Director of Public Prosecutions v Andrew Bray (a pseudonym)

[2015] VCC 1147

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-11-02405

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW BRAY (a pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 -13 March 2015; 6 August and 19 August 2015
DATE OF SENTENCE:	19 August 2015
CASE MAY BE CITED AS:	DPP v Andrew Bray (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1147

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Trial  – Rape – Guilty by majority verdict -  Complainant deceased at the time of trial commencement – Traumatic childhood background of accused – Diagnosis of ‘schizophreniform’ psychosis – History of alcohol and drug use  

Legislation Cited:     Sentencing Act 1991
Cases Cited:            Boulton & Ors and The Queen [2014] VSCA 342

Sentence:Term of imprisonment of 803 days (time already served) together with Community Corrections Order of five years duration with mandatory and other conditions – 803 days declared as having already been served as pre-sentence detention – Ancillary order – Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.  Parkes	Solicitor for Public Prosecutions
For the Accused	Mr S.  Bayles	Emma Turnbull Lawyers

Andrew Bray (a pseudonym) was adopted by the Court of Appeal, Supreme Court of Victoria in respect of this matter on Interlocutory Appeal – Bray and The Queen [2014] VSCA 276 to ensure that there would be no possibility of the identification of the complainant in a sexual offence matter.  For continuity purposes the same pseudonym has been used in respect of these sentencing remarks.

HER HONOUR:

1Andrew Bray, following a trial held earlier this year, you were found guilty of the charge of Rape which carries a maximum penalty of 25 years imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence.

2I sentence you on the following basis, consistent with the jury’s verdict: On 20 October 2010, you attended the apartment of your friend, Mr A, with the complainant and others.  It is evident that you and the complainant and others consumed a good deal of alcohol over the course of the evening and before you offended.  After having conversed with the complainant that evening, the complainant went to the bathroom in order to go to the toilet.  She was at the toilet when you walked in and closed the door.  She moved out of your way as she thought  that you needed to go to the toilet urgently.  However, you physically overpowered the complainant, then anally raped her.  You placed your hand over her mouth, preventing her from calling out in pain or for help.  After having ejaculated, you left the bathroom, and the complainant was left there in a distressed state.   She eventually left the room also.  The complainant suffered bleeding to the anal area and described the pain that she experienced from you penetrating her as ‘worse than childbirth’.  She also described feeling ashamed.  The following morning she complained that she had been raped to her social worker, and you were subsequently arrested and charged with rape.

3You lied to police, telling them that you did not know the complainant and that you had not had sex with her.  Subsequently, at a time when DNA results were to hand, as I understand it,  you filed a defence response indicating that you had anally penetrated the complainant but that this was consensual.  This was the issue which you ran at trial and your account which you gave before the jury was obviously rejected.  You are not to be punished for running a trial; however, if you had not, you would have received a discount in the sentence for pleading guilty, and it would have indicated some remorse.

4The complainant died sometime after the committal hearing was conducted in this matter, but before the matter went to trial.  Her death was not related to your offending and I make it clear that I sentence you on this basis.  I also make it clear that I do not regard your offending as less serious because the victim is no longer with us. 

5Your offending conduct is deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.  Further, strong weight ought attach to general deterrence in a bid to deter others from behaving as you have. 

6You maintain your innocence in respect of the offending, and so you have no remorse and little if any insight into what you have done.  However, in your report to Dr Carroll you admit that you may have done something wrong but you were not sure.  You told Dr Carroll that you and the complainant drank together and ended up having sex; that you had become good friends and were from the same tribe and that you did not think you had done anything wrong.   Mr Bray, you did do something wrong, very wrong, and to suggest to Dr Carroll, as you did, that perhaps the victim had died because God was punishing her for lying is both ridiculous and offensive.  It gives me some cause for concern about you.  You need to understand, Mr Bray, that just because someone is friendly toward you, even if they hug and kiss you, this does not mean that they are agreeing to have sex with you.  In the future, I hope you are very careful and respectful in your dealings with women, and that you learn a great deal from the sex offenders’ program which I am going to place you on.

7You have some prior convictions in Tasmania in respect of assaulting a police officer and common assault as well as driving offences and breaching bail.  All matters were dealt with in the Magistrates’ Court and were mostly dealt with by way of fines.  However, on 23 March 2006 you received a suspended gaol term of one month in respect of the assault police officer matter and on 18 July 2006 you received a wholly suspended gaol term of four months in respect of the two common assault charges and breach of bail.  On 5 September 2007 at the Melbourne Magistrates’ Court, you were convicted and fined $500 in respect of hindering police. 

Chronology.

8The chronology in the matter before me is a rather unusual one.  You were arrested on 8 January 2010 and charged and remanded in custody the following day.   After serving 578 days in custody, you were granted bail on 8 August 2012.  You were then re-remanded on 21 December 2012 and bailed again on 19 December 2013, which meant that you spent a further 364 days in custody.  On 3 May 2011 you had been sentenced to 4 months’ imprisonment for attempted robbery and stating a false name and address (‘the 2009 offences’).  140 days was declared by way of pre-sentence detention.  It is agreed that you have spent a total of 803 days in respect of the matter before me which is about 2½ years. 

9The 2009 offences pre-dated the offence before me.  At the time you committed the offence before me, you were therefore on bail for the 2009 offences; and so committed the offence before me whilst on bail which is an aggravating factor in your case.

10However, on any view of matters, there has been significant delay in your case, and it is most regrettable that the matter did not reach conclusion until earlier this year.  I accept that because of your mental health difficulties and isolation in gaol, the time which you spent in gaol would have been significantly harsher than might otherwise have been the case.  I understand that you received a good deal of support from Mr Michael Allen, who visited you when he could and provided you with company and conversation.  He is to be commended for this, as are the other support workers in your life, now that you are in the community.  Nonetheless, you have been subjected to two separate stints in gaol for significant periods, and in harsh conditions, which I factor in when sentencing you.  I also take into account that you have been in the community since 19 December 2013 and have not re-offended.  Indeed, it is to your credit that you have not been charged with or committed any further offence since the matter before me, as I understand the situation.  I accept that those periods in gaol had a salutary effect on you and have no doubt acted as a deterrent. 

11Further, you have used your time in the community to obtain some skills to help you to obtain employment and you have abstained from alcohol and from cannabis for a considerable period.  As your offending was associated with alcohol abuse, your decision to abstain from alcohol and cannabis for that matter is a good decision, as is your decision to stay away from those with whom you had socialised at the time of your offending.  All of these steps are good indicators for your prospects of rehabilitation, as is the fact that you now have stable accommodation, thanks to the Salvation Army. 

12I take into account your background which is a most unfortunate one.  You are now 28 years old and were 24 years old  at the time of the offending.  You were born in South Sudan and are one of eight children; you also have numerous step and half-siblings.  Your family was separated during the war.  Your mother still lives in the Sudan.  Sadly, your father was killed in an incident in 2013.

13You experienced a great deal of trauma as a child because of the impact that the war in the Sudan had upon you.  You and your family had to flee your home and you had to go into hiding for various periods, amid the sound of gunshot fire and fighting.  As a child, you witnessed the aftermath of fighting including the dire sight of corpses and injured people.  You and your family were forced to continually flee to safety because of ongoing fighting. 

14You left the Sudan with an aunt when you were about 10 or 11 years old and went to a refugee camp in Kenya.  You spent about 5 years there with your Aunt and some siblings.   Upon arriving in Australia, you lived in Tasmania and then in 2008, you moved to Victoria.  While in Victoria you were essentially homeless, staying with family or friends, but you did not have a place to call your own.  However, more recently, you have obtained stable accommodation through the Salvation Army Housing Service, which is another positive factor in your rehabilitation. 

15You received very little education whilst in Africa and only had two hours of schooling in English classes in Australia. 

16You have a former partner and a son who live in Tasmania and although you are on good terms with them, your contact is limited.  You used to socialise with certain members of the Sudanese community who abused alcohol, and this was the case at the time you committed the offence before me.  As I have said, you no longer associate with these people, and have been abstinent from alcohol and from cannabis for a significant period, which as I have indicated are matters in your favour.  However, you are somewhat socially isolated, and it is to be hoped that through the agencies who have been helping you, and/or through employment perhaps, in the future you can develop some friendships and take advantage of some positive peer support. 

17However, you ought not return to alcohol or drug abuse as this will put you at significant risk of committing further offences. 

18I take into account your mental health, which is well documented.   In 2009 you were diagnosed as suffering from a ‘schizophreniform psychosis’, having had some contact with mental health services in 2008 and 2009.  At the time of the offence for which I sentence you, you were not taking prescribed medication, and although it was not put that your condition impacted on any of your faculties so as to reduce your moral culpability, I accept that at around that time you were suffering some symptoms of your condition and were probably using alcohol and perhaps cannabis as forms of self-medication.  I accept that your mental illness is relevant to the type of disposition that I impose and that any term of imprisonment imposed would be a harsher experience for you than for someone without your difficulties as indeed it has been.  In reaching these conclusions I have considered the detailed reports of Dr Janev dated 3 August 2015 and Dr Carroll dated 2 July 2015. 

19You are now taking appropriate medication, which is being managed by your GP, and I accept that you have good insight into your mental illness, as indicated by Dr Carroll.  You accept that you need to abstain from alcohol and cannabis and remain on medication, and you must always remember how important that is.   Sometimes, Mr Bray, people in your position think they are well enough to stop taking their medication.   This is wrong and you must never do it.  Do you understand that?  

20OFFENDER:  Yes.

21HER HONOUR:  If you do, there is a big risk that you will commit further criminal offences and will end up back in gaol. 

22I have taken into account the character evidence given by Mr Michael Allen in support of you and the letter from Mr John Livingstone from Jesuit Social Services.  Both speak very highly of you and the efforts you have made in your participation in the African Visitation and Mentoring Program.  I have also taken into the account the letter from Ms Lukey from the Young Adults Program run by the Salvation Army.  Since obtaining independent accommodation in February 2015, you have responded most positively and responsibly to that situation, which is to your credit.  Ms Trieu from that organisation also provided a supportive reference and was in Court to support you and I see that she is here again today.  You have also taken part in skills training programs run by Jesuit Social Services and for a time you obtained some employment.  I am very keen for you to continue your skills training and to obtain some employment.  I understand that this is your intention and it is to be hoped that the necessary agencies liaise in order to make these matters a priority for you. 

23In view of the salutary effect that gaol has had upon you in the past, your lack of subsequent offending in the past five years, your engagement with Jesuit Social services, your stable accommodation, and abstention from alcohol and drugs as well as your compliance with medication and insights in respect of your mental illness, I am of the view that your prospects of rehabilitation are fairly good, although, I say this somewhat guardedly, because of the fact that you still have a way to go in respect of your insight into your offending.  I place some weight on specific deterrence and protection of the community in all of the circumstances. 

24Mr Bray, as Mr Bayles, who has worked tirelessly on your behalf, submitted, usually offending such as yours would result in you serving a lengthy gaol term which would involve a head sentence (or maximum term) and a non-parole period.  However, in your case, it is accepted by the Prosecution that there are some exceptional features which warrant a sentence which does not involve you returning to gaol.  Since you committed this dreadful offence, the Court of Appeal has brought down a decision of Boulton & Ors v The Queen [2014] VSCA 342 which, amongst other things, decides that community corrections orders have dramatically changed the sentencing landscape and may serve to address all relevant sentencing considerations even in cases which previously would have attracted a medium term of imprisonment. That case also recognised that in some cases, the imposition of a gaol term combined with a Community Corrections Order might adequately address all relevant sentencing considerations, where the offending conduct is considered to be too grave to justify a Community Corrections Order on its own.

25Mr Bayles submitted that in all of the circumstances of your case, a suitably crafted Community Corrections Order combined with a term of imprisonment but on the basis of time already served was appropriate.   As I have said, the Prosecution does not disagree with this submission. 

26I agree that it is not in the community’s interests nor in your interests to send you back to gaol for a third time.  You have shown that you can behave yourself during the significant period that you have been in the community and you have taken significant steps toward rehabilitation.  Further, the fact that you have already served substantial periods in gaol in harsh conditions is equivalent to you having spent a lengthier period there than you actually have.  To send you back to gaol would be to destroy the gains that you have made and place you at risk of further offending, which is not good for the community or for you.  This is not to underrate the importance of punishment, denunciation and general deterrence in your case; however, as the Court of Appeal has said, in appropriate cases, such principles can be adequately addressed by way of a combined Community Corrections Order and gaol term. 

27You have been assessed as suitable for a Community Corrections Order and a number of conditions that I wish to explore have been recommended.   I have considered the desirability of imposing a condition of unpaid community work in view of the fact that you are wanting to further your skills and to obtain employment.  At the plea hearing, Mr Allen said that unpaid work might be a distraction for you from these other goals and Mr Bayles this morning furthered that contention.  However, I have come to the view that you ought perform some unpaid community work in order to adequately address relevant sentencing considerations such as punishment, denunciation and general deterrence.  I am sure that you will be able to come to an arrangement with Community Corrections so as to fit in your commitments with them and with any training or employment you obtain in the future.  If you get to a stage where you are unable to meet all of your commitments, you have the option of applying to vary the Community Corrections Order, or it may be that any skills training or work you might be able to do for agencies such as the Salvation Army or Jesuit Social Services can count as unpaid community work, if Community Corrections approves of this.  I ask that Community Corrections to take a flexible approach to these matters and bear in mind that it would not be desirable for you to be mixing with others who may be a bad influence upon you.   

28It is most important that you continue with the agencies that you are currently engaging with and so I propose to incorporate such a requirement into the Community Corrections Order I impose. 

29On my reading of s.44(1) Sentencing Act 1991, it is permissible to sentence an offender to a period of imprisonment which exceeds 2 years in combination with a Community Corrections Order where the deduction of pre-sentence detention will result in a gaol term of less than two years.  Therefore, I propose to sentence you to a gaol term equal to your pre-sentence detention of 803 days and I propose to impose a Community Corrections Order with the following conditions.  Would you please listen carefully to the Community Corrections Order that I propose because I cannot make such an order without your consent.

30The Community Corrections Order would run for a period of five years and the following conditions will be attached.  Firstly, the mandatory terms which apply to all Community Correction Orders.   They are:

31That you must not commit another offence for which you could be imprisoned during the time that the order is in force;

32You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

33You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

34You must report to Broadmeadows Community Correctional Services before 4 pm on within two clear working days of today.   So that is by this Friday at 4 pm before that time.   

35You must let a Community Corrections Officer know within two clear working days of you changing your address or job;

36You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);

37You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).

38The conditions that apply in addition to the mandatory terms that I have just listed are:

Community Work

39You must undergo 350 hours unpaid community work to be completed within the next three years.

Supervision

40You must be under the supervision of a Community Corrections Officer for a period of 5 years.

Treatment and Rehabilitation

41You must undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed by the Regional Manager.

42You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in the community and/or in a hospital or residential facility, as directed by the Regional Manager.  In this regard, I ask that the expert reports tendered on the plea hearing be carefully considered with a view to determining appropriate treatment in your case. 

43Further, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager including the Sex Offenders’ Program with the Specialised Offender Assessment and Treatment Service (SOATS).  This program ought be implemented in your case as a matter of urgency.

Judicial Monitoring

44You must attend the Melbourne County Court on Friday 27 November 2015  at 9.30am to be reviewed by me, and you may be required to attend for further reviews by me from time to time for the duration of the order. 

Residual Condition

45That you continue to engage with the Young Adults Program through the Salvation Army and that you also continue to engage with Jesuit Social Services, including attending the Jesuit Community College to improve your work and life skills for such time as these agencies deem appropriate and necessary.

46Do you consent and do you agree to the terms and conditions of the order?

47OFFENDER:  Yes.

48HER HONOUR:  Very well.   I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol.  I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

49Do you understand this?

50OFFENDER:  Yes. 

51HER HONOUR:  Do you maintain your consent to the order?

52OFFENDER:  Yes.   

53HER HONOUR:  Right.   Stand up then, please.   Therefore in relation to the charge before me, you are convicted and sentenced to a gaol term of 803 days and to the Community Corrections Order in the terms and conditions that I have just set out.

54I declare that you have already served 803 days imprisonment and therefore, the Community Corrections Order commences today.  There will be no further need for you to attend gaol.   

55Further, I make the disposal order sought by the Prosecution which is not opposed by you.

56You can now come out of the dock and your barrister will help you sign the documents.   

57You can just sit there in the front row.   Thank you.   

58Thank you, I have signed the order.   No doubt the order will be properly explained to Mr Bray. 

59MR BAYLES:  Yes, I will, of course - - -

60HER HONOUR:  The first thing you have got to do, Mr Bray, is turn up to Community Corrections in Dandenong before 4 pm on this Friday, all right?  So that will be explained no doubt but there are a number of conditions there and I want you to understand what they are and comply with that order, all right?

61OFFENDER:  Yes.

62HER HONOUR:  And I have an appointment for you to see me on 27 November at 9.30 am because I am going to review how you are going and I will ask that a report be prepared by Community Corrections ahead of that appointment with me.   Is there anything arising?

63MS PARKES:  Your Honour,  given that the pre-sentence detention exceeds two years I understand Your Honour has to fix a non-parole period.

64HER HONOUR:  No, I - - -

65MS PARKES:  Pursuant to s.11.

66HER HONOUR: It's a pre-sentence detention aspect that is covered in 44(1). I'm not going to fix a non-parole period, it's a nonsense. So if that's the view taken then that can be fixed up but, as I understand it, the s.44(1) deals with this situation, in effect, where there's pre-sentence detention and I just direct that it's already been served, as I have, and there is no need to set a non-parole period which would make a nonsense of the order that I made. So I am not going to do that.

67MS PARKES:  Yes, Your Honour.

68HER HONOUR:  Do you have anything to say, Mr Bayles?

69MR BAYLES:  No, I don't, Your Honour, only this I think just echoes what Your Honour says; if one were declared it would be of no effect.

70HER HONOUR:  Absolutely, no, and I think it could create problems - - -

71MR BAYLES:  Yes because the totality of the prison time has been served and so there would be no effect of such an order.

72HER HONOUR:  That's right.   Yes, I understand that if it was time to be served but it has already been served so I am not going to do that.

73MR BAYLES:  If Your Honour pleases.

74HER HONOUR:  But thanks for pointing that out, Ms Parkes, I understand your dilemma.

75MS PARKES:  Yes, Your Honour.

76HER HONOUR:  And I just don't think it makes any sense in that context.   Yes, very well, thank you.   

77MR BAYLES:  If Your Honour pleases.

78HER HONOUR:  Yes, we'll now adjourn. 

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