Director of Public Prosecutions v Adams (a pseudonym)
[2024] VCC 869
•14 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS ADAMS (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2024 | |
DATE OF SENTENCE: | 14 June 2024 | |
CASE MAY BE CITED AS: | DPP v Adams (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 869 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law – Sentence
Catchwords: Two charges of sexual assault – One charge of persistent contravention of a family violence intervention order – One charge of stalking – Found not guilty by jury of other sexual offending against same victim – Offending occurred over one month – Victim wife of the offender – Significant impact on victim – Multiple unanswered phone-calls and text messages sent over two weeks – Offender turned off electricity, turned sensor lights around, tried to open doors and peered through windows at victim’s house – Criminal history limited to a single prior matter resulting in a no conviction fine – Loving and stable upbringing – Offender experienced bullying and learning difficulties at school – Offender in supportive relationship with new partner – Full and frank admissions made to police in respect of the sexual offending – Pleas of guilty at the earliest opportunity – Genuine remorse – Excellent work history – Some mental health issues and learning difficulties – Verdins principles five and six enlivened – Delay of three and a half years – Good prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 (Vic); Family Violence Protection Act 2008 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Boulton v The Queen (2013) 46 VR 308; R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344.
Sentence: Community Correction Order for a period of 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Cordy | Office of Public Prosecutions |
| For the Accused | Mr S Gardner | Lakey Legal |
HIS HONOUR:
Introduction
1On 8 February 2024, Douglas Adams,[1] you pleaded guilty on Indictment Number N11729233.B to the following four charges:
· Two charges of sexual assault, contrary to s 40 of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.
· One charge of persistent contravention of a family violence intervention order, contrary to s 125A of the Family Violence Protection Act 2008. This offence carries a maximum penalty of 5 years’ imprisonment.
· One charge of stalking, contrary to s 21A of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.
[1] A pseudonym.
2There was a second indictment alleging sexual offences that proceeded to trial before me and a jury. You were found not guilty of all charges on that indictment.
Circumstances of the offending
3An agreed prosecution summary setting out the facts of your offending was read aloud in Court.[2]
[2]Exhibit A dated 14 March 2024.
4You and the victim, Ms Brown,[3] were married and lived together for about three years before separating on 20 October 2020. You have a son together. Also living with you were Ms Brown’s two other children from a previous relationship.
[3] A pseudonym.
5Having separated, you began living with your parents. On 2 November 2020, Ms Brown agreed to you moving back into the family home in an effort to mend your relationship. Things went well for a short period of time. You told Ms Brown the best way to show affection towards her would be to be intimate. She explained to you on numerous occasions that there were other ways you could show her that you wanted a meaningful relationship, and that intimacy would come once a strong emotional connection was built. As a result of a disagreement about the relationship, you were once again told to leave the family home.
6At about 7:45 pm on 17 November 2020, you attended Ms Brown’s home, entering through the unlocked back door. When you arrived, she was in the ensuite of the main bedroom having a shower. All three children were home. Ms Brown’s daughter came into the ensuite to tell her mother about your presence.
7You entered the ensuite and opened the shower door, grabbing Ms Brown’s left breast with your right hand (charge 1 – sexual assault). She told you to get out and let her get dressed.
8You then placed your hand between her legs stating, ‘this is my house, you’re my wife’ (charge 2 – sexual assault). She turned and pushed you away, saying ‘don’t touch me’. You then left the bathroom, allowing her to leave the shower and dry herself.
9Following this incident, on the same day, Ms Brown telephoned a friend and told her what had occurred. Another friend arrived at Ms Brown’s home to support her. Ms Brown disclosed the offending to this friend as well.
10You were arrested at your workplace the following day and taken to Bendigo Police Station. In your police interview, you made admissions to sexually assaulting your wife in the shower. You were charged and released on bail.
11Ms Brown provided a statement to police on 18 November 2020. A second statement was made by her on 23 November 2020, requesting no further police action and accepting support through the issuing of an intervention order and the changing of locks to her home.
12On 24 November 2020, a final family violence intervention order of 12 months duration was issued by the Magistrates’ Court. The order was granted with full conditions, including that you were not allowed to contact Ms Brown by any means, unless it related to your son or the jointly owned property. This order was served upon you by a police officer on the same day.
13Between 24 November 2020 and 7 December 2020, you contacted Ms Brown by sending text messages and making voice calls to her in contravention of the order. Over this two week period, you sent a total of 62 text messages and dialled her 18 times.[4] (charge 3 – persistent contravention of family violence intervention order).
[4]They were missed calls.
14Upon an application made by the police on behalf of Ms Brown, the family violence intervention order was varied on 8 December 2020. The variation permitted you to contact Ms Brown and attend the family home. However, you were required to leave upon Ms Brown’s request. You were served with the order the same day it was varied.
15On 19 December 2020, you sent a series of text messages to Ms Brown throughout the day, stating that you loved her, that the relationship was not over, she was ‘sexy’ and that you loved her.
16At 7:05 pm, you sent her a text message stating that you would be over soon. She replied she would not be home. You replied see you soon, I love you and you’re my wife we are not over. You also sent her a photograph of her vagina.
17As a result of feeling threatened and scared, Ms Brown and her daughter went for a drive, ending up at a friend’s house. You continued to send messages to her.
18At about 9 pm, Ms Brown asked her friend to drive past her house to see if your vehicle was there. Your vehicle was not present so they remained there. Ms Brown discovered that the electricity to the house was not functioning. You continued to send her messages telling her that you were coming around, and she responded telling you to stay away.
19CCTV from the home revealed that you attended the house whilst Ms Brown and her daughter were out that evening. You turned the sensor lights around, tried to open doors and looked through the windows.
20A short time later, Ms Brown saw a vehicle pull up in her driveway. She ran into the bathroom and turned her phone on silent. Text messages were exchanged with you. You told her that you had your son with you. The victim went to the front door and spoke to you for a few minutes from behind a locked security door. You told her how much you loved her and that she was your wife.
21You then walked to the power box located at the side of the house and turned the electricity back on before leaving (charge 4 – stalking).
22Sometime prior to Christmas 2020, following the incident on 19 December 2020, Ms Brown disclosed to her friend that you had attended her house making her feel very scared.
23On 13 May 2021, Ms Brown called the informant and requested that the investigation be re-commenced. She told the police that there was further offending she needed to report,[5] and that she received text messages and phone calls from you whilst the intervention order was in place. Her phone was analysed by the police.
[5]Offending subject to Charges 3 and 4.
24Ms Brown made a further statement to the police on 8 July 2021. On 15 July 2021, the family violence intervention order was varied to a full order prohibiting any contact.
Impact of the offending
25Mr Cordy read out in Court a victim impact statement sworn by Ms Brown on 17 April 2024.[6]
[6]Exhibit B.
26It is plain that your offending has had a significant impact upon her. She describes her children and her feeling unsafe in their own home for years. She remains scared of shadows and noises in the night. She struggles with panic attacks when showering. She ensures that the doors are always locked and is worried about you lurking outside. Television and radio advertisements trigger and cause her flashbacks. She finds it hard to trust others.
27Ms Brown states:
You made me feel powerless. You took away my sense of security and control. I’ll never understand how someone who was supposed to love and protect me until death do us part, could cast such terror and fear over me.
28She states that your actions completely changed the trajectory of her mental health, her parenting, her self-worth, her relationships, and her career. She has felt endless grief knowing that she gave you the power to control so much of her existence. Whilst physically she was unharmed, you had a devastating impact upon her psychologically. The words ‘but you’re my wife’ will haunt her forever.
Criminal history
29Your criminal history is limited to a single appearance before the Magistrates Court in January 2016 for an offence of intentionally damaging property for which you received a fine without conviction. This prior has some relevance as it was committed during an argument with an ex-partner where you smashed a window.
Personal circumstances
30You grew up in Bendigo in a supportive family environment consisting of your parents and siblings. Your parents had migrated from Northern Ireland prior to your birth. You father works in education support and your mother is an employment consultant. You commenced school at the age of five and attended five different primary schools. The family returned to Northern Ireland for two years where you completed the equivalent of Years 2 and 3. Upon your return you completed Years 4 to 6 at two different schools.
31At school, you suffered significant learning difficulties. Significant auditory processing difficulties were identified when you were in Year 5. Your parents had arranged private tutoring involving the ‘reading recovery program’. You were given the assistance of a teacher’s aide in Year 6. However, you made limited progress with acquiring literacy and numeracy skills.
32As a result of your learning issues, you experienced significant bullying from other students. Bullying involving a physical assault necessitated a change of school for Year 6. The bullying continued at the new school. You left school part way through Year 9 at the age of 15.
33Having left school, you were granted a disability support pension as a result of your learning problems. You were keen to work and were successful in obtaining part-time work as well as work on a voluntary basis. You then participated in an employment program, working as a concreter, gardener, and a plasterer.
34You always had a keen interest in cars and engines. Taking into account your learning difficulties, you enrolled in a modified Certificate II in automotive technology. You completed the program successfully and progressed to undertake an apprenticeship in the field along with a Certificate III in specialist automotive services. You have worked successfully as a brake and clutch mechanic for the past 15 years with the same company.[7]
[7]See reference from Mr Arnold McDonald (a pseudonym) dated 26 April 2024 (part of Exhibit 3).
35You have been in a number of relationships. Your first relationship lasted a number of years and produced four children who are now aged between 10 and 16. You maintain regular contact with your children.
36Your next relationship was with Ms Brown with whom you have a son. As you told Mr Newton, you struggled to come to terms with your separation. At the time of the offending, you believed that a reconciliation was possible. You now understand that the relationship is irretrievably broken down. You see your son once every fortnight.
37You are currently in a new relationship which commenced in 2022. Although you are not co-habiting, it is a supportive relationship, and your partner is fully aware of your offending.
38Apart from a brief period of experimentation with cannabis at the age of 16, you have no issues with illicit substances or alcohol.
Gravity of the offending
39It is beyond question that any offending against a domestic partner is very serious. Your manipulative and obsessive conduct over a period of time has had a significant and detrimental impact upon the mother of your child. That is made plain by her poignant and well expressed victim impact statement.
40Having committed the disgraceful sexual offending when she was vulnerable in the shower, your arrest and interview did not deter you from committing further offending, which involved violating a court order that prohibited any form of contact. In respect of charge 3, your contact may have been via a telephone, but it was persistent and ongoing over a period of some two weeks. It involved repeated text messages and phone calls that went unanswered. It was followed by you stalking Ms Brown on 19 December 2020 by attending her home and turning off the electricity. She was so fearful of you that she had to leave her home and go to a friend’s house.
41The fact that you were married to your victim did not entitle you to do as you please. She was not your property and deserved respect and understanding. I hope you understand that and appreciate the pain and torment you have caused her and her children.
42Family violence must be strongly condemned. General deterrence is always an important sentencing purpose. Although you have not been in any further trouble since 19 December 2020, specific deterrence remains of some significance.
Defence submissions
43On your behalf, Mr Gardner filed a four page document setting out your background[8] as well as written plea submissions dated 25 April 2024.[9] In addition, the following material was tendered:
(i)A psychological report dated 19 April 2024 prepared by Mr Patrick Newton.[10]
(ii)A bundle of five character references.[11]
(iii)A medical letter from Dr Christopher Capes-Baldwin dated 10 May 2024.[12]
[8]Exhibit 4.
[9]Exhibit 1.
[10]Exhibit 2.
[11]Exhibit 3 (references from Mr McDonald, Ms Ryan (a pseudonym), Mr and Mrs Duncan (a pseudonym), Mr and Mrs Rich (a pseudonym) and Ms Brett (a pseudonym)).
[12]Exhibit 5.
44Mr Gardner relied upon the following matters:
· Full and frank admissions to the police.
· Your pleas of guilty at the earliest opportunity.
· Remorse.
· Delay.
· Positive character.
· Application of Verdins[13] principles five and six.
[13]R v Verdins (2007) 16 VR 269 (‘Verdins’).
45Mr Gardner conceded that the offending was serious. However, he submitted that all sentencing purposes could be met by imposing a sentence that did not involve a term of imprisonment, which is always a sentence of last resort. He submitted a punitive and rehabilitative Community Correction Order (‘CCO’) would adequately act as an appropriate deterrent in circumstances where there were significant matters in aid of mitigation.
46There is no doubt that you pleaded guilty at the earliest opportunity. Having been charged on 2 August 2022, a plea offer to the indictment that you are now to be sentenced for was made on 10 October 2022. While there was a committal hearing, it only related to the matters that you were ultimately acquitted of. You have not sought to challenge any of the charges or factual circumstances relating to the four offences for which I am to sentence you. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.
47Bearing in mind this matter resolved in 2022, your pleas of guilty attract a greater utilitarian benefit, having been indicated at a time when the courts were facing significant delays. Resolution of your matter at an early stage entitles you to an ‘actual and palpable’ amelioration of sentence.[14]
[14]Worboyes v The Queen (2021) 96 MVR 344.
48When interviewed by the police on 18 November 2020, you were co-operative and made complete admissions in respect of the sexual assault offending. I agree with the informant’s sworn evidence[15] that you appeared to be genuinely remorseful in your police interview. Having said that, you went on to commit the offending subject of charges 3 and 4 soon after this police interview.
[15]Given in the trial resulting in an acquittal where this interview record was played.
49Mr Newton in his report states:
Commensurate with his concrete intellectual abilities, he had some difficulty enumerating in detail the likely effects of his conduct upon her. Nevertheless, he added that he recognised that he had made her feel bad and that he felt sorry for this and ashamed that he had behaved in this way.[16]
[16]Exhibit 2 [48]. See also [56](18).
50I have also noted that some of your referees refer to your genuine contrition for your offending.
51Bearing in mind all these matters, in particular, the resolution soon after being charged, I am prepared to accept that you are remorseful for your offending conduct.
52In terms of your character, I accept that despite your limitations, you have been able to live a productive life, maintaining employment with the same employer for the last 15 years. Your prior history is limited to one matter over eight years ago, resulting in a no conviction financial penalty. I have taken into account the character references which highlight your positive qualities.
53I take into account the delay in this matter. Three and a half years have elapsed since the offending. The delay is not attributable to anything you have done. The charges were not laid until 2 August 2022. As a result of the matters that you always denied and were acquitted of by a jury, further delay occurred. I accept that these matters have been hanging over your head causing ongoing anxiety.
54I have had regard to Mr Newton’s assessment, stating that the continued uncertainty of the outcome has caused you anxiety. You have experienced issues relating to sleep disturbance and recurrent upsetting dreams. While fleeting, you have also experienced bouts of suicidal ideation. I have also had regard to the matters articulated in Dr Capes-Baldwin’s medical letter which echo the findings of Mr Newton.
55Mr Newton opines that these symptoms, which are a response to these ongoing matters, is sufficiently severe to meet the DSM-5 criteria for an adjustment disorder with mixed anxiety and depressed mood.[17]
[17]Ibid [30], [37] – [40] and [56](10) – (11).
56The delay also has relevance in assessing your rehabilitation prospects. Importantly, over the last three and a half years you have not re-offended. There are no matters outstanding. You have maintained your employment throughout. You reside with your parents, who, along with your siblings, remain fully supportive. You have supportive friends who have attested to your character. While you are not co-habiting, you enjoy a good relationship with your current partner. You accept categorically that your relationship with the victim is over. There is an intervention order in place and there has been no further offending of any nature against Ms Brown. In terms of sexual recidivism, Mr Newton’s assessment is that you present with a low risk of re-offending.[18] I also note that following the offending you underwent psychological counselling in accordance with a mental health care plan.
[18]Ibid [55], [56](19).
57Mr Newton concludes that you suffer from a specific learning difficulty with impairment of reading. While your abstract reasoning skills are not well developed, you enjoy good practical skills. Mr Newton states that you are capable of engaging productively with independent employment. Your long-term employment in a field you are passionate about is an important part of your life.
58I accept the application of principles five and six of Verdins. Mr Newton’s opinion is that a prison environment would very likely result in the marked deterioration of your mental state. You would be at an elevated risk for developing more severe anxiety and depression related problems requiring intense mental health intervention.[19] I accept that imprisonment would weigh more heavily on you than upon someone in normal health.
[19]Ibid [40], [56] (21) – (22).
Sentencing
59I have had regard to the pre-sentence assessment report from the Department of Justice dated 21 May 2024.
60I have considered the prosecution submission that a CCO should be accompanied by a term of imprisonment to meet all sentencing objectives.
61Ultimately, having had regard to all the matters and circumstances in this case and the guidance from the Court of Appeal in Boulton v The Queen,[20] I have determined that all sentencing purposes can be met by the imposition of a CCO.
[20](2013) 46 VR 308.
62Can you stand Douglas Adams.
63On charges 1, 2, 3 and 4, you will be convicted and sentenced to a CCO for a period of 2 years commencing today.
64Every CCO has core conditions that you must comply with. They are as follows:
· You must not commit any offence punishable by imprisonment.
· You must comply with any obligation or requirement prescribed by the regulations.
· You must report to and receive visits from the Secretary.
· You must report to the community corrections centre within two clear working days.
· You must notify the Secretary of any change of address or employment within two clear working days of the change.
· You must not leave Victoria except with the permission of the Secretary.
· And, finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure your compliance with the order.
65In addition to the mandatory core conditions, the CCO will also include special conditions. The special conditions are:
· First, you are required to undertake 300 hours of unpaid community work as directed.
· Second, you must undergo any mental health assessment and treatment as directed.
· Third, you must engage in programs that address factors relating to your offending behaviour.
· Fourth, you will be subject to supervision as directed for the duration of the CCO.
66Pursuant to s 48CA(2) of the Sentencing Act 1991, I direct that any hours of treatment and rehabilitation successfully undertaken be counted as hours of unpaid community work.
67You must report to Bendigo Community Correctional Services within two working days.
68You 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.
69The 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.
70So, there are serious consequences attached to any breach. Do you understand Douglas Adams?
71OFFENDER: Yes, I do.
72HIS HONOUR: Do you also understand all the conditions of the proposed CCO?
73OFFENDER: Yes, I do.
74HIS HONOUR: Do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
75OFFENDER: Yes.
Section 6AAA declaration
76Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty, I would have been sentenced you to a term of 12 months’ imprisonment in combination with a CCO.
0
4
0