Sentence: 18-month Community Correction Order without conviction
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Dylan Phasey, you have pleaded guilty to one charge of sexual assault. This offence carries a maximum penalty of 10 years' imprisonment.
You are currently 23 years of age, having been born on 8 May 1995. At the time of the offending in May two years ago you were aged 21.
You have no prior criminal record.
By way of background to this matter, in April 2014 the victim, who was born on 9 July 1995, started dating you. After six months she wanted to break up, but you said "You are my only friend", and "If you leave, I will try to kill myself". You finally broke up in September 2015, but remained in contact as friends.
You resumed a "casual sexual relationship" at the start of 2016, but the victim ended that relationship in early May 2016.
The circumstances of the offending are as follows.
On 14 May 2016 you held a party for your 21st birthday at your family's rural property. The victim and two of her girlfriends attended. There was a bonfire in a paddock for the party.
The victim had brought a tent and agreed to share it with you. A week before the party she had told you that she "didn't want anything to happen anymore" between you. You had said this was okay.
You both retired to the tent at about 10 pm. You changed into night clothes separately inside the tent. The victim was wearing leggings, a jumper and underwear. You were wearing a singlet and shorts.
When you both laid down, you started touching the victim's breasts and vagina over her clothes. The victim suggested that she go and sleep in her car. You said that if she left, you would be most likely to go out and hang yourself.
After being in the tent for a while, you took a small fold-out knife from your jeans pocket. The victim recognised the knife as your grandfather's. You handed the knife to the victim and said if she did not want to be with you, then you wanted her to kill you. She took the knife and hid it under her bag. She turned her back and you both went to sleep.
During the night, you woke the victim. You were upset because your grandfather had recently passed away. She gave you a hug with one arm to console you then took her arm away.
You moved your hand from her shoulder down to her front, touching her breasts, and towards the top of her pants. You went to put your hand down the front of her leggings and she pulled it away.
You started to cry and moved towards the front of the tent and said you wanted to hang yourself. The victim got you to lie back down again. You tried once more and you said "Just me do this".
The victim started to cry, and you stopped what you were doing and removed your hand from her pants.
After the party the victim's two girlfriends were sleeping in another tent nearby. During the night, one of them heard noises coming from the victim's tent and thought you were having sex or talking. She thought there might be a disagreement of some sort, but no one was yelling.
When you both woke in the morning, the victim did not want to talk about what had happened, but you kept apologising for what you had done. Before leaving the tent, the victim picked up the knife, which she planned to give to your mother. You saw it and asked for it, and she gave it to you.
You, the victim and others went to the family home. The victim cooked breakfast. You kept up coming up to her and whispering "I'm sorry".
You all had breakfast then packed up the tents and camping things. The victim told one of her girlfriends "what [you] had done".
When the victim got home she rang the other girlfriend and told her "what Dylan did" to her. You tried to call the victim that evening and the next day, but she did not speak to you.
That day you sent a message to the victim asking her to call you. She replied "No".
In later messages exchanged between you, the victim asked you to get help, and mentioned "the way you treated me last night ...", and said she wanted to support you but "I can't do it when it puts me in danger". She urged you to see someone and try to help yourself.
You responded "I so sorry ... it's been tearing me up inside, I am so ashamed of myself", and further "I never wanted to make it hard on you, I never wanted to say or do anything to upset you, I will never do anything again, I won't ever be a problem again, I'm sorry".
The victim asked for "space", and you agreed to give it.
On 5 January 2017, the victim rang you from Ballarat Police Station and recorded the conversation. During the conversation:
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a. The victim asked you 'why did you do ... what happened in the tent'
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'what happened that night in the tent was not something I wanted to happen'
when you went into the tent you had a knife with you; you were suicidal at the time; and were afraid you were never wanted;
"I've always been kicking myself over it ... every day since ...' 'I can't go out into that paddock without feeling absolutely shit ...'
'I knew I had done wrong and there was something wrong with me so ... I spoke to the doctor' (at a clinic in Darley)
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c. Later in the conversation you said 'I would never do anything to intentionally hurt you ...'
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d. The victim replied 'but you did .... hurt me' and 'I did ask you to stop ... at your 21st'
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g. You replied 'I know. That's why ... I wanted to apologize the next day ...that's why I ... sent you a message - asking if I could speak to you, if I could call you'
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h. You went on to say 'when I sobered up I then realized exactly what I had done and how terrible I had acted and, you know, that's why I wanted to speak to you and apologize ...'
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i. Later you said 'I'm sorry for anything and everything that ... I've done'
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On 8 February 2017, police arrested you at your home and cautioned you. Police asked you about your grandfather's knife which you retrieved from your car. Police seized it.
A victim impact statement was tendered on your plea. The victim describes severe emotional impact from the incident, including feelings of low self-worth, insomnia, difficulties with intimacy, lack of trust in people, periods of hysterical breakdown and no longer being comfortable or feeling safe. She has also described a suicide attempt, with admissions to a psychiatric hospital. It appears also that the victim was further traumatised by re-reading transcript from the committal hearing, and by the anticipated trial procedure.
I accept that the evidence suggests that not all of these reactions can be attributed to your offending because of the victim's history of emotional distress. Nonetheless, she was vulnerable and you knew it.
I now turn to your personal circumstances.
As I noted earlier, you are now 23 years of age, at the time of the offending you were aged 21 and you have no prior criminal record.
You were educated to Year 12 and grew up in a caring and loving family of five children. Your father was a senior officer in the army, and his employment resulted in your family moving frequently.
You gained a certificate in building construction, and following school worked in the construction industry for 18 months, but were unsuccessful in gaining an apprenticeship. You then attended university to study teaching and history. You were forced to drop the teaching component due to a recent cancellation of your Working With Children check.
You have a passion for mediaeval re-creations, and were on the Victorian team for mediaeval battles. You currently work at Kryal Castle near Ballarat in this type of work, and you love this employment.
A significant aspect of your personal history is that you present with a diagnosis of Autism Spectrum Disorder. According to Dr Aaron Cunningham, whose report was tendered at the plea, you present as a high functioning example of that disorder, further described as Asperger's Disorder. In Dr Cunningham's opinion, you fall at the lowest level of severity on the Diagnostic and Statistical Manual of Mental Disorders and Criteria. You present with impairments in social communication and interaction. You have struggled to make friends and to adapt to change. You have difficulty regulating emotional states, and can experience escalations in depression during times of stress. You have some difficulty in furthering the emotional states and intentions of others. You have experienced times of suicidal thoughts. The current circumstances are an example.
Dr Cunningham further opines that you present with a persistent depressive disorder, and chronic low-level depressed mood.
Your disorder has been recognised and acted upon for many years. At the age of seven you were assessed with attentional and other difficulties, and commenced medication with the drug Ritalin.
At age ten, you were first formally diagnosed as fulfilling the criteria for Asperger's Disorder. A report from Dr Richard Eisenmajer, clinical psychologist, handed up on your plea explained that diagnosis and the nature of your condition.
Within days of the incident reflected in the charge, you attended counselling with Dr Danette Thakwray in response to the suicidal thoughts that you had experienced on the night of this incident, and later with Mr Greg Asher of East St Kilda Psychology. You attended several sessions in 2017.
Mr Asher has also provided a report to the court, and describes your mood as being consistently one which oscillates between depressed and anxious. Mr Asher considered that it would appear that your Asperger's syndrome makes you more easily overwhelmed.
A considerable number of character references were exhibited on your plea.
Your parents and siblings speak of your caring nature and community spirit, your kindness, patience and generous nature. They also speak of your passion for your work activities, respect for women, and how the behaviour which brings you before this court is so out of character.
The further character references from others echo the sentiments of your family, referring to your good principles, your character and reliability, your achievements and resilience. Your otherwise respect for, and trustworthiness with, females was also referred to favourably.
Whilst I accept that the type of sexual contact made can reasonably be regarded as at the lower end of this type of offending, its culpability must also be considered in the context that it involved repeated acts and circumstances where, notwithstanding your challenges with emotional perception, it would have been abundantly clear to you that the victim was not consenting.
As I understand the evidence, your difficulty with appreciating the emotions of others lies in nuances requiring reason and analysis rather than obvious emotions. Your victim was making it very clear to you what her position was. In light of what you knew about the victim's own severe emotional vulnerabilities, it might be considered that there is an atmosphere of attempted manipulative exploitation of her in telling her that you would kill yourself in the context of her rejection of your desires.
The public is understandably and appropriately sensitive to the extent of sexually-oppressive behaviour, overwhelmingly committed by males, in our community. In my view, the fact that you were well-known to your victim does not lessen the gravity of the offending.
The victim made it clear to you before the party that she did not want anything to happen between you anymore.
In mitigation, I accept the submissions of your counsel, including:
your plea of guilty, both for its practical effect and expression of remorse,
your expressions of remorse immediately following the offending, which I accept were genuine,
your youthfulness, being 21 at the time of offending and 23 now at the time of sentence,
the absence of any prior offending or any further offending in the subsequent two years,
that the offending was in the low range for offences of this type,
your close family support and your otherwise excellent character as reflected in the references provided,
your capacity and commitment to employment,
your voluntary engagement with psychological counselling,
your high emotional vulnerability and distress at the time of offending, and
that you have already suffered considerably with depression and anxiety, and other practical consequences, from your actions on this occasion, including the nature of your employment.
In all the circumstances, I do regard your prospects of rehabilitation as high, and that it is unlikely that you will offend in like manner again.
The basic purpose for which a court may impose a sentence are punishment, deterrence (that is, both specific to you and general to others who might be like-minded), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
Your counsel submitted that in the circumstances, particularly as regards the issues of your employment and future life, the recording of a non-conviction should be open and should be applied. The prosecution submitted that a conviction was still necessary in light of the nature of the acts, and for matters principally of general deterrence.
That submission ordinarily does appropriately reflect current community standards and expectations insofar as issues of violence to women are concerned.
In exercising my discretion as to whether or not you are sentenced with conviction, I must have regard to various matters, including ss.5 and 8 of the Sentencing Act1991, and all the circumstances of the case, including the nature of the offence and your character and past history, and also the impact of the recording of a conviction on your economic or social wellbeing, or on your employment prospects.
Balancing all the various considerations, I am satisfied that the circumstances are exceptional. Whilst I have accepted that there appears a possibility of manipulation attending your desire for sexual contact, I am not satisfied that this was the intention on your part. You broke down crying during the incident, you were clearly deeply saddened at the time, in a suicidal state and emotionally disabled.
You have a recognised history of periods of depression and anxiety, and there were two issues capable of fuelling that depression, namely, the death of your grandfather and the breakdown of your relationship with the victim.
Furthermore, your Asperger's condition results in you being less sensitive to the emotions of others. It also means, though, that you become more easily overwhelmed, and the evidence of your good character and caring personality is inconsistent with an act of callous manipulation of someone you loved.
For these reasons, and the further mitigating circumstances I have already mentioned, the principles of punishment and deterrence can, in my view, be achieved by a community correction order for an appropriate term without the necessity of recording a conviction.
With your condition, you are likely to be receptive to the structured, organised program of unpaid community work, and that work process as punishment is a strong visual message to you of the wrongness of your offending, and acts as a deterrent for further offending, far more than the formal public recording of a conviction.
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In the particular circumstances, I consider that the imposition of a conviction is in fact more likely to retard your rehabilitation.
Various persons in authority having an interest in the record of a conviction include potential employers or insurers, financial institutions and various government departments, including perhaps the Immigration Department - even of other countries - as to whether visas are provided or not. The simple note of the record of a conviction does not provide details of the whole of the circumstances, and great unfairness can result in punishment for the offence beyond the sentencing purpose and intent.
Mr Phasey, would you please now stand?
If you agree to this, on Charge 1 of sexual assault, you are ordered without conviction to serve a community correction order for a period of 18 months.
The community correction order commences today and will end on 21 December 2019. The Corrections centre you will attend is the Ballarat Community Corrections service at 206 Mair Street, Ballarat, and you must attend there within two clear working days after the commencement of the order, that is, by next Tuesday, 26 June, at 4 pm.
All the mandatory - that is, the compulsory - terms of a community correction order apply, and the only program condition I impose is that you perform 150 hours of unpaid community work as directed by the regional manager.
I will now go over the mandatory terms of the community correction order, which basically are what you must and must not do. Those terms are that:
You must not commit another offence for which you could be imprisoned during the time that the order is in force;
You must comply with the requirements of Regulation 17 of the Sentencing Regulations2011, which essentially set out your obligations as to your attendance at the community correctional centre, such things as not attending drug or alcohol-affected;
You must report to and receive visits from a community corrections officer;
You must report to the Community Corrections centre (that is, the Ballarat centre), within two clear days of the order starting, and as I already indicated, that is by next Tuesday 26 June at 4 pm;
You must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
You must not leave Victoria without first getting permission to do so from a Community Corrections officer, and;
You must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.
Do you understand and agree to these conditions, Mr Phasey?
ACCUSED: Yes I do, Your Honour.
HIS HONOUR: Thank you. You will be given this form to sign, and you will have a copy of it, so these conditions will be clearly set out and available and open to you so that you do understand what they are.
Now if you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Community Corrections centre - that is, the Ballarat centre - and I recommend that you obtain legal advice if any of these things happen.
However, I must warn you that if you breach any condition of this order, you will be brought back to court, and that will be back before me. One of the options open to me is to cancel the community correction order and resentence you on the original charge, and I may also deal with you for the breach, which is an offence itself, by sending you to prison for up to three months.
So do you understand the consequences of breaching the community correction order?
ACCUSED: Yes, I understand.
HIS HONOUR: All right, well I will ask you to sign that community correction order with the assistance of your counsel. We will pass that to you, and you may leave the dock now and come down to the seats on your right.
ACCUSED: Do I return to the dock?
HIS HONOUR: No, you can sit down there. All right Mr Phasey, that concludes these matters, I have signed that order, and that is the disposition of the court. Could you please stand up just for a moment? Just come a little bit closer.
Now, if you have any difficulty understanding what people are doing, or being confused in any way, speak to the people at the Community Corrections centre, the supervising people. Make sure that you communicate with them. Do not let things just build up without communicating to them and letting them know that there is an issue. Speak about it with your parents, and if there are any issues, it will all be sorted out.
So the main thing is to make sure that you are communicating with them, do you understand that?
ACCUSED: Yes I do, Your Honour.
HIS HONOUR: All right, you may take a seat again. Is there anything else from either counsel?
COUNSEL: No Your Honour.
HIS HONOUR: Well I will leave the Bench whilst we get ready for the next matter. Thanks very much, Mr Steward.