Director of Public Prosecutions v Andrews
[2023] VCC 1558
•30 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-00885
Indictment No. N12721299
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID CHARLES ANDREWS |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2023 |
DATE OF SENTENCE: | 30 August 2023 |
CASE MAY BE CITED AS: | DPP v Andrews |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1558 |
REASONS FOR SENTENCE
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Catchwords: Assault with intent to commit sexual offence; threat to inflict serious injury; sexual assault; threat to commit a sexual offence. summary matter; commit indictable offence on bail. 43 years of age at time of sentence. Lengthy prior criminal history. Early plea - Worboyes v The Queen [2021] VSCA 169.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan (Plea) Ms J. McDonnell (Sentence) | Office of Public Prosecutions |
For the Accused | Mr J. Lavery | Richard Davis & Associates |
HIS HONOUR:
1David Charles Andrews, you have pleaded guilty to assault with intent to commit a sexual offence, (‘assault with intent’), threat to inflict serious injury and threat to commit a sexual offence, as well as one charge of sexual assault. You have also pleaded guilty to a summary offence of committing an indictable offence on bail, for you were on bail at the time these offences were all committed.
2The maximum penalties are correctly set out in the opening and I will not restate them all. Assault with intent has a 15-year maximum term of imprisonment.
3You are now 43 years of age. You have a lengthy prior criminal history of relevance to my task.
Facts
4On Tuesday of last week, 22 August, the prosecutor Ms Hogan opened this matter to the court by reading into the transcript the amended written summary dated 21 August 2023.
5Your counsel, Mr Lavery, informed me that this was an agreed summary and so it was marked as Exhibit A. Even though it was agreed and it represents the factual basis of sentencing in this case, whilst it was read aloud, and later in the course of the plea, you were indicating by word and deed your disagreement with some of what was contained within that document. I will say a bit more about that when I come to the submissions dealing with remorse.
6I see no need to set out all of the agreed facts in my reasons as I will sentence pursuant to the agreed facts. That is what they are. They are the agreed facts set out in that document.
7The reason for the amendment was the removal of a portion of the earlier filed summary which dealt with your alleged activity in the lead in to the offending I am dealing with, such conduct described by two young female cousins who had left their grandmothers house to go to the 7-Eleven. Of course, I was aware of that material as I had read the depositions in preparation for the plea and at that stage, it was referred to in the prosecution summary dated 7 August. That was the only summary filed in the matter until the day before the plea commenced, so I had obviously read it. Anyway, I do not pay any regard to that portion of the materials or the earlier portion of the summary which referred to that event. Importantly it is not in the amended agreed summary marked as Exhibit A. The parties have reached the view that I should have no regard to it and so I will not. That is simple. I will note however that one consequence of your guilty plea is that those two young girls who no doubt would have been called if there had been any trial in this matter, well they have been spared the experience of giving evidence and I will mention that again when dealing with the benefits of your guilty plea.
8I will provide only a brief summary of your offending so that anyone accessing these reasons will have a better understanding of the serious nature of the crimes that you have committed and the reasons for my ultimate sentence.
9This was serious offending indeed. The summary discloses that you were on bail at the time of these events on 17 December 2022. You were also on an adjourned undertaking to be of good behaviour.
10At about 3:15am on 17 December 2022, you were in the vicinity of a bus stop near the intersection of Frawley and Olive Roads in Eumemmerring, a suburb out near Dandenong. At around 3.20am, a 27-year-old woman named Ms Mai Thi Tran[1] was returning by bus to that location so that she could recover her friend’s car which had been parked nearby. She was going to get the car and head on to work. Ms Thi Tran tapped off with her Myki and exited the bus. You approached her and pretended that you knew her stating ‘hey hey what are you doing?’, then saying ‘Oh I thought you were Jane’. She understandably attempted to avoid eye contact in that setting. You apologised and she walked off.
[1] A pseudonym
11She started speaking to a friend on the phone. You followed her after she left the bus. As she was about halfway along a walking track, she heard footsteps running from behind and as she was in the act of turning, she was tackled to the ground by you. You were on top of her. You put a hand over her mouth and held her down. She yelled out in pain and moved so she could breathe and said, ‘Get off me’. You said, ‘If you yell and scream one more time I’m going to stab and slit your throat’. You then said, ‘I’m going to fuck you, you’re going to take my cock or I’ll rape you’. You kept repeating these phrases over and over hence Charges 2 and 4, the threats. Fearing you would stab her, she stopped yelling and resisting and you said, ‘Good girl’ and kissed her on the top of the hood of her jumper.
12She was in the foetal position on the ground with her left hand stuck under her body and her right hand pinned down by your hand. You repeatedly then thrust your genital region up against her buttocks.
13The person who she had been talking to on the phone heard some of this exchange that I have described. She heard her friend scream out words to the effect, ‘What the fuck are you doing? Stop it.’ She heard a male whisper, this is you, ‘You suck my cock now you bitch, you do it now’. There were repeated similar demands and the sound of struggling. She heard her friend say, ‘No…no get off me’, and ‘Stop it. Stop it”. She also heard your threats, ‘You shut up and be quiet or else I’ll slit your throat’. She then heard ominous silence after that.
14Well, that alarmed friend who was up in Sydney rang Triple 0 but she could not identify precisely where her friend was.
15Back at the scene, your victim’s phone lit up and whether by that stroke of good fortune or by virtue of the presence of a person who was walking some distance away, you desisted, you got up off her, and ran away.
16Your victim received a call from her friend at 3:25 am and indicated she herself was running away.
17From the call charge record timings, the offending on the walking path lasted less than four minutes. No doubt the longest few minutes of your victim’s life.
18She rang Triple 0 in distress herself at 3:28 am. The police attended. She provided some of her clothes, and later that day, she provided some other items for forensic examination.
19She received some minor abrasions to her arm in this event.
20You were linked to these serious crimes by the DNA evidence. This arose from an urgent DNA examination carried out in the circumstances. The results are set out in detail in the summary. The case against you was an overwhelming one.
21You were arrested the following day, 18 December. This was only 37 hours after the offending and the police and the forensic scientists are to be commended for such a swift DNA analysis and then arrest. This swift action took off the streets an obviously then dangerous individual.
22The police interview was deferred and you were ultimately judged to be unfit for interview.
23There is then no version from you as to what happened and why, other than what you have told Dr Cunningham in April of this year. That version is replete with minimisation and plainly is factually incorrect.
24You have been in custody since your arrest.
25The agreed summary sets out the chronology of the matter before the court.
26So much then for what is only a brief summary of your offending. I will sentence pursuant to the more detailed agreed statement which was marked as Exhibit A on the plea. Also of course the photographs within the depositional material. They show the portion of the path where you launched this attack.
Victim impact material
27Your victim has elected not to make an impact statement. That was her right. I was told that she did not want to revisit the event. That is perfectly understandable. However, it is as plain as day that this was a terrifying incident. She speaks of the triggering aspect of it in her police statement (see paragraph 26 of the agreed opening). She hates that this happened to her. I cannot reach any conclusion as to the existence of any dire significant long terms impacts here. There is nothing before me on that score. However, I have absolutely no doubt at all that she will never forget this offending. It will no doubt play on her mind from time to time, especially when facing the prospect of being isolated in a public place, more so at night. How could acts such as yours not have an ongoing impact? Of course, they will.
In mitigation
28I turn to consider the thorough plea in mitigation conducted on your behalf by Mr Lavery. He filed a written outline of submissions, a brief report from a psychologist, Dr Aaron Cunningham, as well as an older Forensicare Mental Health Advice and Response Service psychiatric nurses report (‘MHARS report’).
29Mr Lavery provided some detail as to your family, educational, work, criminal and illegal drug use history. He made some submissions about the objective gravity of the offending as well as to the relevant sentencing purposes in this case. He made some submissions as to your efforts in custody and your future prospects of rehabilitation.
30He referred to a number of other instances of sentences previously imposed for ‘assault with intent’. All but one of these was a decision of a single judge of this Court. The odd one out was a leave application in front of a single Justice in the Court of Appeal, where there was no issue taken with, or even consideration given to the sentence for assault with intent. I read each of those cases. None was on all fours with this one.
31He referred to the importance of totality of sentence and what he said was the claim for sizable concurrency given the tight time frame involved here.
32In the plea in mitigation conducted on your behalf, he relied chiefly upon the following matters in mitigation:
· Your early guilty plea in the course of the global pandemic;
· The existence of some limited remorse.
33He made some submissions about the mitigatory effect of someone in your position acting in the course of a drug induced psychosis. He submitted that there was some reduction in your moral culpability in such a setting as that but that it was not any serious reduction at all (see paragraph 9 of the outline). He made it clear that he was not in any way relying upon any of the principles from the case of Verdins[2]. Rather, that there was a statement from Croucher J in the sentencing of Gargasoulas supporting the view that someone acting in the course of a drug induced psychosis was entitled to at least some mitigation. Well that general proposition does not arise from the remarks of Weinberg J, who actually sentenced Gargasoulas.[3] There is no such general statement within that case at all. Such allowance as might have been made in Gargasoulas’ case for the existence of a drug induced psychosis would say nothing about any such mitigatory claims in your case. There are later decisions of the Court of Appeal and earlier ones for that matter, dealing with the mitigatory value if any of a drug induced psychosis. There might be some benefit, none, or it may even represent a circumstance of aggravation in some cases. It will always come down to the individual case. I will turn to some of these principles later in my reasons.
[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
[3]Director of Public Prosecutions v Gargasoulas [2019] VSC 87
34Mr Lavery conceded that a prison term with a non-parole period was the only possible outcome in this case.
Prosecution
35The prosecutor had prepared some detailed written sentencing submissions, which really were in no way controversial. I asked Mr Lavery and the only dispute really lay in the prosecutor’s description of the gravity of the offending the subject of Charge 1, the assault with intent. Your counsel had suggested that the assault with intent to commit a sexual act fell towards the lower end of the scale of offending. I will not repeat all that was raised in the prosecutor’s written or oral submissions. The prosecutor took me to the impact and to the objective factors of seriousness including the isolation and vulnerability of your victim. A victim who was in a public place in the early hours. You were on bail and also on an adjourned undertaking at the time. You committed the assault with the intention of sexually assaulting your victim. There was serious enough physical force and then demands and threats to instil compliance. You had covered her mouth. The Crown submitted there was limited insight and remorse here and no reduced culpability at all. They challenged any suggestion of reduction in moral culpability arising from the opinion of Dr Cunningham. They cited case law to me suggesting that if you were in the throes of a drug induced psychosis, it would not be a matter in any way in mitigation given your past experiences. They argued that specific and general deterrence and community protection loomed large in this case. The Crown took issue with the submission made by Mr Lavery as to your prospects of rehabilitation. They took a less optimistic view and submitted that the Court really could only be guarded here. The Director was calling for a head sentence with a non-parole period but that really was never seriously in dispute here. So much had already been conceded by Mr Lavery.
Background
36I will turn briefly to your background. I have no reason to doubt what has been placed before me on that score so I see no need to set it all out in these my reasons. You are 43 years of age. You were adopted by your parents when you were a baby. You had a supportive relationship with them. I am told you have one older sibling. Your mother is no longer with us. Your father is. He is a retired locksmith. He has provided such support as he can for you, but it has been made difficult by your illegal drug use and consequent deterioration in functioning, which he has described to Dr Cunningham. There is only so much he can do for you. He joined the Plea hearing by Webex the other day and has joined again today, so plainly he still has your interests at heart and that is of course a positive.
37You went to local primary schools and then onto a local secondary school. Mr Lavery informed me that you were diagnosed with ADHD in Year 7. You went on to a special school in Mount Waverley at one point and left school as early as you really could in Year 9, aged 14 years and 9 months. You started an apprenticeship as a spray-painter but did not complete it. You then worked in that area or related areas over the years doing car detailing and the like. More recently you have collected scrap metal which you sell to recycling centres.
38I am told that generally you have remained in some form of employment in your adult years.
39Accommodation has been problematic from time to time.
40You have had long term problematic issues with a variety of drugs including cannabis, amphetamine, GHB and ice. You used cannabis from an early age and progressed on to other drugs. It would seem that drugs have been implicated in the past in relation to significant deterioration in your mental health and on multiple occasions. Your father speaks of that. So too the two reports placed before me. Drug induced psychosis in the past certainly cannot be ruled out. I will say more about this shortly but loading up on alcohol and ice and GHB and cannabis, not sleeping and bringing about disinhibition or even a psychotic episode really cannot be mitigatory in the setting of someone who is on notice, as you plainly were, as to the problematic connection between drug use and the serious deterioration in your own mental health and level of functioning.
41You had been living with your father but you wore out your welcome there and you were homeless as a result.
42I obviously cannot act on your account of the offending as given to Dr Cunningham. I am not dealing with an accidental collision with no sexual element to it. The fact is this was on the face of it, rational and targeted offending committed with non-consensual sexual acts in mind.
43You have a sizeable criminal history, stretching right back to 1999. I recognise there is a fair level of duplication within that record given the existence of Community Corrections Orders, breaches of those orders, and also a Drug Treatment Order with many repeat appearances related to that original disposition. Mr Lavery concedes your criminal history does have some relevance to my task. I am not going to waste my time working my way line by line through that long criminal record. At the outset, I acknowledge that there are no sexual offences within that history. There are only a couple of matters of physical violence being an assault dealt with in November 2017 and an earlier assault police offence in January of that same year. There are a few threats to kill and a range of dishonesty, weapons, driving, Bail Act and family violence offences. There are also charges of conduct endangering life and conduct endangering serious injury. It is a bit of a mixed bag but with nothing near as serious as the conduct that I am dealing with.
44You have however received many orders designed to keep you in the community and you have breached many court orders. Orders which very often had drug assessment and treatment conditions. Some had monitoring. The Drug Treatment Order was by its very nature a very intense disposition.
45You have been sent to prison from time to time. In fact, in the appellate jurisdiction of this court, you received a 12-month term of imprisonment on the 21 September 2021. A 6-month non-parole period was fixed by the Court. You had already served 146 days by way of pre-sentence detention. Mr Lavery told me that you served out the entire sentence and were released in around March 2022. Nothing hangs on the precise release date by the way. The offending I am dealing with occurred in December 2022.You were on an adjourned undertaking for theft and weapons offences at the time. That undertaking was almost at its end. You were also on two sets of bail. One set of offences was ultimately altogether withdrawn. The others are listed in the Magistrates Court in September with two additional matters listed by way of summons. They are all outstanding and so I pay no regard to them other than the fact of course, that you were on bail at the time you committed the offences I am dealing with.
46I was told that following your release from prison you went back to live with your father but you once again used drugs and you were asked to leave owing to your behaviour. You were then homeless.
47I am told that you are drug free in prison and working as a billet in custody and taking the medication as prescribed to you.
48I have mentioned your criminal history. You do not fall to be sentenced a second time for any of those past matters. You received those past sentences and have served them. Those matters do not aggravate the matters that I am dealing with. However, I must make judgements about your prospects of rehabilitation and the extent of the need to deter you and to protect the community from you. It is obvious that community protection is a matter which looms large here given the nature of the offending that I am dealing with and your past track record before the courts where there has been frequent enough inability to comply with Court orders. You must be deterred. I will try again to deter you.
Guilty plea
49I turn to the matters that have been raised on your behalf. Firstly, to your guilty plea. You have taken responsibility for your crimes by pleading guilty. It is a plea at the earliest stage. I want to make very plain to you that nothing I say subsequently about the issue of remorse in any way impacts upon the substantial allowance that I must make for the fact of your guilty plea.
50As a result of your plea, the time, the cost and the effort of any hearing in the Magistrates' Court or a trial up in this court has been completely avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience. No doubt it would have been a very stressful experience for Ms Thi Tran to be called as a witness and to have to relive these events and be questioned as to them. She speaks of the unpleasant triggering memories she has without even having to confront that task. Giving evidence obviously would have been highly stressful for her. So too for the two young girls who had made some earlier observations and who no doubt would have featured in any trial. Well Ms Thi Tran and the other witnesses including those two young girls who would have been called to provide some context have been spared that experience by your stance in pleading guilty. That is important.
51You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
52Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[4] A large backlog of cases has arisen in the course of the global pandemic and that is so despite the fact that we have now sailed out of the pandemic itself. The backlog remains and your case was never really part of that backlog. It settled swiftly. So I take these various matters into account in mitigation.
[4]Worboyes v The Queen [2021] VSCA 169
Remorse
53Your counsel argued that there was some remorse to be implied from your plea. See paragraph 3 of the submissions. He also submitted to me that there was other evidence of that within the materials. I asked him to take me to it for all I saw were some statements in the report of Dr Cunningham which were not suggestive of the presence of remorse at all. Well they were the very matters Mr Lavery was relying upon. See page 2, paragraph 3 of Dr Cunningham's report. Often enough remorse can be implied from a guilty plea. However not every guilty plea is accompanied by remorse. Some are. Some are not. Here, the case against you was an overwhelming one. That has nothing to do with the allowance that I make for your guilty plea. The allowance I make for your guilty plea, which I have already spoken of, is in no way dependent on a finding as to the presence of remorse. I do not confuse the one with the other.
54But can I infer remorse from a guilty plea here given the strength of this case, depending as it did on overwhelming DNA evidence, what you did and said at the scene and the overheard utterances on the phone? You were directly linked to the attack and the sexual nature of it is was as clear a day. What of your statements to Dr Cunningham in April of this year? How are they consistent with remorse? You told him you were sleep deprived and abusing GHB, ice, cannabis and alcohol. That you could not recall significant aspects of your offence behaviour. You told him that you felt that you had run into someone and knocked them over by accident and that you did not attempt a sexual assault. That you were not perceiving reality at the time of the offence. None of that was suggestive of any remorse in this case. Troublingly though, you still appear to subscribe to that view even today. There was some strange conduct in the course of the reading of the agreed summary. You were shaking your head when portions of the agreed summary were read aloud, portions dealing with your acts and what you had said to your victim. When I raised these matters with your counsel as I felt I had to, there was an outburst or two from the dock including your statement that you were only following her because you left your cigarettes somewhere. There was more headshaking at various points in the reading of the summary, saying out aloud ‘I didn’t say that Your Honour that’s why I am shaking my head’.
55I thought I was obliged to raise with your counsel your conduct during the opening as he could not see it. I could. I put him on notice. He conferred with you and suggested that I could make nothing of your conduct. He did not submit that I was in any way mistaken in my observations or put any alternative view to me as to why you were doing what you were doing and saying what you were saying. I have probably said more than I need to. The statements reported by Dr Cunningham would themselves raise very serious question marks as to the presence of any remorse in this case. I have those statements and I have also what I observed with my own eyes or heard from you in the course of the plea. Things that directly tie in with those statements that you made to Dr Cunningham. You claimed to Dr Cunningham that you do not recall significant aspects of your offence behaviour and you made statements to him tending to traverse your guilty plea. Despite this claimed lack of recollection, you then in the course of the plea were refuting aspects of the agreed summary and denying saying certain things and giving what was obviously a forlorn version as to why you were following this woman. I will sentence you on the agreed factual statements contained within Exhibit A.
56Dr Cunningham himself comments on your lack of insight and your continued refusal to believe you had acted with any intent to harm. See the second last paragraph on page 2. He describes your offence minimisation. Well how is any of this consistent with remorse? It is not. Further, it is plain enough that for whatever reason, I do not know why, you still hold those views and this is several months after you have committed these serious offences. Months after you saw Dr Cunningham. Months after you have indicated you would plead guilty.
57I am not satisfied that there is any genuine remorse in this case. Other than what might be implied from your plea, there is no remorse on display in this case. You continue to minimise your offending, which is a bit disturbing.
Rehabilitation
58Let me turn to your prospects of rehabilitation. You were not some silly teenager committing his first crime. You were a mature man, with a long criminal history and one who has failed to take advantage of many past court orders. This was serious criminal conduct. It represents a really serious escalation in your offending. You minimise the offending and you are plainly not remorseful. There is some family support, but your father speaks of the difficulties that he has faced with your behaviour when you are affected by drugs. He says you are ‘quite a nice kid’ when not taking drugs. Regrettably though, drugs have been very problematic for many years.
59You have serious and long-term issues with a variety of drugs of dependence. That sort of thing casts a real shadow over your future prospects. Dr Cunningham has lots of suggestions for the best road forward. They are pretty obvious steps: Cease drug use. Seek counselling. Seek mental health treatment. Maintain stable accommodation and family support. All these things would reduce your risk. As Mr Lavery submitted, this was hardly 'rocket science'. All these things have been obvious to you for years and quite beyond you for years. Courts have provided many opportunities for treatment and rehabilitation. They have generally been unsuccessful. I am not by the way suggesting that you have had no desire to abstain from drugs or that doing so is an easy road. You are very evidently though a high risk of reoffending if you keep using drugs. Dr Cunningham says as much. You have been in custody now for over 250 days and that time and the significant time which lies ahead may have some role in deterring you into the future. It is hard to know that. You are at least medicated in prison. I am told you are employed as a billet and that you are drug free. That is at least a start.
60Your counsel retreated from the written submission where he had stated that your prospects are 'good' provided you remain drug free. Instead in his oral presentation of the plea he submitted to the Court that those prospects are 'reasonable' provided you abstain from illegal drug use. It is still very much a qualified view. I am not being critical of him when I say that. There is no sense making outlandish or extravagant claims about a person's future prospects. Though no doubt there have been periods where you have remained drug free and I am not suggesting that you have not tried to comply with various orders, drugs have still been very problematic for you for many years. You have been told of the dangers to your mental health. You have had previous drug induced psychosis and still you take illegal drugs within the community.
61I can really only be quite guarded here. This was really serious conduct and the expert report is a bit limited in explaining your conduct. Dr Cunningham acts on your account to him. He also has the summary. You gave an account to him of heavy drug use and delusional behaviour prior to this night. Descriptions of people tunnelling and your parents being kidnapped and the like. See page 1 of the report. Those descriptions were seemingly descriptions of past delusional behaviour. As to the events leading into the offending, you say at paragraph 3 of the second page that you were homeless, sleep deprived and using a variety of drugs. You went on to tell him that you were not perceiving reality at the time of the offending but there is no reference to the sort of delusional thoughts offered up on the earlier page. On your account to him, he concluded that you presented with a drug induced psychosis. It was not present when he saw you in April. I do not doubt that you have experienced such a state in the past, maybe even in the lead into this particular date when your father was compelled to ask you to leave his house. Dr Cunningham described your mental state at the time of the offence as being significantly impaired by drug use and associated psychosis. Well, there are two aspects of that opinion - drug use and associated psychosis. I have no particular reason to doubt that you were using drugs. But were you actually labouring under a drug induced psychosis at the time and what benefit is there to you even if I was satisfied to the requisite degree that you were? Dr Cunningham says that you did not appear to be capable of exercising appropriate judgement with regard to your offence behaviour and their consequences. Well, you were conducting yourself quite rationally in the early hours of 17 December. You approached this young woman with a pretext, pretending to recognise her and then apologising to her for the mistake. She turned away and walked off. You did not just grab her out in the middle of the street as soon as you saw her. You decided to follow her. You waited until she was about halfway along the path pictured in the photographs and you then ran up behind her and attacked. You intended to sexually assault her. You crashed her to the ground from behind. You swiftly covered her mouth so she could not cry out. When she did, you then threatened to slit her throat and did that to secure her silence and compliance. When she did comply, you said 'good girl'. You then told her what you intended to do. You ran off when it seems likely you were startled either by the phone lighting up or by the sighting of a person who was walking in the distance.
62This was purposive, deliberative behaviour by a man with the required states of mind for the offences to which you have pleaded guilty. You were certainly exercising some judgements and they were calculated ones. You understood the consequences to you if she yelled out and you were discovered doing what you were doing. I am far from convinced that you were labouring under a drug induced psychosis at the time of this offending. I am not satisfied of that on the balance of probabilities. It seems more likely to me that you were significantly disinhibited by drugs. In the end though it makes no difference in terms of an assessment of your culpability. I am not satisfied that there can be any reduction of your culpability here and that would be so irrespective of that finding. Self-induced drug intoxication falling shy of a psychosis would not be mitigatory at all. Self-induced drug intoxication leading to a psychotic episode would have no mitigatory value either in this case, given your awareness of the dangers to you of taking drugs, given your significant previous experience of drug use resulting in descent into a psychotic state. There is reference in the nurse's report to three occasions where you were diagnosed with mental health and behavioural disorders due to drug use. You described back in 2020 the symptoms including auditory hallucinations and paranoid thinking. You told that nurse that 'methamphetamine makes me psychotic'. You have a long history prior to the events that I am dealing with of drug use with a subsequent diagnosed drug induced psychosis. You reported a range of symptoms to Dr Cunningham as well. Your father is reported as describing your past delusional conduct when using drugs. The notion that it could be in any way mitigatory that one in your position with that past experience of drug induced psychosis then using drugs, developing a psychosis and relying on a reduction of culpability is completely untenable. It is not the state of the law. It does not accord with a variety of decisions including Arvanitidis[5] Marks[6] and Avan[7]. Even if labouring under a psychosis, you were not some hapless user taken for the first time to an irrational zone that could never have been contemplated. You were very much on notice as to the likelihood of drug use precipitating significant impact on your level of functioning, rationality and behaviour including the development of psychosis. You had said as much in 2020. You were on notice so even if it was a drug induced psychosis, there would no reduction in culpability. It would not however be an aggravating feature. It would be neutral. Neither mitigatory nor aggravating. I am however not satisfied on the balance of probabilities that it was a drug induced psychosis.
[5]DPP v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 at [34].
[6]Manodh Marks v The Queen [2019] VSCA 253; 280 A Crim R 23 at [59] to [64].
[7]Savas Avan v The Queen [2019] VSCA 257 at [18].
63You have very minimal insight and precious little remorse. You present a sizeable enough risk of future offending. I am prepared to find that you have some prospects of rehabilitation. I really can put it no higher than that. I can only be quite guarded in this case. Those prospects are not strong at all. If you continue to abuse illegal drugs you will have almost no prospects of rehabilitation.
COVID-19
64Your counsel placed no reliance at all on any impact of COVID-19 upon your burden as a prisoner. He made no submissions to me on this score. You have only been held since 18 December of last year at a point where all of the harsher restrictions have been relaxed, which no doubt is why he made no submission.
65You probably have been exposed to some lockdowns on occasions. It is not a matter of any great weight. Visits resumed in March of last year, well before you arrived in prison. As to what lies ahead in the future on the pandemic front for prisoners, that is impossible for the Court to know. I suppose there might be the odd quarantine. It really is impossible to know if there will be any ongoing significant impact and, if there was, the authorities would be empowered to take it into account. I am not free to speculate about that.
66I take into account the impact of the virus to this point in this very limited way. It is not a matter of any weight at all in my task.
The Offences
67I have already summarised the offending. I will not repeat all that I said. It was unmistakably serious offending to act in the way that you did. This was an isolated, lone woman in a public place at night. There was no great planning, that was obvious enough. It was opportunistic. Once your victim arrived in your sphere, you had a plan. You followed her and it was not, as you suggested audibly in the course of the plea, because you had left your cigarettes somewhere. You plainly planned this attack, that is what it was, an attack launched from behind at 3 am. Running from behind and taking her to the ground in that part of the pathway. Your intent was very clear. You professed it. This was terrifying behaviour. The submission made by your counsel that the assault with intent to commit a sexual offence fell at a low level was simply untenable. I reject it. This was not a low-level offence by any stretch of the imagination. There is the setting. The time. The place. A completely random attack in the early hours in a public place upon a vulnerable person, one who was a complete stranger to you just going about her business. There was the selection of the location. There was the level of force employed to take her to ground from behind. Whatever you might say to Dr Cunningham, you intended to assault this woman and you did so intending to take part in a non-consensual sexual act. So much can be gleaned from your guilty plea. What act did you intend? Your counsel made a submission that the court could not determine what act you intended. That he had no instructions on that score. Well you were spelling out the acts that you intended within seconds. They were penetrative acts that you had in mind. I am satisfied of that beyond reasonable doubt. Your counsel was suggesting that I could not have regard to what you said to the victim as to your intention. That what you said could not be relied upon in any way in inferring intent in relation to Charge 1. I reject that submission completely. Plainly the acts that you intended were penetrative. I am satisfied beyond reasonable doubt that you assaulted her intending to rape her. I judge this to be a serious example of the crime of assault with intent. Likewise, the threats were serious examples. The context is critical. The threat to cause serious injury was not just a throwaway line or words uttered with some distant and remote application. You were not making a threat as to what you would do to another person if you came across them. Or a threat to one person as to what you would do to another. You were not making a threat over the phone or in a letter. You were threatening the person you had just brought to ground in this terrifying attack. It was a chilling threat intimating that you possessed a weapon and that you would use it to stab her and slit her throat, if she would not shut up. You wanted her to respond to it. You wanted her to believe your words; that you meant what you said. It was designed to alter her conduct and to have her comply. The threat to inflict serious injury was a serious one indeed in my judgment. So too the threat to rape her.
68As to the sexual assault itself, well again there was the context that I have described. It is an offence committed upon this vulnerable woman that you had attacked and threatened. She had been brought to ground in this isolated location. She was lying in the foetal position terrified, silent owing to your threat. She lay in that position with one arm under her and you pinned the other and you were grinding up against her bottom with your genital region. There are features of aggravation in abundance here.
69Your counsel made a submission as to the short duration of the conduct. Those sorts of submissions are often enough made for an event taking seconds. We are dealing with a number of minutes and it would seem like an eternity. If it had been a longer period, no doubt that would be a feature of aggravation. Your counsel spoke of the absence of a weapon. Had one been present and observed by her well that too no doubt would be a feature of aggravation. She did not see a weapon but you told her you had one and not just that you had one, that you would use it if necessary. It is true that there was no removal of clothing, had there been, again that would be a feature of aggravation. However, pointing to the absence of some features of aggravation as your counsel did can be quite problematic. That is not the best way to judge the seriousness of this offending where aggravating features abound. They are just different aggravating features from those listed by your counsel.
70This was serious offending. There is no reduction in your culpability.
71All of it was committed whilst you were on bail and an adjourned undertaking.
Purposes
72I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation. I can only be guarded as to those prospects, and they must surrender sizable ground to other purposes including community protection.
73I am required to punish you justly and proportionately. That is an important purpose of sentencing in this case.
74I must also denounce your conduct. Again that is important. I do strongly denounce your conduct. It was really serious conduct to treat your victim in this way.
75I must give real weight to specific deterrence in this case. Specific deterrence relates to the need to deter you from offending in the future. That is of obvious importance here. Courts have tried to deter you in the past, often enough with little success. This offending involves a very sizeable escalation of offence seriousness. This was random sexual offending targeting a complete stranger just going about her business. One you happened to come across in a public place. You were obviously then a highly dangerous individual. You still present with a high risk of future offending unless you completely change your attitude to drugs. You should be ashamed of yourself but for whatever reason, you have virtually no remorse and very limited insight here. I must deter you from ever offending in this way again.
76Then there is the need to adequately reflect general deterrence. General deterrence relates to the need to deter others. It looms large here. This court must send a clear message to others in the community who may be thinking of committing the sorts of crimes that you committed. As I say, this was a random sexual attack upon a lone woman in the early hours as she went about her lawful business in a public place, then threatening to seriously injure her and sexually assault her, and then sexually assaulting that person in that setting. Well there is a very clear need for a loud and unambiguous message to be sent to future likeminded offenders in an endeavour to cause them to reflect and not to offend. They must be left in no doubt as to the seriousness with which such conduct as yours will be dealt with if brought before a Court.
77Community protection is of obvious importance here given the seriousness of your offending and the random nature of this attack. You obviously presented a danger to innocent members of the community. I must protect the community from you. That is clear and that is so independent of the ramifications of the serious offender provisions which apply in relation to Charge 4. For that charge and only for that charge, community protection is the principal purpose of sentencing as you fall to be sentenced as a serious sexual offender on that charge. I will pass only a proportionate sentence. There are then the issues of the modification of the principle of totality and the removal of the presumption of concurrency spelt out by s6E of the Sentencing Act and the case law interpreting those provisions.
78I must have regard to the maximum penalties.
79I also have to pay regard to current sentencing practices and the impact of your crimes.
80Current sentencing practices are not a single controlling factor.
81There are no formal Sentencing Advisory Council snapshots for any of these offences.
82I have looked at the online statistics held by the Sentencing Advisory Council for assault with intent to commit a sexual offence as well as sexual assault and threat to inflict serious injury. There are no figures kept at all for threat to inflict a sexual assault. The statistics for assault with intent are very limited indeed. It is a very rare offence. There were only 14 instances reflected in the data spanning the years 2015-16 through to June 2021. Only one instance dealt with in the year 2021/21. There were only two in the years 2016-17. So a tiny number reflected in that data.
83I have looked at some instances of sentences for these various offences. I have looked at each of the cases I was referred to. They have very limited use. None of these cases was truly comparable as was conceded by Mr Lavery. None was on all fours. There are differences in offence detail and seriousness and a whole host of different personal circumstances with many cases praying in aid youth, disadvantage or the principles from Verdins or Bugmy[8] or sometimes a number of these principles in the same case. In any event, other cases are not precedents.
[8]Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
84I have mentioned the Statistics. Statistics have inherent limitations. Sentencing is not a mathematical task. That is not what I am engaged in here. All the details which would explain the reasons why a particular sentence was selected are omitted from the data.
85No amount of looking at other cases or the statistics can ever provide the answer to my task. One will never find an identical offence or offender and even if one did, there is no such thing as one correct sentence which must be imposed.
Totality
86I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. I have a tight set of offences. There are 4 separate offences all occurring whilst on bail. Each have separate elements. Each no doubt would have some role to play in the overall impact or ordeal. There is of course no warrant for total concurrency and nor was your counsel suggesting there was. However there must be a decent level of concurrency in my view given the tight episodic nature of the event. I suppose on one view it might have been possible to have some of the charged conduct proceed as to essential context alone, without charges being laid. The trouble is when that is done people raise the ramifications of the case of Newman& Turnbull[9] and the inability to give any weight to the uncharged conduct. Instead, here I have 4 charges with all of the conduct occurring within minutes and with an obvious overlap which each party recognised in their submissions made to me. There is really a bit of an artificiality moving through this conduct as though there were many separate phases. There really were not. You intended to sexually assault the victim and everything you did was designed to bring that about. Rendering her silent by threats and mentioning what you intended. There is an obvious overlap between the conduct the subject of Charge 4 and Charge 1 which was not as confined as your counsel suggested. That conduct if uncharged would have informed Charge 1. There is an obvious overlap. However overall, whether broken down into separate offences or otherwise, this was really serious offending. Your overall criminality was very high whether broken down into its constituent parts or looked at globally. Given the manner in which you have been charged, the tight episodic nature of the offending and the extent of the overlap does require a decent degree of concurrency and it does demand that I 'otherwise order' in relation to the matter for which I am sentencing you as a Serious Sexual Offender.
[9]R v Newman & Turnbull [1997] 1 VR 146
87As I say, those provisions which apply only to Charge 4 remove the presumption of concurrency. They modify the principle of totality but totality of sentence is still an important consideration here. As tempting as it is to proceed by way of an aggregate sentence in this case, that course is not open to me given the existence of ‘relevant offences’ and the serious offender regime being enlivened, as it is in this case.
88Prison is a disposition of last resort. Mr Lavery concedes that no other option arises here given the seriousness of the offending.
89I have to pass appropriate sentences. I must then order an appropriate level of cumulation. This will all lead to a sentence of imprisonment of a dimension where I am required by law to fix a non-parole period. Again, Mr Lavery concedes that is the true position here. Whether you are paroled or not is not any concern of mine. Indeed I must not even consider that issue. That will be for the Adult Parole Board to determine.
Disposal order
90I will have you remain seated just for the moment. In this case there is application made pursuant to the provisions of s78 of the Confiscations Act for the forfeiture to the State of the property referred to in the schedule attached to the Order. I am satisfied that the conditions for the making of the Order arise in this case. I sign the Order. I direct that the property referred to in the schedule be placed into the custody of the Chief Commissioner of Police and is to be held by him in the manner contemplated by the signed Order. I pronounce the Order then in that abbreviated fashion, but it now bears my signature.
Sentence
91I will have you stand up now please Mr Andrews, if you would.
Indictment
92On Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to 5 years 8 months' imprisonment. That will be the base sentence.
93On Charge 2 threat to inflict serious injury, you are convicted and sentenced to 21 months' imprisonment.
94On Charges 3, sexual assault, you are convicted and sentenced to 2 years 3 months' imprisonment.
95On Charge 4, threat to commit a sexual offence, I sentence you on this charge and only on this charge as a serious sexual offender. I convict and sentence you to 16 months' imprisonment.
Summary offence
96On the summary offence you are convicted and sentenced to 14 days' imprisonment. I have treated the fact of your being on bail as a matter of aggravation and so as to avoid any double punishment, that sentence will be served concurrently with all other sentences. I do then otherwise order under s16(3C) of the Act.
Cumulation
97The base sentence is therefore the 5 years 8 months imposed on Charge 1.
98I direct that:
· 5 months of the sentence imposed on Charge 2; and
· 8 months of the sentence imposed on Charge 3
is to be served cumulatively upon the base sentence and upon each other. To this point then there is a sentence of 6 years 9 months.
Section 6E extent of concurrency
99As to the final sentence, as you have been sentenced as a serious sexual offender in relation to Charge 4, I must instead pronounce the extent of concurrency; 13 months of that sentence will be served concurrently with all other sentences and that produces an additional cumulation of 3 months.
100You will be losing track of all these numbers, I am sure of that.
Total effective sentence
101Those orders firstly for the extent of cumulation and then for the extent of concurrency result in a total effective sentence of 7 years' imprisonment.
Non-parole period
102I fix a period of 5 years during which you will not be eligible for release on parole.
Serious Sexual Offender status
103I have sentenced you as a Serious Sexual Offender on Charge 4 and that is to be noted in the records of the Court.
Section 18 pre-sentence detention
104You have already served 255 days of this sentence by way of
pre-sentence detention and that s18 declaration is likewise to be entered into the records of the court.Section 6AAA
105I have taken into account your guilty plea and have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to 8 ½ years' imprisonment. I would have fixed a non‑parole period of 6 ½ years.
106Just have a seat then for a moment. I will see if there is there anything else I need to attend to. Anything from your perspective, Ms McDonnell?
107MS McDONNELL: No, Your Honour.
108HIS HONOUR: Mr Lavery, anything else I need to deal with?
109MR LAVERY: No, Your Honour.
110HIS HONOUR: Well that completes the matter then. So you or your instructors will be in contact with Mr Andrews to discuss what has occurred here today and his rights in relation to the sentence. So that completes the matter then. Mr Andrews can be removed now please. Thank you. I will stand down.
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