R v Walsh
[2020] VCC 394
•6 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-19-02174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARED WALSH |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 February 2020 (Mention) 13 March 2020 (Plea) |
| DATE OF SENTENCE: | 6 April 2020 |
| CASE MAY BE CITED AS: | R v Walsh |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 394 |
REASONS FOR SENTENCE
---CRIMINAL LAW – SENTENCE – Guilty Plea – Young offender – Sexual assault – Lower level of assault – Spontaneous offending – No premeditation – No prior convictions – Immaturity of the offender – Lower level intellectual capacity – No prior convictions – Delay – Community interest in rehabilitating young offenders – Crimes Act 1958 – Sentencing Act 1991 – R v Mills (1998) 4 VR 235 considered – 18 month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Mario Vaccaro |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses
HIS HONOUR:
1Mr Walsh, you have pleaded guilty to one count of sexual assault[1], maximum penalty 10 years' imprisonment. The circumstances of the offending emerged in the course of the trial of your co-offender[2] but you are also being sentenced on the basis of a prosecution opening. Essentially the offending involved you and a co-offender, Mr Netherwood who went to trial, where you and the complainant in this matter, had been in some form of relationship. You had been with her the previous night and perhaps a few weeks beforehand. You and your co-offender went around to her house in Wodonga at the invitation of a friend of hers who was already there.
[1] Contrary to s.40 of the Crimes Act 1958 (Vic)
[2]R v Netherwood [2020] VCC 415
2When you were there, the explanation for your visit was that you went around there for a smoke. When you arrived, the two of you and the other girl who was there, went out the back and had a cigarette. Mr Netherwood went back into the house where the complainant was and what ensued when he was back inside was the subject of another trial where that he was acquitted of the relevant charges[3], but you stayed outside. Later on you, Mr Netherwood and the other girl were all in the loungeroom. You and Mr Netherwood were on the couch with the complainant in the middle between the two of you, the other girl was on a mattress in front of the couch playing with the complainant's young baby.
[3] Ibid
3The complainant was 23 at the time. You were just over 19. Mr Netherwood was about the same age as you. Mr Netherwood was carrying on with the complainant and at one stage you held her arm down while he then proceeded to put his hand down her pants and touched her vagina. So, you were charged jointly with Mr Netherwood in assaulting the girl. That was the offending. She conceded that the actual touching was, in a cross-examination, might have been for just a period of 4 or 5 seconds. Thereafter she sort of struggled and stood up. Then Mr Netherwood dacked her, or ripped her pants down, she pulled them up and then another gentleman arrived. There was some dispute as to whether she was dacked again before the two of you left. The victim then proceeded to complain to the girl that was also in the house and then to a number of other people.
4Subsequently, you were charged. You claimed that nothing had happened and you were jointly charged with rape with Mr Netherwood. After various negotiations you settled the matter to a plea of guilty to sexual assault and the matter then proceeded to a plea in the Wodonga circuits in February.
Assessing the seriousness of the offending
5This offending was a short duration of offending. It must be seen as spontaneous in the sense that there was no planning. You and Mr Netherwood were just on the couch for that short time. It was conceded by Ms Noise[4] who was there at the time that there was some carrying on and effectively chiaking but even in those circumstances, girls, woman are entitled to not be sexually assaulted and you were involved with Mr Netherwood in that sexual assault of her and you have pleaded guilty to that. So, in terms of the scope of the span of sexual assaults, it is on the lower level of assault, as far as your participation is concerned.
[4] A pseudonym
Sentencing Factors
6You are a first offender. No prior convictions are alleged against you. I am required to take into account your youth.[5] I am also required to take into account the delay that has occurred between when the offending occurred and now and so you have not been in any further trouble.
[5]R v Mills (1998) 4 VR 235
7I also take into account your personal circumstances which are set out in the submission that was filed on your behalf by your counsel at the plea. I incorporate it by reference.[6] You are now 21. You are going to turn 22 in July which is not far away. You are living with your parents in a little town near Wodonga. You are one of six children and you are working in a pizza shop. I am also looking at a psychological report which indicates that you had difficulties at school and therefore you left school early.[7]
[6] Exhibit 1A.
[7] Exhibit 2A – Report of Ms Crutchfield.
8Importantly in the psychological report, it indicates that you really are quite a submissive sort of personality. You know, you have not got any aggression, which is a very good thing. The assessor indicates that you have got your psychological problems. You are suffering from depression and you really do need assistance to sort of get fully into the workforce and advance your life chances. The report also indicates that you really need to have things explained to you in a detailed manner so that it gets through and you can act on it.
9So, what she says in the report is consistent with the offending in that you were slow to understand what was going on in the loungeroom when this event occurred. Now, in dealing with you, I have also got to take into account the impact of your offending on the complainant, she has compiled a victim impact statement saying that she has been effected by this assault on her.[8] She feels anxious and feels dead inside and she cannot go out with friends because she might run into you up there in Wodonga and it has affected her friendships. She feels frustrated and asks, 'Why did you have to do this?'.
[8] Exhibit B.
10She said, 'I thought we were becoming friends and I feel you took advantage of that'. She had to go through the process of a medical examination. I feel she cannot move on with her life. So, her offending has had an impact on her that I have got to take into account in sentencing you. I cannot put her back to the position she was in but I acknowledge this offending has had an impact. So, you have got to understand that.
11Now, in sentencing you I have got to resolve a lot of competing matters, general deterrence, specific deterrence, protection of the community and your rehabilitation. But given your age, the focus has got to be on your rehabilitation particularly given your lack of prior convictions, your effective immaturity and the fact that you are on the lower level of intellectual functioning in the population.
Sentence
12So, for those reasons I have acceded to the submission by your counsel that I should place you on a Community Corrections Order which is an order that puts you under supervision by the Office of Corrections like a good behaviour bond for 18 months. You are not to commit another offence. If you do that, you will breach the order and I will make a special trip up to Wodonga to deal with you. It also requires you to obey any lawful directions of the Office of Corrections which would include going, if necessary on any offender programs and also undertaking a mental health plan through a GP if necessary. So, that is just to keep you under a short leash for the period of 18 months which for person of your age is probably quite a long time.
13I am also going to order that you undertake 125 hours of community work and any mental health assessment that they direct you to. So, they are the terms of the order. Mr Kozlowski may have explained it to you. The person from the Office of Corrections who is up there and I thank him for his assistance in these circumstances, he will explain it to you. So, the terms of the order are for 18 months. Do you understand that?
14You have got to receive any visits from the Office of Corrections. You have got to report to them within two days, you can report to them today. The office is there. You are not allowed to leave Victoria without informing them. You are required to inform them if you change your address and to undertake 125 hours of community work as well as undergo any mental health plans that they might refer you to. So, I have had this prepared and it will be emailed up to Wodonga. The Registrar will show it to you and you can sign it, then it will be sent back to me and I will sign it. At that point you will be free to go from the Court and go straight to the Office of Corrections or ring them up.
15So, I do not want to see you again, Mr Walsh but I want to make sure that the legal system does not see you again either. So, I am giving you this one opportunity because of your youth, because of the shortness of this offending and the lack of premeditation, notwithstanding the impact that it has had on the victim in this matter.
16I will just show the order to counsel in case there is any issue they wish to raise and then we will send it up to Wodonga and that will be the end of it.
17Are there any matters, Mr O'Doherty?
18MR O'DOHERTY: No, Your Honour.
19HIS HONOUR: All right, thank you for your assistance in this matter,
Mr O'Doherty and Mr Kozlowski.20MR KOZLOWSKI: Thank you, Your Honour.
21HIS HONOUR: I will now stand down for a short time before we proceed to the next matter.
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