Director of Public Prosecutions v Cartledge
[2024] VCC 634
•10 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES ALAN DAVID CARTLEDGE |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2024 and 22 April 2024 | |
DATE OF SENTENCE: | 10 May 2024 | |
CASE MAY BE CITED AS: | DPP v Cartledge | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 634 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: one charge of Aggravated Burglary - one charge of Conduct Endangering Persons - one charge of Sexual Assault - one charge of Attempted Rape – plea of guilty -
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Crimes Amendment (Sexual Offences) Act2016 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Verdins [2007] VSCA 62; 16 VR 269; Salvaggio v The Queen [2022] VSCA 88; DPP v Macarthur ; Bowden v The Queen [2013] VSCA 382; 44 VR 229
Sentence: Total effective sentence of 10 years and 8 months imprisonment, with a non-parole period of 8 years and 2 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Mr M. Sturges | Stary Norton Halphen |
HER HONOUR:
1James Alan David Cartledge, you have pleaded guilty to:
· one charge of aggravated burglary contrary to s77 of the Crimes Act 1958 (Vic), which attracts a maximum penalty of 25 years' imprisonment (Charge 1);
· one charge of conduct endangering persons contrary to s 23 of the Crimes Act, which attracts a maximum penalty of five years' imprisonment (Charge 2);
· one charge of sexual assault contrary to s 40 of the Crimes Act,[1] for which the maximum penalty is 10 years' imprisonment (Charge 3); and
· one charge of attempted rape contrary to ss 321M and 38(1) of the Crimes Act,[2] which attracts a maximum penalty of 20 years' imprisonment (Charge 4).
2Additionally, you have also consented to the transfer of a summary charge to which you have pleaded guilty, namely a charge of unlawful assault contrary to s 23 of the Summary Offences Act 1966 (Vic) (Summary Charge 8). This offence attracts a maximum penalty of 3 months' imprisonment or 15 penalty units.
3I note that charge 3 is a rolled-up charge, the particulars relate to you touching the complainant's breasts and buttocks.
[1]As amended by the Crimes Amendment (Sexual Offences) Act2016 (Vic).
[2]As amended by the Crimes Amendment (Sexual Offences) Act 2016 (Vic).
Circumstances of Offending
4The circumstances of the offending are set out in a Summary of Prosecution Opening for Plea dated 23 January 2024.
5
The victim in this matter is Michelle Green,[3] who was aged 40 years at the time.
[3] A pseudonym.
Ms Green was separated from her partner, and at the time of the offending, lived at an address in Truganina with her three children: then aged five, six and nine.
6At the time of the offending you were aged 40 and you resided at an address in Tarneit with your partner and your children, the youngest of which was a baby.
7By way of background, in May 2022, the complainant attended a party held by her friend, Andrea Collins.[4] There, she was introduced to you and your partner. After the party, Ms Green, Ms Collins, you and your partner all travelled home together in a taxi. During the trip, you and your partner had a verbal dispute. The victim and Ms Collins got out of the taxi at the victim's house while you and your partner continued on to your home.
[4] A pseudonym.
8At about 1.00am the next morning, being 8 May, Ms Green received an unsolicited message via Facebook Messenger. The message was sent from your profile with the username James Cartledge. A later examination of your phone showed you had conducted a search of her name at the time. The message offered an apology to her for the argument that took place between you and your partner in the taxi.
9Later the same day at 12.45 pm, the victim received another unsolicited message via Facebook Messenger from you. You asked 'How would you feel if I asked to see you again? Going to be honest here, I found you very attractive!'. Ms Green declined your offer, and you sent another message stating, 'Ok, I accept your decision but just so you know [my partner] and I have a don’t ask don’t tell policy so no problems from my end.'
10A few weeks later, when Ms Green met her friend Ms Collins, on 28 May, she told her about the messages that she had received from you.
11Some months went by and on the evening of 18 November 2022, Ms Green was at home with her three children. At 9.18 pm, she heard a knock at the door that she thought was her ex-partner visiting. As she opened the door, she saw you staring at her. You said nothing and attempted to enter the house. As you did so the victim pushed you back and screamed 'What are you doing?'. You responded 'Sorry, wrong house'. You walked away and Ms Green slammed the front door shut. She then called Ms Collins and left a voice message telling her that you had attended at her house. The next day, Ms Green spoke with Ms Collins about what happened.
12Turning now to the offending itself.
13On the evening of 19 December 2022, you had been at home with your partner and children. At about 7.45pm you left the house and drove to the victim's house, where you arrived at approximately 8.00pm. At the time Ms Green was at home in the kitchen when she heard one of her children say 'Why is daddy here?' As the victim walked to the front door she saw you walking into the house. You appeared to be angry as you walked towards her.
14As you approached Ms Green she said 'Get out of my house'. You responded by saying 'Get upstairs now'. The victim told you that she was not going upstairs with you and attempted to get away by walking backwards. As she retreated, you approached her, struck her across the face and pinned her up against the window. While in that position you put one of your hands around Ms Green’s throat and commenced to strangle her.
15As you did that, you continued to hit her across the face while repeatedly stating 'You’re going to suck my dick'.
16Ms Green’s nine-year-old son, Carlton,[5] who witnessed this offending said to you, 'Please don’t kill my mum' and 'I beg of you'. Hearing this, you released your grip on the victim's neck and you pushed Carlton away causing him to fall over and graze his knee.
[5] A pseudonym.
17Undeterred, you then continued to strangle the victim. As she was gasping for air, you grabbed her hair in an attempt to drag her upstairs, removing her jumper in the process.
18
You were unable to pull her upstairs, so you dragged her into the toilet opposite the staircase. There, you pushed Ms Green onto the toilet and stood in front of her. You attempted to close the door, but she used her leg to prevent you from doing so. You then began to strangle Ms Green again by placing your hand around her neck, whilst slapping her with your other hand. Once again, you said to the victim 'You’re going to suck my dick'. She responded 'Whatever you put in my mouth I will bite' to which you slapped her face. You continued to repeat to
Ms Green 'You’re going to suck my dick'. Each time she refused you slapped her across the face.
19At one point while you were strangling her, you squeezed her breast. You then let go of Ms Green, stood back and once again said 'You’re going to suck my dick', and again she replied 'Whatever you put in my mouth I’m going to bite'. You then tried to unbutton your pants.
20When she saw what you were doing, the victim kicked you to your genital region. Seemingly unaffected, you again strangled Ms Green with one hand, while slapping her with your other hand. As she was gasping for air, she felt like she was going to stop breathing but managed to say to you 'You’re going to kill me'. You stopped strangling her and she bent over coughing. While she was doing that, you removed her T-shirt and bra by pulling them over her head. Ms Green then bit you, scratched you on the chest and ripped the collar of your T-shirt. She told her son, Carlton, to get her mobile phone.
21At about that time, you began stroking the victim's back and buttocks with both hands. Carlton returned to the toilet and gave his mother a phone, however, it was her old phone without a SIM card, so she asked him again to get her phone. He retrieved the phone and gave it to her, and Carlton stated that his father was coming to the house.
22The victim attempted to call Triple 0 but could not unlock the phone because she was shaking so much. You then reached around and grabbed one of her breasts. She moved away and was able to leave the toilet through a gap in the door. A short time later you left the house. As you departed, you picked up the mobile phone that had fallen on the ground and you took it with you.
23The victim called Triple 0 to report what had happened. She told her children not to open the door unless it was the police. At 8:03 pm, her ex-partner also called Triple 0 to report the incident.
24CCTV footage obtained from a neighbouring property depicts you arriving at the house at approximately 8.00pm and departing within a matter of approximately five minutes in a grey Mazda 3 sedan. Visible in the rear seat of the car is a pink child seat.
25At about 8.11pm, you arrived back at home. You went to the bedroom and lay in bed with your partner. You were sweating and told her that you had just been for a run. You then got into the shower.
26
At around this time, police arrived at the victim's house and spoke with her.
Body-worn camera footage from the police depicts their interaction with Ms Green and some of the injuries she sustained as a result of the attack. She was taken by ambulance to the Emergency Department of the Werribee Mercy Hospital.
27At the hospital, Ms Green was examined by a doctor who observed a number of injuries on her body including swelling and bruising to the left cheek and left eye, superficial trauma around the neck, superficial lacerations to the left side of the chest, auxiliary and left shoulder, and a superficial bruise to the left elbow. At 1.50am the following morning, fingernail scraping samples were taken from both of her hands while she was still in hospital.
28Meanwhile, Members of Victoria Police conducted a forensic examination at her home, which included taking photographs and collecting swabs.
29
Ms Green underwent further medical examination at the Victorian Institute of Forensic Medicine on 21 December. Dr Vescovi observed approximately
29 injuries that were documented and photographed. These are set out in more detail in the Summary of Prosecution Opening and include:
·abrasions, swelling, tenderness and bruising to various parts of her face;
·bruising and tenderness to her neck on both sides and the back of the neck and an abrasion,
·a linear abrasion to the right side under her chin and to the front of her lower neck, bruising behind her ear, petechiae inside her mouth, tenderness to the back of her scalp;
·abrasions to her torso, including her upper chest, abdomen, arms, as well as bruising to her arms;
·bruising and tenderness to her left upper back near the armpit, bruising and abrasions to her upper and lower back; and
·an abrasion/bruising near the crease of her right inner buttock close to the anogenital region.
30
In relation to the injuries observed, Dr Vescovi opined that there were multiple injuries from blunt force over the face, head, neck and over different body planes. The swelling and bruising to the left eye, behind the left ear and bruising with abrasions to the right and left neck were suggestive of multiple applications of blunt force trauma. Most of the abrasions over the face were superficial and
non-specific.
31The presence of neck bruising to the right, left and back, along with the neck and upper chest abrasions, petechiae on the palate of the mouth and tenderness to the back of the scalp, were all suggestive of neck compression.
32Whilst Dr Vescovi could not definitively deduce that hands were the implement used to inflict the injuries, it is highly probable given the combination of bruises and linear abrasions around the neck. Some bruising was also observed to the lower limbs which was considered common and potentially as a result of normal daily activities.
Arrest and investigation
33At 9.32pm on 20 December 2022, police attended at your home in Tarneit where you were arrested and taken to Werribee police station. A grey Mazda sedan was in the driveway with a pink child's seat in the rear passenger seat. Shorts and a T-shirt were located inside the washing machine in the laundry.
34You were observed to have a scratch on the top of your head, some redness and a scratch to the right side of your neck, and a scratch to the back of your scalp and outer left bicep.
35Later the same day you participated in a record of interview with police. You denied attending at the victim's house on 19 December, stating 'I wasn't there' and 'I've done nothing wrong'. During the interview you told police that you suffered from Post-Traumatic Stress Disorder as a result of a work incident and that you had been trying to keep fit and healthy by walking and running.
36You provided police with a detailed account of your movements, both before and after the time of the offending including collection of children and a run before dinner. At 7.00pm, you said you went for another walk or run around the block. You were asked about the route that you had taken and you gave some description of that route to police.
37When asked to draw a map of the route you had taken on your run, you declined, saying you did not consider it necessary without police access to Google.
38You told police that after returning home you had a shower and got dressed, and sat on the couch and watched television before laying in bed with your partner while she was breastfeeding the baby. You said you were planning to go to the casino when the police arrived at your home.
39You made no comment in relation to your ownership or use of the car or your relationship or contact with the victim. You did not comment on any aspects of the victim's statement that were put to you or the photographs of her injuries that were shown to you. Police photographed your torso and arms which depicted some red marks.
40On 3 January 2023, your mobile telephone was downloaded and reviewed, and Bluetooth connection data from your mobile phone also downloaded.
Procedural History
41You have been in custody since your arrest, and I note that the initial period spent on remand was during the pandemic and associated restrictions. You entered a plea of guilty to this offending on 23 October 2023, and your plea hearing first took place on 22 February 2024. It was adjourned to enable a Forensicare report to be obtained. There was a further plea on 22 April.
Victim Impact Statement
42
Victim Impact Statements were prepared by Ms Green and also by her now
10-year-old son, Carlton. It is difficult to do justice to either Victim Impact Statement.
43It would be an understatement to say that your offending has had a profound impact on both of them. Indeed on Ms Green’s entire family. They each experienced a terrifying and traumatic ordeal, that no person, let alone a child, should have to experience.
44Ms Green has experienced anxiety and panic. She struggles to comprehend why this happened. As she states, she made it clear to a man that she did not know that she was not interested on two occasions. First on Facebook Messenger and then when you turned up at her house uninvited five months later, after no communication between the two of you.
45She cannot sleep. She constantly thinks that somebody is going to break into the house and rape her. She feels vulnerable in her bed and constantly goes downstairs to recheck that all the doors are locked. When she does sleep, she has flashbacks. She wakes up sweating and shaking with her heart pounding. Sometimes she wakes up screaming and this wakes the children. They come in crying, and she has to settle them to get them back to sleep. She sometimes imagines that there is somebody in her room which causes her to panic and physically react to the imagined threat.
46It is embarrassing for Ms Green – she says - to admit to herself how this has impacted upon her, given her strong character. She has struggled with trying to console her children. They are fearful that somebody is going to kill their mother. She has to calm them and reassure them that she is going to be okay, even though she has the same thoughts. Her children wanted to sleep in her bed for a long period until they were comfortable once again going into their own rooms. Her son feels fearful leaving his mother alone when he stays with his father. She says having to constantly explain to her five-year-old why it was that you were doing what you were doing, has been extremely difficult.
47Ms Green does not want to be alone but struggles to be around people. She has gone from being a high performer at her workplace to somebody whose work has been suffering. She hates that she cannot function as she should. This has had a huge psychological effect on her. She states 'I am angry at myself for being less of a person and not being who I am, who my kids need and what I need for myself'.
48There has been a financial impact, as she has struggled to attend her job. She is frightened on public transport and constantly feels unsafe.
49Ms Green has been diagnosed with Post-Traumatic Stress Disorder. She is fearful of the future. She does not feel that she can remain in her dream home. A move will cost her money and her children will need to change schools.
50Like I said, it is difficult to do justice to the Victim Impact Statement prepared by Ms Green as she describes her panic, fear, anxiety, frustration, anger and most of all how to make her children feel safe, after their home, their world, was violated and their mother attacked.
51Carlton has very succinctly described how he feels. He did not want to go to school after what happened because he did not want to leave his mum. He does not want anything to happen again. He said 'My brother and sister and I all like to sleep in the same room as mum. I get horrifying memories. I thought mum was going to die when he was choking her'.
52Carlton describes that you physically and mentally abused him and threatened him. He is worried about having to move house and losing his friends. He feels sad and he feels frightened. These are emotions that you have created by virtue of your behaviour. You have shattered any sense of safety that these young boys and girl felt.
Prior Criminal History
53You have admitted a prior criminal history which relates to a conviction received in the Magistrates' Court at Stawell on 10 April 2018 for a charge of recklessly causing injury. I am told this relates to a fight in a pub when you were intoxicated. You were sentenced to a Community Correction Order for a period of 12 months, which you completed. You have also admitted other, less relevant interstate offences for driving and nuisance offences
Personal Circumstances
54
I have had regard to the matters raised in the detailed submissions prepared on your behalf by your counsel, Mr Sturges. I will deal firstly with your personal circumstances. These were set out on the plea and elicited in the various reports prepared by two psychiatrists, Dr Nicholas Owens and a Forensicare report of
Dr Sophie Reeves.
55You were born in Frankston in 1982 and you have two older sisters. Your parents were born in England. Your father identified as a gypsy or Roma traveller. He was an alcoholic and was verbally abusive and dismissive of you. Your family moved around on a regular basis and there was a period in which your family resided in England when you were aged between 11 and 17.
56The relationship between your parents was described as tumultuous and they ceased living together in 1999 for a period. In an account given to Dr Sophie Reeves you refer to a period in which you resided with just your mother and one of your sisters from the age of 12. You have not spoken to your father in many years, but you have retained a relationship with your mother. She and your sister came to court to support you.
57You however, described your parents to therapist Ms Castledine as abusive and emotionally unavailable and suggesting generational trauma in the family.
58As your family moved frequently during your childhood, you attended a number of schools. As a result, you struggled to build relationships and you were often alone. Your struggles increased when your family moved to England and you were eventually expelled from school at the age of 15 due to bad behaviour. You then began working with other members of the traveller community in roof tiling.
59
When your family returned to Australia you worked in a furniture sanding job before joining the Australian Defence Force. You served in the armed forces for four years. You were stationed at Darwin and after health, alcohol and
behaviour-related issues, you were administratively discharged. You then went on to work as a street sweeper. You have worked as an interstate freight train driver for approximately 15 years from 2007. You were dismissed in 2022 before being reinstated and then resigning.
60You were married to your partner for a number of years and you have four children together aged between four and 14 years. The relationship fractured due to your issues with drugs and gambling. You and your partner have now separated. You have not spoken with her or your children since going into custody. There is now an intervention order in place prohibiting contact.
61You have had a long history of drug, alcohol and gambling issues. You first began drinking alcohol at the age of 14 or 15, and had begun using cannabis earlier than that, which ceased in your late teens. You abused ecstasy for a few years in your twenties. In your mid-thirties you began using methamphetamine. Your use fluctuated between daily to intermittent. Prior to the offending your drug use had escalated to regular weekend use of methamphetamine. You also have a history of gambling, an addiction which began in your mid-teens.
62There have been a number of incidents which have had a considerable effect on your mental health. Indeed, you have sought the assistance of psychologists and psychiatrists over a number of years. Your treatment history is outlined in the report prepared by Dr Nicholas Owens, who had access to a large part of your mental health history including Justice Health records. Records show that you have previously been treated with medication and, according to Dr Owens, there has been an improvement in your presentation followed by a cessation of medication and then a descent into gambling and drug abuse.
63You have reported a history of suicidal ideation with past attempts on your life. You were reportedly diagnosed with Bipolar Disorder in 2011. There were two particular incidents involved in your previous employment that led to a diagnosis of Post-Traumatic Stress Disorder. One of these involved you driving a train which struck a man who was passed out on the railway tracks. Another, in September 2020, when the train you were driving collided with a car at a level crossing and a man in the car was injured. In each instance, you returned to work one or two days later with no symptoms of anxiety, depression or nightmares manifesting themselves until 2022.
64
From early 2022, you reported an escalation in drug and alcohol use as well as gambling, and that the relationship with your wife was falling apart. You took time off work and ultimately ceased work in around October or November 2022. It was in this context that the offending is said to have occurred. Your counsel submits that your life was disintegrating. Having read the Forensicare report from
Dr Sophie Reeves, it seems during this period you developed feelings of anger against Ms Green, blaming her for telling Ms Collins about the message you had sent her back in May 2022. According to Dr Reeves, you assumed that she had caused trouble for you.
65You explained to Dr Reeves that you were sleep deprived, angry and depressed and you denied that you were intoxicated or under the influence of drugs.[6] I will return to your account of the offending shortly.
[6] Dr Reeves [37], [40].
Mental health
66As I have said, and dealing now with your mental health, I have received a very comprehensive report from Dr Owens, which sets out in considerable detail your psychiatric history, in so far as he was able to access. I have also received the report from Dr Sophie Reeves which contains details of your personal history, although it seems that there are some inconsistencies in terms of your account of life's events to various treating practitioners.
67Dr Owens opines that you experienced numerous incidents of an abusive nature in childhood and particularly during your time in the United Kingdom when there was a serious rupture in trust and containing parental relationships, and an involvement in abusive relationships with others, which is likely to have predisposed you to difficulties in emotional self-regulation and a solid and dependable sense of self-worth. This is said to be likely to underlie the genesis of a personality disorder in adult life. A range of traumatic experiences are likely to have contributed to the development of a complex mix of personality disorder and mental illness.[7]
[7] Dr Owens [158].
68Since the onset of the symptoms relating to your workplace accident, you described experiencing panic attacks, anxiety and nightmares several times a week.
69Dr Owens notes significant inconsistencies in aspects of your history when comparing what you told him with what you have told other practitioners at various times over the years, which he says adds to the complexity and uncertainty of his diagnostic formulation. For instance, in an earlier report to Cookes Counselling on 14 December 2022 (days before the offending) you reported that you had had a fairly normal childhood, which is different to what you have told Dr Owens.
70
Taking into account these grounds for diagnostic imprecision, Dr Owens thinks the most likely diagnosis is of a substance disorder, gambling disorder and personality disorder. It is probable that you have a Post-Traumatic Stress Disorder, but
Dr Owens is doubtful about a Bipolar Disorder.[8] He considers that your personality disorder is of moderate severity given that there are several significant aspects of life that, whilst affected, you have been able to sustain some positive achievements such as longer periods of employment and family responsibilities.
[8] Dr Ownes [158].
71Dr Owens notes that you are receiving treatment from mental health services in prison in relation to PTSD inclusive of medication and psychological treatment appropriate to this diagnosis. He recommends treatment continue. I will turn to other aspects of Dr Owens' report in a moment.
72You reported to Dr Owens that you were the victim of an offence when you were 15 years old.[9] You did not report this to anyone at the time and you purport to have completely blocked it out until you saw a counsellor in Carlton in relation to problems with your anger. You said that this was in 2018/2019.
[9] Dr Owen [61].
73Specifically, you told Dr Owen that it was during your consultation with this counsellor, Ms Castledine, when she suggested that perhaps you were subject to the offence mentioned above when you were a child. [10]
[10] Dr Owens [61].
74In relation to the allegations of being a victim of crime, Dr Owens remarks that it is unusual for an incident like this at that age to be completely forgotten until later in life.[11] These matters were canvassed on the first hearing of the plea. Subsequently, you reported to Dr Sophie Reeves that it was in the context of receiving trauma counselling in 2021 for drug and alcohol abuse and gambling, coupled with low mood, that the clinician Dr Castledine advised you that she believed you had been the victim of an offence. This reportedly triggered your repressed memories of abuse, and PTSD symptoms.[12]
[11] Dr Owens [167].
[12] Dr Reeves [29].
75A letter from Jennifer Castledine, a social worker and therapist was produced following the plea. She confirms that she saw you in 2021, and in June of that year, you discussed with her whether you may have been subject to an offence, at which point you disclosed dreams of said offence.
76Although there are some inconsistencies in terms of what you have reported as having occurred to you, I take these matters into account. They are relevant in terms of your upbringing and these traumatic experiences, among other aspects of your childhood, have contributed to your mental health concerns and resulting drug use, though I note you are not said to have been drug affected at the time you committed the offences. Your counsel does not submit that the principles in Bugmy v The Queen[13] are enlivened and there is no reliance on Verdins[14] related matters.
[13] [2013] HCA 37; 249 CLR 571.
[14] R v Verdins [2007] VSCA 62; 16 VR 269.
Plea of guilty
77I take into account your plea of guilty which is of significant utilitarian value. You have saved the victims from having to relive the experience and give evidence about what was an incredibly traumatic episode. In pleading guilty, you have saved the community the cost of a criminal trial. It is also some evidence of remorse but I will say more about that shortly.
78However, balanced against this, is the fact that your plea of guilty has occurred in the face of what is described as a strong prosecution case. The likelihood of you being detected and your offending uncovered was particularly high. Nevertheless, you are entitled to a discount for your early plea of guilty, and I take this into account.
Nature and Gravity of Offending
79I regard your offending as a whole, as extremely serious. I accept that the offending was brief, that you made no efforts to conceal your identify nor to hide what you had done, and that it was unsophisticated.
80But in the short period that you were inside the victim's home, you engaged in violent offending, violent sexual offending. You managed to commit a number of offences within a matter of minutes. As short and as ill-conceived as it was, it must have felt like an eternity to Ms Green and to her children. A few minutes of terror which has had, and no doubt will continue to have, a long-lasting impact on all of them.
81You inexplicably left your family home, travelled the reasonably short distance to the home of a woman you had met once. She was barely more than a stranger to you, yet you arrived at her home in what could only be described as something of a rage, but coldly and deliberately set about to, in effect, punish her for some perceived slight.
82That you had the breathtaking audacity to walk into her family home, intending to commit an offence involving a sexual assault to her, is quite alarming. By your plea of guilty, you admit that sexual offending was your intention upon entry, though you have since sought to distance yourself from your own conduct.
83Nevertheless, your objective is evident from the fact that the first thing you did was to order Ms Green upstairs and when she resisted, you pinned her to the wall and strangled her. You continued to strangle her multiple times throughout the ordeal. Whilst choking her, you slapped her, which is not the subject of a specific charge, but I take it into account as part of the circumstances of your offending.
84That you behaved so violently towards her in the presence of her young children, and the simple fact that you were undeterred by having a little girl and two young boys witness your actions, witness your aggression – your sexual aggression – is disturbing. Even when confronted by her young son at the age of nine, who bravely sought to help and defend his mother, you would not be deviated from your objective - which was to punish and humiliate Ms Green.
85Turning to the gravity of the individual offences themselves. Aggravated burglary is a serious offence, as is attempted rape, which is reflected in the respective high maximum penalties applicable.
86Aggravated burglary involves a serious violation of the sanctity of the home, and crimes such as these strike directly at the heart of people's sense of security and their capacity to feel safe in their homes. Ms Green was a woman home with three young children, this made her vulnerable. You entered knowing she was there and it was your desire to offend against her and to confront her. In doing so, you showed absolutely no regard for her right or that of her children to feel safe in their home.
87This was an aggravated burglary motivated by your grievance against Ms Green and the lack of interest in you and your self-absorbed view that she was discussing you with others.
88There are a number of factors relevant to the assessment of the seriousness of the offence of aggravated burglary here. Firstly, your intention at the time of entry was to commit an offence involving a sexual assault. This is highly relevant to the gravity of the aggravated burglary. You walked into Ms Green’s family home without any warning, as if you had some entitlement to be there. However, you are not to be sentenced in relation to your conduct after entry, when it comes to the aggravated burglary charge. As the Court of Appeal reiterated in Salvaggio v The Queen,[15] to enter a residential home as a trespasser with intent to commit a sexual assault is self-evidently, an extremely grave crime.
[15] [2022] VSCA 88 [102] Maxwell P, Kyrou and Niall JJA.
89I accept you made no efforts to disguise yourself nor did you carry a weapon. You arrived later in the evening, often at a time when people are settling down for the night and in this case, totally unprepared for your entry. I regard this as a serious example of aggravated burglary.
90The sexual offending is very serious. You were unzipping your jeans, demanding that the complainant perform oral sex on you – again in front of her horrified children. It was brazen; and again it suggests you felt a sense of entitlement. You could do what you wanted. You could violate a woman who had rebuffed you, and in full view of her kids. It was cowardly, it was despicable, and utterly terrifying for the children and Ms Green herself, who had no idea what you were capable of, and what your ultimate intention was with respect to her and her family.
91Had it not been for Carlton announcing that his dad was on the way, you may well have succeeded in your desire to rape Ms Green. Of course, I cannot sentence you on the basis of what might have happened with respect to this, or in relation to any of the charges. Your sudden departure seems to have coincided with the prospect of another male attending and discovering you there. Again, the offending was of short duration, but you were persistent in your overall sexual offending.
92The prosecution submits that the fact you travelled with Viagra in your car suggests some degree of planning, and this indeed has something of a sinister connotation however, there is no evidence that you had taken it or brought it into the house. You provided an explanation to Dr Reeves as to its purpose. In any event, I cannot find to the requisite standard that you had the Viagra in the car for the purpose of carrying out sexual activity with the victim.
93Your preparedness to sexually violate Ms Green, even going so far as to remove her clothing with the children present, or at least outside the door, bespeaks the total lack of regard you had towards your victim and her young family. The sexual assaults were serious. You were not to be deterred and your touching of the victim's breasts and buttocks was humiliating and degrading.
94Charge 3, the charge of sexual assault is a rolled-up charge and when sentencing on a rolled-up charge the court must consider all of the circumstances of the offence and the totality of harm described in the charge. However, the plea of guilty must still be treated as entered to a single formal charge.
95Whilst the offence of reckless conduct endanger persons carries a lesser penalty than the other conduct, I regard it as a serious example of this offence. You continued to apply pressure to Ms Green’s neck, whilst you slapped her. You did this multiple times. She could not breathe. In strangling her while striking her, you exhibited a viciousness and an unrestrained anger that is extremely concerning. The potential to cause serious injury or indeed for this force applied to the neck to be fatal, is enormous. It was incredibly risky. Yet you seem to be dismissive of this, telling Dr Reeves that it was not your intention to kill her. This reflects a disturbing lack of insight into your own offending. You seek to minimise your conduct whilst simultaneously appearing to boast about your knowledge and ability to kill another human by strangling. I will return to this in a moment.
96Finally, the assault on a young child in his home, as he valiantly tried to protect his mother from your cowardly attack, is also a serious example of this less serious offence. Carlton is to be commended for his bravery and his fast-thinking ability to respond to the events around him by seeking to raise help.
Attitude to Offending behaviour
97Most concerning is the fact that you appear to have very little remorse for your offending. Indeed, although you have pleaded guilty to these offences, when discussing the offending with psychiatrists, in large part, you simply could not accept responsibility for what you had done. You deny the sexual offending at all. This suggests a total lack of remorse for much of your conduct whilst inside the premises and an absence of insight into your behaviour.
98In your account to Dr Owens, you sought to minimise your behaviour, saying you knew you could not message the complainant again and so felt the only way to talk to her was to visit her. You claimed that you walked inside, and Ms Green grabbed you on the shirt. You maintained that your intention in going to the house was to ask her to stop bringing it up (referring to her speaking with Ms Collins about your flirtation with her). You told Dr Owens that you had no intent or desire to initiate sexual activity with her and you purported to not remember ordering her to go upstairs or to fellate you. [16]
[16] Dr Owens [76].
99You also denied to Dr Owens the sexual offending, saying you were pleading guilty 'in order not to traumatise anybody'. You were adamant that there was no sexual assault or attempted sexual assault, claiming you never intended to traumatise her[17]. This indicates an unpreparedness to accept responsibility for what you have done.
[17] Owens [80].
100
Even when you discussed your strangulation of the victim, your account to
Dr Owen was that when she grabbed your shirt you got into a scuffle which got out of control. This seems to be something of victim blaming. However, in this regard, you at least recognised that what you did was inappropriate, saying that you are ashamed and disgusted that it got to that stage.[18] You also told Dr Owens that you regretted the offending.[19] I accept that you do.
[18] Owens [80].
[19] Owens [91].
101Appreciating that discussing and accepting responsibility for abhorrent conduct may initially have been difficult, your denials of sexual offending persisted during your assessment with Dr Reeves. You denied attempting to rape the victim, responding that you had no intention of raping her, though you conceded that you could have uttered the words 'suck my dick'. [20]
[20] Dr Reeves [38].
102This time you acknowledged taking the victim's clothes off but denied sexually assaulting her or attempting to take your pants off. Yet somewhat incongruously you agreed with Dr Reeves that the victim may have perceived that you were going to rape her.[21] Furthermore whilst disputing that you attempted to rape the victim, you again perplexingly, stated that you 'did go on the path to sexual assault'. Again you explained that your plea of guilty was due to not wanting to put the victim or her children through the stress of testifying at trial. [22]
[21] Reeves [37].
[22] Reeves [39].
103It is very concerning that you continue to deny your wrongdoing, particularly regarding the sexual offending, to professionals.
104As to the offending that you were prepared to admit to the experts, there was a sense of seeking to minimise your conduct and attribute some sort of blame to Ms Green. You were angry that she had not taken ownership of what you had perceived was her flirting with you.[23] You agreed with a suggestion by Dr Reeves that you may have 'snapped' when you arrived at the property, yelled at her, but maintained you were not sexually aroused. You were angry with her for rejecting you, and for discussing your contact with her.[24]
[23] Reeves [37].
[24] Reeves [41].
105To neither expert, you made no reference to the November visit to Ms Green’s home, and your account really does not explain why, after all the months that had elapsed since your first and only real interaction, why you chose this moment to have the confrontation. Even if Ms Green had been flirting with you at the party, that does not justify you attending her home in a state of rage and doing what you did. In any case, she made it clear in no uncertain terms that she was not interested in you. It is puzzling why so many months later, you were in such a state of anger.
106Dr Reeves opines that your level of emotional arousal at the time precluded you from engaging in rational thinking and, in her words 'disregarding' Ms Green’s children in that moment. [25] In my assessment of your conduct, it went beyond simply disregarding her children. Carlton had asked you to stop. He had begged you. Yet, once you had pushed him aside, you actively persisted in your offending as was evidenced by the repeated strangulations. Whilst you were clearly very angry, there is a sinister aspect to the way that the offending seems to have taken place. You were cold, callous and you were determined.
[25] Reeves [72].
107Your lack of insight as to the strangling is also concerning. As I mentioned a moment ago, you attempted to minimise it explaining that you had no intention of killing her, and that your grip on her neck was not strong, refuting Ms Green’s account that she was having trouble breathing. Concerningly, you told Dr Reeves that you are aware as to how to kill someone via certain movements by virtue of your army training, but you did not engage any of these movements. [26] In making these assertions, you appear to have virtually no empathy for how Ms Green felt in those moments when your hands were on her neck, with her children watching on, terrified.
[26] Reeves [38].
108Notwithstanding this, Ms Reeves considers that you displayed some empathy for your victim, and expressed an understanding that she was traumatised.[27] Your understanding of why that is so, is more opaque. To your credit you told Dr Reeves that you felt disgusted, embarrassed and ashamed of your behaviour.[28] I take that into account, but I do so through the filter of your version of the offending and your limited acceptance of wrongdoing.
[27] Reeves [39].
[28] Reeves [39].
Prospects of Rehabilitation
109The unwillingness to take full responsibility does not bode well for your prospects of rehabilitation. It reflects a lack of insight into your sexual offending, and limited insight into the offending conduct that you are willing to admit to the experts, and the gravity of your conduct as a whole.
110You have however, recognised difficulties managing your anger in the past and you have taken steps to manage your emotions. You have undertaken courses in custody in relation to managing your anger, and you are said to have found meditation helpful.[29]
[29] Dr Reeves [45].
111In relation to your other efforts at rehabilitation, I note that you have engaged in a course relating to the use of ice and also workplace safety skills. The fact that you have been proactive in undergoing courses in custody is encouraging. If you can remain abstinent from drugs your prospects of rehabilitation are enhanced. Moreover, you have shown in the past that you can be a contributing member of society, by way of your work history and raising a family. However given the findings of Dr Owens, coupled with your lack of insight, your counsel concedes that it is difficult to say that your prospects of rehabilitation are anything more than guarded. I agree.
112In assessing your prospects of rehabilitation, I have taken into account the matters raised in the expert reports, in particular about your risk of reoffending. These matters are also relevant to the question of whether or not I should make an order placing you on the Sex Offenders Register. The charge of attempted rape is a class 3 offence, which is a registrable offence under the Sex Offenders Registration Act 2004 (Vic). In this instance, registration is discretionary. The court may order that an offender comply with the reporting obligations of the Act.
113Dr Owens does not see any evidence of a connection between PTSD, substance use disorder or gambling disorder and the offending behaviour. He considers there is a connection with your personality disorder, in that your actions, including violent and antisocial behaviour is consistent with the traits of a personality disorder, but he does not consider your actions were caused or determined by the personality disorder.[30]
[30] Dr Owens [169].
114Dr Owens did not conduct a risk assessment of sexual offending using professional tools. He regards the risk of violent offending in the next six to 12 months as high based on a number of risk factors as set out in his report.[31] To reduce the risk, you should engage in work to develop insight into your offending. Your refusal to acknowledge your sexual offending strengthens the overall risk rating as high.
[31] Dr Owens [171].
115Dr Reeves opines that your offending appears to be largely driven by anger towards the victim that stemmed from either a perceived rejection or response to a perceived slight, and that you wanted to punish and humiliate her. She considers that your history is suggestive of pervasive difficulties managing anger in different contexts and propensity to anger quickly, as well as a pattern of poor impulse control and violence during adolescence and adulthood.[32]
[32] Dr Reeves [70].
116Dr Reeves does not accept that you had no intention to sexually assault the victim, having regard to the sexualised elements of your behaviour that were apparent right from when you first walked into the house. She opines that your actions reflect a callous indifference towards the victim and likely problematic attitudes towards women including hypermasculinity. [33]
[33] Dr Reeves [71].
117
To determine your risk of further sexual offences, a combination of the Static 99R and the Risk for Sexual Violence Protocol – Second Edition were used by
Dr Reeves. Your Static-99R places you within the 'average' risk category for being charged with or convicted of another sexual offence.[34] In scoring the RSVP-V2, a number of relevant future risk markers were identified however, there is said to be no evidence of sexual deviance. Taking into consideration the risk and protective markers, Dr Reeves considers that your propensity for committing further sexual offences is below average risk – that is, it is somewhat lower than the average sexual offender.[35] Using the Historical Clinical Risk-20- V3 (which was also used by Dr Owens), Dr Reeves considers your risk of perpetrating further physical violence is moderate.[36]
[34] Dr Reeves [54].
[35] Dr Reeves [58].
[36] Dr Reeves [61].
118Dr Reeves concludes that your sexual offending does not appear to be fantasy driven, or driven by deviant sexual interest, with the physical force being used to gain the victim's compliance and punish her, as opposed to being driven by sexually sadistic interests.[37] Even accepting Dr Reeves’ interpretation of this, it is nonetheless very concerning that your sexual offending against Ms Green appears to have been largely driven by your anger. Again, this anger is somewhat perplexing given the very limited contact you had had with her, and the elapse of time. Whether you had been brooding on Ms Green discussing you with Ms Collins over that period, is unclear.
[37] Dr Reeves [69].
119Your behaviour in turning up at Ms Green’s house the first time, with the ruse that you were at the wrong house is particularly odd. You were obviously not prepared to confront Ms Green at that stage, which begs the question, what were you doing there then? And why did the desire to confront her (as you put it), to take out your anger on her, take place a month later?
120Despite the opinion of Dr Reeves (based on the testing conducted), that you are a below average risk of sexual re-offending; the fact that your anger manifested itself in sexual offending – desire to punish and humiliate the victim, gives rise to real concerns.
Registration under the Sex Offenders Registration Act
121Pursuant to s 11(3) of the Sex Offenders Registration Act, the court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community. The risk must be assessed to be real. It is not necessary to identify a risk to a particular people or a particular class of people.[38]
[38] Bowden v The Queen [2013] VSCA 382; 44 VR 229 [31].
122I have heard submissions from the prosecution urging me to exercise my discretion and place you on the register, and also from your counsel to the effect that I should not take this step of placing a further restriction on your right to enjoy freedom and autonomy. Mr Sturges submits that bearing in mind the opinion of a professional such as Dr Reeves, when balancing any risk posed, and the impact registration will have on your rights to freedom, he submits it does not fall in favour of making such an order. I have had regard to both parties' submissions.
123Taking into account the following factors:
(a)the nature and circumstances of your entire conduct that evening and in particular, the sexual offending and the multiple instances of strangulation;
(b)the fact that you were motivated by anger towards the victim and sought to punish and humiliate her; and that this anger culminated in not just physical violence, but sexual violence;
(c)your determination to carry out the offending notwithstanding the presence of the victim's young children, and indeed efforts by one of them to stop you;
(d)your unwillingness to acknowledge (beyond the plea of guilty itself) that you engaged in any sort of sexual offending; your minimisation of the acts you do agree you committed and your inclination to blame the victim; and
(e)your continued lack of insight into your conduct,
I am satisfied beyond reasonable doubt that you do pose the relevant risk or will upon your ultimate release, such as to warrant the making of such an order. In all of the circumstances, I have determined to make a registration order and I will discuss with the parties in a moment, the duration of that order under the Act.
Proportionality and Totality
124As I have noted, with respect to the aggravated burglary, you are to be sentenced on the basis of your intention and conduct as you entered the premises. Your conduct after entry is the subject of the remaining charges. Your offending involves individual and serious conduct; so each offence warrants individual punishment. There is a need for the sentence to reflect the individual charges and the conduct they comprise. However, as your counsel submits, the offending occurred as part of a single episode, and a brief one, and there should be a degree of concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes, is met with a total and proportionate sentence.
125Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.
Serious sexual offender provisions
126Charges 1, 3 and 4 are relevant serious sexual offences pursuant to Schedule 1 of the Sentencing Act 1991 (Vic).[39]
[39] Sub-clauses 1(a)(ii), 1(a)(xviii) Charge 1 - aggravated burglary (intent to commit a sexual offence); 1(a)(i) Charge 3 - sexual assault; and 1(f) Charge 4 - attempted rape.
127Because I intend to sentence you to imprisonment on all charges, you fall to be sentenced on Charge 4 as a serious sexual offender. The effect of sentencing as a serious sexual offender is that the court must regard protection of the community as the principal purpose for which the sentence is imposed. In order to achieve that purpose, the court may impose a disproportionate sentence. The prosecution does not seek a disproportionate sentence here, and I do not propose to impose a disproportionate sentence. The court must, unless otherwise directed, order that the sentences be served cumulatively.
128Furthermore I must enter into the record that you were sentenced as a serious sexual offender on Charge 4.
Relevant sentencing factors
129The basic purposes for which a court may impose a sentence are just punishment, deterrence, rehabilitation, denunciation and protection of the community. Pursuant to the Sentencing Act 1991 (Vic), I am required to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offence, your culpability which I consider to be high, the effect of your offending on the victims, the applicable maximum penalties and your personal circumstances. I also have regard to principles of parsimony.
130The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
131Your behaviour was reprehensible, and the court denounces your conduct.
General and specific deterrence
132General deterrence is an important sentencing consideration. Other members of the community must understand that serious criminal offending such as aggravated burglary and attempted rape, particularly in circumstances where an individual is violated within their own home, will attract significant punishment. Furthermore, the community must understand that violence against women and sexual offences against women, a violation of their rights, will not be tolerated. Frankly the public is tired of it.
133As the Court of Appeal stated in the case of DPP v Macarthur[40] a case involving charges of rape and attempted rape:
'[T]he sentences to be imposed in a case such as this must make it clear that any person, who is minded to exploit the vulnerability of members of the public, particularly women, in such circumstances, by sexually interfering with them, will suffer a deprivation of their right to be at liberty within society for a substantial period of time. As an associated consideration, it is important that the Court make it plain that offending of the kind that was engaged in in [that] case is entirely unacceptable and reprehensible. In that way, in a case such as this, the Court, by the sentences imposed by it, has a duty to express its denunciation of such offending in clear terms.'[41]
[40] [2019] VSCA 71.
[41] Ibid [69].
134In your case, specific deterrence and protection of the community are also required to be given some weight, given that this is not the first time you have been before the courts, albeit that your previous offence was of a different nature. There is a need to protect the community from those who carry out the sort of offences for which you have pleaded guilty. In this case it is even more prescient given your limited insight.
135As I have said, just punishment and denunciation must also be given primary consideration in my instinctive synthesis.
136I have had regard to current sentencing practices. Your counsel has referred me to some appellate decisions which contained some similar features, and I note that some of those involved the completed offence of rape. Self-evidently no two cases are identical. None of the cases to which I was referred involved the offence of conduct engager persons for instance, nor did they occur in full view of children. Current sentencing practices are but one and not the controlling factor.
137I have determined to make an order placing you on the Sex Offenders Register for a period of 15 years. You will be provided with paperwork and you will be asked to sign and acknowledge that you understand what those requirements involve. I can have you sign that document in court, or alternatively your solicitor can explain this to you. Ms Conwell, are you content to explain that to Mr Cartledge?
138MS CONWELL: I am, yes.
139HER HONOUR: Thank you. Can you stand up please, Mr Cartledge.
Sentence
140Balancing all of the matters as I have discussed, I sentence you as follows:
141On Charge 1, the charge of aggravated burglary, you are convicted and sentenced to 6 years and 2 months' imprisonment.
142On Charge 2, the charge of conduct endanger persons, you are convicted and sentenced to 3 years' imprisonment.
143On Charge 3, sexual assault, you are convicted and sentenced to 2 years' imprisonment.
144On Charge 4, the charge of attempted rape, you are convicted and sentenced to 5 years and 8 months' imprisonment.
145On the summary charge of common assault, you are convicted and sentenced to 2 months' imprisonment.
Cumulation
146I order that the sentence imposed on Charge 1 will be the base sentence.
147I order that 22 months of the sentence imposed on Charge 2 be served cumulatively on Charge 1.
148I order that 7 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1 and on other sentences imposed this day.
149I order that 2 years of the sentence imposed on Charge 4 will be served cumulatively with the sentence imposed on Charge 1 and on other sentences imposed this day.
150I order that 1 month of the sentence imposed on the summary charge, summary Charge 8 will be cumulative on the sentence imposed on Charge 1 and on other sentences imposed this day.
151This equates to a total effective sentence of 10 years and 8 months imprisonment. I fix a non-parole period of 8 years and 2 months' imprisonment. That is the period that must be served before you become eligible for parole.
152Having been convicted and sentenced to a term of imprisonment on Charges 1 and 3, I sentence you as a serious sexual offender on Charge 4 and this will be noted in the records of the court. I have ordered partial cumulation on this charge and this is as a consequence of the offending occurring within an episode involving the other offending.
Pre-Sentence Detention
153Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare 508 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
S 6AAA
154Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to a total effective sentence of 13 years' imprisonment with a non- parole period of 9 years and 6 months.
155Finally, I make the order for disposal as sought.
156Can I please confirm with counsel whether there are any matters that I have overlooked or that require correction? And in particular in relation to the orders for cumulation.
157MR FISHER: No there isn't, Your Honour, thank you.
158HER HONOUR: Yes.
159MS CONWELL: No, Your Honour.
160HER HONOUR: Thank you. Yes, thank you. Remove the prisoner please.
161Adjourn the court please.
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