DPP v Smith [2015] VCC 1638 (17 November 2015)

Last Updated: 23 November 2015

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-14-01143

DIRECTOR OF PUBLIC PROSECUTIONS
v
BRODERICK SMITH

---

JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2015
DATE OF SENTENCE:	17 November 2015
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2015] VCC 1638

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. P. Marcou	Office of Public Prosecutions
For the Accused	Mr. J. Hannebery	Anthony Isaacs – Criminal Lawyer

HIS HONOUR:

1. Broderick Wayne Smith, you have pleaded guilty to three charges of indecent assault contrary to s.39(1) of the Crimes Act[1958]. The maximum penalty for that offence is 10 years imprisonment.
2. Your plea of guilty was entered after the prosecution did not proceed with a number of charges of rape. In such circumstances, it is appropriate to regard your plea as made at an early stage in the proceedings, and I have taken it into account in your favour in mitigation of sentence.
3. You have no prior convictions, subsequent convictions or outstanding charges.
4. A prosecution opening was read to the court, and your offending may be summarised as follows –
5. You met the complainant in February 2012, when she came to your home collecting for a charity. In June 2012, you began a relationship with her that lasted for approximately four weeks. Thereafter you remained friends but were not in regular contact.
6. On 9 February 2013, the complainant contacted you by text message and you went to Crown Casino together that night. In the early hours of the following morning you both travelled to the complainant's house in Kew and on arrival there, you both went to her bedroom to watch a film.
7. After kissing her neck, you squeezed her left breast despite her telling you not to do so. This conduct is relied on by the prosecution in support of Charge 1 on the Indictment which is representative of the three occasions that you assaulted the complainant in this manner.
8. Following this, you touched the complainant's vagina under her clothing. She told you not to do so, but you repeated this on two further occasions. Charge 2 is a representative charge in relation to this conduct. You also placed the complainant's hand on your erect penis and this conduct is relied upon by the prosecution in support of Charge 3 on the Indictment.
9. You left the complainant's house that afternoon and later apologised to her by text message. She reported the matter to police on 16 February 2013 and you were interviewed by investigating police on 1 May 2013. You denied the offending you have now pleaded guilty to. You were not charged until 4 December 2013 and this delay has not been explained to the court by the prosecution.
10. Offending of this type is serious and the sentence I impose must be calculated to deter you and others from offending in this manner. You must also be punished for what you have done.
11. I have received in evidence, a Victim Impact Statement of the complainant and I accept that your offending has had a traumatic effect on her.
12. I now turn to your personal circumstances. You were born on 27 September 1991 in Moe and you are now aged 24. You were 21 at the time of your offending. You have no criminal history and accordingly, are a youthful first offender.
13. You were educated to Year 12 level which was an excellent achievement as your experienced significant abuse as a child at the hands of your step-father. You do not have any difficulties with drug or alcohol abuse.
14. I have received in evidence, a psychological report of Ms Pamela Matthews, detailing your developmental history and psychological profile. You do not suffer from any mental illness, and I accept that your risk of re-offending is "very low."
15. You are in a stable relationship, steady employment and you have recently purchased your own home with your partner. I accept that you are remorseful for your offending, and in my opinion, your prospects for rehabilitation are excellent.
16. With the concurrence of the prosecution, I had you assessed for suitability for a Community Correction Order and have received a report regarding your suitability. That report recommends that you undergo a Sex Offender's Program or alternatively, a Men's Behaviour Change program. In my opinion, the latter is the most appropriate course to be adopted in your case. Furthermore, I do not propose to order that you perform unpaid community work, as you are in full time employment and will be required to attend programs and supervision pursuant to the Community Correction Order that I impose.
17. In the result, the sentence of the court is as follows:
18. In relation to the three charges of indecent assault, you are convicted and sentenced to serve a Community Correction Order for a period of 12 months on the core conditions contained in the Sentencing Act and furthermore, I order that for the term of the order, you be under the supervision of a Community Correction Officer, and further, that you undertake programs to reduce re-offending, in particular, a Men's Behavioural Change Program. Do you consent to entering an order on those terms Mr Smith?
19. OFFENDER: Yes.
20. HIS HONOUR: Yes, thank you. My associate will prepare that order. You can step out of the dock. Just come forward and stand behind your counsel or sit behind your counsel. I have made the forensic sample order sought on behalf of the prosecution.
21. MS MARCOU: If Your Honour please.
22. HIS HONOUR: I will sign it. Yes, thank you. I will sign three copies of the forensic sample order. Mr Smith, you are required to provide a forensic sample to police and for that purpose you have to attend the Melton Police Station within 28 days of me making this order. The police can use reasonable force to obtain that sample from you, but it is simply the taking of a sample from inside your mouth by way of a swab stick. Are there any further orders required?
23. MS MARCOU: No, Your Honour.
24. HIS HONOUR: Thank you. Your counsel will explain to you the terms and conditions of the Community Correction Order, Mr Smith. Thank you. We will adjourn until 10.30.

- - -