Director of Public Prosecutions v Anderson

[2016] VCC 1420

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01013

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER ANDERSON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2016
DATE OF SENTENCE:	26 September 2016
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1420

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Moleta
For the Offender	Mr Gibson	Victoria Legal Aid

Pages 1 - 8

 

 

HER HONOUR: 

1Christopher Anderson, you have pleaded guilty to one charge of rape.  The maximum penalty for this offence is 25 years.

2The circumstances of your offending are fully set out in Exhibit A, summary of prosecution opening on the plea dated 9 September 2016 and can be summarised as follows:  On Friday 4 March 2016 you were at an 18th birthday party in Heathmont.  You were friends with one of the boys who lived in the house.

3Ms Samantha Richards[1] who was a work colleague of Elle Baird[2], the girl whose birthday was being celebrated, also attended the party.  She did not know any of the other people at the party.  You were aged 25 at this time and Ms Richards was aged 17.  You had not met her before this night.  The party proceeded without incident with you both drinking alcohol throughout the night.  Towards the end of the night Ms Richards had met up with another person, Ryan and they were lying on the porch kissing and cuddling.

[1] A Pseudonym

[2] A Pseudonym

4At about 1.30 am you came out onto the porch and lay behind Ms Richards.  You started touching her side and her breasts.  She moved away and you began masturbating whilst lying behind her.  You were observed by a number of people at the party doing this.  Ms Richards and Ryan went inside the house.  Later after Ryan had gone home you were outside near Ms Richards. You sat next to her and stared at her.  She soon said that she was going to bed.  She went to sleep on the floor on a mattress in her friend's bedroom.

5Ms Baird was also asleep in the same room with her partner.  Sometime later you went into that bedroom when she was asleep.  You pulled down your pants and sat on her chest while she was asleep.  You then placed your penis in her mouth.  She woke with the pressure of you sitting straddling her on her chest and she was struggling to breathe with your penis in her mouth.  It took her a moment to realise what was happening.

6She was unable to get Ms Baird's attention and wake her up as she could not make any sounds.  After about a minute she managed to turn her head and get your penis out of her mouth.  She then broke away from you and woke up the others in the room.  You were observed lying on the mattress smiling.  Ms Richards had gone in the walk-in robe and was huddled over and crying hysterically.  Ms Baird told you to get out and you said you could not understand what you had done wrong.  Eventually you left the room.

7After you had left the room Ms Richards told Ms Baird what happened.  You continued to deny any wrongdoing but eventually you left the house.  Ms Richards went to the police the next day and made a statement.  On Sunday 6 March you were interviewed by police.  You admitted you had drunk a lot of alcohol that night and were out of it.  You maintained you did not recall masturbating on the porch.  You said you woke up in the bedroom and a girl was crying.  You said that you would have never have done what is alleged as you do not do things like that.  Your DNA was identified on Ms Richards' t-shirt that she was wearing when on the mattress in the bedroom. 

8I was provided with a victim impact statement from Ms Richards.  It was read aloud in court and I take that material into account (Exhibit C).  In the course of the statement Ms Richards bravely and eloquently sets out the effects of your offending on her.  Your actions have affected many aspects of Ms Richards' life including her schooling, confidence, anxiety levels, sleep, relationship with peers and with her father. 

9She says, "I remember when I was raped.  I felt violated and that I had become less of a person.  I felt scared, very anxious and like I couldn’t trust anyone, like everyone was out to get me.  I felt like I wasn’t the same person as I was beforehand and like I was kind of just in my own little world unable to keep up with what was going on around me.  After it happened I wasn’t sure if it was real or if it was just a dream.  I couldn’t comprehend that something like this could happen to me, it just didn’t feel possible.  I kept feeling like it was my fault, just wanting to disappear."

10You are currently aged 25.  You are the middle child of your parents with an older brother and younger sister.  Your parents were with you in court and provided written material to me.  Your mother also gave evidence.  You had a stable and happy childhood and grew up in Mount Evelyn area.  You completed your schooling with VCAL and also worked in a bakery near your home.  Despite having a learning disability you have had no significant behavioural issues, although you struggled with your studies.

11Your peers assisted you at school and you were popular.  You have pursued your interest in music with a music engineering course at Box Hill TAFE.  You first experienced major difficulties after you commenced using cannabis when you were aged 20.  You have had two admissions to Maroondah Psychiatric Unit suffering psychosis.  You were ultimately diagnosed as suffering from schizophrenia.  You were medicated and referred to a psychologist who you have seen on a number of occasions between 2011 to date.

12I have recieved reports from Ryan Teuma, forensic psychologist, dated 22 August 2016 (Exhibit 2) and Dr Adam Deacon, consultant psychiatrist, dated
9 September 2016 (Exhibit 1).  The reports set out the details of your personal background, history of mental illness and your response to this offending.  I take that material into account.

13When you were first hospitalised you were placed on anti-psychotic medication and have remained on that regime when in the community.  Your psychosis resolved with medication and you have attended Ryan Teuma over the past five years for counselling.  You became concerned about the side effects of some of the medication and were not always compliant.  However I understand that when symptoms returned you went back to the medication.  Your compliance with medication has not been consistent over the last four to five years.

14It is apparent from the material in Ryan Teuma's report that you have progressed in many areas of your life over the last four to five years despite your mental health issues and your learning difficulties.  You have actively engaged in studies, been employed in disability services, interacted with peers and have slowly gained confidence with reduced levels of social anxiety and embarrassment related to your issues.

15It is considered however that on occasions during this period that you have resorted to alcohol to overcome or deal with some of your issues.  During 2015 you commenced performing direct care work and bought a car.  These steps were viewed as positive for your growth during 2015.  With matters progressing well for you, your mother gave evidence that earlier this year, your parents tried to give you more independence but this was at a time where issues regarding work and relationships became more difficult for you.

16Leading up to this offence you were again non-compliant with your medication.  It is noted in the psychiatric report that during this period you experienced subtle signs of emerging psychotic symptoms.  However it is also reported that it is very difficult to determine whether your mental illness is germane to the offence. Dr Deacon is of the opinion that there is no evidence that the conduct constituting the offence was driven by positive psychotic symptoms such as delusions or hallucinations.

17Reference was made to your alcohol consumption and some of the bizarre features of your behaviour before and after the incident.  However your counsel conceded that there was no evidence regarding the causal link between your mental illness and your offending such as to engage the relevant Verdins principles.  Your conduct appears to be without explanation other than by your level of intoxication.

18Your moral culpability is not however reduced because of this state and it was not submitted that it should be.  Your schizophrenic illness is enduring and will require indefinite treatment.  Your mental health and auditory processing problems or learning difficulties are clearly relevant to any period that you spend in custody.  It was not disputed, and I accept that your time in custody will be more onerous for you than those who do not have these issues.

19I take into account your plea of guilty.  You have pleaded guilty at an early opportunity and will receive the full benefit of the plea.  Further there is a utilitarian benefit in the plea.  None of the witnesses but particularly Ms Richards ever had an expectation, or was required to give evidence and go through the obvious trauma of reliving the events of this night.  Additionally you have saved time and cost to the community by not running a trial.  I also accept your plea is indicative of remorse.  I accept that your initial reaction and response to police questioning was denial, but that in the opinion of Dr Deacon this denial was consistent with you being so deeply ashamed that you could not admit to the offending to anybody, including yourself.

20Dr Deacon notes, "It was very clear in this assessment that you were very ashamed and still quite perplexed that you could have committed such a serious sexual offence.  You understand the likely impact on the victim and you have expressed remorse."

21I accept that you have expressed sincere victim empathy as indicated to professionals and expressed by your mother in her evidence.  Given those matters outlined above I consider your plea to be of significant value and you are entitled to a substantial discount in sentence as a consequence.

22You have no prior convictions and as previously indicated I received written material from your family and friends attesting to your many positive personal characteristics.  I accept that your conduct on this night was completely out of character.  There are a number of features that auger well for your rehabilitation.  You have no prior convictions and this kind of behaviour was completely out of the bounds of your normal behaviour and uncharacteristic.  This is consistent with your psychologists opinion who reports that your behaviour this night is at odds with your presentation of the last five years of psychosocial and sexual development.

23You have very strong support from your parents.  They have remained committed to supporting you through your difficulties through your life and have indicated a preparedness to continue to do so.  You engaged the services of Megan Polkinghorne, drug and alcohol counsellor, soon after this incident in March this year for assistance in addressing your alcohol issues.  You have maintained abstinence and have continued to attend counselling (see Exhibit 3.)  I accept the opinion of Deacon that as long as your mental illness is well managed and you abstain from alcohol, your risk of recidivism is likely to be very low.

24The prosecution submitted that there were some aggravating features of this offending including the victim was young, 17 years and vulnerable as she was asleep.  You positioned yourself on her in such a way as to exert control over her and so that she could not easily push you away.  The maximum penalty for this offence is 25 years and the effect on the victim has been significant.  I accept these aggravating features but also note that this offending was not premeditated and did not involve threats or weapons.

25The prosecution submitted that sentencing principles of just punishment, of general deterrence and denunciation were important considerations.  Reference was made to a number of authorities, particularly
Hassan v R [2010] VSCA 352 at 40 and the seriousness of this offence. Additionally I was directed to the court's consideration of current sentencing practices for rape in that case at Paragraphs 44 to 60 and it was submitted that that sentencing practice still applies. Your counsel submitted I should consider a combined CCO and imprisonment disposition. In the alternative it was submitted that with any term of imprisonment I should impose a shorter than normal non-parole period.

26The prosecution submitted the only appropriate disposition was a term of imprisonment.  As I indicated in the course of the plea to counsel the sentencing exercise in this case is difficult, involving balancing the objective gravity of this offending with matters personal to you and taking into account all other relevant sentencing principles including general deterrence and just punishment.  I accept that given the opinion of Deacon specific deterrence has limited application.

27As required by the Sentencing Act I must have regard to all matters listed in s.5(2) including the maximum penalty and current sentencing practices.  If you could please stand, Mr Anderson.

28In relation to one count of rape I sentence you to a term of imprisonment of three and a half years with a non-parole period of 20 months.

29As you have pleaded guilty to one Class 1 offence and are therefore a registrable offender under the provisions of the Sex Offenders Registration Act 2004 the length of your reporting period is 15 years.

30You will now be provided with a notice which includes your reporting obligations and the consequences that may arise if you fail to comply with those obligations.

31Pursuant to s.6AAA if you had not pleaded guilty to this matter I would have sentenced you to a period of six years' imprisonment with a minimum of four years.  Do you have the Sex Offender order?  Mr Gibson, do you want to attend with my Associate to fill out the Sex Offender - thank you.

32Ms Moleta, are there any other matters?

33MS MOLETA:  PSD, Your Honour, is 11 days not including today.

34HER HONOUR:  Thank you.  I declare pre-sentence detention of 11 days.  Thank you.

35MR GIBSON:  Your Honour, could I possibly have suicidal ideation marked as a custody management issue?

36HER HONOUR:  Yes, sure.

37MR GIBSON:  Thank you.

38HER HONOUR:  I will have that marked on the records.  Thank you.

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