Director of Public Prosecutions v Bergman (a pseudonym)
[2019] VCC 268
•7 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Noah Bergman (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2018 | |
DATE OF SENTENCE: | 7 March 2019 | |
CASE MAY BE CITED AS: | DPP v Bergman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 268 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Rape – threat to kill – use carriage service to harass – youth offender.
Cases Cited:R v Mills (1998) 4 VR 235, R v Wyley [2009] VSCA 17, Azzopardi v R [2011] VSCA 372.
Sentence:Total effective sentence of six years' imprisonment with a minimum of four years’ imprisonment before being eligible for parole.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Nibbs | The Director of Office Public Prosecutions |
| For the Accused | Mr M. Page | Haines & Polites |
HIS HONOUR:
1 Noah Bergman[1], on 28 November 2018 at Latrobe Valley County Court you pleaded guilty to two charges on Indictment No.H12018116B:
Charge 1, was make threat to kill. This charge has a maximum penalty of ten years' imprisonment.
Charge 2, using a carriage service to menace, harass and cause offence. This charge has a maximum penalty of three years' imprisonment.
[1] a pseudonym name
2 On the same day, that is 28 November 2018, a trial commenced on Indictment No.H12018116A. That indictment contained a single charge of rape.
3 On 6 December 2018, a jury of 12 delivered a unanimous verdict of guilty to the charge of rape. You have been in custody for a total of 499 days since the time of your arrest for these matters.
The Circumstances of Your Offending
4 The background of the offending is that you and your victim, Ms Maclanachan[2], had known one another for approximately five years. As at the day of 14 May 2017, you were 18 years old. Ms Maclanachan was 17 years old. In the years leading up to the offence which occurred on 14 May 2017, the two of you would see one another regularly and then there would be periods of time where you would not see one another for some months. Over the whole period you remained friends.
[2] a pseudonym name
5 In the context of this friendship, on one previous occasion, and it was said to be 20 January 2017, the two of you had consensual sexual intercourse. Ms Maclanachan regretted that occasion and made that clear to you in the time following it.
6 On Saturday, 13 May 2017, Ms Maclanachan attended a party in Gowanford. Both she and her friend, Abby Bird[3], were driven there by another friend whose name is Amber[4] at approximately 9.30 pm. At the party Ms Maclanachan contacted you at around 1.19 am on the morning of 14 May 2017, via Facebook asking you what you were up to. Ms Maclanachan then messaged you stating that she was emotional, she said she had been drinking alcohol and was emotional which was common for her when she was drinking. You suggested that she come to your mother's place in Gowanford[5]. Ms Maclanachan agreed but specifically messaged you as follows, "I'm so sad, no sex or anything, I'm sad."
[3] a pseudonym name
[4] a pseudonym name
[5] a pseudonym name
7 Ms Maclanachan has then arranged to be picked up by a friend, Tyson Summons[6], who dropped her off at your mother's address in Gowanford. She was met by you who instead of coming from the house itself had run from the street to meet her.
[6] a pseudonym name
8 Once inside the house the two of you made your way to the bedroom which was at the back of the house. That bedroom contained one single bed. You both then got onto the bed fully clothed. Ms Maclanachan again made it clear to you she did not wish to engage in sexual activity. On the bed you immediately started touching Ms Maclanachan. You tried kissing her but she would not kiss you back. You tried to open her legs and she repeatedly said no. She has then tried to fend off your advances. She pushed you off. You were also making sexualised comments like, "I want to lick you out", which made her feel scared. You rubbed yourself up against her.
9 Consistent with the jury verdict I make the following findings of fact in respect of the rape charge:
(1) Ms Maclanachan had made it clear to you that she did not want to engage in any sexual activity on that night. She told you so, she had pushed you off and had pushed you away from her.
(2) Ms Maclanachan had become emotional, teary and manoeuvred herself on the single bed to be lying on her side facing the wall with her back to you.
(3) You pulled her pants down whilst Ms Maclanachan was facing away from you.
(4) Ms Maclanachan asked you to stop and was saying, "I don't want to do this."
(5) Initially you had trouble getting your penis into Ms Maclanachan's vagina.
(6) Whilst you were attempting to penetrate Ms Maclanachan's vagina, she involuntarily urinated on her clothing and the bed.
(7) You then penetrated Ms Maclanachan's vagina with your penis and had sexual intercourse with her.
(8) You did not wear a condom and ejaculated whilst having sexual intercourse with her.
(9) Ms Maclanachan pulled up her pants, she was crying.
(10) You then said you wanted to kill yourself. You asked Ms Maclanachan if you had upset her or traumatised her, you told her that she would be okay.
(11) Ms Maclanachan remained in the bed at your mother's home until 7 am that morning.
(12) Ms Maclanachan left your mother's house and rang her friend Annabelle Robey[7] and told her that you had raped her.
(13) Ms Maclanachan attended at the house nearby to your mother's home. Ms Maya Kirkpatrick[8] helped Ms Maclanachan and gave her a phone so she could contact her mother, Ms Alcock.
(14) The matter was reported to police on 14 May 2017, and forensic medical examinations were arranged on 15 May 2017.
[7] a pseudonym name
[8] a pseudonym name
10 After Ms Maclanachan left your mother's home on the morning of 14 May 2017, there are a number of text messages between you and Ms Maclanachan. At 9 am on Sunday, 14 May 2017, once Ms Maclanachan had left you she sent a message, "Why would you do that to me?" A series of text messages then followed with you making denials about having raped Ms Maclanachan coupled with threats and intimidations should she report the matter. The messages continued on until 21 May 2017, where you stated you loved her. "I love you" was the message.
11 When Ms Maclanachan messaged you, "I can't stand you for what you did to me", you messaged back, "I'm sorry." You then admitted to having smoked so much ice before seeing her. When asked by Ms Maclanachan, "Do you remember me saying no", you replied, "Not really." When the complainant messaged, "Well I definitely did", you then replied, "True" and then continued about Ms Maclanachan not deserving it and your intention to kill yourself.
12 The above findings and circumstances are relevant facts to the rape charge.
13 You have pleaded guilty to two charges that arise from offending which occurred after the offence of rape and this is Indictment No.H12018116B. Charge 1, was make a threat to kill. The circumstances of that are as follows; The Facebook messaging continued throughout 19 May 2017, with Ms Maclanachan telling you how she felt about being raped. You then tell her that you loved her and that things can be fixed. When it became clear that Ms Maclanachan will never see you again, and that no means no, you replied with the following message: "I am serious, shut the fuck up or I'll put a bullet in your head."
14 Charge 2, is using a carriage service to menace, harass and cause offence. The prosecution relied on a series of Facebook messages sent from you to Ms Maclanachan between 15 May 2017 and 21 May 2017, as well as some ten missed phone calls made to Ms Maclanachan in circumstances where it is clear that the calls were not welcome and allege that your conduct was offensive and harassing.
15 You will be sentenced on the basis of the circumstances of these offendings as outlined here in these reasons.
Victim Impact Statements
16 There have been two impact statements filed in this case. Poppy Maclanachan[9] filed a statement dated 31 January 2019. Rachel Alcock[10], the mother of Ms Maclanachan filed a statement dated 23 January 2019.
[9] a pseudonym name
[10] a pseudonym name
17 Ms Maclanachan sets out how this offending made her feel dirty and her body does not belong to her. She feels like an object. Ms Maclanachan set out how she is anxious and feels sadness that it makes it difficult to get out of bed, shower, even get through her day. Her sleep is interrupted and she dreams or nightmares about this offending.
18 Ms Maclanachan ceased her beauty therapy studies after this offending due to the lack of sleep, the fact that it required her to travel to Melbourne with 6 am starts and she lost the passion for the beauty industry. She has lost her motivation to work.
19 Ms Maclanachan has lost her trust in men, she sets out the trauma of the court process and the forensic examination by the doctors. Your offending has had a profound and devastating effect on a young woman who thought she was your friend.
20
Ms Alcock states that she cannot fix, repair or help her daughter to recover.
Ms Alcock outlines how Ms Maclanachan has gone from a funny, witty and humorous person full of life, to a victim of a horrendous act of pure hell. Ms Alcock says the impact on Ms Maclanachan's life also impacts on the life of the family around her. Ms Alcock says you have given Poppy a life sentence of what she described as a nightmare and sadness.
Your Personal Circumstances
21 You are now 20 years old. At the time of the offence you were 18 years old. On my calculations you have spent more than 600 days of the 860 days since your 18th birthday in adult custody. I was informed that you are a protection prisoner because of the nature of your offences.
22 You were born in Western Australia (“WA”). Your family moved from WA initially to St Albans and then moved down to Morwell by the time you were five years old. Your parents still live together at the premises where the offending occurred. Your twin brother died at childbirth. You have four surviving siblings. Two of your siblings died in a house fire prior to your birth.
23 You have grown up in a household where unemployment, drug use and contact with the criminal justice system were the norm.
24 Your education commenced in specialised school for young indigenous children to the age of six or seven. You then moved to a Primary School in Gowanford. You finished school at Grade 6. You did not maintain any secondary school placements. You have basically taught yourself to read and write. From the age of 12 you have travelled to Melbourne from Gowanford. You joined the skate park scene in Melbourne. You commenced alcohol use and abuse. By 13 or 14 years old, you had moved on to cannabis. At 16 years old, you were using ice and have been dependent on that substance since then. You have been diagnosed as suffering from ADHD.
25 You have an extensive criminal history for someone so young. I will deal with that matter in the sentencing considerations.
26 Due to your age I have had you assessed for the suitability of a Youth Justice Centre Order. I have received a report from the Department of Justice which is dated 6 March 2019. You have been assessed as unsuitable for a Youth Justice Centre Order. I accept that the reasons for the assessment are that you have been in adult custody for some time and are not an impressionable person and that you would be a disruptive influence in the youth justice system. That report was Exhibit “C”.
Sentencing Considerations
27 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
28 I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
29 I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exclusively to the kind of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case and indeed they are from one another. Of course current sentencing practices is one of the factors I am required to consider in this sentencing process.
30 In respect of the two charges on Indictment H12018116B, you have pleaded guilty. Your plea of guilty to those charges was indicated shortly before the trial where all three of the charges were to commence. Your plea of guilty to these two charges does have a utilitarian value of allowing for the orderly and effective administration of justice. In your case it simplified the issues to be determined in your trial on the rape charge.
31 Further, there is a certainty of outcome and a resolution of the substantive issues raised by your offending which gave the basis for those two charges. Your plea to those charges vindicates the public confidence in the legal process set up to protect the community.
32 Your plea was also a clear acknowledgement by you that you accept your responsibility for your criminal behaviour for those two charges. Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to those charges indicates and demonstrates some remorse on your behalf.
33 You were found guilty of the charge of rape after a trial before a jury of 12 of your peers. The verdict was unanimous after lengthy jury deliberations. I have previously outlined my findings of fact in respect of the charge of rape. Those findings are beyond reasonable doubt consistent with the jury verdict.
34 The circumstances of the offence of rape which are relevant to assessing the seriousness of your offending are:
(a) Your victim was 17 years old;
(b) You were her friend and she had communicated to you that she was sad and no sex before she came to your mother's home. You breached her trust in you;
(c) Whilst on one previous occasion you had consensual sex with your victim you have offended against her in circumstances where she had in the clearest terms told you she did not want to have sexual relations with you on the night of the offence. You decided to rape her over those protests;
(d) You did not use a condom with the possible risk of transmissions of STD or pregnancy;
(e) You took advantage of a vulnerable friend; and
35 (f) You offended was whilst serving a Community Corrections Order.
36 These circumstances are not to be taken as overlooking the basic fact that you raped Ms Maclanachan and the inherent serious nature of that offence.
37 At the time of the offending you were 18 years old. You are a young offender. It is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored taking into account all other sentencing considerations to promote the offender's rehabilitation. This approach serves the interests of the individual offender and the community as a whole.
38 In the case of R v Mills (1998) 4 VR 235, the three propositions to sentencing were set out:
“i. Youth of an offender, particularly a first offender should be primary consideration for a sentencing court where the matter properly arises.
ii. In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus for example individualised treatment focusing on the rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark of what is serious as justifies adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated a shorter period of imprisonment may be justified.”
39 In more recent times the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices. In the case of R v Wyley [2009] VSCA 17, President Maxwell said as follows:
"Mills constantly reminds courts and this Court on appeal, that there is a great public benefit in the rehabilitation of offender and maximising the prospect that the offender will carry on a law abiding life in the future. But the consideration is not unique to young offenders nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period or longer period of imprisonment rather than non-custodial sentences. Thus understood, the later cases of DPP v Lawrence, and R v Nguyen are not to be viewed as excluding the principles of Mills but simply as instances of how these principles are to be applied.
As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of case. In relation to certain classes of cases however, general deterrence may be particularly important have an important role to play, the present case is of that kind. Violence of this kind, and that is what this case was about, in circumstances of this kind is so prevalent that general deterrence is seen to have particular importance. But again the role of general deterrence may vary with the circumstances of the case."
40 In your case these charges are about violence, one charge of rape and the other charge is threat to kill. These issues were recently considered in Azzopardi v R [2011] VSCA 372 where Redlich JA with whom Coghlan and Macauley AJJAs agreed, said as follows:
"The general proposition which flows from these authorities is that where the degree of criminality for the offences requires sentencing objectives of deterrence, denunciation and just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effect of the offender's youth, but only in the circumstances of the gravest criminal offending where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished."
41 For a young man you have already accumulated a substantial criminal history. You have two Children's Court appearances in South Australia in 2014 and 2015. In Victoria you have had, 14 appearances in the Children's Court jurisdiction between 2010 and 2016. These offences include assault and armed robbery offences, you have served periods of youth detention. None of your prior criminal offences are for sex offending.
42
On 18 January 2017, you had your first appearance in the Magistrates' Court at Latrobe Valley. The charges were criminal damage, assault and contravening a Family Violence Intervention Order. You were sentenced to
49 days' imprisonment as time served and then placed on a 12 month Community Corrections Order (“CCO”).
43
On 12 April 2017, you were back before the Latrobe Valley Magistrates' Court on charges of theft, possession of an imitation firearm and recklessly cause injury. These charges breached your Community Corrections Order from
18 January 2017. Your CCO was confirmed and you were sentenced to time served was 67 days. At the time of these offences you were on a CCO.
44 You have had two periods of detention in respect of these charges. The first period was for 219 days between the day when you were charged on 18 July 2017 and been granted bail on 21 February 2018. The second period of detention was for 280 days was between 1 June 2018 and the day of your sentence. The total period is 499 days.
45 You have served two separate sentences with the total period of time between the remand for these charges and the sentence for these charges. On 19 October 2017, you were sentenced for another offending for 93 days which was time served. In October 2018, you were sentenced for a period of 125 days' time served. The total time you have spent in custody is 499 days less the total of 218 days of time served for other sentences. Your pre-sentence detention in this case for these charges is 281 days.
46 I take into account the total time that you have been in custody when fixing your sentence and I declare that you have served 281 days as pre-sentence detention in respect of this particular sentence.
47 The threat to kill charge and harassing a person over a carriage service are offences committed in an attempt to “convince” Ms Maclanachan not to proceed with her complaint of rape. The charges are committed by communication through the telephone and other telecommunication means. The threat to kill is not made in the physical presence of the victim, nevertheless you have a prior matter for threat to kill and this offence is an attempt to stop Ms Maclanachan continuing with her rape complaint. A degree of cumulation is appropriate to reflect this separate and serious offending, the harassing phone call communications are part of an attempt to influence Ms Maclanachan not to proceed but the total offending does not require further cumulation in respect to that charge.
48 I also take into account that you are serving your sentence as a protected prisoner. The fact that you serve your sentence as a protected prisoner means that the time you serve is more onerous than if you were a prisoner in mainstream prison.
49 I also note that you have been as I say assessed by Youth Justice prior to this hearing, and also further back in your time in December 2014 you were assessed as being “mildly intellectual disabled” range. That was in Exhibit “1” on the plea. As I said before, you are self-taught in how to read and write.
50 The principle of general deterrence has a clear role to play in sentence for rape. In your case whilst you have no prior convictions for sex offences, you do have numerous convictions for violence and you were on a CCO at the time of these offences. Specific deterrence has a role to play in your sentence. Your offending calls for just punishment, denunciation of your actions.
51 You are young, 20 years old, the protection of the community and the rehabilitation are combined in your case. Because of your youth the protection of the community is served if the prospect of your rehabilitation is enhanced, I fix a non-parole period that gives you a chance to earn parole and then complete it on a path of rehabilitation.
52 I have assessed your prospects of rehabilitation as guarded. You have already spent considerable time in adult prison, approximately three-quarters of your life since turning 18 years old. You are at risk of becoming institutionalised. It is up to you to break the criminal cycle upon your release from prison and with the assistance and the control of the Adult Parole Board.
53 Would you stand please?
54 On Indictment No.H12018116A, which is the rape charge, on Charge 1 rape, you are sentenced to five years and six months. That is the base sentence.
55 On Indictment No.H12018116B, Charge 1, threat to kill, you are convicted and sentenced to one year imprisonment.
56 On Charge 2, which is a Commonwealth Sentence, using a carriage service to harass, you are convicted and sentenced to three months.
57 The sentence on Charge 2, is to commence this day so it runs concurrently with all the other sentences. In relation to Charge 1, threat to kill, I direct that six months of that sentence be served cumulatively upon the sentence of five years and six months for the rape charge.
58 The total effective sentence is six years. I fix a non-parole period of four years' imprisonment. I declare that you have served a total of 281 days pre-sentence detention in respect of this sentence.
59 In respect of Charge 2 on Indictment No.H12018116B, which is the Commonwealth offence, I have not fixed a recognisance release order because the State offence sentences exceed the three year period and such an order would be superfluous and of no effect.
HIS HONOUR: Are there any further orders sought by the prosecution?
MR NIBBS: There is also the Sex Offender Register, Your Honour.
HIS HONOUR: One thing I have got to do. In respect of Indictment No.H12018116B, a s.6AAA, that is the plea one.
MR NIBBS: For the other two yes.
HIS HONOUR: Yes I have to fix that. But for your plea of guilty in respect to those I would have sentenced you to a period of 18 months imprisonment with a minimum of 12 months. And the Sex Offenders Register, yes. That is for life is it not?
MR NIBBS: That was what we were just checking. It was originally 15 years but I think they may have changed it.
HIS HONOUR: You can take a seat while we are sorting this out, thanks.
MR NIBBS: It is 15 years Your Honour.
HIS HONOUR: 15 all right.
MR NIBBS: Yes, single Class 1.
HIS HONOUR: Yes. As a result of the rape charge you are placed on the Sex Offenders Register for a period of 15 years. I will just have you look at this
Mr Page.
MR PAGE: May I approach Your Honour?
HIS HONOUR: Certainly, thanks.
MR PAGE: I'm grateful for that Your Honour.
HIS HONOUR: Thank you. Thank you both for your assistance in this matter. You're looking concerned about something.
MR NIBBS: Not about this matter Your Honour.
HIS HONOUR: All right, sorry. Thank you both for your assistance. If you could take the prisoner thank you.
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