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DPP v Webster [2019] VCC 762 (28 May 2019)

Last Updated: 31 May 2019

IN THE COUNTY COURT OF VICTORIA
Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-18-01614

AP-19-0316

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY WEBSTER

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JUDGE:
HIS HONOUR JUDGE MASON
WHERE HELD:
Melbourne
DATE OF HEARING:
20 February 2019 (plea); 9 April 2019 (appeal)
DATE OF SENTENCE:
28 May 2019
CASE MAY BE CITED AS:
DPP v Webster
MEDIUM NEUTRAL CITATION:

REASONS FOR SENTENCE

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Subject: Plea – sentencing - appeal

Catchwords: Sexual assault - enter private place without authority or lawful excuse – contravention of drug treatment order

Legislation Cited: Sentencing Act 1991

Cases Cited:

Sentence: 257 days’ imprisonment on the plea, 24-month CCO on the appeal

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APPEARANCES:
Counsel
Solicitors
For the DPP at hearing on 20/2/19
For the DPP at hearing on 9/4/19
For the DPP at sentence
Mr B. Nibbs
Mr S. Thomas
Ms D. Caruso
Office of Public Prosecutions

For the Accused at hearing on 20/2/19
For the Accused at hearing on 9/4/19

For the Accused at sentence
Mr A. Malik
Mr A. Malik and

Ms C. Ratcliffe-Jones

Ms C. Ratcliffe-Jones
James Dowsley & Associates

HIS HONOUR:

  1. Anthony Webster, you have pleaded guilty to one charge of sexual assault and one transferred summary charge of entering a private place without authority or lawful excuse, more commonly known as trespass.
  2. You have also appeared before me today on an appeal from the Magistrates' Court Dandenong where, on 24 January this year, you were sentenced on stalking and other charges to a sentence of 221 days' imprisonment. This sentence followed a breach of an earlier sentence by that court, whereby you were sentenced to imprisonment to be served by way of a drug treatment order.
  3. You were born on 29 August 1965 and are now 53 years old. You were aged 52 at the time of the offending in February last year.
  4. By way of background and offending circumstances to the indictment and transferred summary charge: you were an acquaintance of the victim in this matter, who knew you as “Tony”, living in a unit at an address near her in Dandenong. You had known each other for about 18 months. You were someone who cut her lawns and cleaned her gutters.
  5. There was a loose arrangement whereby you would on occasion do gardening jobs for her. You would knock on the door of her unit, and she would say yes or no. There was no direct access to her back garden, and you would usually jump the back fence or go through the garage. On one occasion in late 2017 you were let out via the front door. You had on previous occasions jumped the back fence to do gardening without her prior permission and you had told her about it later. The victim asked you to let her know when you were coming.
  6. She had paid you about $50-60 total for your work and charged your phone once.
  7. You and the victim had never been involved in any romantic relationship. At times you had acted and spoken flirtatiously, but she did not entertain it.
  8. The victim lived in her two-bedroom unit with her two sons. One son had a room of his own and the other slept in the lounge room converted to a bedroom. The victim's bedroom had two doors, one from the back garden and one to the internal hallway. The back sliding door was usually left unlocked for the cats. The garden backed on to a vacant block. Your unit also backed onto the vacant block.
  9. On the morning of Tuesday 13 February 2018 the victim was in her bedroom, lying in bed with the television on. Her two sons were also at home. The front door and security door were locked. The back sliding door was unlocked.
  10. The victim noticed the time clock on the television show was 10.46 when she rolled over and started to drift off to sleep. She heard the handle of the internal door to her bedroom open. She initially thought it was one of her sons coming in, but they usually knocked. She felt the sensation of someone at the end of her bed. This person was you, Mr Webster, who had entered the unit as a trespasser. This conduct constitutes Summary Charge 2 of trespass.
  11. You slid up the bed in a flat crawling motion until you were behind the victim. You snuggled into her from behind and put your hand around her waist. This conduct constitutes Indictment Charge 1 of sexual assault.
  12. She rolled over slightly and saw that it was you. Your head was at shoulder height and you then propped yourself up on your left arm.
  13. The victim was shocked to see you in her room uninvited. She asked you what you were doing and said that you should not be there. She told you to get out and that you had come into her house uninvited.
  14. She asked you again what you were doing and you said you wanted to talk about what you had both talked about yesterday.
  15. The previous day you had come to the victim's unit and asked her for a lighter. You had a conversation about marijuana and she told you that she sometimes smoked it. You asked if she wanted to buy some and she said no.
  16. You kept saying “sorry”. You asked if you should go out the same way you came in. The victim said, 'No, I'll show you out the front door'.
  17. When she showed you out she saw that the front door was locked from the inside, as was the security door. She unlocked both to let you out. She was saying, “you don't know what you have done”. And you were saying, “sorry”. You had been inside her house for less than five minutes. She believed it was about 10.50 am.
  18. You then left. The victim checked the other doors and found the only other door unlocked was the back sliding door to the garden. The only access was to jump over the back fence.
  19. The victim reported the matter to Dandenong Police later the same day. At about 4 pm police attended and took photographs.
  20. At about 3.05 pm on 15 February 2018 you were arrested by appointment at Dandenong Police Station. You were given the opportunity to sleep overnight before participating in a recorded interview the next morning and denied that you had been at the victim's home.
  21. As to the circumstances of the appeal charges and subsequent matters: on 28 January 2016 you appeared at the Dandenong Magistrates' Court for breach of a community correction order and further offending involving persistent contravention of a family violence order. You were sentenced then to nine months' imprisonment with a non-parole direction of six months.
  22. That sentence followed a sentence on 13 November 2015 for persistent contravention of a family violence intervention order for which you had been sentenced to 28 days' imprisonment.
  23. On 31 August 2017 you appeared at the Dandenong Magistrates' Court on charges including stalking, multiple occasions of persistent contravention of a family violence order and threat to assault and resist emergency worker. On that date you were sentenced to 14 months' imprisonment to be served by way of a drug treatment order, with 85 days reckoned as imprisonment already served.
  24. On each of 16 November 2017 and 12 December 2017 respectively you were sentenced to seven days' imprisonment by way of sanctions on review hearing for breaches of your drug treatment order conditions.
  25. On 13 February 2018 you committed the indictable and summary charges for which you appear to be sentenced today.
  26. You were arrested, as I have said earlier, on 15 February, remanded in custody and bailed on 30 May 2018. This allowed you to be released back into the community and to continue with your drug treatment order.
  27. Progress Update Reports dated 15 June and 31 August 2018 noted that since your release on bail you had failed to attend appointments on a number of occasions and had been consistently engaging in poly-substance use and that your use had been escalating. On 13 August 2018 it was recommended that your drug treatment order be cancelled and an application was made to that effect.
  28. Between 13 August 2018 and 24 January 2019 there were several adjournments of the Magistrates' Court breach hearing, dealing with factual challenges and the obtaining of further evidence by the provision of a neuro-psychological report from Ms Laura Scott.
  29. On 24 January 2018 the Magistrates' Court imposed the sentence which is currently before me on appeal. On that date the drug treatment order was cancelled and you were ordered to serve the remaining 221 days of the order.
  30. Since the Magistrates' Court hearing and the first date of the plea on the indictment, you have been assessed and found suitable for a Justice Plan on the basis of an accepted intellectual disability compounded by acquired brain injuries due to a series of closed head injuries and long-term substance abuse.
  31. I now turn to your personal life circumstances.
  32. As I noted earlier you are now 53, you have an extensive criminal record and you were 52 when the current offending occurred.
  33. Your criminal record commenced in 1992 in the Mordialloc Magistrates' Court when, at the age of 27 you were convicted and fined for resisting police and various drug and weapons offences.
  34. There have been some two dozen further appearances in the Magistrates' Courts over the intervening years, with convictions for weapons, drug, violence, driving and dishonesty offending, stalking, failing to answer bail and contravening family violence intervention orders. You have been variously fined, gaoled, given suspended sentences and community correction orders - most of which you have breached.
  35. As I previously stated, you were subject to a drug treatment order at the time of this offending. This is an aggravating circumstance.
  36. You had a difficult childhood within a family of six children and an abusive father.
  37. You were a loner at school and frequently bullied. You have described your school experience as, “always being in trouble”. You were considered for being transferred to a special school but refused to go. You repeated Grade 4.
  38. You completed Grade 7 at secondary school, but were expelled in Grade 8 after having been suspended 10 - 15 times.
  39. When you commenced employment you were physically assaulted by your first employer. You have worked intermittently since.
  40. You have a significant history of alcohol and drug use, including injecting. You progressed from cannabis to speed. You have used methamphetamine on a regular basis for the past four years, typically injecting approximately three points a day. You estimate that you typically consumed approximately 10 cans of alcohol per day.
  41. You have a compromised mental health condition with severe impairments across a variety of cognitive functions. You also have a long-term history of depression and anxiety, compounded by head injury. Ms Laura Scott, clinical neuropsychologist, has assessed your condition as being consistent with a mild intellectual disability, that you are not equipped to manage the demands of daily living without assistance and would benefit from being linked in with the National Disability Insurance Scheme.
  42. Ms Scott recommended immediate psychiatric review and referral to drug and alcohol counselling to assist with relapse prevention upon your eventual release from custody.
  43. Ms Scott further opined that your compromised level of mental health also places you at risk of victimisation from fellow prisoners and correctional facility staff.
  44. You are eligible for specialised treatment under the National Disability Insurance Scheme. This will enable you to be supplied with much greater direct support than was previously available.
  45. Your offending, whilst in the low range for a charge of sexual assault, remains an act which caused great fear and anxiety for your victim. It amounted to a very brazen and terrifying experience for her, as her victim impact statement - which she read out in court - attests and resulted in continuing emotional reaction. The offending was compounded by the fact that you entered her private abode without her knowledge or permission.
  46. I do accept that this offence is very closely associated with the act constituting the sexual assault and that the culpability is bound together.
  47. You have been provided with many opportunities for rehabilitation by non-custodial dispositions in the past. They appear not to have deterred you from further offending.
  48. In mitigation, I take into account the submissions of your counsel and in particular:
  49. I also note that despite a very lengthy criminal history, you have no prior convictions for sexual offending.
  50. Despite your repeated offending, there presently exists further evidence providing greater insight into your mental health and what appears to me to be a better way of managing your difficulties, in a way that is likely to assist in you not reoffending. I have noted that despite your breach of the drug treatment order by further offending, there is recognition in the various reports that despite some failures, you made serious attempts at positive engagement in the context of a significant struggle to maintain total engagement in view of your mental health and to gain control over your drug and alcohol use.
  51. Whilst given your past history I am guarded about your prospects of rehabilitation, I am persuaded that the time served already in remand is sufficient to satisfy the more punitive purposes of the sentences under consideration balanced with the rehabilitative aspects of a community correction order which is now capable of engaging in a more detailed way with the more specific issue of your recognised intellectual disability in the context of a Justice Plan.
  52. It is agreed between the parties that on the indictment matter you will now have served 257 days of pre-sentence detention up to but not including today, and that there are further days in custody which can be taken into account in a broad way because of the time you have spent in prison on the appeal matters.
  53. Mr Webster, can you now please stand?
  54. As to the charges relating to the indictment, on Charge 1 of sexual assault you are convicted and sentenced to 257 days' imprisonment;
  55. On transferred Summary Charge 2 of trespass you are convicted and sentenced to one month’s imprisonment.
  56. The sentences are concurrent. The total effective sentence is 257 days' imprisonment.
  57. The sentence starts today.
  58. Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 257 days be recognised as time already served under this sentence and I direct the fact of this declaration and its details be noted in the records of the court.
  59. I note that since the pre-sentence detention equals the term of imprisonment, it is my intention by the sentence that I have imposed that Mr Webster not serve any further imprisonment and be released from custody forthwith. The term of imprisonment has actually been served by the taking into account of the pre-sentence detention, so I direct that proposition to the Custody Officers.
  60. Do you understand, Custody Officer, that Mr Webster is to be released forthwith - not from this court, as he has to go back to the cells, as I understand it, to be formally released.
  61. VOICE (from body of the court): Yes, Your Honour.
  62. HIS HONOUR: Thank you.
  63. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty on the indictment, the total effective sentence that would have been imposed is two years' imprisonment with a minimum period of 18 months to be served before eligibility for parole.
  64. As to appeal AP-19-0316, I set aside the orders of the Magistrates' Court made on 24 January 2019 and in their stead I make the following orders.
  65. On Charges 1, 9 and 11 to 17 inclusive, you are ordered, with conviction, to serve a community correction order for a period of two years. You have been assessed as suitable for such order.
  66. The community correction order commences today and ends on 27 May 2021. The corrections centre you will attend is the Dandenong Community Correctional Service at 46-50 Walker Street, Dandenong and you must attend there within two clear working days after the commencement of the order, that is by 4 pm this Thursday, 30 May 2019.
  67. All the mandatory terms of a community correction order apply and the additional conditions I propose are that:
  68. I realise you have already had the mandatory terms of the community correction order explained to you, but I must remind you of them. The mandatory terms are that:
  69. Do you understand and agree to those conditions, Mr Webster?
  70. ACCUSED: Yes.
  71. HIS HONOUR: 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 Dandenong Community Corrections Centre, and I recommend that you obtain legal advice if any of these matters occur.
  72. 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 then re-sentence you on the original charges. I may also deal with you for the breach by sending you to prison for up to three months on the breach offence as well.
  73. Mr Webster, do you understand the consequences of breaching your community correction order?
  74. ACCUSED: Yes.
  75. HIS HONOUR: The likelihood is, of course, that if you do breach the order by failing to comply with the conditions of the order, either by reoffending or not complying with the other orders that have been directed, that you will go to prison. You will be re-sentenced on the original matters and there would be very little likelihood that you would get anything like a community correction order again.
  76. I will ask you to sign the community correction order shortly. Your counsel here today will bring it up for you and explain anything that you need to have explained.
  77. At the plea hearing the Crown sought a disposal order to which you consented and I have made that order today.
  78. The community correction order can now be passed to Mr Webster's counsel. So, if you could take it down and see if he understands that he is to comply with all those conditions.
  79. MS RATCLIFFE-JONES: Certainly, Your Honour.
  80. HIS HONOUR: All right. Was there anything else from either counsel? No? I thank you both for your assistance.

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