Director of Public Prosecutions v Appleton (a pseudonym)

[2019] VCC 2238

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRUCE APPLETON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial 2 October Verdict 14 October Plea 21 November 2019
DATE OF SENTENCE:	20 December 2019
CASE MAY BE CITED AS:	DPP v Appleton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2238

REASONS FOR SENTENCE
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Subject:  Sexual assault, recklessly causing injury
Sentence:  3 years' imprisonment, 2 years non-parole. SORA for life

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr N. Batten
For the Accused	Mr T. Lavery

HIS HONOUR:

1Bruce Appleton[1], you fall to be sentenced on two charges.  Charge 1 is a charge of sexual assault, for which the maximum penalty is imprisonment for 10 years.  Charge 3 is a charge of recklessly causing injury, for which the maximum penalty is imprisonment for five years.  There was a trial on other charges.  You pleaded guilty to the two charges that you are now to be sentenced on, both before trial and before the jury.  I directed an entry of a verdict of acquittal on a charge of false imprisonment, Charge 4, and after legal argument, the prosecution elected not to proceed with a charge of assault with intent to commit a sexual offence, Charge 5.  In the end, the issue left before the jury was whether or not the prosecution could prove beyond reasonable doubt, that you intended to cause injury to the complainant, Charge 2, or whether you caused injury recklessly, Charge 3. 

[1] A pseudonym.

2You did not give evidence as is your right and there was no record of interview tendered.  Your case, which the jury must be taken to have accepted, was that from all the evidence, the jury could not infer that you intended to injure the complainant and be satisfied by inference beyond reasonable doubt, that you did intend to injure the complainant.  This was somewhat of an unusual case in my opinion. 

3The prosecution case was made more complex by the laying of too many charges.  Had the prosecution confined itself to one charge of sexual assault, and one charge of assault with intent to commit a sexual offence, it would have been most likely to succeed on those charges, because the evidence was largely not contested.  Instead, by the laying of so many charges, it became impossible on the evidence, to separate out your actions as they related to each charge.  In short, the charging was duplicitous.  None of that is to be taken into account in the sentencing of you.  You indicated that you would plead guilty to Charges 1 and 3 at an early time and for that, you are entitled to a reduction in sentence. 

4The trial was conducted because the prosecution tried its hardest to get a conviction on every charge, notwithstanding the difficulties of proving your intention by inference, and of separating from the evidence, what evidence related to each charge when in fact there was only one assault which was the basis of Charges 2, 3 and 5.  Had your pleas of guilty been accepted by the prosecution, the time and cost of a trial would have been saved.  Further, by your pleas of guilty, you have accepted and admitted responsibility for your crimes at an early time and you have attempted to facilitate the administration of justice. 

5As it transpired, the complainant who now lives in France, was required to be available on two occasions for the pre-recording of her evidence and the cross-examination by your counsel, Mr Lavery.  Had the prosecution accepted your pleas of guilty to resolve the charges, the complainant would have been saved that ordeal.  Having said that, in my observation, the complainant did not seem to be overly troubled or concerned in the giving of her evidence, which she did via a translator in a straight forward manner.  For the purposes of sentencing, I do regard you as having indicated that you would plead guilty to the charges at an early stage.  Because you have pleaded guilty at an early time, the law provides that you are entitled to a reduction in sentence and this will be reflected in the sentences that I will shortly pass.

6Your offending occurred on 6 May 2018.  At about 7.30 pm, you entered an establishment in Elizabeth Street Melbourne known as the Crazy Horse Cinema.  This is a business that sells adult entertainment, including the showing of sexually charged movies and private erotic dancers.  You had purchased a ticket to the adult cinema and then a short time later, you purchased a ticket at a cost of $50, which entitled you to a private exotic dance performed in front of you in a private room by an exotic dancer.

7The complainant was the exotic dancer working that night and she met you in the private room.  There was a short conversation where you were told by her that you were prohibited from touching her.  In other words, you could look at her, scantily clad attire, but you could not touch her.  She had music on her mobile phone which she began to play and she began to dance to the music in front of you.  You offered her a mobile phone which she could on sell if she would let you touch her, but she refused your offer.  As
the victim danced in front of you, you became aroused and excited and you tried to touch her, she told you repeatedly to sit down.  After the first song,
she said that she would soon finish.  You stood up from your chair and touched her on her vagina, over her underwear.  This constitutes Charge 1, sexual assault. 

8At this time she said that she would not continue and that the private dance was finished.  You apologised a number of times, but she insisted that the dancing was finished.  As she started to turn the music off from her mobile phone, you then punched her in the face and then you repeatedly punched her in the face and head.  At one stage, your actions caused her to hit her head on a seat in the room.  As she tried to open the door to get out on a number of occasions, you threw her to the floor.  You had hold of her head and you pulled it towards your crotch area, while saying to her 'Now you're going to have to suck my dick', as you threw her to the floor.  The victim asked you to please calm down.  She screamed and you told her to shut up.  You again threw her to the floor.  You tried to strangle her by holding her neck between your upper and lower arm in a choking action, where the victim said she felt as though she was losing consciousness.  You then left the room and CCTV footage show you running from the cinema into Elizabeth Street. 

9There was no issue in the trial that the victim suffered injuries as a result of what you did to her.  A series of photographs went into evidence depicting her injuries, which included pain in her jaw, neck, ribs and back and the examination showed she suffered tenderness to the right side of the scalp, mild swelling to the right side of the forehead, subconjunctival haemorrhage in the right eye, bruising of the chin, tenderness to the lower left side of the chest wall, multiple faint grazes over the upper and lower areas of the back, a scratch over the mid-section of the right side of the back, tramline bruise surrounding the scratch, large dark bruise over the right buttock, red coloured bruise at the right shoulder, bruising above the elbow, two grazes above the elbow, faint bruises over the backside of the forearm and back of the hand, bruise to the left shoulder area, a small abrasion to the back of the left hand, a bruise behind the left wrist, a bruise over the back of the upper right thigh and over the right knee, shin and inner aspect of the right leg and a faint bruise over the left knee and upper calf area of the left leg.

10I conclude that the victim was subjected to a violent general beating at your hands, from which she suffered multiple areas of bruising and pain.  In her evidence, she said that you punched her in the head and face multiple times.  She later said it was at least ten times.  See transcript pp.17 to 23.  You are a tall, strong, athletic looking man.  The victim is a small petite young woman.  I conclude that you subjected her to a terrifying experience that must have lasted one to two minutes in a confined room, to cause her the injuries described above.  This is a serious example of the offence of recklessly causing injury.

11The sexual assault occurred in the context of what was a sexually charged atmosphere.  I agree with Mr Lavery's submission that the whole purpose of
the victim being paid to perform a private sexual dance for you, was to sexually arouse you.  But that did not mean that you could be permitted to touch her vagina over her underwear, in the way that you did.  It does, however, explain the circumstances in which the offence took place and perhaps why it might have occurred, perhaps because you were aroused sexually to a point where you could not control yourself.  In my view, your actions in committing Charge 1 falls towards the lower end for offending of this kind.

12I turn to some matters personal to you.  You were aged 18 at the time of this offending.  You were born in December 1999 and you are now 20 years of age.  You fall to be sentenced as a young offender.  Relevantly, you have admitted prior convictions.  In the Children's Court, in 2017, you were convicted of four charges of rape involving two complainants and two charges of intentionally causing injury.  You appealed to this court from the Children's Court.  You were sentenced to 20 months in a Youth Justice Centre and you were placed on the Sex Offenders Register for seven years.

13It is agreed that now that you have been convicted of Charge 1 as an adult, you are now a registrable sex offender under the provisions of the Sex Offenders Registration Act 2004, with reporting obligations for life. I was told, and it was accepted, for the purposes of the plea, that the circumstances giving rise to your prior convictions for rape and intentionally causing injury were remarkably similar to what occurred here.

14You became violent when your sexual advances towards the two female complainants were rebuffed.  Importantly, this offending here occurred whilst you were released on youth parole for your previous offending.  You had been released on youth parole on 19 February 2018 and these offences occurred on 6 May 2018.  You were arrested on 11 May 2018, when your parole was revoked and you were returned to custody on 30 June 2018, when your previous sentence expired.  You had been in custody on remand for these matters since 1 July 2018, a total of 536 days. 

15The dilemma in sentencing you is to have proper regard for your youth and your prospects for rehabilitation and to balance that against an obvious need to protect the public.  Ordinarily, because of your young age, general and specific deterrence would have a lesser role to play in framing a sentence giving way to the need to ensure your rehabilitation.  But this is now the third occasion that you have offended against woman in a sexual way and involving violence.

16In passing sentence, I must balance all of these factors, as well as a number of matters personal to you.  I have received in evidence a number of psychiatric and psychological assessments relating to you, which trace much of your family history and your history of diagnosed mental illness from about the age of 12.  Those reports are helpful because as well as diagnosing your mental health problems, they also give much information about your background.

17In a report dated 1 September 2018, consultant psychiatrist Dr Adam Deacon set out some of your relevant history.  Prior to your arrest, you were living with your mother in Flemington.  You were a Year 10 student at Parkville College.  Whilst on parole, you were also a patient at the Inner West Area Mental Health Service.  You were raised in Ethiopia until the age of eight or nine.  You then lived in Kenya for one year, prior to arriving in Australia, aged 10 or 11.  Your father died when you were aged four or five.  You had been raised by your mother and have received good care and support.  You enjoyed school and playing soccer.  You suffered some learning difficulties. 

18You adjusted well to living well in Melbourne and felt safe and established a good routine.  You attended English language school, before commencing regular education at Thomastown Primary School and Flemington Primary School.  You completed Year 7 and 8 at Rosehill High School.  You are said to have been competent at mathematics, but struggled with literacy.  You left school due to mental health issues.  You attended Trav and Cor and St Joseph's Flexible Learning Centre.  You told Dr Deacon that you were socially engaged with peers and you denied a history of behavioural problems.

19You told him you enjoyed playing basketball, soccer, tennis and football.  You denied having a formal partner and described yourself as being a shy, but you enjoyed being in the company of friends.  You told Mr Deacon that you were diagnosed with schizoaffective disorder around 2012.  You had been prescribed antipsychotic medication, Paliperidone depot injection every three to four weeks.

20When you met with Dr Deacon in September 2018, you were then attending Inner West Area Mental Health Services for medication administration.  You complained of side effects from the medication, including sedation, reduced energy, depression, bone aches, muscle twitching, headache and reduced appetite.  Dr Deacon thought your insight into your mental health illness was poor.  You also told Dr Deacon that you used cannabis and that you used this on the day of these offences.  You denied using other drugs or alcohol.  You told Dr Deacon that everything that the complainant said of this offending is true and that you have no recollection of what occurred. 

21Dr Deacon said that you have a confirmed diagnosis of schizoaffective disorder, following a history of mental health problems emerging in 2012.  He said you presented with manic and psychotic symptoms.  You have required multiple psychiatric inpatient admissions and you had been managed with injectable depot antipsychotic medication.  Dr Deacon was of the opinion that there was no evidence that your mental health illness was active at the time of the offences.  He said:

'There is no evidence that a nexus exist between his mental illness and the offence.  The underlying reason for Mr Appleton committing the offence is unclear'.

22Pamela Matthews provided a report that was tendered in evidence in the Children's Court.  She thought that your risk of reoffending in the similar way was very high.  Dr Lester Walton provided a psychiatric opinion dated 16 July 2019.  He opined inter alia:

'Should it be the case that is convicted, then it is of concern that he has reoffended in a similar vein, reasonably promptly, and while he remained constrained by parole conditions.  Precisely, why he seems to be heading down the path and becoming a recidivist sex offender is not at all apparent at this stage, but regardless of the legal outcome, sexuality does need to be explored by an appropriate professional.  He is now seemingly established on an effective drug regime in terms of managing his psychotic illness and I have no further suggestions in that regard.  Clearly is a man who will require close psychiatric supervision, once at large again.  He will likely need to be medicated for the indefinite future'.

23Maran Latif, a consultant psychologist provided a report dated 17 November 2019.  You expressed your regret to her for this offending.  Ms Latif agreed with the diagnosis that you suffer with schizoaffective disorder.  She recommended that you continue to receive psychological treatment whilst in custody and after your release.  She also recommended that you attend sex offender's treatment program, to increase your empathy for victims and your understanding of your offence specific behaviour.

24She also recommended that you be provided with strong support through case workers and social workers, to ensure you attend appointments and that you are compliant with your medication and to help you engage in prosocial activities that may assist you to form better social connections with others.

25Regarding your ability to undertake a custodial sentence, Mr Latif recommended that you remain in the Mental Health Unit of the prison to ensure you receive adequate psychological and psychiatric care.  She said that should this not occur, your mental health will likely deteriorate, making prison more onerous than it is for someone not suffering your condition.  It was her opinion that the court consider psychiatric, psychological treatment, as a priority, given the severity of your mental health condition. 

26In passing sentence, I have taken all of this into account as I must.  Mr Lavery submitted that having regard to the evidence as to your diagnosed condition of schizoaffective disorder, and the need for you to be constantly medicated and treatment for this condition, that I should impose a combination sentence of time served, about eighteen months, and a community corrections order.

27He argued that having regard to the evidence as to your mental health at the time of sentencing, that I should impose a sentence that reflects a reduced reliance on the principle of general and specific deterrence.  In addition, he submitted I should find that because of your diagnosed schizoaffective disorder, I should find that your time in prison will be more onerous than for others.

28In passing sentence, I have taken all of these matters into account.  I accept that you suffer from schizoaffective disorder and I accept you will require ongoing treatment and medication, both whilst in custody and upon your release, and I accept that you will find your time in custody more onerous than others not suffering from your condition.

29However, I am not convinced that a combination sentence of a term of imprisonment a community corrections order is appropriate in this case.  This offending occurred whilst you were on parole for rape.  I assess your prospects of rehabilitation as being poor and your likelihood of reoffending as being reasonably high, based on the psychiatric and psychological assessments.

30In my view, a community corrections order is not an appropriate disposition, even in combination with a custodial sentence.  I would be setting you up to fail.  But I have taken your mental health into account in fixing the sentence imposed on each charge, and the total effective sentence and non-parole period fixed.  Importantly here, in passing sentence, I must have regard to the need for the sentence, to appropriately reflect denunciation of your offending and to protect the public from this kind of offending. 

31On Charge 1, sexual assault, you are convicted and sentenced to a term of imprisonment of 12 months.  On Charge 3, recklessly causing injury, are convicted and sentenced to a term of imprisonment of two and a half years.  I direct that six months of the sentence imposed on Charge 1, cumulate upon the sentence imposed on Charge 3, making a total effective sentence of three years imprisonment.

32I direct you serve a minimum term of two years imprisonment before being eligible for release on parole.  I declare that you have already served 536 days pre-sentence detention under the sentences passed this day and I direct the 536 days be declared as having been already served, be entered into the records of the court and be deducted administratively.

33I recommend that prior to your release, you undertake and complete the Sex Offenders Program.  Having been convicted of a sexual assault in Charge 1, and having regard to your prior convictions, you are a registrable offender under the provisions of the Sex Offenders Registration Act 2004, with reporting obligations for life.

34I strongly suggest that you take advice before your release as to your obligations under the legislation as a registered sex offender.  For the purposes of s.6AAA, I state that had it not been for your pleas of guilty to Charges 1 and 3, I would have imposed a total effective sentence of six years imprisonment and I would have fixed a non-parole period of four years imprisonment.  Any matters arising out of that Mr Batten?

35MR BATTEN:  Your Honour, I understand there was a forfeiture order in relation to some clothing?

36HIS HONOUR:  Yes, that is not opposed is it Mr Lavery?

37MR LAVERY:  No it's not, Your Honour.

38HIS HONOUR:  I will sign that.  Do you have any questions arising out of that Mr Lavery?

39MR LAVERY:  No, Your Honour.

40HIS HONOUR:  Could you remove please.  Adjourn the court sine die please.

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