Director of Public Prosecutions v Charleston (a pseudonym)

[2014] VCC 1856

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES CHARLESTON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2014
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	DPP v Charleston (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 1856

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr. S. Ballek	OPP
For the Accused	Mr. R. Stary	Robert Stary Lawyers

HER HONOUR: 

1James Charleston,[1] you have pleaded guilty to one charge of rape.  The rape was of your wife, Elaine.[2]  The two of you had separated by the time the rape occurred, although you were not entirely accepting of the decision made by Ms Charleston to bring the relationship to an end.  It clearly had come to an end and you understood that, although you were not always prepared to accept that that was the case, but there was no basis for a belief in your mind at the time of the rape, that it was a continuing relationship.

[1] A pseudonym.

[2] A pseudonym.

2From the material before me, it is clear that there had been attempts and strenuous attempts by Elaine Charleston to make it as amicable a separation as possible and to accommodate your needs, first to see if the two of you could co-exist under the one roof, but separately, and then to assist you first to move to your family's place, or to assist you to find accommodation of your own.  The marriage had been blighted by your abuse of alcohol and that was in large part the reason for it coming to an end, or Ms Charleston's decision to bring it to an end, and it would appear again from the material before me, you well knew that.

3The marriage had come to an end by March 2014, and the rape, the subject of this charge, occurred over two months after that, on 27 May 2014.  You had made it clear to Ms Charleston that you had a continuing sexual interest in her and she had made it clear that was not reciprocated and had made it very clear that she was not prepared to engage in further sexual relations with you. 

4Notwithstanding that, you forced yourself upon her when, for reasons related to the unravelling of your relationship, you were permitted to be in the family home.  You forced yourself on her in the bedroom, over her repeated protests and requests for you to stop.  You pulled her clothing off, you forced yourself onto her and sexually penetrated her.  She was crying.  You were aware that she was crying and you told her, in fact, that during her tears and her protests, you would be done in a minute.  It was very clear that you were looking only to your own sexual pleasure, that you knew that she was not consenting and this was a violent, invasive and intrusive act. 

5The effect on Ms Charleston was immediate and has continued to be profound, and you were aware not only during the act of rape, but immediately afterwards, how distressed she was by somebody who she had loved enough to marry, loved enough to trust and had loved enough, even after the marriage had come to an end, to try and work with and to sort out an amicable relationship with.  It is a gross and profound betrayal of trust of what had been, although a difficult at times relationship, a loving and trusting one. 

6Ms Charleston took some time to decide what to do about it, but the following day, did contact the police and make a formal report of rape, and as a result of that, on 29 May you were arrested at your mother's home in Hoppers Crossing.  You immediately told the police you understood what they were there for, and you acknowledged that you had indeed forced an unwanted act of sexual penetration upon your estranged wife.  You continued that course of conduct of admitting what you had done in a formal interview, and made it clear that it was about sexual pleasure or relief for you, or sexual gratification for you, rather than anything to do with mutuality, any concern for your estranged wife's feelings, or for her right to consent or to withhold consent to any sexual act. 

7You told the police, and there is a lot of material to support this, that you had and have had for a long time, a problem with alcohol, but acknowledged that you were not impaired by alcohol at the time.  You did not seek then, or any time later, to blame it on alcohol.  You acknowledged that you knew what you were doing was wrong at the time, and that you did not and could not blame impairment by alcohol for it.

8Although you had apologised to Ms Charleston almost immediately afterwards, I am not sure that that was a heartfelt apology at the time.  However, by the time you spoke to the police and were interviewed by them, I accept that your telling the police that you were sorry for what you had done, and that you wished you could take it back, was the product of serious reflection and genuine regret, remorse and contrition. 

9Following your admissions in the interview, you were charged with rape and indicated from then on, that you would do everything you could to cooperate with the formal charge process.  Not only did the matter resolve at the earliest opportunity, that is, at a committal mention on the 22nd of August of this year, but your legal advisors had by then, already written to the police and to the court, indicating that you acknowledged what you had done and that it was not necessary for any further forensic examinations to be conducted. Your conduct from the time of your arrest has been entirely consistent with acknowledging the wrong that you have done, and doing what you could to accept responsibility for it.

10That may have given some comfort to Ms Charleston but it does not, in any way, alleviate the distress, pain and harm that has been caused to her as a result of that.  I am told that her victim impact statement was read to you and you went through it carefully before the plea hearing this morning, and it was read aloud again in court.  I watched you as it was read, and I watched your wife as it was read and saw the distress that she felt, as the effect on her, as she had expressed it, was read aloud for you and everybody in court to hear, and watched your response to it.  It seemed to me, that you were acknowledging shame and remorse at that stage.

11I also watched each of you and Ms Charleston, as your letter of apology that was part of the materials provided to me on the plea, was read.   Again, in it, you now acknowledge the extent of harm that you have caused to her, and the fact that this will be a profound and long-lasting harm and effect on her. 

12It is clear that, subject to considerations personal to you, denunciation, just punishment, and deterrence loom large in the sentencing process, and consistently with that, your counsel has acknowledged that no sentence other than one involving a term of imprisonment immediately served is appropriate.  It would appear that you too, have understood that, from the time at least, of your interview with the police and have accepted that as your fate, as part of the consequences, the legal consequences, for your conduct.  It seems to me that you have also accepted some of the moral, or a significant part of the moral and emotional consequences for your conduct, in preparing yourself for your punishment, but also in doing what you can to try and acknowledge and redress and lessen, or alleviate the pain and harm caused to your estranged wife. 

13Dealing then with matters personal to you.  I have already mentioned your plea of guilty and the early stage at which it was entered.  That clearly is something that counts in your favour, not only because of its utilitarian value, but because the evidence of the plea and the circumstances surrounding it, and your conduct, are all consistent with the acceptance of responsibility and with contrition in its true sense.  You cannot wind back what happened, but I accept that you are trying to do what you can to remedy what you did do, and that therefore, the weight to be given to that guilty plea is significant, and not only because of its utilitarian value, but because it does, in the circumstances, evidence remorse. 

14You come from a good, loving and close family and you are fortunate to continue to enjoy the support of your family.  It seems to me, clear that they in no way condone your conduct, that they are as horrified as one would expect decent people to be, that you could have acted in this way, but nonetheless, that they continue to support you and will continue to support you.  That is a matter that speaks well, not only of your other qualities, but also of your prospects for rehabilitation. 

15You have some previous convictions.  None of them are for sexually related matters and none of them have come anywhere near the seriousness of this offending.  All of them relate to, and are connected with alcohol abuse and are consistent again, with a history of long-term alcohol abuse that has been placed before me. 

16It is clear that from your late teens or early 20's, alcohol abuse has been a significant problem for you.  Despite that, you have managed to, it would appear, maintain steady employment for most of your life.  You are now 36, and that you have managed to be what some people might call a functioning alcoholic, that is, to be able to work and hold down a job, and to abuse alcohol in a way that takes up your non-working time, but does not impede your capacity to work or to earn an income.  So again, stability or constancy of employment is a matter that counts in your favour in assessing your prospects for rehabilitation.

17You have also had a long and well documented history of depression and, at times, anxiety.  It is a little difficult at this stage, because of the long history of alcohol abuse, to unravel how much of that is independent of your alcohol use and how much of it is a direct cause or consequence of it.  You have at times, needed and sought assistance for mental health problems, but it is not surprising that your depression has remained or continued to manifest itself from time to time, given the well-known and well-documented compounding effect of alcohol on a depressive state.

18I have been provided with a number of very helpful reports.  The psychological assessment conducted by Mr Newton for the purpose of this plea, but also from reports indicating that you have for a long time, been attending Isis Primary Care for general health and alcohol related issues and that you have also attended the Wings Wellness Centre for counselling since May of this year, and have continued to attend on a regular basis for counselling between then and the time of this hearing.  The effect of those reports is to confirm the long-term diagnosis of depression which is also borne out by the hospital records from the Werribee and Mercy Hospital that have been subpoenaed, and to confirm the long term history of alcohol abuse.  They also confirm the attempts that you have made since being charged with these offences, to address at least the alcohol abuse issues that have blighted your life.  Whilst alcohol is not a contributing factor to the offending, it was clearly a contributing factor to the breakdown of the relationship, and it is, as Mr Newton points out, a significant risk factor for future offending.

19Although there are some discrepancies between what is referred to in Mr Newton's report, and in the Wellness Clinic report in relation to the way you characterise the offending, and leading me to have some concern as to whether you have, at all times, acknowledged responsibility or at some times you have wavered between, in effect, walking away from facing responsibility but then come back to accepting it, I do not know, but I accept that the preponderance of evidence points to your, if not at all times, at least at most of the time, having accepted responsibility for your behaviour and not sought to minimise it.  So where there is a conflict between what you told Mr Newton, and what is in the Wellness Clinic report, whilst that requires some further investigation, I do not discount the manner in which you expressed yourself to Mr Newton and the value of the opinions he gave, based on that, but I do sound a cautionary note which may be necessary for those who engage with you in the Sex Offender Treatment Program that I recommend you participate in, should be aware of and seek to address.

20I accept these opinions of Mr Newton's, which are relevant to the assessment of, not only the appropriate sentence for you, but also to the recommendations for future treatment.  I accept that you have experienced several bouts of depression in your adult life, some of which have been severe enough for you to attempt harm yourself, and I accept too, that a key precipitant of your depression has been response to interpersonal loss.  I accept that the depressive symptoms that you are currently suffering, have been triggered by the acute stress of the prosecution, as well as representing the residual effects of the more long-standing depressive mood disturbance, that it is correct to describe your current symptoms as residual manifestations of a major depressive disorder, in partial remission, and that your symptoms are currently appropriately described as mild.

21I also accept that you are at some risk of more severe depressive mood disturbance at times of stress, and that that is likely to be so, upon your imprisonment.  You have reported experiences of persistent suicidal ideation, and although you have denied recent self-harm, I accept that there is a risk of that at times, and that there may be an increased risk of that following upon this sentencing and direct that that be particularly noted and looked out for upon your remand.  I accept the concerns that Mr Newton expresses about that, and the need for the appropriate precautions to be maintained to protect you from impulsive acts of self-harm.

22I accept also, that your thought processes are not impaired, that you are not psychotic, and that your capacity for moral reasoning and reality testing are intact.  Although your history is suggestive of ADHD and possibly a learning disability, your underlying intelligence is in the average or below average range.  Although you have a limited capacity for abstract reasoning, that you are a concrete or unsophisticated thinker, that is not to any degree suggestive of being unable to understand right from wrong or to have impaired your judgement in understanding what you were doing at the time. 

23I accept that your alcohol abuse has had a significant blighting effect upon your capacity to form or maintain relationships in your life, and to meet your broader obligations, and that although you have been engaging in counselling since May of this year, that your insight into your drinking is still, as Mr Newton describes it, rudimentary at best.  I accept his diagnosis of a severe alcohol use disorder, and that that is a potent criminogenic risk factor in your case, and the need for you to participate in structured treatment, more so than you have to date.  That is not to devalue what you have done, but rather that more structured treatment than you have engaged in to date, is going to be required if you are to be properly able to deal with that alcohol abuse. 

24I accept also, Mr Newton's assessment that you pose a moderate to low risk of recidivism in relation to sexual offending and that your recidivism could be reduced by the provision of appropriate ongoing special Sex Offender Treatment together with attention to your alcohol abuse, supervision and support. 

25Ms Charleston, in her victim impact statement, referred to the fact that you had yourself, a history of sexual abuse as a child.  Mr Newton is a little sceptical as to whether what you describe can appropriately be described as sexual abuse as a child.  He is certainly sceptical as to whether that can really provide any explanation or justification for what you have described as highly sexualised behaviour and a high sex drive.  That is clearly a matter that needs to be, and should be, addressed in a Sex Offender Treatment program.  I cannot too strongly urge the authorities to assess you for suitability for participation in a Sex Offender Treatment Program and for you to participate in one if assessed to be suitable. 

26Mr Newton says that although your progress in treatment remains at an early stage and this is essentially, as I read it, in relation to treatment for your alcohol abuse, your commitment to action is encouraging and he is keen to see it supported to the extent possible.  He says this:

"There is an unequivocal need for ongoing specialist treatment in [Mr Charleston]'s case.  To be clear, I consider that completion of a comprehensive Sex Offender Treatment Program would be the single most important factor in the prevention of recidivism in this case.  Accordingly, I would strongly suggest that he undertake such a program at the earliest possible opportunity.  [Mr Charleston] ought also to receive appropriate counselling to address his drinking and depression and to deal with the social skills deficits that he has identified. The successful completion of the recommended treatment programs is likely to involve a relatively long term therapeutic engagement.  Accordingly, it would be my respectful suggestion that there may be some merit in imposing a longer than usual period of supervision in the community upon [Mr Charleston], whether by way of parole or some other order, to ensure that he receives the treatment he requires in the context of appropriate supervision by relevant authorities.”

27In my view, the appropriate sentencing disposition for you is one that involves both a term of imprisonment, immediately served, and a Community Correction Order.  As the discussion with Mr Stary in the course of the plea this morning, made clear, I was concerned as to whether a sentence of imprisonment followed by the opportunity for release upon parole, or a sentence of imprisonment followed by a Community Correction Order with the conditions mandated by the court, was the most effective and appropriate means to both punish, denounce, deter and encourage rehabilitation.  Having heard the submissions of Mr Stary and Mr Ballek and having considered the report from Corrections, I consider the appropriate course is to impose a term of imprisonment and then to direct you undergo a Community Correction Order, with conditions mandated in the Community Correction Order in relation to alcohol treatment, mental health assessment and treatment, a Sex Offender Treatment Program, supervision by Corrections, Judicial monitoring by this court, or by me, and abstinence from alcohol for the whole term of the order. 

28I should say that I would hope that Corrections would commence a Sex Offender Treatment program and commence mental health assessment and treatment and alcohol assessment and treatment during your term of imprisonment and not leave it all for the release.  This is an important part of dealing with this structured sentence, that part of that be done during the term of imprisonment, as well as upon release and supervision in the community. 

29The sentence must be seen as a whole.  It is not an appropriate measure to say this charge is being dealt with only by what may seem to be a relatively short term of imprisonment when one looks at the terms of imprisonment that have been imposed in the past, where the court could do nothing other than impose a term of imprisonment with a non-parole period, so the sentence imposed must be seen as having those two components of the term of imprisonment, mandated for immediate service, followed by the term of the Community Correction Order, so looking at the overall  length of the two components of it, rather than trying to break them up into two parts which may, otherwise, give a misleading impression of not reflecting the seriousness of the offending.

30I want to make it very clear in what I have said so far, that I regard this as very serious offending and really serious breach of trust, that can only be properly punished and marked by an appropriate sentence including a term of imprisonment.

31Could you now please stand Mr Charleston.

32James Charleston, on the charge of rape to which you have pleaded guilty, you are convicted.  You are sentenced to be imprisoned for a period of 23 months, and to serve a Community Correction Order for a period of two years and one month, which is to commence immediately upon your release from that term of imprisonment.

33The terms of the Community Correction order are these:  The order will last for 25 months, commencing upon completion of your period of imprisonment, and you must attend at the Werribee Community Correctional Service at 87 Synnot Street, Werribee, within two clear working days of your release from imprisonment.  You must not commit another offence for which you could be imprisoned during the time the Community Correction Order is in force.  You must comply with any obligation or requirement proscribed by Regulation 17 of the Sentencing Regulations [2011]. That means you must not be impaired by drugs or alcohol when you attend for any correctional visits or supervisions, and you must submit to testing if required to do so. You must report to, and receive visits from the Secretary or Delegate, you must let a Community Corrections Officer know, within two clear working days, if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or Delegate and you must obey all lawful instructions from, and directions of the Secretary or Delegate.

34In addition to these core conditions, these are the special conditions of this order.  You must be under the supervision of a Community Corrections Officer for the period of the 25 months of the order.  You must undergo assessment and treatment including testing for alcohol abuse or dependency, as directed by the Regional Manager.  You must undergo a mental health assessment and treatment, including, but not limited to, mental health, psychological, neuro-psychological and psychiatric treatment or assessment or treatment in a hospital or residential facility as directed by the Regional Manager.   You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager and specifically, a Sex Offender Treatment Program. 

35You are subject to judicial monitoring and you must attend for review on the 15th of December 2016, that is, three months after your release from imprisonment, at the Melbourne County Court.  You must abstain from alcohol for the whole of the term of this order. 

36You have spent two days in pre-sentence detention, and I direct that be counted and reckoned as part of the sentence already served.

37Do you understand the effect and conditions of the order, both the term of imprisonment and the Community Correction Order.

38OFFENDER:  Yes.

39HER HONOUR:  Do you consent to it being made.

40OFFENDER:  Yes. 

41HER HONOUR: In that case, I will ask my associate to give that to Mr Stary and ask for that to be taken down for you to sign. Pursuant to s.6AAA of the Sentencing Act (1991) I declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of six and a half years, and I would have fixed a period of four years as the time which you would have had to have served before being eligible for parole. 

42I have signed the Community Correction Order and a copy of that will be provided to you and a further copy to Mr Stary.  Just before I direct that Mr Charleston be removed, can I direct that he remain in the cells until the reports of Mr Newton and the other reports have been provided to the correctional authorities and it be noted that in Mr Newton's report, that he is a man at risk of self-harm and that care should be taken upon his reception into custody. 

43MR STARY:  Thank Your Honour.   I will also write to Sentence Management separately, Your Honour. 

44HER HONOUR:  Yes, thank you, but if we send copies of the report straightaway, they will go with him for that immediate admission assessment.

45MR STARY:  Thank Your Honour.

46HER HONOUR:  Just take a seat for a moment, Mr Charleston, I will just check that the formal order I have got here is correct and then that can go with you as well.  

47Just while I am waiting for the last documents to be printed out,  Ms Charleston, can I say to you, that I commend you for your courage in acting as you did in appreciating that this was not something you should just let happen, but having the courage to report it, to understand that you have rights and that you have properly protected and enforced those rights. 

48I appreciate that the whole process must have been very distressing for you, and it must be a really difficult day for you here in court, but to have the courage to come and sit through it, and to see it through and to express yourself the way you did in your victim impact statement, I hope has given you some sense of being able to properly participate in the proceeding and some sense that you have control over your life. 

49You may not have felt in control at the time the rape was happening, but you have shown your courage to take control from the time after that, and I hope that gives you real strength on your path to recovery from now on.  I know nothing can turn the clock back, but I hope this has helped a little bit to make your path forward, a little bit easier for you. 

50Can you remove Mr Charleston please.   Adjourn the court.

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