Sentence: Convicted and sentenced to a Community Corrections order of 3 years duration with conditions of Supervision, Treatment and Rehabilitation (drug and mental health) and Programs to address re-offending - s.6AAA Sentencing Act1991 declaration
[2]
Ray Frank (a pseudonym), you have pleaded guilty to one charge of sexual assault, which has a maximum penalty of 10 years' imprisonment.
In sentencing you, I must have regard to the maximum penalty, as this reflects the seriousness with which the offence is regarded by Parliament.
I sentence you on the following basis:
You were 48 years old at the time of the offending, and the complainant, Stella Wilkinson (a pseudonym), was 43 years old. At the time of the offending, the complainant and you had known each other for about a year, having met through a mutual female friend. In the period since you met, you would often attend the complainant's house to help her with renovations. You and the complainant would hang out, and you would sleep on the complainant's couch.
You and the complainant had never been in a sexual relationship, and she had told you previously that she was not interested in pursuing such a relationship with you.
On Saturday, 28 October 2023, the complainant had not slept in about two days and had been consuming ice and cannabis daily. On this particular day, you and the complainant had a telephone conversation, during which the complainant told you that you could come over to her house if you wished to.
Upon arriving at the complainant's house at about 11 pm, you and the complainant went to the garage for about an hour, where you chatted and smoked. You then went inside her premises and sat on the couch, continuing to talk. I understand that, as at that time, you were a daily consumer of methamphetamine.
You then offered to give the complainant a massage. The complainant accepted your offer and lay face-down on the loungeroom floor. You were sitting on her thighs whilst massaging her neck and shoulders.
The complainant fell asleep and woke up to you touching her vagina under her underwear. In response, the complainant froze and tried to zone out from what you were doing. The complainant eventually moved away from you. You then lay down next to her and tried to cuddle her. However, she rolled away from you.
After about half an hour the complainant got up and went into her bedroom. You remained on the floor. The complainant had a shower, and when she came out, you were asleep on the loungeroom couch. The complainant had a few smokes and then went to her bedroom. You stayed at the complainant's house until about 7 am the next morning, being 29 October 2023.
The complainant tried to stay away from you while you were still at her house. Over the next few days, the complainant tried to call you several times, but you did not answer.
At 7.55pm on Thursday, 2 November 2023, the complainant spoke to you and recorded part of the telephone conversation. During the conversation, the complainant asked you, 'Why did you think you had the right to touch me while I was asleep?' You replied, 'I touched you and you kind of wiggled and yeah.' Subsequently you said, 'I'm sorry', and 'A thousand times I am sorry.'
On 6 November 2023, police became involved in the matter after a report to them. You attended the Frankston Police Station on 6 March 2024 at a prearranged time.
When you attended, you were arrested. Subsequently you took part in a record of interview, during which you said the following things:
That you had known the complainant for about eight months and used to go to her house a couple of nights per week to help her with renovations as you are a tiler by trade.
That you had never been in an intimate relationship with the complainant, and you were just friends. You said you would always sleep on the couch, and the complainant would sleep in her bedroom.
That you often gave the complainant a massage and sometimes she fell asleep during this.
You denied touching the complainant's vagina.
That you were shocked by the allegations and believed that these may have arisen as you owed the complainant money and had also threatened to report her to DFFH.
You identified the complainant's voice and your own voice on the audio recording. You said that when you touched the complainant, it was on her shoulder, to see if she was awake, and that you were apologising to the complainant in the event that you had woken her up.
It seems to me that in fact, Mr Frank, you lied to the police about the nature of the touching in which you engaged, which is evident upon your plea of guilty, notwithstanding your account that this was a pragmatic approach that you took.
Your offending is serious and calls for a punishment which is just in all the relevant circumstances. Your conduct must be denounced. As was conceded by you, the offending involved a breach of trust of a friendship which had built up over time. The victim was in a vulnerable position, being sleep-deprived, and was entitled to feel safe in her own home, especially from a friend.
Further, you showed some persistence in trying to cuddle the victim after the offending. You knew very well that the victim did not wish to engage in a sexual relationship with you. However, you went ahead with the offending anyway.
The duration of the offending is difficult to know, because the victim was not conscious for a time. As submitted by the prosecution, self-induced intoxication is not a mitigatory matter.
In sentencing you, I have taken into account the victim impact statement in this matter. The impact upon the victim has been significant. She said she had commenced speaking about the offending at counselling sessions, and she could only put the effect of the offending into the words set out in her victim impact statement.
She said it had taken her until she was in her forties to finally become comfortable with her sexuality, after being sexually abused by a close relative for over two years when she was a child. She had always felt dirty after sex, and confused about it, having feelings associated with her experience of child abuse. She thought she had finally worked through issues associated with sexual intimacy. However, your offending had brought these negative feelings back.
She said that after your offending she felt unsafe, uncomfortable, and disgusted in herself, and again confused about sexual intimacy. She began using drugs to help her with sexual intimacy. However, she no longer trusted people and struggled to allow new people into her life for fear that they would not want her or her baggage. She had to again put a lot of time and effort into reminding herself that it was okay to allow this with new people she met, without feelings of self-loathing.
She said her social life had changed, as she no longer had trust that people had good intentions. She said she had become paranoid and sceptical in respect of other people's behaviours and did not really trust those around her. She is now unable to let her guard down and had begun pushing people away for fear that they would also abuse the trust she might place in them.
Mr Frank, these are the very real effects that your offending has had upon the victim in this matter.
In sentencing you, I take into account your criminal history.
In 2014, you were convicted and fined an aggregate of $1,000 in respect of two charges of contravening a family violence intervention order. In 2015, you were dealt with for contravening an interim family violence intervention order, as well as a final intervention order, and using a carriage service to harass. You were convicted and fined a total of $1,500. I understand that the victim in relation to each of these prior matters is Ms Emma Hemsley (a pseudonym), with whom you had a relationship for 17 years. I shall refer to this aspect in more detail a little later on.
In June 2016, you were convicted of contravening a family violence intervention order and unlawful assault in relation to your then partner, who I understand her name is Ella Bright (a pseudonym). You were required to undertake a 12-month community correction order with various conditions, including 150 hours' unpaid community work, supervision, assessment and treatment, including testing for drug and alcohol abuse, mental health assessment and treatment as directed, offending behaviour programs as directed, and judicial monitoring. It is apparent that you successfully completed this community corrections order.
On 2 November 2018, you were convicted of burglary, stalking, criminal damage, unlawful assault, persistent contravention of a family violence no-contact order, and 27 charges of contravening a conduct condition of bail, as well as one charge of committing an indictable offence whilst on bail. You were sentenced to an aggregate term of 52 days' imprisonment, with that period declared as already served, and you were also required to undertake a 12-month community correction order with fairly similar conditions as the previous community correction order imposed. Again, the victim in relation to these matters was Ella Bright. You completed this community correction order to which I have just referred without incident
In July 2022, you were convicted in relation to possessing methylamphetamine, possessing a schedule 4 poison, possessing cannabis, drive whilst suspended, and committing an indictable offence whilst on bail. You were convicted and fined an aggregate of $750 in relation to this offending.
Whilst it is true that you have no prior convictions for sexual assaults, you have several in respect of breaching family violence intervention orders and some offences of violence in relation to Ms Bright, which is of a significant concern. I have also factored in that your last criminal offending was dealt with in 2022, and that your last offending in relation to domestic family violence was in 2018, so that was some time before the offending for which I now sentence you.
I take into account your background. You are an indigenous man through your mother's side. Your mother was part of the Stolen Generation. Sadly, she was orphaned when she was only two and placed into care. You are the youngest of four children, and you have a different father to your siblings. You have had very little to do with your father throughout your life.
You and your siblings were raised by your mother. You attended a state primary school until Grade 5. You had a good deal of difficulty in paying attention in school, and you were placed in a special assistance group in Grade 6 at a different primary school to the first that you attended. You were assigned a teacher's aide to help you. You went on to attend a technical school on the Mornington Peninsula. However, you left halfway through Year 8. You struggled with behaviour, apparently suffering from dyslexia and lacking the capacity to pay attention throughout your schooling. You often got into trouble, and you were suspended on a number of occasions. You have a limited ability to read and write.
Shortly after leaving school, you commenced a wall and floor tiling apprenticeship, which you successfully completed, so you are a qualified wall and floor tiler.
Your home life was good, and you left home when you were 17 to move into a share house. You met Emma Hemsley when you were in your early twenties, and together you had a child when you were 28 years old.
When your child was about 10 years old, you and Ms Hemsley separated. According to your counsel's written submissions from the sentence indication hearing, the split was acrimonious and led to the breach of the family violence intervention order charges to which I have previously referred. I was told that the nature of the breaches related to phone messages and Facebook posts concerning your son.
You re-partnered with Ella Bright, and you were with her for a few years. Your relationship broke down, and your behaviour in relation to this relationship led to the charges which saw you being placed in custody for the first and only time in your life. The burglary charge related to you taking the dog from inside the house, before returning it the next day. The persistent contravention offending related to messages that you sent. I was not provided with details of the other charges involving violence against Ms Bright.
I was told that you found prison very difficult, and that when you were released from jail, you had lost your housing, your job, and most of your possessions. You had to start again. Notwithstanding these challenges, you have a consistent work history in your trade. During COVID years, you were employed by a hardware store.
You commenced cannabis use before you left school, at the age of about 13. You began using this recreationally. As an adult, you started to use speed, primarily to help you with work. When your child was young, you attended a number of detoxes, which you found useful for a while. You commenced ice use in your thirties, and you have had periods of using ice intensively. After your release from custody, your cannabis use declined.
As part of a community correction order, you attended drug and alcohol counselling. I was told that you have previously completed the men's behaviour change program, and apparently, you found that helpful, although it is a great pity that you did not learn more from it of an enduring nature.
As at the time of the sentence indication hearing, I was told that you had not been diagnosed with any mental health conditions, but you had periods where you had felt overwhelmed and unable to work or cope. You told your counsel that a number of years ago, you were referred to a psychiatrist by your GP, and you saw the psychiatrist for one session.
You have felt significant stress in the lead-up to these court proceedings, and I was told that you had sought a mental health care plan from your GP, and indeed, I understand that you have sought one currently, but the follow-up has been a difficulty for financial reasons.
Your mother told you that you were Aboriginal when you were about 28 years old. You are part of the Murray Tribe. I was told you had a period of connection with the local men's group in Frankston and wished to learn more about your culture and people. However, you have not actively pursued this in the past year due to stress related to the court case.
I was told by your counsel at the sentence indication hearing that you had known the complainant for about six months, and that she was dealing you drugs. I was not sure as to the relevance of this aspect, other than to perhaps put your relationship with her into a more complete context.
However, I make it very clear that no matter what the victim's occupation was, it has no bearing on my assessment of the seriousness of the offending, as she is just as deserving of protection from sexual assault as anyone else, and the impact upon her of your offending is no less because of this aspect.
I was told that at the time of the offending, you were homeless, living in your car or couch-surfing. You had lost your driver's licence. At the time of the last hearing, you were still couch-surfing, living with a friend, and I understand that this is currently the situation. You have been receiving Centrelink benefits, and once these proceedings are completed, I was told you intended to obtain your driver's license again and return to tiling. I was updated today that in fact, you have obtained your driver's license, which ought help you in securing employment.
You are extremely proud of your son, who is now 22, and who is a qualified carpenter. Your son is aware of the current matter.
You are supported by an ex-partner, Ms Hemsley, who has attended court again today in support of you. She wrote a reference and previously attended court in support of you. In that character reference, she indicates that you had 'remained on good terms' and co-parented your son.
I understand that there was acrimony in relation to your relationship earlier on. However, it is apparent that this has well and truly abated. She spoke of your kindness, quietness, and hardworking nature; that you were a devoted father who had always maintained a close and supportive relationship with your son. She spoke well of your devotion as a father, and that you had successfully run your own tiling business over the years and had more recently worked as a subcontractor, taking on work wherever you could.
She spoke of the stress that the allegations had placed on you, and your inability to afford stable housing. She spoke of you being a constant support in her life, in helping her to cope with the trauma of her own abuse, and said you had always shown compassion, understanding, and sensitivity. She did not seek to excuse or minimise the matter before the Court, but to provide the Court with an account of the person that she knew.
I have also received a report from a Richie Riddell (a pseudonym), who is a self-employed plumber and had worked with you on multiple occasions on building sites. He said that you had always shown honest and trustworthy characteristics and had shown yourself to be a person of high integrity. He said you had always been polite and genuine as a friend, during work and outside of it.
I have also considered the character reference from Olive Banks (a pseudonym), who spoke of you in similar terms to Ms Hemsley.
In respect of the objective gravity of the offending, your counsel submitted that it ought be considered low end, in view of the offending being a brief, one-off, isolated event; that it allegedly occurred in the context of regular non-sexual massages in the same scenario as the one in which the offending occurred. She spoke of you and the complainant being allegedly intoxicated by ice and cannabis, and that the offending stopped when the complainant moved away from you, indicating that she was awake and/or not consenting. Your counsel indicated that the offending was not aggravated in any way by threats or coercion by you, or by prolonging the incident or the use of weapons.
As the learned prosecutor indicated, it is unclear as to how long the incident endured, because the complainant was asleep during the course of some of it. However, it does not appear that it endured for a lengthy period, in circumstances where it appears that your touching of the complainant awoke her.
It is immaterial that the offending occurred in the context of regular non-sexual massages. Indeed, the offending could be seen as being more serious because of this aspect. I have factored in that you stopped the offending when the complainant moved away, although you did try to cuddle her after this, which was certainly not desirable, at least from her point of view. I do factor in that there were not aggravating features that one sometimes sees in relation to offending of this kind. However, these do not transpose into mitigatory ones.
In all, I regard the offending as fairly serious, but certainly not the most serious example of this kind of offence that one sees in this Court.
In sentencing you, I take into account the stage at which you entered a plea of guilty in relation to the offence before me. The complainant was cross-examined at a committal hearing, and the central issue was whether the offending actually occurred. It was not a situation where you were always willing to plead guilty to the offence for which I now sentence you. However, at the time of the committal hearing, you were facing a more serious charge. After the committal hearing occurred, the matter progressed to a sentence indication hearing in this court on the basis of a lesser charge, and that sentence indication was accepted by you.
In all of the relevant circumstances, I allow for a fairly substantial discount in the sentence you would otherwise receive, because you have saved the witnesses, especially the complainant, the time and trouble of giving evidence at trial, and you have saved the community the time and expense of a trial.
By your plea of guilty to the offence before me, you admit that you did engage in the conduct complained of, albeit a sexual assault rather than the more serious charge, such that the submission that you are remorseful needs to be seen in that light.
It was previously put to me that you had demonstrated insight and remorse. However, I have considered what you have said in the extended community corrections order report, which gives me a good deal of concern, as you told the author that the offending did not occur, but your decision to plead guilty was a pragmatic one. You said that the complainant had subsequently apologised to you, but said she needed to make a victims of crime claim to pay off her house. You also said that you believed that the victim might have made up the allegation as you had recently threatened to contact DFFH in relation to her smoking ice in front of her daughter. The aspect of the DFFH threat was something that you also told police in your record of interview.
However, as against this, you told Mr Candlish that the complainant had 'a good body' and that on the occasion in question, you were of the view that the complainant was sexually interested in you; that you had massaged her near her bottom region and probably touched her where you should not have. You also told him that you did not know what had come over you. You told Mr Candlish that you pleaded guilty because it was the complainant's word against yours.
In all of the relevant circumstances, I am unable to find that you have any remorse for the offence and that you do not have much in the way of insight into the seriousness of it.
I note that you told the author of the community corrections report that in two previous instances, you pleaded guilty despite the particular complainant involved making up the allegations. It seems to me that you may well be in denial, Mr Frank, when it comes to your offending on occasion, including the present one.
Your counsel submitted that the case formulation of Mr Candlish was significant in relation to assessing the gravity of the offending. Verdins was not relied upon. However, your counsel submitted that the detailed assessment performed by Mr Candlish gave the offending and your state of mind full context. She submitted that you did not have a predatory intent to sexually offend, and that the offending was highly opportunistic and occurred in circumstances where you did not have regard or empathy for the victim. She said that you were aware that the offending was wrong. However, clearly you gave little thought to it over the brief time that it endured.
I accept that your offending was in the nature of being highly opportunistic. Clearly, you placed your needs to engage in the offending above those of the victim.
Mr Candlish said that you were feeling suicidal when you were first charged and had a history of dysfunctional coping by way of substance abuse, and that in the context of a reduced access to your usual forms of coping, which involved the use of substances, your capacity to cope might be undermined. He said there was some risk of suicidal ideation and deterioration in your mood in the event of prolonged imprisonment.
I accept that your low mood and the risk of suicidal ideation would make any time in prison weigh more heavily on you than a person without these burdens. I accept that there is some risk of deterioration of your mental health. However, your counsel conceded that the evidence would not suffice to enliven Verdins limb 6.
I take into account Mr Candlish's risk assessment of you, whereby he found that you fell into the low-risk category for sexual offending.
Your counsel referred to a number of recommendations made by Mr Candlish which could be addressed by a community correction order.
After referring to remarks made by Priest JA in DPP v Reynolds (a pseudonym)[2022] VSCA 263 [4], effectively, your counsel submitted that a community corrections order would be appropriate in your case as it would assist in your rehabilitation and thereby offer greater protection to the public at large, rather than a sentence which involved a term of imprisonment to reflect retribution. She submitted that the offending for which I now sentence you appears to be an aberration, particularly given your low-risk categorisation, and that you were a 50-year-old man with strong prospects of rehabilitation. She submitted that the Court now had the full picture as to your psychological profile, and that now being informed in relation to your mental health, risk of sexual recidivism, and prospects of rehabilitation, these were all significant matters in mitigation. She said that rather than having a sexual deviancy, your offending appears to be born of your substance use and personality difficulties, both of which could be addressed through a community corrections order.
Ms Mildenhall, who gave a most able plea on your behalf, told me that you were abstaining from drugs nowadays, which was something that Mr Candlish appeared to be satisfied of in his assessment of you. I have now been provided with a drug screen, which shows an absence of methamphetamine, which is to your credit. It also shows the presence of cannabis. I have been told that, in fact, you have had some slips over the past 12 months with taking methamphetamine on occasion. However, overall, you have abstained.
In further submissions, I was informed that you were trying to reduce your intake of cannabis. I was also told you are now attending Narcotics Anonymous and had recently sought counselling through the Frankston and Mornington Drug and Alcohol Service. Each of these matters has been confirmed by letters from or on behalf of the relevant organisation.
I was also told that you had renewed your mental health care plan, and as I have said, you were trying to access a service in your local area. Today I was told, as I say, that you have obtained your driver's license, which should stand you in good stead with obtaining employment in the future.
In all of the relevant circumstances, I find that your prospects of rehabilitation are fairly positive, but you have a good deal of work to do with developing appropriate insight, in my view. However, you have taken responsibility for your actions, and it is to be hoped that you continue to work on your mental health and substance abuse issues.
I place strong weight on general deterrence in a bid to deter others from offending as you have. I place fairly moderate weight on specific deterrence and protection of the community. I do so having had regard to what was said by the prosecution and on the basis, having considered also the extended community corrections report.
I have also had regard to current sentencing practice, noting that this is but one consideration and not a controlling one.
Your counsel submitted that due to the principle of parsimony, and in all the relevant circumstances, the purposes of sentencing could be satisfied through an appropriately tailored and lengthy community corrections order, referring to comparable cases which placed such an approach within the range.
The prosecution submitted that a combination sentence which involved a prison term was the only appropriate sentence in your case, submitting that the present offending was at least a mid-level example of sexual assault. I have also considered the further submissions provided by the prosecution ahead of today's proceedings.
I had previously indicated that the maximum sentence that I would impose was a term of imprisonment and a community corrections order. So that was the maximum that I would impose.
I have considered the contents of the extended assessment report, in which you were found to be unsuitable for a community corrections order, and whilst I understand some of the remarks made by Ms Nikolich and her concerns, in my view, a community corrections order would be beneficial to you, and therefore to the community.
The question is whether all relevant sentencing considerations could be properly addressed by imposing a community corrections order alone. In my view, they can, and in view of your progress since the offending, it would be a retrograde step to send you to gaol. I see little utility in doing so.
However, make no mistake, if you breach this order in any way, I will have little hesitation in imposing a gaol term. Do you understand that, Mr Frank?
ACCUSED: Yes, I do, Your Honour.
HER HONOUR: Very well. Stand up please, sir.
You are convicted of the offence. I intend to place you on a community corrections order, but I can only do this with your consent, so please listen carefully to the order that I propose.
The community corrections order would run for a period of 3 years. The conditions of the community corrections order would be as follows. Firstly, the mandatory terms that apply to all community corrections order, which are: firstly, you must not commit another offence for which you could be imprisoned during the time that the order is in force.
Also, you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. In effect, these prohibit the use of or possession of alcohol or drugs of addiction whilst attending the community corrections centre or for unpaid community work, and also involve a requirement that you cooperate with community corrections in having your photo taken for the records kept by community corrections. Also, no alcohol is to be consumed at least 8 hours before attending a community corrections centre or a location for unpaid community work, and I am sure that the same applies with drugs.
You must report to, and receive visits from, the Secretary to the Department of Justice, or his or her delegate. You must report to the Frankston Community Corrections Centre before 4 pm within two clear working days of today. You must let a community corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice, or his or her delegate. You must obey all lawful instructions from and directions of the Secretary to the Department of Justice, or his or her delegate.
Now, the conditions that apply in addition to the mandatory terms listed are, firstly, you must undergo 100 hours unpaid community work within 3 years. Up to 75 hours of this condition may be satisfied by the successful completion of the equivalent period of time of all or any of the treatment and rehabilitation conditions of this order.
Further, you must be under the supervision of a community corrections officer for a period of 3 years.
Also, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
Further, you must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if necessary, as directed by the Regional Manager.
Further, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager. In that regard, I really want you to open up your mind and start thinking about what you did on this occasion.
Now, do you consent to the terms and conditions of the order?
ACCUSED: Yes, I do, Your Honour.
HER HONOUR: I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me. You will be sentenced in relation to the breach, and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
Do you understand this? Do you maintain your consent to the order?
ACCUSED: Yes, Your Honour.
HER HONOUR: Do you need a cup of water there?
ACCUSED: (Indistinct.)
HER HONOUR: All right. So having said you understand this, do you maintain your consent to the order?
ACCUSED: Yes, I do.
HER HONOUR: Very well. In relation to the charge, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out. If you take a seat, I will ask your counsel to approach the dock and help you with the signing of that order.
I will just indicate, if not for your plea of guilty, I would have sentenced you to 3 years' imprisonment with a non-parole period of 18 months.
Very well. Thanks, Mr Frank. I hope I never see you again. Get on with your life, all right?
ACCUSED: Thank you.
HER HONOUR: And I hope you make a go of things. All right. Thank you, counsel, for your excellent assistance, even though it came late in the piece on this occasion, Mr Hardisty. I really appreciated your assistance, and yours too, Ms Mildenhall.
MR HARDISTY: Thank you, Your Honour. Just before Your Honour concludes (indistinct words), there is just one matter I wish to raise. The prosecution filed an amended criminal history on 25 November which did not include the offences of the Corporations Act, because they were in dispute.
HER HONOUR: I see. I beg your pardon.
MR HARDISTY: So Your Honour made reference to ‑ ‑ ‑
HER HONOUR: I've looked at the wrong one. All right. Well, look, I will then revise my remarks so as to remove those, yes.
MR HARDISTY: Thank you, Your Honour.
HER HONOUR: I am sorry about that.
MR HARDISTY: No, that's all right, Your Honour.
HER HONOUR: Yes. Thank you. All right. Yes. We'll adjourn.