Director of Public Prosecutions v Ashby (a pseudonym)
[2020] VCC 622
•15 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL ASHBY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF SENTENCE: | 15 May 2020 |
CASE MAY BE CITED AS: | DPP v Ashby (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2020] VCC 622 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Goodenough | |
For the Accused | Ms D. Price (counsel on plea not trial) |
HIS HONOUR:
1Daniel Ashby[1], you are to be sentence for one charge of sexual assault, pursuant to s.40 of the Crimes Act, and one charge of rape. The respective maximum sentences are 10 and 25 years' imprisonment.
[1] A pseudonym.
2The offences happened on 28 January 2018. When interviewed by police on
3 April 2018, you made a number of admissions; for example, that there was sexual activity, including penetration, between you and your victim, Emma Gellar[2]. You denied that it was, to your understanding, without her consent. You were charged in September 2018 and there was a contested committal in February 2019, after which you were committed to trial. You entered a plea of not guilty. A trial ran in this court, commencing on 4 February 2020, and a jury returned majority verdicts of guilty on 13 February.[2] A pseudonym.
3At your plea hearing, on 30 April, Mr Goodenough, for the Crown, tendered an amended prosecution summary for plea hearing and the victim impact statement of Ms Gellar. Ms Price, who appeared for you at the plea hearing, but not at trial, tendered your letter of apology to Ms Gellar, your curriculum vitae, a number of letters of character reference and the forensic psychological report of Michael Bilyk, dated 10 April 2020. She also tendered the letter of your general practitioner, Dr Fatima Abraham, dated 21 March 2020. Ms Price provided a written outline of submissions. Mr Goodenough provided brief written submissions in response.
4My short summary of the circumstances of offending is as follows. It seeks to be consistent with the jury verdicts and, where necessary, I find in accordance with the principles stated in Storey and like cases on finding of fact for the purpose of sentencing.
5In January 2018, you and Ms Gellar had known each other for about 17 years. You were part of a friendship group. She had married your long-term friend, but was recently separated. You were married. Both of you had children. Over that time there had never been any sense of intimacy, sexual behaviour or romance between you. You were aged 39, and Ms Gellar, 37.
6On the Australia Day weekend, a group of mutual friends, including you two, attended a barbeque at the home of your mutual friends, in Tullamarine. During the day there were adults and children. People drank and, on my finding, that became heavy for a number into the evening and night. Children were put to bed or taken home. Again there had been no sense of romance, flirtation or intimacy between you and Ms Gellar.
7I find that by midnight, or shortly after, you were affected by alcohol and Ms Gellar markedly intoxicated. She was, in effect, assisted to bed in an upstairs room. Prior to this, she vomited. You decided to stay over and were to sleep in the downstairs area on a couch. In the early hours of 28 January, you went upstairs twice, first to the bedroom of another female friend. You went downstairs to the couch; but returned, this time to the room where Ms Gellar was in bed asleep and intoxicated. You got into her bed and committed these offences.
8Ms Gellar began to awake to the sensation of warmth in her genital area and then a thrusting inside her vagina. Upon being fully awake and realising her situation, she pushed you off and told you to get off her. You did so and not long after, left the room.
9Charge 1, sexual assault, is the act of licking Ms Gellar’s vagina. Ms Gellar could not give a specific description of this; it is the account you gave in police interview.
Charge 2, rape, is digital penetration of her vagina. Ms Gellar did not know whether the penetration she felt was by finger or penis. This caused her to seek the morning after pill at a pharmacy the following day.10Excuse me. I will return to my reasons. I will go back.
11Charge 2, rape, is digital penetration of her vagina. Ms Gellar did not know whether the penetration she felt was by finger or penis. This caused her to seek the morning after pill at a pharmacy the following day. You will be sentenced on the basis of digital penetration (based more specifically described then by your victim) on your account to police in interview. I find beyond reasonable doubt that you did not believe Ms Gellar was consenting to what you did in any way consent is known to our law. At best it may be said that you did not turn your mind to whether she did or not.
12It is unsurprising that Ms Gellar feels the effects she describes in her victim impact statement. At the time and since, she has suffered panic, anxiety and depression. She was frightened about the consequences when she went to the chemist and, soon after that, underwent testing for sexually transmitted disease. She has felt a major breach of trust, given your long-term plutonic friendship. She feels anger and has lost trust in men. She has a new and positive relationship now; but that is affected particularly by thoughts of and flashbacks to the offending. The emotional and psychological impact has meant treatment by counselling and medication. Work, friendship and other social life are affected. The court proceeding has had its effects. Giving evidence was stressful and emotionally draining. Ms Gellar tries to look optimistically to the future. I am not complete. There has been substantial victim impact statement upon Ms Gellar and that must be taken into account in my sentence of you.
13You are now 42 years of age, an only child, who is close to his parents. They remain supportive of you.
14After completing VCE at Niddrie secondary college, you have developed an impressive work history. In short, you have worked throughout the world, including the United Kingdom, Ireland and Canada. You have become a qualified electrician with an expertise in what seems large-scale industrial work, including installation and maintenance in hazardous areas. You have numerous other industrial qualifications and certificates. You have worked for and advanced with an electrical company since 2007. The tendered work and character reference letter states you to be a valued employee with an exemplary reputation there. A position after your release from prison seems likely.
15You have been with your present partner for about 15 years and have two children, aged four and three. Your partner's tendered letter describes a good husband and father; one who is kind, gentle and committed to his family.
16Your criminal record states a 2003 appearance for drunk and resist police. You were not convicted. I find you to be a person of good character. This is also consistent with the other character reference material tendered. One is left with the explanation that alcohol played a significant part in your offending. You have not used alcohol since that night. You acknowledged to psychologist, Michael Bilyk, social binge use of alcohol over your life, often to the point of intoxication. You also acknowledged to him, 'infidelity in your current and previous relationships, typically precipitated by alcohol excess'. Mr Bilyk states no significant mental health problems and his testing places you at the higher end of average intelligence.
17As raised with counsel in the plea hearing, your account to Mr Bilyk, in my view, fundamentally maintains your victim's consent, certainly your understanding of that. At paragraph 23 of the report, it states:
'Mr Ashby did not deny sexual activity between himself and the victim, they regarded this as consensual. Mr Ashby stated that he gauged consent by observing the victim's body language, where she reported to be responsive, not rejecting the sexual touch between them. Mr Ashby reported, however, that there was no prior discussion or flirtation that indicated intimate interest from the victim. He could not explain at assessment how he perceived to have consent to enter the bed where the victim was.'
18There is what seems an attempted or suggested explanation for this at paragraph 38, toward the end of the report.
'Psychological evaluation suggests that Mr Ashby is exhibiting a level of denial or defensiveness, leading to considerable distortion and minimisation of difficulties in several areas. Situational demands may also be influencing his tendency to respond in a socially acceptable manner.'…..
'Individuals who categorically deny sexual offending are often motivated by avoiding feelings of shame, the potential consequences of being identified as a sex offender and to maintain family and friends.'
19As also raised at plea hearing, your account of things to Mr Bilyk, who saw you on 3 March, does not, on its face, sit well with your tendered letter of apology. In that letter you state unequivocal apology and remorse at your betrayal of Ms Gellar. Ms Price submitted what can be called your developing insight. You saw and gave that account to Mr Bilyk in early-March. The tendered letter to Ms Gellar was written in mid-April. I was told that she has received your letter.
20The offence of rape has a particularly broad range of seriousness. Here, there are adverse features particular to how you offended. Your offending was a serious and damaging betrayal of Ms Gellar. What you did exploited her intoxication. It violated her physically and emotionally. You disregarded a long-term friend's physical and, as Ms Gellar essentially states in her victim impact statement, moral integrity. I find that you were intoxicated yourself, but disinhibition in a mature man because of that cannot be seen as mitigating.
21In such circumstances the sentencing considerations of your moral culpability, deterrence, particularly general deterrence, the need to condemn what you did and to proportionately punish it are relevant. In this offending, there is an element of insulting disrespect for a woman in a vulnerable situation which emphasises the importance of general deterrence as a sentencing purpose.
22However, I also take into account moderating factors, a number of which were particularly raised on your behalf.
23They include the following.
(1) Your otherwise good character, as I have described. For example, your intoxication does not mitigate the criminality of the offending; however it stands more persuasively as part of the explanation for offending, given a person of good character over time.
(2) Related to that, I find that you have good prospects for rehabilitation. You have no relevant prior history. You have family support ability and good capacity for employment when you return to the community. You have stopped drinking alcohol. As I have said, Ms Price points to a development of insight and remorse. I do not discount that, but see the submission as somewhat compromised by the matters I have raised in Mr Bilyk's psychological report. I think justifiably, I have some scepticism about it.
I see you as a person, given your law-abiding life otherwise, who will likely be deterred from further offending by the experience of this criminal investigation proceeding and now, imprisonment. My expectation is that you will be subject to a sex offender treatment program in prison. You are said to be willing to do that.(3) To some extent, the circumstances of offending. There are the adverse features I have earlier described. However, it is true to say that a number of aggravating factors sometimes present are not here. For example, violence, physical humiliation of a victim, prolonged sexual conduct, threats and insult. You stopped when Ms Gellar awoke and protested.
(4) The burden and hardship of prison will be considerable for you and greater than others, on a number of grounds. The relevant consequences of the COVID-19 pandemic for those in custody has been clearly stated by higher court authority. For example, anxiety, added restriction, lesser programs and recreation and contact with family. I am sorry, I will state that better. For example, added restriction, lesser programs, recreation and contact with family.
24The tendered letter of your general practitioner states lung conditions over time, which I accept make you potentially more vulnerable and would increase your concern. The submissions of Ms Price raised that you have had some difficulty accessing preventative medical care. I also accept that you are very close to your partner and young children; that they are dependent upon you. You will not be present for important years of your children's development. Your family's difficulties will weigh upon you. Your parents, to whom you are also close, have health problems. Ms Price described other difficulties in custody, injuries to your shoulder and finger and the consequences of those.
25These matters should go to reduce the length of your sentence, particularly they may be taken into account in an assessment of your appropriate minimum term.
26I indicate that I sentence in accordance with s.5G of the Sentencing Act. Rape is a so-called Category 1 offence under the Act which requires a sentence of imprisonment. The seriousness of offending here would have required that in any event.
27I sentence you as follows:
28On Charge 1, sexual assault, you are sentenced to 18 months' imprisonment.
29On Charge 2, rape, you are sentenced to five and a half years' imprisonment.
30I set a minimum term before eligibility for parole on that five and a half year sentence of three years.
31I declare under s.18, 86 days of pre-sentence detention.
32What are the other matters I need to state, Mr Goodenough?
33MR GOODENOUGH: There was just the forensic - there was an application for a forensic sample.
34HIS HONOUR: Yes, I think it is - is that opposed, or not opposed?
35MS PRICE: Not opposed.
36HIS HONOUR: Not opposed. I mean, this is ‑ ‑ ‑
37MS PRICE: Not opposed.
38HIS HONOUR: This is the style of offending which almost classically is assisted by such forensic evidence and it would not be responsible not to grant the order. Has that - I am presuming in this that he has not supplied a sample, for example, at end of interview? Does anybody know?
39MS PRICE: I had thought he had, but in discussions with him, if it was necessary to provide a new sample, he would do so.
40HIS HONOUR: Well, yes, but it is not - Mr Goodenough, it is not uncommon at all that you get these applications at sentence, just in case and I do not think ‑ ‑ ‑
41MR GOODENOUGH: Your Honour, my instructions are ‑ ‑ ‑
42HIS HONOUR: Sorry.
43MR GOODENOUGH: Your Honour.
44HIS HONOUR: Go on.
45MR GOODENOUGH: My instructions are that a sample was not provided, but fingerprints were.
46HIS HONOUR: I see.
47MR GOODENOUGH: But not a forensic ‑ ‑ ‑
48HIS HONOUR: All right. Well, on the basis of that indication, I will grant the application. When it is conveyed to me, if it has not been already, I will sign it.
49I need to say to Mr Ashby that, at a stage within custody, you will be asked to supply a sample of your saliva. If you do that cooperatively, then that will be it. If you do not, a blood sample may be taken by injection and reasonable force used.
50My reasons for granting the sample are the circumstances of this offending and its seriousness.
51All right. Is there a need to register under the Sex Offenders Registration Act and to serve him with documents?
52MR GOODENOUGH: Yes, there is, Your Honour.
53HIS HONOUR: What is the period of time?
54MR GOODENOUGH: Fifteen years, in my submission, Your Honour.
55HIS HONOUR: Is rape a Class 1 offence?
56MR GOODENOUGH: It is deemed to be a Class 1 offence, Your Honour. It is set out in - on p.3 ‑ ‑ ‑
57HIS HONOUR: Yes.
58MR GOODENOUGH: ‑ ‑ ‑ of the materials filed by the prosecution.
59HIS HONOUR: Yes.
60MR GOODENOUGH: The amended summary for plea hearing.
61HIS HONOUR: All right, well, I will get that document printed out and I will sign it and then we will discuss how it will be served.
62I am just reminding myself, I intended to raise this, if I have not before. This person is not sentenced as a serious sexual offender, I have presumed. Can you assist me with that?
63MR GOODENOUGH: Yes, Your Honour. We discussed - my instructor and I discussed it with my learned friend (indistinct words).
64HIS HONOUR: Yes, I remember now, yes.
65MR GOODENOUGH: (Indistinct words).
66HIS HONOUR: In any event, had he been sentenced as that and I may have said this before, this, although community protection would become the primary sentencing purpose, it would not require a longer than proportionate sentence.
67MR GOODENOUGH: Yes, Your Honour.
68HIS HONOUR: And I would not therefore have imposed a different sentence.
69All right, now those orders - that sex offenders registration order will be printed out.
70Ms Price what do you ‑ ‑ ‑
71MS PRICE: Your Honour, can I enquire ‑ ‑ ‑
72HIS HONOUR: Whilst that is - yes, go on.
73MS PRICE: I was just going to query whether the sentence for Charge 1 and sentence for Charge 2 run concurrently?
74HIS HONOUR: Well, my silence on that and my indication of a five and a half year sentence, with a minimum term of three years, indicates that it - that they are concurrent sentences. I have taken the view ‑ ‑ ‑
75MS PRICE: Yes.
76HIS HONOUR: ‑ ‑ ‑ that I should take a global view of what happened. They were so close in time that I should - the fact of two acts so close in time, I have attempted to reflect, in terms of criminality, in my sentence for the rape and probably both. You could take a different view, or you could take the same view, but that is my explanation of it. It is a five and a half year sentence with a minimum term of three years.
77MS PRICE: Thank you, Your Honour.
78HIS HONOUR: Now, I will now sign the - all right.
79Now, how do we serve this? Should it be sent to the prison after I say something to him about that, or what, Ms Price, Mr Goodenough?
80MR GOODENOUGH: I confess, I hadn't turned my mind to that aspect, Your Honour.
81HIS HONOUR: Yes.
82MR GOODENOUGH: No doubt it would be sent to the prison in due course.
83HIS HONOUR: Yes. Perhaps my staff can facilitate that.
84You will receive this - you will receive two documents in a sense, Mr Ashby. One is a longer one and that will indicate your obligations under the Sex Offenders Registration Act. It is compulsory for me to register you in this way. It requires reporting of - that you report to relevant people, members of the Victoria Police usually and that you supply to them certain information about yourself. There are other restrictions, I am being brief. The document will fully explain.
85There is a second one-page document that requests your signature that you have received the first longer document. You may sign that if you wish, acknowledging service, or not sign it, as you wish. Those documents will be served on you in custody.
86I will hand them back to - all right, is there anything else I need to do?
87MR GOODENOUGH: I don't believe so, Your Honour.
88HIS HONOUR: All right. Do we know whether Ms Gellar has joined the ‑ ‑ ‑
89MR GOODENOUGH: I understand she has, Your Honour.
90HIS HONOUR: She has, all right. I wish you the best into the future,
Ms Gellar. I hope that the small indication of optimism for the future at the end of your impact statement comes to fruition for you. I wish you the best.91All right, we will now turn it off.
92MR GOODENOUGH: If it pleases the court.
93MS PRICE: May it please the court.
94HIS HONOUR: Thank you.
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