DPP v Smith [2025] VCC 1760

1. The matter commenced in the Magistrates Court with a filing hearing on 30 June 2023. It proceeded to a committal hearing on 7 June 2024, where Ms Travers was cross-examined. Having been committed to this court, it was listed for a trial to commence on 2 June 2025, however, resolved to a guilty plea on 23 May 2025. You were arraigned on 29 May 2025. The case was adjourned to a plea hearing on 7 November 2025 to facilitate your counsel's availability and to allow you to undertake a residential rehabilitation program with Uniting in Traralgon.
2. You have been on bail throughout.

1. I have had regard to Ms Travers' victim impact statement.[3] She read it aloud in court. Ms Travers spoke of the profound impact your offending had, and continues to have on her. For three months after your offending she struggled with sleep and was constantly reliving what happened to her. She involved herself in substance use and drinking in an attempt to forget your offending. She distanced herself from her friends, lost two jobs and self-harmed. The impact of your offending necessitated treatment and her attending appointments with therapists.

1. You were born in Traralgon in 2003 and are now 22 years of age. You have one older sister and one younger brother. Your parents split up when you were little. You moved with your mother to Melbourne, and then to Queensland.
2. While in Queensland your mother split up with her then partner. You then moved back to Victoria when you were 17 years old.
3. Your family moved around a great deal and you attended numerous schools. You completed school up to Year 9. You had learning and behavioural difficulties and required the assistance of a teaching aid.
4. You have had difficulties with the adults in your life, lacking a positive role model. Your father was an alcoholic and your mother has had significant drug issues. Your stepfather who helped bring you up has also struggled with drug use. You resided with your stepfather in Victoria from the age of about 18 to 20, including at the time of the offending. When you were living with him, he was violent towards you.
5. You engaged with Nungurra Youth Accommodation Services who helped you find accommodation.
6. Since 12 July 2025, you have resided in residential rehabilitation through Uniting in Traralgon. You have completed standard treatment and have elected to extend your engagement, and intend to remain residing there until 9 January 2026.
7. You began using cannabis at 16 and have used cocaine and methylamphetamine with your stepfather. You were able to remain abstinent for a period of time after moving out of your stepfather's house but relapsed into drug use last year. You were not affected by drug use at the time of the offending.
8. You have a strong work history. Having left school at the completion of year 9 you have held numerous jobs including house painting for one year, panel beating and spray painting for two years, tree lopping for four years, and working on the West Gate Tunnel project for one year.
9. While working on the West Gate Tunnel project you suffered an injury which has impaired your eyesight. You now wear glasses and do not feel safe driving at night. You are pursuing a Workcover claim in relation to this injury. You would like to return to tree lopping in the future.
10. You have no ongoing relationship with either of your biological parents or your brother. However you do continue to see your stepfather and sister, and they have visited you at your current residential facility.

1. Sexual assault is a serious offence as the maximum term of imprisonment indicates. Despite your victim making it absolutely plain that she did not want to engage in any sexual activity, you persisted. You ignored her verbal and physical protests for your own sexual gratification. The victim removing herself from the bed after the commission of charge 1, did not stop you. You continued following her around the hotel room, masturbating and engaging in degrading conduct by ejaculating on her body. As already outlined, the impact of your offending upon your young victim has been significant.
2. I take into account your youth, but otherwise there is nothing to moderate your moral culpability. You must be justly punished for your criminal actions and the court must appropriately denounce your conduct. General deterrence is also an important consideration in offending of this nature.
3. In addition to deterrence and the punitive sentencing considerations, the fact that you were 19 years old at the time of the offending without prior convictions, allows the court to have a greater regard to your rehabilitation. This is particularly so where you have not re-offended since this offending and have taken positive steps towards your rehabilitation.

1. Having assessed you, Dr Aaron Cunningham has prepared a psychological report dated 5 August 2025.[4] Dr Cunningham recorded that you have suffered panic attacks and anxiety since the age of sixteen and continue to suffer such panic attacks.
2. Dr Cunningham opines that you currently meet the criteria for a diagnosis of Major Depressive Disorder. You are prescribed anti-depressant medication.
3. Having administered the Risk for Sexual Violence Protocol, Dr Cunningham opines that you present "as a Low to Moderate risk of sexual reoffending". He states that your abstinence from drug and alcohol abuse and improving your stability through accommodation and employment will reduce your risk.

1. In presenting a plea in mitigation, Mr Bhattacharya relied upon the following material:

(a) Psychological report of Dr Aaron Cunningham dated 5 August 2025;

(b) A signed letter of apology from you to Ms Travers;[5]

(c) Letter of Support from Nungurra Youth Accommodation Services dated 30 June 2025;[6]

(d) Two letters of support from Uniting dated 2 July 2025 and 5 November 2025;[7] and

(e) Written submissions dated 5 November 2025.[8]

1. Mr Bhattacharya quite properly acknowledged the gravity of your offending and the significant impact upon your victim. He relied upon the following matters in mitigation:

(a) Guilty pleas;

(b) Remorse;

(c) Youth;

(d) Delay; and

(e) Positive prospects of rehabilitation;

1. Mr Bhattacharya acknowledged that you did not make admissions to the police and did not plead guilty at the earliest possible opportunity. Nevertheless, I accept that by pleading guilty you have facilitated the course of justice and saved court time and expense associated with a trial. More importantly, your pleas have avoided causing Ms Travers further distress by removing the need for her to give evidence at trial. Accordingly, your pleas of guilty attract a utilitarian benefit.

1. I also accept that your pleas of guilty demonstrate remorse.
2. Dr Cunningham states that you have taken full responsibility for your actions and acknowledged the need for punishment. In his report, he notes:

He was unsure why the offending occurred. He stated that he knew his behaviour was wrong. He stated that he was sorry for his actions and did not know how to move forward. He felt guilt for his actions.

1. Ms Sarah Drager, Uniting Program Manager, notes that you are "extremely remorseful".[9]
2. Ms Joanne Lucas, a mental health counsellor, who has worked with you extensively at Uniting, gave evidence at the plea hearing. Ms Lucas confirmed that you have engaged in 25 sessions of scheduled counselling with her and many more unscheduled sessions. She stated that in respect of your offending, you are "incredibly remorseful but still in the process of dealing with the guilt and the shame".
3. I have also received a letter of apology which you authored to Ms Travers. Your counsel confirmed the idea for the letter originated from you as a result of your engagement in counselling.[10]

1. I bear in mind that you were only 19 years of age at the time of the offending. You are now 22 years old. You have no prior criminal history. Importantly, you have not re-offended in any way since the offending in March 2022. You are a youthful offender, and I must firmly bear in mind the propositions in Mills.[11] As I said earlier, your successful rehabilitation remains an integral sentencing objective. It is in the interests of the community that you are successfully rehabilitated at this stage in your life and avoid any future interaction with the criminal justice system as an accused.

1. Your counsel relies on delay and the progress you have made during that period.
2. The offending occurred some three and a half years ago. I accept that during this lengthy period since March 2022, you have continued in employment until your eye accident in the middle of 2024, and have not re-offended in any way. Since 12 July 2025, you have engaged voluntarily in residential treatment at Uniting to tackle your drug addiction.
3. Ms Drager, the program Manager at Uniting, has provided a letter dated 5 November 2025. The letter sets out your progress on the residential rehabilitation program, which appears to have been extremely positive. You will remain on this program until 9 January 2026.
4. Ms Lucas' evidence on your plea spoke highly of your commitment to the program and a genuine desire by you to overcome your issues with illicit substances. You have been a model participant, engaging actively and without incident.
5. Ms Lucas outlined the restrictions imposed on your movement by Uniting during your engagement with them, including that:

(a) In the first two months you cannot leave the program;

(b) In the third month there is an opportunity to go on day leave, being some eight hours; and

(c) In the fourth month there is an opportunity to go on night leave, on up to three occasions.

1. Ms Lucas further clarified that any leave, or indeed visitation by family and friends, requires the explicit permission of management. Furthermore, during your residency at Uniting you have been subject to regular room searches and random drug testing. You are required to be totally abstinent, as you have been, whilst in the program. As well as prohibiting use of alcohol and drugs, you are not able to engage in any form of sexual interaction, or violence.
2. Ms Lucas confirmed that you undertook day leave on two occasions, and night leave on one occasion to attend your stepfathers' birthday. She noted that you were subject to searches and drug screens upon return from leave without incident. Ms Lucas further confirmed you have been engaged well with Alcohol and Drugs and mental health counselling both individually and in group sessions.
3. Whilst I am not able to deduct the time you have spent in residential treatment in a numerical sense as pre-sentence detention, I bear in mind, albeit to a limited extent, the fact that you have spent close to five months at Uniting. While you entered the program voluntarily, your residence at Uniting has been part of your revised bail conditions. I also note the punitive aspects of the program as outlined by Ms Lucas.
4. Your participation in this program is relevant in a more meaningful way as to the genuine steps you have taken in your rehabilitation.
5. The Court of Appeal in Akoka v The Queen stated:[12]

Self-evidently, it is in the community's interest that offenders - particularly young offenders with substance abuse problems - seek assistance from residential rehabilitation facilities and complete the rigorous treatment programs that they offer. Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender's residency.

1. Mr Bhattacharya submitted that taking into account all the mitigating factors, and the guidance provided by the Court of Appeal in Boulton v The Queen,[13] particularly in respect of youthful offenders, a Community Correction Order ('CCO') would adequately address all relevant sentencing considerations.

1. On behalf of the prosecution,[14] Ms Guesdon, submitted that the seriousness of the offending required an immediate term of imprisonment, although accepted that a combination sentence was within range. In the alternative, she submitted that if a CCO alone was considered appropriate, it should have a significant punitive measure to it.
2. Ms Guesdon accepted that your pleas of guilty, remorse, youth, lack of prior matters and your efforts at rehabilitation over the last three years were matters that mitigated your sentence. She queried whether your time in residential rehabilitation was sufficiently punitive to be taken into account in the way articulated in Akoka. However, Ms Guesdon accepted that your efforts since July 2025, bode well as far as your rehabilitation is concerned.
3. Ms Guesdon submitted that in addition to your rehabilitation, the seriousness of the offending required denunciation, general deterrence and just punishment to be given appropriate weight.
4. I have had regard to the CCO suitability assessment report dated 7 November 2025, which confirms that you are suitable for such an order.

1. As I indicated at the plea hearing, this is a case where the guidance in Boulton v The Queen is appropriate to apply. In my judgment, I do not need to impose a term of imprisonment, which is always a sentence of last resort. Deterrence, both general and specific, denunciation, just punishment and protection of the community can all be adequately met by the imposition of a CCO. Such a disposition would also recognise your progress and provide you with the impetus to continue your rehabilitation.
2. Having considered all relevant matters and circumstances, can you stand please, Christopher Smith, I convict you on both charges of sexual assault and sentence you to a CCO for a period of 24 months. The order will commence today.
3. Every CCO has core conditions that you must comply with. They are set out in a document that I will get you to sign. They include not committing an offence punishable by imprisonment and not to leave Victoria except with permission.
4. In addition to the mandatory core conditions, the CCO will also include the following special conditions:
   • First, you must perform 280 hours of unpaid community work as directed.
   • Second, you must undergo any mental health assessment and treatment as directed.
   • Third, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
   • Fourth, you must engage in programs that address factors relating to your offending behaviour.
   • Fifth, you will be subject to supervision as directed for the duration of the CCO.
5. Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that 50 hours of treatment and rehabilitation successfully undertaken be counted as hours of unpaid community work.
6. You must report to Morwell Community Correctional Services within two working days.
7. You need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core or special conditions, then you could be charged with the offence of breaching the order.
8. The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be re-sentenced for the offences for which you have been placed on the order. You would then face the very real possibility of being sent to prison.
9. So, there are serious consequences attached to any breach. Do you understand Christopher Smith?
10. OFFENDER: Yes.
11. HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
12. OFFENDER: Yes, your Honour.
13. HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
14. OFFENDER: Yes, your Honour.
15. I will now get you to sign the CCO document confirming your consent.[15]

Section 6AAA declaration

1. Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted of these two charges, you would have been sentenced to a term of 2 years and 9 months' imprisonment with a non-parole period of 22 months.

[3] Exhibit B (declared on 6 November 2025).

[10] The victim has chosen not to read the letter.

[11] R v Mills (1998) 4 VR 235 ('Mills').

[12] Akoka v The Queen [2017] VSCA 214 ('Akoka').

[13] Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

[14] See written submissions - Exhibit C.