Director of Public Prosecutions v Bullmore

[2016] VCC 956

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00243

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID BULLMORE

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2016
DATE OF SENTENCE:	5 July 2016
CASE MAY BE CITED AS:	DPP v Bullmore
MEDIUM NEUTRAL CITATION:	[2016] VCC 956

REASONS FOR SENTENCE
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Subject:Trial - sentencing

Catchwords:              Rape

Legislation Cited:     Sex Offenders Registration Act 2004, Sentencing Act 1991

Cases Cited:

Sentence:                 36 months' imprisonment, 24 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Bolton	Office of Public Prosecutions
For the Accused	Ms M. Casey	Victoria Legal Aid

HIS HONOUR:

1David Bullmore, on 8 April this year, after a five-day trial, you were found guilty by jury verdict of one charge of rape.  The maximum penalty for this offence is 25 years' imprisonment.

2You are currently aged 57, having been born on 17 April 1959, and you were 49 when you committed this offence in April 2008.

3You have a reasonably extensive criminal history, about which I will go into more detail later. 

4The background to this matter is as follows. 

5You and the victim initially met sometime around 1999-2000 through your mutual involvement with the company Amway.  The victim was married at the time, as were you.  You and the victim were regularly involved with each other through your business relationship.

6In about 2000 the victim and her husband ceased their Amway business, as they became interested in other activities. 

7In around 2006 the victim separated from her husband and resided by herself with their two children. 

8On 7 April 2008 you rang the victim out of the blue and the two of you had a conversation.  The victim says that the context of the conversation was that you knew she had broken up with her husband, and that you had not seen her or the children in a while. 

9Arrangements were made that you would come over to the victim's home that evening.  You arrived some time that evening with a bottle of Jim Beam bourbon and poured you both a drink.      

10You commenced drinking, however the victim did not feel like drinking much, so she poured some of the drinks you poured her down the sink.  She estimates that she consumed around four drinks of bourbon and coke for the whole night. 

11You continued to drink alcohol, and at one stage had run out so you went to the bottle shop to obtain more alcohol.  You returned with another bottle of bourbon and continued drinking.  At some stage the children went to bed, leaving the victim and you talking.

12Sometime later in the evening you stated that you should be getting home.  The victim told you that you shouldn't be driving, and offered that you could sleep on her couch.  You accepted the offer, and the victim took herself off the bedroom to sleep. 

13She locked the door to her bedroom, which was her practice.  However, access could still be gained to the bedroom via a bathroom sliding door, which remained unlocked. 

14The precise circumstances of the development of the offending and particular positions and movements hereafter are uncertain because of conflicting accounts given by the victim.  However, what is clear from the jury's verdict is that you came uninvited into the victim's bedroom, undressed and lay with her in her bed.  You began kissing her on the lips, breasts and neck, and realising that she was not consenting or not giving any thought to whether or not she was not consenting, inserted your two fingers into her vagina.

15The victim believes this continued for approximately ten minutes.  She said that she just kept telling you to get off and get out.  This conduct gives rise to the charge of rape. 

16The victim states that there was nothing that she could do to deter you and that she had told you to get out of her room and to go.  Eventually you got off the bed and dressed.

17The victim told you to leave, and you stated that you could not leave because you were not in a position to drive.  The victim told you that she didn't care and you could sleep in your car on the driveway, but you had to get out of the house.  You then left via the front door and the victim heard your car skid away from the house.

18The next morning the victim received a text from you saying something like "How dare you let me drive home, I got picked up for drink-driving and I've lost my licence".  The victim replied by saying something like "How dare you do what you did to me". 

19The victim first told her ex-husband about what you did sometime in the following week.  He recalls her telling him that you had been around and had too much to drink so you stayed the night, and she was woken by you coming into her room and making advances. 

20Several years later when her two children were older, the victim disclosed the offending to them also. 

21The victim first disclosed this offending to police in 2013.  You were arrested by police on Tuesday 15 October 2013.  Apart from admitting you knew the victim, you declined to answer any questions.

22Investigators conducted a search of your driving record and located the traffic infringement notice received around the time of the allegations.  The traffic infringement record indicates that you were intercepted by police and given the fine on 8 April 2008.

23I now turn to your personal circumstances. 

24As noted earlier, you are now 57 years old, you were 49 at the time of this offending, and you have a criminal record. 

25Your criminal history commenced in February in 1983 with an appearance at the Broadmeadows Magistrates' Court when you were 23 years old, when you were fined $210 for wilfully damaging property and failing to exchange name and address.

26Nine further appearances in various Magistrates' Courts followed over the next 16 or so years, punctuated by two appearances in the State's higher courts, not including two appearances in this court on appeals from the Magistrates' Courts. 

27A seven-year hiatus in your criminal history ended in December 2004, when in this court you were given a 15-month term of imprisonment, which was wholly suspended for three years, on one count of obtaining a financial advantage by deception and one count of attempting so to do. 

28Your previous offending has been overwhelmingly for matters of dishonesty. 

29I note that the offending for which you are now being sentenced occurred within five months of the expiration of the operational period of that last suspended sentence.

30You were born in the United Kingdom, came to Australia aged about four or five, and you remain a British citizen.  You have married twice and have four mature-age adult children.  You progressed through school and completed Year 12 in 1976.  You later studied acting, obtained work with an insurance broker and financial planner.  You also became involved in direct sales through Amway, and have been engaged in various acting productions.

31You suffer from back pain, treatable by analgesics, as a result of a car accident in 2001. 

32A psychiatric assessment was provided by Dr Danny Sullivan, consultant psychiatrist.  Dr Sullivan noted a markedly grandiose quality to your reflections of yourself, but that you had insight.  You have had no significant past mental health contact, and your presentation more likely reflects long-standing personality features and does not clearly meet a threshold for clinically significant distress or impairment in functioning.  There is no indication of cognitive impairment, current mood disorder or other mental disorder. 

33According to Dr Sullivan, there is no indication of mental disorder causally connected with this offence.  Your personality trait of narcissistic thinking and alcohol consumption may have disinhibited and impaired your judgment.  Your personality traits do not reach the threshold, however, of personality disorder.

34The offence of rape is a serious crime, as indicated in part by the maximum penalty of 25 years' imprisonment imposed by Parliament.  In this particular circumstance you breached the trust of a friend, the offence was committed within her own home and whilst her children were also at home, notwithstanding that they were not aware of the specific conduct.

35The victim has understandably been emotionally scarred.  She often feels unsafe when alone, experiences nightmares and sleeplessness, anxiety, hyper-vigilance and depression.  She feels her personality has changed, affecting her relationships with others including her children.

36In mitigation I take into account the submissions made by your counsel including:

·    your relatively high standard of education and full employment record which should enhance your ability to reflect on your situation and enhance your prospects of rehabilitation;

·    your family's support, and your otherwise good character reflected in the references tendered, necessarily balanced with your past history of repeated offending against the criminal law - I note that the two previous offences for violence reflect minimal circumstances, the most recent resulting in a non-conviction;

·    that you will no longer be able to care as you have in the past for your aging mother and your eldest daughter, and that will impose an added burden upon you; 

·    the anxiety, stress and resultant effects you have suffered through the delay in this matter, it not having been reported until five years after the event, and your not being charged until six and a half years after the event, and the trial being heard eight years after the event;

·    the fact that you have not committed any further offending since the date of this offence;

·    that the circumstances of penetration was digital and thereby not aggravated by the chance of sexually transmittable disease or unwanted pregnancy;

·    the act of penetration was not associated with additional violence;  this must be considered, however, in the context that an act of rape is an intensely personal crime - its effects include the physical invasion of the victim's person and security, as well as the more intangible properties of the victim's rights and freedoms; 

·    that the offence was opportunistic in that you had earlier indicated an intention to drive home;  in this context, I also accept that it has not been established that the use of alcohol was designed with the motive of seduction, otherwise however, the possible disinhibiting effects of the self-application of alcohol upon you cannot be regarded as mitigatory;

·    the effects of this conviction on your prospects of future employment, particularly in finance-related businesses;

·    the efforts that you have made so far to apply yourself constructively whilst in prison; and

·    the anxiety you are likely to feel from the risk of being deported: notwithstanding that you have lived in Australia since the age of approximately five, you have married twice and raised two families, have had four children to whom you are close - the onus will be upon you to persuade the responsible authority to revoke an order to cancel your visa, and the outcome of that application is unknown.  It is likely that the nature of the current offending, as well as your past criminal record, will be relevant matters.  I accept that this is likely to impose a further burden on your time in custody than otherwise would be the case.

37Balancing the various sentencing considerations, in particular the matters set out in s.5 of the Sentencing Act 1991, I am clearly first satisfied that the purposes for which the sentence is imposed cannot be achieved without a sentence of imprisonment. In the determination of the current sentencing practices, I have been assisted by consideration of the case referred to me on the plea, together with a review of the summaries and overview of rape sentences in the Court of Appeal, and Sentencing Snapshot No.176 produced by the Sentencing Advisory Council.

38Taking into account the objective gravity of the offence, the principles of denunciation, general deterrence and the particular circumstances of your case, I have determined that a sentence to a term of imprisonment with a non-parole period is a more appropriate disposition than a term of imprisonment followed by a community correction order.

39The offence of rape is a Class 3 offence pursuant to the provision of the Sex Offenders Registration Act 2004. Pursuant to s.11 of that Act, I have a discretion as to whether you are placed on the Sex Offender Register should the prosecution so apply. The prosecution has made no such application pursuant to the section, and I make no such order.

40Mr Bullmore, could you please now stand?

41On Charge 1 of rape, you are convicted and sentenced to three years' imprisonment. 

42I direct that you serve a minimum of 24 months' imprisonment before being eligible for parole. 

43The sentence starts today, and I declare that under s.18(4) of the Sentencing Act 1991 the period of 88 days, not including today, is to be reckoned as a period of imprisonment already served under this sentence. Does that accord with counsel?

44COUNSEL:  Yes, Your Honour.

45HIS HONOUR:  Thank you.  At the plea hearing, the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the making of the order is in the public interest.

46I also need to inform you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that, Mr Bullmore?

47You may now be seated.  Are there any other matters from either counsel?

48MS BOLTON:  No, Your Honour.

49MS CASEY:  No, Your Honour.

50HIS HONOUR:  At this stage Mr Bullmore may be removed, thank you.

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