra curial consequences of his offending goes some way to addressing the need for specific deterrence, such as to warrant moderation of sentence in this regard.
The respondent
99The respondent submits that a term of imprisonment combined with a CCO is warranted, given the importance of both general and specific deterrence, punishment and denunciation.
100Ms Mackay says specific deterrence still has a role to play, and what is more the considerations I have just repeated ought not be sidelined or obscured – especially denunciation and punishment simply because this is so.
101The respondent also submits that the weight which might ordinarily be given to the factors in mitigation, in combination, ought to be moderated to a degree, given that the offender has been found guilty of two offences, which did not occur in isolation, rather, they were committed in the context of repeated inappropriate touching of the complainant. [27]
[27]Wakim v The Queen [2016] VSCA 301 [41]-[42]; R v Kenney [2000] NSWCCA 527 [21]-[22], quoted in Gent (2005) 162 A Crim R 29, 41 [52].
CCO assessment
102I had the offender assessed for a CCO with tailored conditions. The potential shape of those conditions was informed by Counsel’s submissions. I have had regard to the CCO assessment report[28] and the accompanying MHARS report.[29]
[28]Exhibit E: Community Corrections Order Assessment Report dated 12 May 2025.
[29]Exhibit F: Mental Health Advice and Response Service Assessment Report dated 12 May 2025.
103He was willing to abide by any conditions of a CCO. He was found to be suitable.
104Regrettably, the CCO report says
When discussing the offending Mr Psaila was forthcoming with information, Mr Psaila stated that his actions towards the victim were not with any sexual intent, he did acknowledge that his actions were inappropriate, and he should not have made the victim feel in anyway fearful or uncomfortable. Mr Psaila stated that he was remorseful for any emotional impact his actions have had on the victim and his family. Mr Psailas's insight will be further explored during the condition of supervision.
105Due to the nature of the offences, an offence-specific program is endorsed. Mr Psaila will be assessed for program eligibility through the Forensic Intervention Service (FIS), and an Order duration of at least 18 months is respectfully recommended to ensure the facilitation and completion of a course should he be deemed eligible.[30]
[30]Should the Court impose an Order duration of less than 18 months, an external referral can be made however course completion within this time frame cannot be confirmed.
106The MHARS remarks are worth repeating:
For all those reasons, MHARS agrees with and defers to her [the CCO assessor] recommendations for the following conditions of the Community Corrections Order:
“… should include the condition to participate in a community-based sex offender program (Low Intensity) to address his pattern of offending and any potential cognitive distortions, which could also be undertaken with a treating psychologist who has expertise in providing offence-specific interventions…
… it should include the condition for Mr Psaila to engage in mental health treatment. He would benefit from a referral from his General Practitioner (GP), for individual sessions with a psychologist under a Mental Health Treatment Plan.
…It is highly recommended that Mr Psaila engage with a Forensic Psychologist that is experienced in the treatment of sex offenders, as he requires offence-specific intervention to address any identified criminogenic risk factors.”
SENTENCE
107Having considered the matter, and carefully weighed the various sentencing principles (many of which one can see pull in very different directions), I have concluded that a combination sentence is the only way that all objectives can be fairly and justly achieved.
Combination sentence
108Providing he consents, I will convict and sentence him to a term of imprisonment of 4 months, followed by an 18-month CCO. [31]
[31]Section 44 Sentencing Act 1991, see also s.40.
109Every community corrections order, including this one, contains core conditions – they are:
(a) He must not commit another offence punishable by imprisonment during the period of the order.
(b) He must comply with any obligation or requirement prescribed by the regulation.
(c) He must report to, or receive visits from, the Secretary during the period of the order.
(d) He must report to Ballarat Community Correction Services within two working days of the commencement of the order.
(e) He must notify the Secretary of any change of address or employment within two working days after the change.
(f) He must not leave Victoria except with the permission from the Secretary and he must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that he complies with the order.
110The conditions that apply in addition to those mandatory ones are helpfully informed and guided by the specific recommendations of the CCO and MAHRS assessors:
(a) he will be the subject of supervision by the Office of Correction;[32]
(b) he will complete 90 hours of unpaid community work over the duration of that order. [33]
(c) he undergo mental health treatment [34]
(d) he undergo offence specific treatment [35]
(e) In order to encourage him I propose to order 30 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
[32]s.48E of the Sentencing Act 1991.
[33]s.48C of the Sentencing Act 1991. See also s.48CA of the Sentencing Act 1991.
[34]s.48D(3)(e)(e) of the Sentencing Act 1991.
[35]s.48D(3)(e)(f) of the Sentencing Act 1991.
111If he were to breach the order in any way, either by committing another offence or by not complying with any of the core conditions or the special conditions, he could be charged with breaching the order. The offence of breaching a CCO carries a maximum penalty of three months' imprisonment. So if he was to breach the order he would come back to court to be sentenced by me for that breach, and also to be re-sentenced before the court for the offences he has just been sentenced for.
112I can only make that order with consent.
Ancillary matters
113There is no pre-sentence detention referable to this matter.
114By virtue of his conviction on these charges, Mr. Psaila will become a registerable offender.[36] The mandatory reporting period is 15 years.[37]
[36]Sex Offender Registration Act 2004, s6 and Schedule 2.
[37]Ibid., s34
115Where the victim is a child (that is under 18), a sexual assault offence against s40 of the Crimes Act 1958 (Vic) is a Class 2 offence, for the purposes of the Sex Offenders Registration Act 2004 (Vic) (SORA). As the appellant has been found guilty of two Class 2 offences, he is to report to Victoria Police for 15 years, pursuant to s34(1)(b)(ii)
116Under section 5(2BC) of the Sentencing Act 1991 (Vic), in sentencing an offender, the Court must not have regard to any consequences that may arise from SORA from the imposition of the sentence and I have not had regard to that fact here.
117I will make notations on the orders to reflect that he is a first-time prisoner, and has been sentenced for sexual offences. I will include the MAHRS report and ask that he be seen by a clinician upon reception into custody.
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