In this article, we discuss a recent case study involving a serious allegation of sexual assault of a child under 16. The matter was finalised at a contest mention.
Table of Contents
Summary of Facts
Charges
Our client was charged with 2 charges of Sexual assault of a child under 16.
Court
Broadmeadows Magistrates’ Court – June 2023.
Our client was 65 years of age at the time of the alleged offence, and the grandfather of the complainant, aged 13 at the time.
The offending occurred in the context of our client and the complainant being in the same car after having visited a relative at a hospital.
It was alleged our client whilst in his car with the complainant, leaned over and kissed the complaint on the mouth for a short period and grabbed her breast (charge 1).
After this incident, our client and the complainant drove to a nearby Mcdonalds'. At this location, it was further alleged that whilst in the car park, our client again commenced kissing (using tongue) and grabbing the complainant’s breasts over her clothing (charge 2).
What Happened at Court?
Our client disputed the allegations. Following case conference discussions the matter was listed for a Contest Mention.
Any allegation of sexual offending particularly in regard to children is very serious.
In assessing this case we were required to balance his initial instructions that various aggravating facts contained in the prosecution summary were disputed (and his right to plead not guilty to the allegations) against the very real risk of imprisonment if unsuccessful at a contested hearing given the prosecution case was reasonably strong.
After detailed advice was provided to our client instructions were provided by him to seek a sentence indication from the Magistrate at the Contest Mention.
Submissions to the Magistrate included:
he had unresolved mental health difficulties as a result of his military service
extensive medication consumption due to ill health;
age at the time of the alleged assault;
that he had a preparedness to resolve the matter at contest mention;
no prior criminal history.
Our submissions were that although an inherently serious offence a Community Corrections Order was ‘in range’.
The Presiding Magistrate indicated that our client would be placed on a lengthy Community Correction Order (CCO), if assessed as suitable.
Her Honour indicated that she would consider a non-custodial outcome on the basis of the submissions provided with particular emphasis on lack of criminal history and that a plea of guilty would spare the complainant from the requirement to submit to cross-examination at a contested hearing.
Sexual Offenders Registration
The offence of sexual assault of child under 16 is a class 2 offence and requires that a person convicted of a registrable offence be entered into the Sexual Offenders Registry in Victoria with reporting conditions.
In Victoria, if a person is listed on the Sexual Offenders Registry, the length of the reporting obligation period depends upon the office itself:
Reporting period of 15 years if convicted for one class 1 or two class 2 offences;
Reporting period of 8 years if convicted for one class 2 offences;
Reporting period of life if convicted for two or more class 1 offences;
Reporting period of life if convicted for one class 1 and one or more class 2 offences; and
Reporting period of life if convicted for three or more class 2 offences.
Pursuant to Section 5(1) of the Sex Offenders Registration Act 2004 (The Act):
“offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person”.
Pursuant to Section 34(1)(a) of the Act:
“A registerable offender must continue to comply with the reporting obligations imposed by this Part for – 8 years if he or she has only ever been found guilty of a single Class 2 offence”
Although our client was charged with two class 2 offences, both offences occurred within hours of each other and could be seen as a continuous episode. Consequently, both offences were considered as a single event, and a reporting period of 8 years rather than 15 years was applied.
Court Outcome
Our client accepted the indication and was sentenced with conviction, to a 24-month CCO with the following conditions:
To be supervised by Corrections Victoria; and
Undergo the following treatment and rehabilitation:
Mental health assessment and treatment as direct;
Offenders behaviour program(s) as directed; and
Any other treatment and rehabilitation as directed.
Furthermore, as our client was sentenced to a registrable offence pursuant to the Act, our client is required to report to Victoria Police for a period of 8 years. Moreover, required to initially report to Victoria Police within seven (7) days of the date of sentence.
The presiding Magistrate stated, but for our client's plea of guilty a term of imprisonment would have been ordered.
If you are facing an allegation of sexual offending contact us for urgent advice. Early preparation gives you the best prospects for obtaining a good outcome.
