Director of Public Prosecutions v Clarke (a pseudonym)

[2015] VCC 773

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND DREW CLARKE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	11 June 2015
CASE MAY BE CITED AS:	DPP v Clarke (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 773

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Ms K. Youngson

HIS HONOUR:

1Raymond Drew Clarke[1], you have pleaded guilty to an indictment charging you with rape on 7 September 2014.  You raped your partner, Kelly Louise Hoover[2].  The offence of rape is a serious one and it carries a maximum term of imprisonment of 25 years. 

[1]Raymond Drew Clarke is a pseudonym.

[2]Kelly Louise Hoover is a pseudonym.

2You have no prior convictions.  The prosecution tendered and relied upon a summary of prosecution opening which is Exhibit A on the plea hearing and I incorporate that in its entirety into these reasons for sentence.  It sets out the circumstances in which the offence occurred.  During the early morning after an argument with your partner, you pushed her to the floor, pulled down her jeans and underpants and put your penis in her vagina.  You were aware that she did not engage in that act of intercourse consensually.  Although she did not hit you or push you, she tried to roll away and get out from underneath you.  The act lasted for about 15-20 minutes.  She then said words to the effect that you were no different to all her previous boyfriends to which you replied that you would show her how you were different.  You then made a Triple-0 call in which you admitted that you had just raped your partner.  The police arrested you and interviewed you and you made full and frank admissions to the offence. 

3Your partner indicated that she did not wish to make any formal complaint or participate in any evidentiary procedure or support network intervention.  She made a statement of no complaint in which she stated that the sex had occurred that morning and that she had not consented but that she did not want you charged nor would she participate in any legal proceedings.

4You pleaded guilty at the committal mention at the very earliest opportunity.  It is accepted that all of this and indeed what you said to the police indicates that you are genuinely remorseful for your conduct. 

5Your counsel of course relied upon your early plea and your remorse and you are entitled to get significant credit for that.  I was provided by your counsel with sentencing submissions which set out something of your prior history.  You are now 53 years of age.  You live with your victim.  You are of good character.  It seems that the relationship is an ongoing one and that you hope to get married in the future. 

6You have been working most of your life and indeed you have been employed and are employed. A reference was provided by your employer which is Exhibit 2 on the plea hearing.  Further references were supplied by Robin Trainer of the Loddon Campaspe Mens Behaviour Change Centre and also by a friend and colleague and I was also supplied with the statutory declaration which essentially was a statement of no complaint by your victim. 

7All of those matters combine together to support the submission by your counsel that I can discharge my function as a judge in this case to impose just punishment upon you, to deter you from committing any further sexual offences of any kind and indeed to satisfy the need to deter others by imposing a sentence that does not require your being sent to prison.  That was indeed an unusual submission for a charge as serious as rape.  However, I am bound also to look to your rehabilitation and it seems to me that in the very unusual circumstances of this case and having regard to your plea of guilty and clear remorse that your prospects of remaining trouble-free in the future are very good and I think it is unlikely in the extreme that you will commit another offence of this kind or indeed any other criminal offence in the future. 

8For that reason I acceded to the submission of your counsel to have you assessed for suitability for a Community Corrections Order.  I was referred to the well-known case of Boulton which came before the Court of Appeal at the end of last year and to the principles that are set out there and indeed have been applied in a number of other cases since, some of which have also gone to the Court of Appeal.  In those circumstances it seems to me that it is appropriate to impose a sentence that does not require you being sent to prison.  The recommendation in the Community Correction Suitability Report is for you to undergo a Community Corrections Order with conditions that include you being assessed for and if found suitable to participate in a sex offender program and also an anger management program.  It seems to me that those proposals are sound and to the extent that it may be necessary to impress upon you the significance of the crime of rape, the significance to your victim, the rights of your victim not to be raped or treated to that crime of violence, which it is, and the significant violation of her rights that that offence constituted, all of those seem to me to be sound bases upon which to proceed to follow the recommendations in the Community Corrections Order. 

9I also have in mind to impose a condition that you undergo 450 hours of unpaid community work.  That is designed to punish you, it is designed to make you constantly aware until you have completed that order of the nature of the offence that you committed and to deter you from further conduct of this kind.  The order will also require you to be subject of supervision of the Department of Community Correction for a period of three years and to participate in those treatment and rehabilitation programs to which I have referred, that is, to reduce your offending, in particular, the sex offender program and an anger management program.

10I cannot impose a Community Corrections Order in those terms or at all unless you consent to be subject of that order.  According to the document that you signed when you were assessed on 4 June this year you indicated that you would be willing to consent to a Community Corrections Order.  You have to realise though that the order will be hanging over your head for a period of three years.  It will require you to comply with the terms of the order; you will have to turn up when you are supposed to for appointments, for supervision, for your work commitments, unpaid community work commitments and for such treatment and rehabilitation programs as you are directed to attend.  You must also appreciate that it is a bit like a suspended sentence hanging over your head because if you breach the terms of the order or if you commit a further offence punishable by imprisonment during the period of three years during which the order is in force then you are up for punishment for the breach, that is, up to three months' imprisonment for simply breaching the order.  You would be up for any punishment that was appropriate for the offence that put you in breach and you would also be brought back to this court and you would be up for re-sentence on this matter.  If you were to breach the order you would leave the court with really no alternative other than to impose a substantial term of imprisonment. 

11So all of that is still hanging over your head and it will be very much up to you as to whether you comply with the terms of the order and avoid those consequences.  With all that in mind, are you willing to consent to participate being made the subject of a Community Corrections Order in the terms  I have outlined?

12PRISONER:  Yes, Your Honour.

13HIS HONOUR:  Yes, very well.  In that case, just stand up if you would please, Mr Clarke.  For the offence of rape to which you have pleaded guilty I convict you and sentence you to a Community Corrections Order for a period of three years and under the terms of that order in addition to the standard terms you will be required to perform and complete satisfactorily 450 hours of unpaid community work, subject of supervision of the Department of Corrections and you will be invited to be assessed for and participate in such treatment and rehabilitation programs as I have directed, in particular in relation to sex offender program and anger management programs.

14I also make an order that you provide a forensic sample in accordance with the terms of the draft which I am about to be provided with or will be in the future.

15MR CORDY:  Will be shortly, Your Honour.

16HIS HONOUR:  Yes, shortly.  That will require you to attend the Bendigo police station within the period specified in the order and when you do so you will have to report for the purposes of providing a forensic sample.  You will be asked to provide the scraping from the inside of your mouth.  If you do that then that is the end of the matter.  If, however, you fail or refuse to provide a scraping from the inside of your mouth when questioned to do so the authorised officer will be permitted to take a blood sample and may use reasonable force to obtain that sample.  I am sure you will not put them to that trouble.

17But for your plea of guilty I would have sentenced you to imprisonment for a period of four years with a non-parole period of two years and eight months.  So that gives you some indication of the kind of fate that might be in store for you if you breach the terms of this Community Corrections Order. 

18Very well, the order I think is now ready for you to sign.  Is there sex offender registration?

19MR CORDY:  No it's not, Your Honour.

20HIS HONOUR:  No, very well.  I will ask Ms Youngson to accompany my associate to the dock so that she can ensure that you understand what you are being asked to sign.

21MR CORDY:  Just while that's being done, Your Honour, it's my error here in making the application but I understand that a sample was taken at interview and there's automatic retention. 

22HIS HONOUR:  All right.

23MR CORDY:  But in any event ‑ ‑ ‑

24HIS HONOUR:  So it's not necessary to make ‑ ‑ ‑

25MR CORDY:  It's not necessary and as I say, a sample has already been taken so Mr Clarke won't need to re-attend and provide another sample and I apologise for that error, Your Honour.

26HIS HONOUR:  That's all right.  Mr Clarke, did you hear what counsel said?

27PRISONER:  Yes, Your Honour.

28HIS HONOUR:  Yes, very well.  The order that I made for you to provide a forensic sample is now rescinded and that is no longer part of the orders that I have just made and you will not be required to attend the Bendigo police station for the provision of the further sample.  You have, as I understand it, provided a sample already and that will be retained automatically on the database kept by the Victoria Police.  Very well, thank you. 

29I have now signed this order and you may now leave the dock, thank you. 

(Short adjournment.)

30MR CORDY: Your Honour, I apologise for getting you back but my diligent instructor has pointed out that the provisions of the Sex Offenders Registration Act do apply and I guess this falls under the category of you learn something new every day. But rape is a Class 3 offence but if one then goes to s.34(4) there's a deeming provision which provides this: "For the purposes of this division a person subject to a sex offender registration order a) if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence."

31HIS HONOUR:  Yes but is he the subject of a sex offender's registration ‑ ‑ ‑ ?

32MR CORDY:  This is exercising my mind, Your Honour, and it would seem that if the intent of the legislation was to make rape simpliciter a Class 1 offence then it just would have been put in that schedule.

33HIS HONOUR:  I think it is where a person is already the subject of a sex offenders registration order.  It doesn’t sit well with Section 7.  A registrable offence does not include a Class 3 offence. 

34MR CORDY:  Your Honour's right and indeed - yes.  I know what will happen.  I'm agreeing with Your Honour now; it seems that given the wording of the preamble to sub-s.(4) that it would only be applicable if the person was already on an order and I know what will happen if we're wrong.  I think the sex offenders registration will probably ‑ ‑ ‑

35HIS HONOUR:  They’ll have something to say about it.

36MR CORDY:  ‑ ‑ ‑ have something to say about it.

37HIS HONOUR:  It can be put right if necessary.

38MR CORDY:  Yes.  I think Your Honour on reflection is right and as I say if they ‑ ‑ ‑

39HIS HONOUR:  I'm certainly persuaded by my associate who's done the research that that is the case and it seems to me that s.7 is where we should be looking first before we try and interpret s.34(4).

40MR CORDY:  Yes I think that's right, Your Honour, and so I'll make no application ‑ ‑ ‑

41HIS HONOUR:  So leave things as they are.

42MR CORDY:  ‑ ‑ ‑ in respect of that and if there's a problem there will be a problem.

43HIS HONOUR:  Wait for the bombshell to be dropped if it's to be dropped later on.  Your client must be aware of that; obviously if we're wrong then it may be that you'll get a tap on the door at some stage or other but hopefully that won't occur.

44MR CORDY:  Yes.  Clearly, the thrust of the legislation aims the reporting obligation at sex offenders who offend against children or people with cognitive impairments.

45HIS HONOUR:  That's right.

46MR CORDY:  So given the wording of sub-s.(4) I'm now satisfied ‑ ‑ ‑

47HIS HONOUR:  But to the extent that it's - I think that's right.  There are discretions, aren’t there, that apply in relation to some of these other offences and this - if it's to be deemed a Class 1 it would take away any discretion.

48MR CORDY:  Absolutely.

49HIS HONOUR:  So it really doesn’t seem to me likely that ‑ ‑ ‑

50MR CORDY:  No, the only thing that caught my eye was the fact that the note to Item 1 of Schedule 3 was inserted in 2005 so it was inserted afterwards so that might explain all sorts of clumsy legislative drafting.  But having regard to the clear wording of sub-s.(4) the person seems to need to be subject to a sex offender registration order already and then the deeming provision is only triggered if that's the case it would seem.  So I'll sit down and I won't get Your Honour back.

51HIS HONOUR:  Very well.  I think that's all we need to do for this matter, isn't it?

52MR CORDY:  Yes.  Thank you, Your Honour.  

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