Director of Public Prosecutions v Backhouse

[2015] VCC 752

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02373

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM HERBERT BACKHOUSE

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 May 2015
CASE MAY BE CITED AS:	DPP v Backhouse
MEDIUM NEUTRAL CITATION:	[2015] VCC 752

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry
For the Offender	Ms K. Kothrakis

HER HONOUR: 

1William Herbert backhouse, you have been found guilty by way of jury verdict on one charge of rape.  You were found not guilty on a second charge of indecent assault.  The maximum penalty for rape is 25 years' imprisonment.

2

The offence of rape on which you were found guilty occurred on the night of

8 February 2011.  At that time you were sharing an apartment in suburban Melbourne with two other people.  On the evening of 8 February 2011, the complainant came to the apartment.  The complainant had been away from the apartment for some months.  She intended to pack her belongings and move out of the apartment. 

3When the complainant returned to the apartment she bought two bottles of wine and a bottle of whisky as a present for the third flatmate.  When she arrived the complainant saw you.  She invited you into her room for a drink.  The two of you had a conversation which included a discussion about your respective relationships with your partners.  You both drank two bottles of wine, with you drinking most of the wine.  The complainant then went and got the whisky and you both drank some whisky. 

4The complainant next woke up lying across her bed.  She was only briefly conscious before she, in colloquial terms, "passed out."  She woke up a second time and felt your fingers inside her vagina moving in and out.  She was too intoxicated to react and passed out again.  This sexual penetration is the subject matter of Charge 1 of rape.

5In the morning the complainant woke up to find you lying beside her and asked you what you had done.  Amongst other things you said that you had mildly penetrated her.  You then left the apartment.  The complainant rang friends.  The complainant saw a doctor but did not report the matter to the police at that time. 

6The offences came to light as a result of you attending at a community health service.  You said you had digitally raped your housemate.  That service then contacted the police.  You attended at a police station on 6 July 2011 and made a statement.  You were not interviewed by police until 19 January 2012.

7A Victim Impact Statement, dated 25 March 2015, by the complainant was tendered as Exhibit A, together with a psychological report from Ms Amy Joyce, clinical psychologist, dated 23 March 2015.  The Victim Impact Statement was read into court.  The Victim Impact Statement contains a number of statements about the complainant's relationships with other people, certain aspects of which are inadmissible in respect of this matter and which have been disregarded by me.

8Ms Joyce is the complainant's treating psychologist and it is clear from her report that at the time of this offence the complainant had pre-existing mental health issues and difficulties with her reliance on alcohol.  Ms Joyce says that since this offence the complainant's mental state has significantly deteriorated, although this was made worse by her boyfriend at the time who ended the relationship.  Ms Joyce says that the complainant had a pre-existing fragile mental state and low self-worth and that this offence has caused her further harm and that she feels unable to function alone and helpless.  This report supports what the complainant says herself as to the negative impact of your offending and the trauma of the committal and trial processes.  In particular the complainant describes her ongoing feelings of lack of trust in other people and feeling that she is not safe.

9At the plea hearing your counsel relied on a neuropsychological report from Mr Martin Jackson, dated 6 June 2014, which had been tendered as Exhibit 1 on a voir dire during the trial.  Your counsel also relied on an earlier neuropsychological report, dated 15 August 2003, from Ms Jennifer Bradshaw, Exhibit 2.  A character reference was provided by your mother, Exhibit 1, who also gave oral evidence on your behalf.

10You have admitted a limited prior criminal history.  You have no prior findings of guilt in relation to any sexual offending.  It is clear that your prior offences were of a relatively minor nature as you were dealt with on two occasions in 2014 without conviction.

11For the purposes of sentencing you, I accept the defence submission that the jury verdict in the light of the evidence should be understood as the jury being satisfied that the complainant was unconscious and incapable of consenting at the time of digital penetration.

12In sentencing you, I have taken into account your personal circumstances which I have derived from your counsel's submissions and the material relied upon by your counsel. 

13You grew up in metropolitan Melbourne within a stable family.  You completed Year 12, after having some difficulties at school.  You then completed a Bachelor of Arts and a post graduate diploma. 

14There appear to have been two particularly important features in your life which have affected you adversely.  You have a longstanding history of alcohol abuse.  It is clear from the evidence of your mother that you have also, throughout your adult life, had difficulties in areas of spatial and organisational skills.  The difficulties described by your mother are explained by the diagnosis that was made in Ms Bradshaw's report in 2003 of you suffering from the syndrome of non-verbal learning disability.

15Mr Jackson, in his report and in his evidence during the voir dire, explained that on testing you were shown to have well developed verbal intellectual abilities and verbal recent memory functioning, but "deficits in the areas of visual spatial processing and problem solving, visuomotor integration sequencing, organisation, reading, comprehension, social perception, interaction skills and paralinguistic communicative abilities, prosity and pragmatics."   Mr Jackson says this profile conforms to the syndrome of non-verbal learning disability. 

16Mr Jackson was of the opinion that you would have difficulty in various respects in your interactions with others and in various work-related tasks.  These difficulties appear to be the reason why that you have never worked in the areas of your tertiary studies, you have worked primarily in market research in call centre work. 

17Prior to the trial you had been living with your partner with whom you had been in a relationship for about five or six years.  It appears that your partner also has problems with alcohol abuse.  Mr Jackson says that you have had problems with both alcohol and marijuana.  He says that at the time of the assessment there was no evidence of any psychotic disturbance or formal thought disorder, although Mr Jackson was of the opinion that you were suffering at that time from significant mood disorder, depression, anxiety and stress.

18In sentencing submissions, your counsel submitted that this offence would be characterised as a much lower level example of the serious offence of rape.  Your counsel accepted that there was a betrayal of trust in taking advantage of someone who was unconscious.  He submitted that the features that would place this offence amongst the low level examples of the offence were that it was opportunistic, of short duration and did not involve violence, threats, or use of physical force.

19Your counsel also relied on your distress following the offence and your seeking a medical and psychological assistance from a number of places as demonstrating some evidence of remorse and recognition of wrongdoing.  Your counsel also submitted that you were severely intoxicated at the time of the offence and that this degree of intoxication was relevant to the assessment of deliberation.

20Your counsel also relied, as the most substantial mitigating factor, on the long delay between the date of the offence and the commencement of proceedings with the charges being filed on 30 July 2013.  Your counsel submitted that you had spent a long period of time with the proceedings hanging over your head and that you should be afforded significant mitigation as a result of delay.

21In terms of rehabilitation, your counsel referred to the lack of further offending of a similar kind since this offence, with you having a subsequent very limited criminal history.  Your counsel also said that the context of your severe intoxication in this offending was relevant to the question of your prospects of rehabilitation. 

22Your counsel submitted that the appropriate sentencing disposition would be a combination of a period of imprisonment followed by a community correction order which would be punitive in nature and effect while also providing significant specific deterrence and encouraging rehabilitation.

23Your counsel submitted that since your remand in custody and withdrawal from alcohol, you appeared to be developing some insight into the circumstances which brought you before the court. It is in the context of recent conferences that you have been forthright with your counsel as to the difficulties in your relationship with your partner, given that she has significant problems with alcohol.

24The prosecutor in sentencing submissions said there were certain circumstances of aggravation in this case.  The prosecutor referred to the offence having occurred in the complainant's home, that it was a breach of trust and that you had taken advantage of an unconscious person.  The prosecutor also submitted that the admissible parts of the Victim Impact Statement demonstrated the impact of your offending on the complainant.  The prosecutor accepted that your offending was opportunistic and occurred in the context of intoxication with alcohol but submitted that alcohol was a real concern in this type of offending. 

25The prosecutor submitted that your prospects of rehabilitation would be guarded at best and that a sentence of immediate imprisonment was the appropriate disposition. 

26The prosecutor referred to the decision of the Court of Appeal in Boulton v The Queen, Clements v The Queen, Fitzgerald v The Queen [2014] VSCA 342 and submitted that the issue of community protection and the need to deal with your alcohol problem could be dealt with by setting a longer parole period.

27The prosecutor tended, as Exhibit B, sentencing statistics No.145 of June 2013, which provides some statistical information in respect of sentences imposed on the offence of rape.

28William Backhouse, rape is a serious offence.  The maximum penalty set by parliament reflects the seriousness of that offence and the community's concern about this type of offending.  Rape involves a physical violation of another person.  You took advantage of the complainant's vulnerable state. She was unconscious and unable to resist you or to consent.  The offence took place in her bedroom where she was entitled to feel safe.  You breached the trust she had placed in you, in inviting you in as her housemate to share a drink and conversation.  Your offending and the consequences of it has had a severely negative impact on her.  Whilst there were other factors impacting on the complainant's already fragile mental state, what you did to her has caused her considerable harm. 

29I accept that your offending was opportunistic and occurred in the context of significant intoxication.  Self-induced intoxication is not a mitigating matter but supports the conclusion that your offending was opportunistic and not pre-planned.  There was no violence or threat of violence.  I consider that your offending is towards the lower end of rape offences but not at the lowest end.

30I have taken into account in mitigation of sentence that you were distressed after the offending and that it was your disclosure of your concerns that led to police involvement.  That demonstrates some remorse, although your level of remorse was clearly limited given your plea of not guilty.

31I have taken into account in mitigation the delay in this matter.  There was a long period of time during which you had this matter hanging over your head.  There was no further similar offending.

32You have no relevant prior offending.  You have no subsequent relevant offending, as I have said.

33You have a history of working despite your non-verbal learning disability.  It appears from what your counsel said that you have acquired greater insight during the period you have been on remand once you had withdrawn from alcohol use.

34Your prospects of rehabilitation at present appear to me to be reasonable but would improve if you were able to deal with your chronic alcohol abuse issues.

35I have taken into account that imprisonment will be more difficult for you because of your anxiety and depression and your non-verbal learning disorder. 

36I have given serious consideration to the imposition of a period of imprisonment to be followed by a community correction order.  You have been assessed as being suitable for a community correction order, but I have concluded that taking into account all matters in mitigation and the circumstances of this offending, no sentence other than a sentence of imprisonment with a non-parole period is appropriate in this case.  A non-parole period of a duration which would preclude imposing a community correction order to follow is, in my view, required for the purposes of denunciation, just punishment, general deterrence and specific deterrence. 

37I consider that specific deterrence need be given reduced weight but that significant weight must be given to just punishment and general deterrence.  It is very important that others be deterred from giving way to their sexual impulses while under the influence of alcohol and without obtaining the consent of the other person.

38In fixing a shorter than otherwise non-parole period, I have taken into account the way in which this matter came to light, the delay and your prospects for rehabilitation.

39In respect of Charge 1, rape, you are convicted and sentenced to a term of imprisonment of four years and nine months. 

40I fix two years and nine months as the period that you are required to serve before being eligible for parole.

41

I declare that you have served 72 days of this sentence by way of

pre-sentence detention.

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