Director of Public Prosecutions v Alexander
[2016] VCC 668
•19 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-15-01510
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN ALEXANDER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 May 2016 | |
CASE MAY BE CITED AS: | DPP v Alexander | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 668 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Zebrowski | Office of Public Prosecutions |
| For the Accused | Mr P. Tiwana | James Dowsley & Associates Pty Ltd |
HER HONOUR:
1 Steven Alexander, you have pleaded guilty to one charge of rape (Charge 1) and one transferred summary charge of using a drug of dependence, namely, methylamphetamine (Summary Charge 7). The maximum penalty for rape is 25 years’ imprisonment. The maximum penalty for using a drug of dependence is one year’s imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening, which was tendered as Exhibit A. In brief, the circumstances are as follows. Towards the end of May 2014 you met the complainant. You became acquaintances and socialised together. You told the complainant you were unemployed and had nowhere to stay. The complainant felt sorry for you and she let you sleep, on occasion, on the couch in her unit. You began to spend more time sleeping on the couch and moved more of your belongings into the unit. The complainant began to consider you a friend and supported you when you told her about your past and your contemplation of suicide. She assisted you by allowing you to stay on her couch and providing you with money, food and cigarettes.
3 On Saturday 21 June 2014 you dropped the complainant and a friend at a bar about 9 pm. You came to the bar for a time later in the night and then returned to the complainant’s unit. The complainant returned home by taxi about 4 am on Sunday 22 June 2014. You were watching television on the couch when the complainant arrived home. She was very drunk and changed into her nightwear. She took two Xanax tablets so she could get a good night’s sleep. You and the complainant had an argument because the complainant said she was feeling used and was sick of it. After a while, you apologised and hugged the complainant and kissed her on the cheek.
4 After that, the complainant began to feel strange. She cannot recall how she got into bed. At some point during the night she awoke, lying on her back, to find you lying on top of her with your penis in her vagina and your hands all over her body and breasts. She felt a sticky wetness all over her vagina. The complainant woke up at about 10 am in the morning. She felt very wet in her vagina area and on the sheet beneath her. She was also sore and tender. She was not wearing underpants and could not find them. You were lying next to her on the bed. She climbed out of bed, found her clothing and had a shower. When she came back, she woke you up and told you to get out. She went out of the unit and then returned to find you still there and told you to get out of her house.
5 Later that night, the complainant rang her mother. On the Tuesday, the complainant attended a doctor and was tested for pregnancy and sexually transmitted diseases. The results of the tests were negative. Between 30 June and 3 July 2014 there were a number of text messages between you and the complainant. She then received a number of text messages which she thought were intimidating. On 3 July 2014 the complainant attended the police station and made a complaint about your behaviour.
6 You were interviewed by police on 9 July 2014. You made a number of admissions to the police. You said that the complainant was in and out of consciousness. You said you thought she was pretending. You said that you were not sure whether she was or was not awake when you were having sex with her. You also told the police you had used methylamphetamine at a mate’s place on 30 June 2014. That use is the subject matter of Summary Charge 7. You indicated your plea of guilty to the charges on the day of the committal hearing without evidence having to be called.
7 A victim impact statement from the complainant was tendered as Exhibit C. In her statement, the complainant described the feelings of frustration, anger, fear, mistrust and emotional damage that she had as a result of your offending. She says that she still has flashbacks and reminders on a daily basis. The complainant says she had suffered from depression and anxiety since her teenage years but had managed that prior to this offending. She says that since your offending she has struggled to avoid self-destructive behaviour and to deal with severe anxiety. She says she has trouble now with intimacy and fear of being hurt. She says that she is much more socially isolated than she had been.
8 The complainant also describes the financial impact on her as she was unable to work for some time and could not continue with her business in the same way that she had previously. She says that she is trying to recover and to rebuild her business. It is to be hoped that she will be able to succeed in that effort.
9 In sentencing you, I have taken into account your personal circumstances, which were outlined by your counsel and which were also described in a report from Dr Lester Walton, consultant psychiatrist, dated 16 March 2016.
10 You are now 40 years old. You suffered significant disadvantage in your childhood as a result of family problems. You grew up in a household with your grandmother, your mother and your mother’s three sisters. Your grandfather was sexually and physical abusive to members of the family. You did not know until you were in early adolescence that your mother was indeed your mother. Up to that point, you thought she was your older sister and that your grandmother was your mother. You found that revelation difficult and confusing and your behaviour deteriorated. Your mother, in her letter to the court which was included in the plea material tendered on your behalf (Exhibit 2), says that your reaction was one of anger and confusion. She says your behaviour started to deteriorate at home and at school and you began experimenting with substances. You were not told the whole truth until your early adulthood, when your mother informed you that your conception was the result of a violent rape of her by your grandfather.
11 Your mother herself suffered significant psychiatric problems and your family moved a number of times so that you attended a number of primary schools and secondary schools. You repeated Year 10 and then left school. You have a hearing defect in both ears and slightly impaired speech.
12 You started drinking alcohol at the age of 13 and by 16 were mainly using amphetamine and LSD. At around 21 you began using ecstasy and that continued, along with intermittent cocaine use, until you were in your thirties, when you began using methamphetamine. You told Dr Walton that you had ceased using methamphetamine in February 2015, apart from two lapses, although occasionally you had been smoking cannabis.
13 You have had intermittent employment in a bottle shop and as a renderer. You have been involved in two significant de facto relationships but have not recently been involved in a relationship. You maintain telephone contact with your grandmother and mother who reside in Queensland. Your grandmother and aunt were in court to support you.
14 Dr Walton was provided with reports from Dr Abdelhady, who had diagnosed you with substance abuse issues and with an underlying personality disorder,r and Dr Lee, who had diagnosed you with substance abuse issues and a mixed personality disorder. Dr Walton appears to accept those diagnoses but does not discuss them in any detail. Dr Walton is of the opinion that because of your personality problems and being adversely affected by methamphetamine at the time, you would have been more than usually prone to misinterpreting non-verbal cues from the complainant. He says that you have told him that, at least with the wisdom of hindsight, you fully accept that the victim was not in a position to provide meaningful consent.
15 Dr Walton says that you can express victim empathy. He says that your level of personality disturbance “likely is more disabling than many patients would experience with diagnosable mental disorders”. He considers that incarceration would be more onerous for you. He says that you have suffered from fluctuating anxiety and depression and that “fundamentally this is part of his damaged personality but he would attract a diagnosis of chronic mixed mood disorder”. Dr Walton appears to be of the view that you need to continue with psychiatric treatment and rehabilitation in respect of your personal issues and drug abuse issues.
16 You have admitted a prior criminal history which deals with four court appearances between 1994 and 1996. None of that prior offending involves sexual offending.
17 Your counsel in sentencing submissions submitted that the appropriate sentence in view of your particular circumstances would be a community correction order. Your counsel said that in the last 18 months you have made a real effort to change your life, including stopping your entrenched drug abuse.
18 A case manager from the Mental Health Homelessness Program, Ms Bunn, gave evidence about her interaction with you. She had also written a letter of support dated 23 March 2016, which was included in Exhibit 2. Ms Bunn said that you had complex needs that require more support than can be provided by some services. Ms Bunn said that you have a long history of homelessness, mental health issues and complex trauma. She said that you have had multiple diagnoses, including borderline personality disorder with antisocial traits, dissociative episodes and post-traumatic stress disorder. She said you have been actively participating in alcohol and drug treatment since December 2014 and have regularly attended Narcotics Anonymous.
19 You have been on a community correction order for unrelated offending which was imposed on 31 July 2015. Ms Bunn said that she has been working in conjunction with the Office of Corrections and you have been attending all appointments and meeting the requirements of your correction order. Ms Bunn said that you have readily and enthusiastically engaged with the Mental Health Homelessness Program and worked in a volunteer role with the Salvation Army between June and December 2015. You have also regularly attended your local church. She said that you have gained considerable insight into your situation and the triggers for your drug use.
20 Ms Bunn said that you now have hearing aids which have assisted you and that you have been living in transitional accommodation where you have assisted in maintaining the property. You obtained some casual employment as a labourer which lasted for about four months. Ms Bunn also spoke about your affection for your dog and says that if your dog needed to be rehomed that it would be quite stressful for you.
21 Mr Connor Sibley, a community development outreach worker with Salvocare Eastern, in his reference says that in his involvement with you since December 2014, you have shown dedication to making positive changes in your life and have expressed remorse and disappointment in relation to past events.
22 Ms Rachel Joll, an alcohol and drug clinician with the Stepping Up Consortium, assisted you with drug and alcohol counselling between December 2014 and July 2015. She says in her reference that you engaged consistently in that program and that you have a capacity to achieve your goals.
23 The pastor of your church in his reference (Exhibit 3) says that you have been attending meetings regularly since August 2015 and that you have made steady and positive progress in that time.
24 In sentencing submissions, your counsel relied on a number of factors including:
(a) your admissions to police;
(b) your plea of guilty;
(c) your remorse;
(d) your prospects of rehabilitation;
(e) moderation of general deterrence in application of Verdins’ principles because of your ongoing depression and anxiety;
(f) imprisonment being more onerous for you because of your mental health issues;
(g) your limited prior criminal history;
(h) your disadvantaged background;
(i) the circumstances of the offending, including that you stopped of your own accord.
25 The prosecutor in sentencing submissions submitted that there should be no application of Verdins’ principles and that your offending warranted an immediate term of imprisonment. The prosecutor submitted that your offending constituted a breach of trust and that you took advantage of someone trying to assist you. The prosecutor submitted that a sentence of imprisonment, combined with a community correction order, would be outside the range for sentences in respect of this offence of rape.
26 You have been assessed for your suitability for a community correction order. The writer of the assessment considers you suitable and has made a number of recommendations as to appropriate conditions. The writer confirms your compliance with the existing community correction order, although some concerns about your behaviour towards your case manager were noted. I accept that you are suitable for a community correction order and that you are willing to comply with such an order.
27 Steven Alexander, rape is a very serious offence. The maximum penalty of 25 years’ imprisonment demonstrates the seriousness with which Parliament on behalf of the community takes this type of offending. Rape involves the very serious physical violation of another person. The complainant in this matter was, on your own admission, in and out of consciousness. You knew that she had had alcohol to drink and that she had taken Xanax. She was clearly not in a position to give free consent to sexual intercourse with you and you knew that. I accept that there was a certain amount of kissing and cuddling between you. There had been no agreement from the complainant to going any further in terms of sexual intimacy. She was in her own home and own bed where she was entitled to feel safe. The complainant trusted you and you abused that trust.
28 You have said that you did not ejaculate and there is no material on which I can be satisfied that, beyond reasonable doubt, you did so. Whether or not you ejaculated, you still had unprotected sex with the complainant, which exposed her to certain risks.
29 There are factors which operate in mitigation but, despite those matters, your offending is so serious that only a term of imprisonment with a non-parole period can appropriately reflect the sentencing considerations of denunciation, general deterrence, just punishment and specific deterrence. I do not consider that a community correction order or a term of imprisonment combined with a community correction order could adequately meet those sentencing purposes.
30 General deterrence is particularly important so that others realise that consent means free agreement and nothing less. Unless there is free agreement prior to sexual intercourse then the sexual intercourse is unlawful and offenders will be severely punished. The courts must impose significant sentences so that the community understands this.
31 I consider that your prospects of rehabilitation in respect of sexual offending are good. In terms of offending generally, you seem to have been making strenuous efforts to stabilise your life and to deal with your drug abuse problems. You also have had treatment for your mental health issues and appear to be making progress in those matters. Your prospects in respect of your rehabilitation generally appear to be reasonable and I do not consider that specific deterrence need be given significant weight in sentencing you. It appears to me that this experience will have brought home to you the importance of making sure that you have consent before you engage in sexual intercourse. You have expressed remorse and victim empathy and those matters support my conclusion that specific deterrence need not be given significant weight in sentencing you.
32 The evidence in respect to the drug offence in Summary Charge 7 entirely relies on your admission to the police. I consider that the appropriate disposition in light of your efforts of rehabilitation is a conviction and discharge.
33 In respect to the rape charge, I have taken a number of matters into account in mitigation. You are entitled to a significant discount for your plea of guilty. That plea of guilty has saved the trauma to the complainant of having to give evidence at a committal and trial and has saved the community the expense of the trial. I also regard that plea of guilty as an expression of your remorse. You made immediate admissions to the police and, although you have tended to try and make some excuse for your behaviour, ultimately you have accepted your legal responsibility and have been remorseful in respect of any harm caused to the complainant. In this case, that harm has been significant and your offending has had very negative impact on the complainant, who was already vulnerable to a degree. In view of the support and kindness she had shown you, your abuse of her trust was a poor return.
34 I do not consider that your moral culpability is in any way reduced because of your mental health issues. Those mental health issues did not prevent you from understanding that you ought not to have sex with anybody without their consent or exercising appropriate judgment. Those mental health issues or personality disorders did not interfere with your ability to make that sort of moral judgment. Your alcohol and drug use may have contributed to a reduction in your inhibitions but again, that does not reduce your moral culpability.
35 I do accept that your mental health issues and personality disorder will make imprisonment more difficulty for you, and I have taken that into account in mitigation of sentence. I have also taken into account your very difficult upbringing and the problems that you suffered as being a contributing factor to your personality disorders. I have taken those matters into account in sentencing you.
36 On Charge 1, you are convicted and sentenced to a term of imprisonment of three years and eight months.
37 On Summary Charge 7, you are convicted and discharged.
38 I fix two years and two months as the period you are required to serve before being eligible for release on parole.
39 But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years and ten months with a non-parole period of three years and four months.
40 I declare that you have served 49 days of this sentence by way of pre-sentence detention, which will be deducted administratively.
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