Director of Public Prosecutions v Carlyon
[2021] VCC 2029
•8 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00413
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA CARLYON |
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JUDGE: | HIS HONOUR JUDGE COISH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 November 2021 |
DATE OF SENTENCE: | 8 December 2021 |
CASE MAY BE CITED AS: | DPP v Carlyon |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2029 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Karamicov | |
For the Accused | Mr A. Pyne |
HIS HONOUR:
1Joshua Carlyon, you have pleaded guilty to one charge of burglary, one charge of aggravated burglary person present, one charge of sexual assault, and two charges of rape.
2These offences carry the following maximum penalties: burglary, 10 years' imprisonment; aggravated burglary, 25 years' imprisonment; sexual assault, 10 years' imprisonment; rape, 25 years' imprisonment.
3It is unnecessary for me to recount the facts of the matter in detail, as they are on transcript and contained in Exhibit 1, amended summary of prosecution opening. That opening ought be read together with my reasons for ruling delivered on 7 April 2021, in which I dealt with one issue in dispute, your state of mind when you entered the victim's premises on 8 August 2020.
4I proceed to sentence you on the basis of the facts as opened by the prosecutor and my ruling, which I shall now summarise.
5By way of background, you were born on 27 March 1992 in Tasmania. You moved to Shepparton from Tasmania in 2020. You are a registered sex offender as a result of offending in Tasmania. At the time of these offences you had no fixed abode.
6In August 2020, the victim was a 28-year-old anaesthetic registrar at Goulburn Valley Health in Shepparton. She commenced her employment on 1 August 2020. Her employment conditions included residential accommodation in a unit situated at the south end of the hospital. She lived alone. She had moved into the property on Sunday, 1 August 2020.
7Dealing with the offences. On 4 August 2020, you entered the victim's unit when she was not present. When the victim returned to her unit from work, she noticed what she thought was grit on her bed cover together with a button that she did not recognise. The bed was otherwise undisturbed.
8When interviewed by police, you admitted entering the victim's unit on this day. You stated your intention was to sleep in the unit and steal money and food. You did not recall much about your attendance at the unit on this day (Charge 1, Burglary).
9On 7 August 2020, the victim worked at the hospital from 7.30 am until 4.30 pm. The victim remained at her unit that night and was visited by a friend at approximately 9 pm. The victim's friend left the unit at approximately 11.45 pm. The victim went to her bedroom and went to sleep. The victim woke up sometime later and felt you lying next to her in the bed on her right side (Charge 2, Aggravated burglary).
10On 7 April 2021, I ruled that I was satisfied beyond reasonable doubt that, on 8 August 2020, you entered the unit as a trespasser with an intent to commit an offence involving a sexual assault to a person therein. As the victim began to move, you moved and you told the victim to stop moving. You stated that you just wanted to cuddle. The victim tried to push you off her. You were trying to get on top of her. The victim repeatedly told you to get off her. You told her again not to move. You pinned the victim on her back using her hands on her upper torso and shoulder, before you straddled her, pinning her to the bed with the force of your body.
11The victim sensed that continued residence with futile and she stopped trying to push you away. The victim attempted to talk to you. You said that you just want to have sex, as you had not had sex for a while. You directed the victim to take her shirt off. The victim said no, she did not want to do this and asked you to get off her. You said, 'Take your panties off.' You tried to kiss the victim on her mouth, but she tried to push you. You became angry and raised your fist as though you were going to punch the victim. You softly hit the victim's hip, before raising your fist again and becoming angry. You said, 'I'll punch you if you don't stop moving.'
12The victim stopped physically resisting so as to protect herself. The victim asked if you had hepatitis or HIV and whether you had protection. You said that you did not have any diseases and had not bought protection. You asked the victim if she had any protection, to which she replied no. You were still holding the victim down. You kissed the victim on the lips and forced your tongue in her mouth (Charge 3, Sexual assault).
13You lifted the victim's shirt and kissed her on the chest. You digitally penetrated the victim's vagina with one or two fingers (Charge 4, Rape).
14You then maneuvered yourself and tried to put your penis near the victim's vagina. She could feel that your penis was not fully erect. You masturbated for a number of seconds before attempting to insert your penis into her vagina. The top of your penis entered approximately 1 centimetre of her vagina for one thrust and you continued to thrust for 10 to 15 seconds (Charge 5, Rape).
15You ejaculated and apologised to the victim. The victim felt moisture between her upper thighs. The victim was able to push you off at this stage. You then directed her to have a shower. You watched her shower. After she had showered, the victim negotiated with you to leave her phone in the laundry as you left. You became angry and said, 'I know where you live, and don't do anything stupid.'
16The bedroom was pitch-black and quiet. You repeated the direction to the victim not to move. At some point, you also told the victim not to touch her phone or call the police for 10 minutes. Eventually, after you had left, the victim called police and a friend. This was at about 3.45 am. The victim was crying. When police and a friend arrived at the victim's unit at about 4 am, the victim was observed to be distressed, crying, squatting and hunched over, shaking, and sobbing. You were not known to the victim. The victim was subsequently found to have sustained a bruise to the left forearm and an abrasion to the shoulders.
17On 10 August 2020, you were arrested. You made numerous admissions to police. I state to you that have taken into account the following matters in mitigation of sentence.
18You have pleaded guilty. You are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial witnesses have been spared the ordeal of giving evidence upon your trial.
19I do accept, in all the circumstances, that you pleaded guilty at an early stage. There was a submissions-only committal hearing and on 10 December 2020, you indicated an indication to plead guilty to Charge 1, 3, 4, and 5.
20Whilst there was a dispute in respect of Charge 2, it was limited to your intent on entry. This was dealt with in a most efficient and convenient manner, and I commend both parties for their approach to this narrow issue in dispute. In the circumstances of this case, having regard to your extensive admissions made in the record of interview and conduct of the proceeding, I am prepared to make the general characterisation of an early plea.
21I accept there is a greater utilitarian value to the plea of guilty having regard to the COVID-19 pandemic. You cooperated with authorities and made numerous admissions in the record of interview. I accept, on all the material before me, that you are genuinely remorseful.
22I have been told something of your personal circumstances, and these matters are set out in detail in the outline of defence submissions tendered on your behalf and in the reports of Dr Darjee, psychiatrist, and Mr Jackson, neuropsychologist.
23You were 29 years of age, having been born on 27 March 1992 in Tasmania. You are single with no dependents. You had a grossly disadvantaged upbringing. You never met your biological father. Your mother had mental health issues, as well as problems with alcohol and drugs. Your stepfather was violent and abusive to you.
24As a child, you blamed yourself for the accidental death of a half-sister. You are illiterate. You struggled at school and ceased school during your primary years. You were taken into state care when you were about 10 years of age as a result of neglect, severe physical discipline, and poor behaviour. You spent a number of years in state residential homes.
25You commenced abusing alcohol and drugs from a young age. Your adolescence was characterised by substance abuse and delinquency. You were involved in the youth justice system as you commenced offending at a young age.
26You have spent much time in custody. You have had no employment, nor have you had a fixed abode. You were often homeless. You moved to the Shepparton area in Victoria in about April 2020. You had a disagreement with some family members and became homeless once again.
27Your mother died unexpectedly in March 2021. You have no family or friends in Victoria. You have received no visits whilst in custody. I accept that, in view of your grossly disadvantaged background, the principles enunciated in Bugmy's case apply and I do give full weight to your deprived background.
28Your complex mental conditions are described in the detailed reports of Dr Darjee and Mr Jackson. I accept their opinions.
29In summary, you have a mild intellectual disability, a severe personality disorder, a significant substance misuse disorder, anxiety and depression and ADHD. I accept the opinions of Dr Darjee and Mr Jackson on the relationship between your mental impairment and offending, difficulties you will experience in prison, and increased hardship by virtue of your various mental impairments of a sentence of imprisonment.
30I, therefore, do apply the following principles enunciated in the Verdins case:
31I am satisfied there ought be a reduction in moral culpability.
32I am satisfied the weight to be attached to specific and general deterrence ought be sensibly moderated.
33I am satisfied your overall mental impairment means a sentence of imprisonment will weigh more heavily on you than on a person in normal health.
34I am satisfied there is a serious of risk of imprisonment having a significant adverse effect on your mental health.
35I also accept the opinions of Dr Darjee and Mr Jackson on your prospects of rehabilitation. These opinions are very pessimistic. As Dr Darjee states, 'Overall, in terms of risk of future offending, you have a high number of risk factors for future sexual offending and few protective factors.' Dr Darjee is of the opinion that you pose a high risk of further sexual and non-sexual offending.
36Mr Jackson explains in detail that your therapeutic and rehabilitation options are very low. Whilst you have clear rehabilitation needs, the severity of your cognitive and behavioural impairments means that you have very limited rehabilitative options.
37Mr Jackson is of the opinion that you are at a significant risk of future offending from a neuropsychological perspective, given your cognitive and behavioural profile. You have a mild intellectual disability. You are completely illiterate and you have an extreme severe disorder of impulse control.
38I assess your prospects of rehabilitation as being poor, particularly having regard to your appalling criminal record which I shall describe shortly.
39Against these matters in mitigation, your actions, particularly on 8 August 2020, were deplorable. This was a very serious example of the offence of rape. There are the following aggravating features to the offences on 8 August 2020:
40You were a registered sex offender at the relevant time.
41The offences took place late at night.
42The offending was in the victim's home, a residential unit provided by Goulburn Valley Health. This was a place in which the victim was entitled to feel safe.
43There was a degree of planning or forethought.
44Your conduct was persistent and involved the threat of force and actual force.
45There were two acts of penetration. The penile penetration was unprotected and exposed the victim to a risk of infection and pregnancy.
46There was a degree of degradation in forcing the victim to shower and watching her shower.
47There is a victim impact statement. In that statement, the victim describes the attempts that she has made to rebuild her life. She describes feelings of panic and fear. She describes the immense fear that she experienced on the night. She has PTSD-like symptoms and has experienced panic attacks. She felt completely violated.
48To her credit, she has much support from family and friends. This is a most powerful victim impact statement. I have had regard to its contents, but it must not overwhelm other relevant sentencing considerations.
49You have admitted before me numerous prior convictions. There are many court appearances between 30 August 2010 and 27 July 2020 involving convictions for aggravated burglary, burglary, theft, motor vehicle offences, trespass, assault, property damage, breach of bail and suspended sentences, drug offences, indecent exposure/prohibited behaviour, and failure to comply with reporting obligations.
50The sheer volume of your prior convictions is quite staggering. It was submitted on behalf of the prosecution that, as an adult, you committed 94 aggravated burglaries and 37 burglaries or trespasses. I have not attempted to add up all the prior convictions. There were convictions for indecent exposure/prohibited behaviour that resulted in you being placed on the sex offenders register. These offences, together with the numerous aggravated burglaries, and burglaries are highly relevant to my task of sentencing you today.
51The pre-sentence detention is agreed at 486 days. I have had regard to the principle of totality. I have sought to impose appropriate sentences on each charge. I have made appropriate orders for cumulation, having regard to the separate offending on 4 and 8 August 2020 and the nature of the offending on 8 August 2020 when a number of offences were committed against the victim. In particular, the sexual assault and the two acts of rape took place within a short time of each other.
52In my opinion the second rape was the more serious having regard to all the circumstances as it was second in time and involved unprotected penile penetration and ejaculation with attendant risks of pregnancy and infection. Accordingly, I have imposed a heavier sentence on Charge 5.
53As well as the matters to which I have refer, I must also take into account the need for general and specific deterrence, although, in accordance with Verdins case, I have sensibly moderated the weight to be attached to specific and general deterrence.
54Specific deterrence does remain relevant in view of your extensive criminal history. General deterrence also remains relevant. All of these types of offences must be discouraged, particularly the rape of a victim in her own home.
55I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally, to impose a just punishment.
56Charges 5 and 6 are charges of rape. These are standard sentence offences. The standard sentence for rape is 10 years. I have had regard to s.5A, 5B and 11A of the Sentencing Act and the Court of Appeal cases on standard sentences. I have had regard to the standard sentence. It is, like the maximum penalty, a 'legislative guidepost'.
57I have assessed the seriousness of the offences of rape in a conventional manner and I have applied the 'instinctive synthesis' approach to sentencing. In my opinion, the sentences I am imposing on Charges 4 and 5 are, for Charge 4, close to, and for Charge 5, identical with the standard sentence. These are appropriate sentences having regard to all the circumstances of the case and having regard to all relevant sentencing principles.
58Serious sexual offender. Pursuant to s.6B(A) of the Sentencing Act, upon your conviction and sentence to a term of imprisonment on Charges 2 and 3, you become a serious sexual offender and you are to be sentenced as a serious sexual offender in respect of Charges 4 and 5. I direct that, pursuant to s.6F of the Sentencing Act there be entered in the records of the court that I have sentenced you in respect of Charges 4 and 5 as a serious sexual offender within the meaning of the Act.
59Pursuant to s.6D, I do consider a sentence of imprisonment is justified for Charges 4 and 5. In determining the length of that sentence, pursuant to s.6D, I must regard the protection of the community from you as the principle purpose for which the sentence is imposed. I must also decide whether, in order to achieve that purpose, sentences longer than that which would be proportionate to the gravity of the offences considered in the light of their objective circumstances should be imposed. In all the circumstances, I do not consider it appropriate to impose disproportionate sentences.
60Pursuant to s.6F, I must direct that the sentences be served cumulatively on any uncompleted sentence or the sentences I impose on this date, unless I otherwise direct. In all the circumstances, I consider it appropriate to make orders for partial cumulation.
61It was not in issue that a substantial term of imprisonment is the only appropriate disposition. Your counsel emphasised the factors in mitigation, together with the importance of principles of proportionality and totality. It was submitted on behalf of the prosecution the relevant principles enunciated in Bugmy's case and Verdins' case did apply, although the prosecution emphasised the importance of protecting the community from you and complications arising from your drug use.
62In my opinion, protection of the community is an important sentencing principle in this case having regard to the nature of these offences, your inability to exercise self-control, lack of inhibition, and extraordinarily bad criminal record.
63Having regard to all relevant facts and appropriate sentences, I sentence you as follows. Charge 1, burglary, convicted and sentenced to 12 months' imprisonment. Charge 2, aggravated burglary, convicted and sentenced to 5 years' imprisonment. Charge 3, sexual assault, convicted and sentenced to 6 months' imprisonment. Charge 4, rape, convicted and sentenced to 8 years' imprisonment. Charge 5, rape, convicted and sentenced to 10 years' imprisonment. The base sentence is the sentence on Charge 5 of 10 years' imprisonment. I direct that 6 months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 2, and 12 months of sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 5 and upon each other. Otherwise, the sentences be served concurrently. The total effective sentence is 13 years' imprisonment.
64The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn, rehabilitation under conditional supervision. In all the circumstances I direct that you serve a minimum term of 9 years, before becoming eligible for parole.
65As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 486 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
66Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is a sentence of 18 years' imprisonment, with a non-parole period of 12 years' imprisonment.
67I do intend to exercise my discretion and make orders in respect of sex offender registration. Charge 3 is a Class 4 offence. Charges 4 and 5 are Class 3 offences. I am satisfied this is an appropriate case to make the sex offender registration orders. You will be subject to reporting obligations and be subject to that Act for the remainder of your life. The documentation in relation to that will be provided to the prisoner.
68MS KARAMICOV: Your Honour, just I can raise - sorry, can I just raise that sex offender registration order and the provision that my learned friend alluded Your Honour to when we were having that discussion?
69HIS HONOUR: Yes.
70MS KARAMICOV: The s.34(3) does appear to apply in this case, and so it reduces the length of reporting period to 15 years.
71HIS HONOUR: All right. Mr Pyne, do you agree with that?
72MR PYNE: Yes, Your Honour.
73HIS HONOUR: All right. The length of the reporting - so the length of the reporting condition is a period of 15 years, is that correct?
74MS KARAMICOV: Yes.
75HIS HONOUR: Yes, ‑ ‑ ‑
76MS KARAMICOV: Does Your Honour want me to take you through the ‑ ‑ ‑
77HIS HONOUR: No, no, I accept what you have said. So ‑ ‑ ‑
78MS KARAMICOV: Thank you, Your Honour.
79HIS HONOUR: So the reporting condition and the obligations under the Act will be for a period of 15 years.
80MS KARAMICOV: Yes, thank you.
81HIS HONOUR: All right. Anything else in terms of the technical aspects of the sentence?
82MS KARAMICOV: No, I do not believe so, Your Honour.
83HIS HONOUR: No?
84MR PYNE: No, Your Honour.
85HIS HONOUR: Thanks a lot for attending this morning. Thank you.
86MS KARAMICOV: Thank you, Your Honour.
87HIS HONOUR: We will cut the links.
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