Director of Public Prosecutions v Blundell (a pseudonym)

[2019] VCC 1630

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA BLUNDELL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2019
DATE OF SENTENCE:	8 October 2019
CASE MAY BE CITED AS:	DPP v Blundell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1630

REASONS FOR SENTENCE
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Subject:

Catchwords:   Rape of sleeping partner – Voluntary disclosure to partner – Guilty plea – Extraordinary remorse – Leniency required - 3 years 6 months imprisonment – Non-parole period of 2 years

Legislation Cited: s 5(2G) Sentencing Act

Cases Cited: DPP v McInnes [2017] VSCA 374; R v Ellis (1986) 6 NSWLR 603

Sentence: 3 years 6 months’ imprisonment, non-parole period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Ms K. Westlake
For the Director of Public Prosecutions	Ms W. Duncan	Ms K. Moloney

HIS HONOUR:

1Joshua Blundell,[1] you have pleaded guilty to one count of rape. 

[1] A pseudonym.

2The circumstances of your offending are set out in the summary of prosecution opening.  They are agreed facts.  You had known the victim, Madeline Kirton,[2] for around seven years.  Around September 2017 you started living together in her home at Ararat.

[2] A pseudonym.

3About two months into your relationship Ms Kirton started suffering blackouts.  On 19 November 2017 the two of you were at her home.  Around lunch time
Ms Kirton felt sick and went to bed and to sleep.  An hour or two later you laid down with her.  The two of you cuddled and fell asleep.  Around 4.30 pm you woke her and told her you would start getting dinner.  She went back to sleep and around three quarters of an hour later you woke her again.  She got out of bed and the two of you went to the park and started cooking dinner.

4You were acting strangely and refused to talk or cuddle her.  When she asked you what was wrong you replied, 'Nothing'.  A couple of hours later you told her while she was sleeping you had had sex with her.  The next day you went to Melbourne to work.  Two days after that Ms Kirton sent you a text message asking why you had had sex with her when she had blacked out.  You replied that you wanted to see what she would do if she woke up.  You also said she had told you that you could have sex with her in her sleep and you did not know that she had blacked out completely. 

5In December 2017 Ms Kirton learned she was pregnant.  During your relationship you had engaged on consensual, unprotected sex.  It is not clear when the baby was conceived, although it was around the timeframe of the rape.

6In January 2018 she ended her relationship with you and in February 2018 she reported the rape to police.

7On 30 March 2018 when police interviewed you, you described how, whilst she was asleep, you pulled down her shorts and underwear, rubbed her vagina to get her wet, rubbed your penis to get hard and then took your shorts off, got on top of her and inserted your penis into her vagina.  You said it took three to four minutes.  You told the police Ms Kirton had given you permission to have sex with her while she was asleep.  By your guilty plea you have admitted she was not consenting to having sex with you.

8Ms Kirton attended the plea hearing and her victim impact statement was read to the court.  She has had your baby.  She has felt the mixed emotions of fear and anger, fear that you would return and anger because you violated her and destroyed her trust in men.  She has required counselling to deal with the emotional toll of your crime and she struggles at times as a single mother.

9You were charged with rape on 19 November 2018 and at the first committal mention on 6 February 2018 you pleaded guilty to the offence and surrendered yourself into custody.  You have a relevant criminal history. 

10On 31 July 2013 you were sentenced to 16 months' imprisonment on a charge of using a service to procure a child under the age of 16 years for a sexual act.  You were released immediately on the condition that you entered into a recognisance to be of good behaviour, and that you attend for supervision and assessment for treatment for a sex offender program.

11As a consequence of your conviction you became a registrable offender under the Sex Offenders Registration Act.

12I have read Judge Punshon's reasons for sentence.  In January 2011 over a four to five day period you engaged in sexually explicit conversations on Facebook and telephone with a 14 year old girl who you knew through a community group.  You were 22 years old at the time.  The girl said your conduct made her feel sick, lonely, scared and uncomfortable.  His Honour found your conduct was opportunistic rather than predatory and that your natural awkwardness and shyness made it difficult for you to interact with women your own age.  You had made admissions of your wrongdoing to police and cooperated with them.  You made an early guilty plea.  Your youth and immaturity, your cooperation with authorities, the delay in sentencing you and your assessed low risk of reoffending saved you from a sentence of immediate imprisonment.

13You are now 30 years old.  Your personal circumstances are detailed in the psychological reports of Dr Wauchope and Carla Lechner.  Dr Wauchope interviewed you on 9 July 2013 when you were awaiting sentence in the County Court on the procurement charge.  Then, in 2013, you were living with your parents at Reservoir.  You have five older siblings, three of them were also living at home.  None of your family was working and neither were you.

14You had a happy and stable upbringing.  You attended local schools and completed Year 12 VCAL, which is the Victorian Certificate of Applied Learning, a hands-on and practical option for learning, and when you left school you worked casually at a Safeway supermarket for about two years and then for Toll Transport for around two and a half years.

15You said you were a social drinker and had never used any illicit substances.  You had had two girlfriends when you were 19 and 22.  You were with your first girlfriend for two years and, your second, for about a year.  You told Dr Wauchope that you had a normal sexual relationship with your girlfriends.  In her opinion you did not appear to hold any deviant recurring sexual fantasies.   

16Dr Wauchope described you as shy and socially awkward with girls your own age and while you did not meet the criteria for any sexual disorder, she believed you needed specialised counselling. 

17While you demonstrated remorse and regret, your offending in relation to the 14 year old girl, you tended to minimise the seriousness of your offending and its impact.  She recommended treatment in the community rather than in prison to best assist your rehabilitation.  She offered the opinion, with appropriate help, your risk of reoffending was low.

18In response to the current charge, Ms Lechner examined you on 17 April 2019.  During the six years since you had seen Dr Wauchope, you had worked about fifty per cent of the time and mostly lived at home with your parents.  You had had a two year relationship with a woman with whom you had had a son, who was now three years old.  Ms Kirton has also borne your child.  You do not have contact with either child. 

19Ms Lechner, described you as a person who has immature interpersonal skills and lacks awareness of appropriate sexual behaviour.  She wrote, 'You are struggling to understand wrongfulness of your behaviour and you tend to externalise blame.' 

20She said, 'You understand your actions were wrong, but you lack insight into the harm you caused Ms Kirton.'  Using the SVR 20 assessment tool, she assessed you as a moderate to low risk of sexual reoffending and recommended psycho-sexual and psycho-social counselling. 

21In her opinion, you do not have any particular psychological or psychiatric disorder, but she formed the view that your cognitive skills appear to be limited.  She described you as quite a simple man with a limited capacity to think deeply about your emotional world or to reflect on the impact that your behaviour has on both yourself and others.  Psychometric testing indicated you were in the borderline mildly intellectually disabled range and she recommended a full cognitive evaluation. 

22Accordingly, I ordered the pre-sentence report.  Dr Dion Gee conducted his psychological assessment of you on 12 September 2019.  In his opinion, you suffer an acute mood disorder with symptoms of major depression and anxiety.  You also have disturbed personality functioning.  He identified in you, intimacy and social skills difficulties, emotional immaturity, reduced consequential thinking and a self-focussed approach to sexual activity.  In addition, on his testing, your intellectual capacity falls within the extremely low to borderline to low average range. 

23Dr Gee did not believe there was a direct causal nexus between your impaired mental functioning and your offending but, in his opinion, it may have pre-disposed you to act in the way you did.  In his view, your offending was not motivated by any ingrained sexual deviancy but rather an unsophisticated attempt at social connection and social gratification. 

24He is of the view that with specialist psychological treatment, you have a fair prognosis for rehabilitation. 

25He said, because of your impaired mental functioning, there is a greater risk of increased stress for you in prison.  In his opinion, you would benefit from some period of supervision and treatment in the community, rather than in prison, where you will have better access to services and to give you a sense of hope for your future.  

26Rape is a Category 1 offence, as a result the court must impose a sentence of imprisonment, excluding imprisonment combined with a community correction order unless satisfied that a special reason exists. 

27Your counsel, Ms Duncan, in thoughtful and comprehensive submissions, did not argue I should not impose a sentence other than imprisonment and you accept its inevitability. 

28Ms Duncan relied on the following factors in mitigation of penalty.  While acknowledging any rape is serious offending, there were no aggravating features such as threat, use of weapons or physical violence.  She relied on your early guilty plea for its utilitarian value and acceptance of responsibility for your actions, and she relied on your very considerable remorse evidenced by your disclosure to Ms Kirton almost immediately after you had raped her, your response to her text messages that you were sorry, and your promise you would never do it again, your cooperation with police, (when police asked you to attend the police station for questioning, you did so voluntarily and when questioned, you have admitted you had sexual intercourse with Ms Kirton while she was sleeping), and also evidenced by surrendering yourself into custody when you entered your guilty plea on 6 February. 

29In making this submission, Ms Duncan acknowledged you told police you effectively had had Ms Kirton's permission to have sex with her while she was sleeping, but, of course, by your plea of guilty, you have acknowledged she did not consent.

30Ms Duncan also relied on your reasonable prospects of rehabilitation taking into account you have no history of alcohol or drug abuse, your offending was not motivated by any deviant propensity, Dr Gee's reasonable confidence you will respond favourably to offender intervention programs, your lack of prior offending of a similar nature and your demonstrated capacity for rehabilitation to the extent that you have not reoffended in a way similar to the offending which led to your prior conviction in 2013.

31She also submitted taking into account these factors in mitigation and Dr Gee's opinion you would benefit from longer term community disposition, I should impose a longer than usual parole release period to allow you to continue your rehabilitation in the community.

32I accept the force of her submissions and have taken them into account to moderate the sentence I would otherwise have imposed. 

33Ms Piggott who appeared for the prosecution, submitted yours was a significant breach of the trust of your partner, who had told you she was unwell and you nevertheless took advantage of her while she was vulnerable.  She submitted your remorse is qualified by your lack of insight into the harm your crime caused and while there is an absence of aggravating features, any crime of rape is very serious and general deterrence and special deterrence are important sentencing factors. 

34With one observation, I accept the force of her submissions, and also have had regard to them in sentencing you.  I add, while you have appeared to be slow to understand the harm you caused Ms Kirton, I accept this deficit needs to be considered in the context of your cognitive and intellectual capacities. 

35Ms Piggott fairly submitted, taking into account Dr Gee's opinions, it would be appropriate to impose a longer than usual parole release period in your case.

36I was referred to a number of sentences in other cases involving the rape of a sleeping victim.  I have read them and noting the differences in offending and personal circumstances between each of them, and your case, I have had regard to them to inform my sentencing task. 

37I was also referred to the Victorian Court of Appeal decision of Jacob McInnes [2017] VSCA 374.

38In that case, the Crown appeal against the imposition of a community correction order for the rape of a sleeping victim was dismissed.  The victim had fallen asleep while she was watching television with the respondent.  Both were 23 years old.  She woke feeling his penis inside her and fell back to sleep again.  Next morning the respondent sent her a text message apologising for what happened and after an exchange of further text messages, he told her he would go to the police to tell them what he did.  He went to the police and he made full admissions.

39In the majority judgement, Priest and Beach JJA said:

40'The sentence imposed on the very naïve and relatively young respondent who had no prior convictions and excellent prospects of rehabilitation and who had demonstrated extraordinary remorse was undoubtedly lenient.  It was not, however, manifestly excessive.'

41I note in that case, the sentencing judge had convicted Mr McInnes and sentenced him to a lengthy community correction order.  That disposition is now not available, under law, to you. 

42McInnes's offending was similar to yours.  While there are differences between his personal circumstances and yours, a common feature is the extraordinary demonstration of remorse demonstrated by each of you.  To the extent, McInnis reported himself to police, while police contacted you, and, while he made full admissions to sexually assaulting the victim, you made qualified admissions, his remorse might be seen to be greater than yours.

43However, significantly, in your case, your offending would not have been discovered but from the remarkable fact you voluntarily told Ms Kirton what you had done, and it is in my view, a substantial reason for extending leniency to you. 

44In The Queen v Ellis (1986) 6 NSWLR 603 Street CJ said, at 604:

When the conviction follows upon a plea of guilty that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing discretion.  Where it was unlikely that guilt would have been discovered and established, were it not for the disclosure by the person coming forward, a considerable element of leniency should properly be extended by the sentencing judge.  It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of the offence having been committed and the admission of guilt to that offence. '

45Please stand, Mr Blundell.

46By the sentence I impose, I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

47Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of rape you are convicted and sentenced to three years and six months' imprisonment. 

48I direct you serve a minimum period of two years before you are eligible for parole. 

49I declare you have served 244 days of your sentence by way of pre-sentence detention. 

50Pursuant to s.6AAA of the Sentencing Act, I declare but for your plea of guilty, I would have sentenced you to five years imprisonment with a minimum non-parole period of three years. 

51Mr Blundell you may sit down.  There is one other matter that I need to mention. 

52Rape is a Schedule 3 offence under the Sex Offender Registration Act and when you committed this crime you were subject to a Sex Offender Registration order. 

53In consequence, you were deemed to have been found guilty of a Class 1 offence and the reporting period is low.  You must comply with the reporting conditions of Part 3 of the Act for the rest of your life.  You must report your personal details to Victoria Police within 7 days and you have an ongoing obligation to report your personal details to Victoria Police each year thereafter and to report any change of your personal details during that time.  It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting conditions.

54Shortly, my associate Ms Phillips, will give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with these conditions.  When she gives you that notice, she will ask you to sign and acknowledgment that you have received it.

55Just while that is being done, Ms Piggott are there any matters?

56MS PIGGOTT:  Nothing further, Your Honour, thank you. 

57HIS HONOUR:   Ms Duncan?

58MS DUNCAN:  No, thank you, Your Honour.

59HIS HONOUR: The court acknowledges the dignified and respectful attendance of all persons in the court room today.  Ms Piggott, Ms Duncan, thank you for your assistance.  Adjourn the court please.

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