Director of Public Prosecutions v Daglas

[2015] VCC 1038

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

AT GEELONG
CRIMINAL JURISDICTION

CR 14-01367

DIRECTOR OF PUBLIC PROSECUTIONS

V

NICHOLAS DAGLAS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Geelong and Melbourne
DATE OF HEARING:	12-13, 16-18 March 2015, 16 April 2015 & 21 July 2015
DATE OF SENTENCE:	29 July 2015
CASE MAY BE CITED AS:	DPP v Daglas
MEDIUM NEUTRAL CITATION:	[2015] VCC 1038

REASONS FOR SENTENCE
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Subject:              
Catchwords:             Threat to inflict serious injury – Intentionally causing injury – Rape.

Cases Cited:Ayolv The Queen [2014] VSCA 151, Singh v The Queen [2014] VSCA 250 & Marrah v The Queen [2014] VSCA 119.

Sentence:Total Effective Sentence 7 years – imprisonment – 5 year Non Parole Period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Flynn	Office of Public Prosecutions
For the Accused (Plea)   (Sentence)	Dr M. Marich Ms S. Exner	Dr Martine Marich Criminal Law Specialists

HIS HONOUR: 

1Nicholas Daglas, in the County Court at Geelong, from an aborted trial in January and a trial in April on Presentment No.D13754665.1 on 16 April this year, you were found guilty of the offences of intentionally causing injury, Count 2, maximum penalty ten years' imprisonment, threat to inflict serious injury, maximum penalty five years' imprisonment, Count 3, and rape, maximum penalty 25 years' imprisonment, Count 4.  You were acquitted of charges of threatening to inflict serious injury, Count 1, and robbery, Count 5.  The complainant in this matter was your former partner who was aged 40 at the time of the offences on 2 July 2013. 

The Circumstances of the Offences

2I am required to sentence you in accordance with the jury verdict and you must be given the benefit of your acquittal on two charges.  At the time of the offences in July 2013 you were living in the suburb of Breakwater with your mother and your 16-year old son, and the complainant was living at a public housing unit in Geelong's northern suburbs.

3You had first met the complainant when she was aged about 16.  You had been in a fraught relationship with her for about two and a half years prior to the incident but had never lived together.  Although the relationship had broken down by July 2013, you were still seeing each other from time to time and had seen each other in the days prior to 2 July 2013.

4The complainant was physically frail, as in February 2012 she had had an emergency caesarian and hysterectomy performed.  You were the father of the baby, who was adopted out.  Following that procedure, there were major complications that led to an extended period of hospitalisation and follow-up consultations, and ultimately she required a urethral catheter to prevent urination through the vaginal canal and had to wear a catheter bag strapped to her upper right thigh.

5On 2 July 2013, the complainant attended at your home to lend your son, who she had some affection for, some money.  In the late afternoon she sought to catch the bus back to her unit and you joined her on the bus.  The two of you then attended at her unit and had a cup of coffee.  The complainant's evidence was that she found your demeanour in the kitchen fidgety and she accused you of being under the influence of drugs, which you denied.

6She asked you to leave.  You started to get aggressive and angry and were speaking in a loud voice and calling her a whore and a slut.  She became really scared and moved her chair away from the table.  You threatened to throw hot coffee over her and she moved to grab the kettle to protect herself, and then you threatened to stab her instead.  At one stage you asked her to stab you.

7She responded by saying that she would call the police.  She repeatedly asked you to leave.  You were also calling her names and demanding her cigarettes and money.  She was trying to get away from you.  You told her that you were going to put her in a coma. That threat constituted Count 1, the charge of making a threat to inflict serious injury, of which you were acquitted.

8In the course of the continuing verbal altercation, the complainant was next to her laundry cupboard in the lounge room.  She turned around towards you and you then punched her heavily, striking her nose and forehead.  The punch broke her nose and caused an abrasion on its bridge.  She felt dizzy.  That heavy punch to the nose constitutes the charge of intentionally causing injury.

9You delivered a second punch to her jaw and cheek that the complainant said nearly knocked her out.  The complainant slid to the floor.  She was bleeding from the abrasion on her nose.  You then tried to pick her up, saying that you were sorry.  She got up and went into the bathroom and sought to close the door but was unable to do so as the handle was stuck in the wall.  She was asking that you leave her alone.  You got angry with her again and kept aggressively demanding her money and cigarettes. You then accused her of being with another man.

10You then went into the kitchen and she then ran into the bedroom, frightened for her life, and shut the door.  You then barged into the bedroom and were holding a knife with a blade about four inches long.  You proceeded to say to her, "I'm going to rape you, whore".  That constitutes Count 2, the charge of threatening to inflict serious injury.

11You grabbed her hair at the back of her head and then, while still holding the knife in one hand, you grabbed her shirt and punched her in the chest a few times.  You then pulled down her track pants and ripped out her catheter and ripped open the Velcro straps of the catheter bag and threw it to the ground.  At that stage the complainant's pants and undies were at her ankles.  She was standing.  You took your own belt off and threw it on the floor.  You then forcibly inserted what she said felt like four fingers into her vagina, saying, "I'm going to split you in half, cunt".  She was begging you to stop, yelling in pain and telling you that you were hurting her.  You were moving your fingers forcibly in and out.  She believes that this may have occurred for up to a minute and a half.  At some stage, due to the loss of the catheter, she proceeded to urinate on your fingers.  You then withdrew them, calling her "fucking disgusting" and then walked out of the room.  These events constitute Count 4, the charge of rape.

12The complainant remembered that her purse was in the kitchen, so she went in and gave you a packet of cigarettes.  Her purse contents were strewn everywhere, but she retrieved two $50 notes secreted in it and gave them to you and told you to leave.  She went back into the bedroom and hid under the bed.  You were still angry and calling her names.  The taking of the cigarettes and the money in the circumstances constituted the count of robbery, of which you were acquitted.

13You were searching for her within the unit but did not locate her.  You then went outside and continued to abuse the complainant.  She was then able to lock the security door.  She threatened to call the police and after a short time you then left the area.  The complainant remained in her unit and went to sleep for a short time. 

14Later that evening, the complainant sent you a text accusing you of pulling out the catheter and assaulting her.  In response, you denied it.  There followed numerous exchanges until the following morning.  In some of the exchanges you expressed your love and affection for the complainant, whilst in others you were not so affectionate, blaming the complainant and claiming to have acted in self-defence.

15That morning the complainant contacted a friend and her stepsister, and before proceeding to the police station wrote a handwritten note as to the events, which was later admitted in evidence.  She was later examined by a forensic medical officer who gave evidence.  The doctor found that the complainant had a broken nose, as well as a cut to the bridge of the nose, consistent  with blunt force.  She also had marks on her chest consistent with the application of force.  She had a 2 mm tear or laceration in her vagina consistent with the application of blunt force.

16You were interviewed by the police on 3 July.  You admitted that there was an argument between the two of you and that you had been loud in your discussion with her.  You deny that you had assaulted the complainant and maintained that she had head-butted you and you had hit her back in self-defence.  You allege that the complainant was drinking. 

17In relation to the alleged rape, you denied it and said that the complainant had put some money down the front of her knickers and invited you to retrieve it.  You denied you had removed the catheter or had sexually penetrated her.  You denied the use of a knife.  The jury must be taken to have rejected your account in the record of interview, but were not satisfied in relation to the first alleged threat and in relation to the alleged theft of money and the cigarettes.

Seriousness of the Offences

18In assessing the seriousness of the offences, I must take into account the impact of your offending on the complainant.  Although the complainant did not file a victim impact statement and apparently is still in contact with you, her demeanour when giving evidence in the trial, however, was a graphic indication of the impact of your crimes on her.  This must have been a traumatic, humiliating experience for a defenceless woman.

19The impact on the complainant of your offending is a matter that must be taken into account in assessing the overall seriousness of your conduct.  In characterising the seriousness of the offending here, it arose out of a prior relationship, the offending occurred in the complainant's unit, where she is entitled to feel safe, and she was physically vulnerable.  You knew it, and as your counsel put it on the plea, your conduct involves an expression of power, anger and control.

20Putting together the circumstances of the offending and the impact on the complainant, I regard the offence of rape here as being in the upper range of seriousness of what is a very serious offence, given the 25-year maximum penalty specified by Parliament.  When this is combined with the unprovoked assault on the complainant and the threat to rape at the point of a knife, overall your criminality is of a high level.

Prior Criminal History

21You were born on 14 December 1961 and you have admitted an extensive criminal record, going as far back as 1978.  You have no prior criminal history of sexual offences.  However, you do have a number of convictions for assault and causing injury offences.  You also have a number of prior convictions for burglary and other dishonesty offences, drug offences, driving offences, and two convictions in 2005 and 2003 for breach of an intervention order.  This is the first time you have appeared in the County Court for sentence.

22In terms of your more recent prior convictions, on 15 April 2008, on a count of burglary, you were sentenced to four months' imprisonment with two months to be served, with the balance suspended for 12 months.  You breached that sentence and were ordered to serve the restored term.  On 17 October 2006, you were sentenced to 12 months' imprisonment for recklessly causing serious injury.  A minimum term of four months was imposed.  On 12 May 2006, on counts of recklessly causing injury and assault with a weapon, you were sentenced to six months' imprisonment.  On the same day, you were dealt with for failure to comply with a Community-Based Order that had been imposed on 2 December 2005 for criminal damage, breach of an intervention order, assault with an instrument, and unlicensed driving.  You were ordered to serve three months as an aggregate sentence for those offences.

23Prior to that appearance in December 2005, you have a number of earlier convictions for dishonesty offences.  On 15 May 2003, you were sentenced to two months' imprisonment for breach of an intervention order and unlawful assault, as well as some driving and drug offences.  You subsequently breached that suspended sentence.  I will not detail your earlier prior convictions.  They include a partially suspended four-month sentence on 31 October 2000 for intentionally causing injury and 55 days' imprisonment on two counts of assault on 3 June 1997, and a partially suspended six-month sentence for intentionally or recklessly causing injury on 10 January 1995.

24You have a number of other earlier convictions for violence offences for which you have been sentenced to imprisonment or to suspended sentences.  You have also drug offence convictions, including trafficking in amphetamine and trafficking in cannabis. 

25Overall, your criminal record indicates that you do have prior convictions for offences of violence and other serious offences and also you have failed to respond to court dispositions by breaching suspended sentences and Community-Based Orders.  This continuing offending shows that you have not taken the opportunities that have been afforded to you and that specific deterrence and protection of the community are relevant sentencing  considerations.

Personal Circumstances

26Your personal circumstances were set out on the plea and are also contained in the report of Dr Lester Walton.  You are currently aged 53 and ordinarily live with your mother and your son and your partner of the last eight months.  Your 87-year old mother is presently in Greece and your 91-year old father is living in Greece.  You hope in due course to move to Greece to care for him.

27You are the eldest of six children and none of the other children has any history of mental disturbance.  You and your siblings were the subject of domestic violence at the hands of your father as you were growing up.  You were evicted from home at age 12 and lived on the streets for a period of three years until you were allowed to return home.  Notwithstanding that, you managed to pass Year 9 at school and left school half-way through Year 10.  You then went into labouring jobs during the late 1970s.  You had a good record until your consumption of drugs and intermittent health problems caused difficulties in continuing to work.

28You are the father of six children from three different relationships.  You continue to keep contact with your children.  You have been on a disability support pension for the last 30 years on a diagnosis of schizophrenia.  When you were aged 20, you were admitted to a psychiatric unit at the Geelong Hospital and subsequently you have had other admissions to that unit and to other facilities in the Geelong area.  For the past five years you have been medicated by a long-acting antipsychotic drug that has stabilised your condition.

Report of Dr Lester Walton, psychiatrist

29Dr Walton took a history from you as to your drug use.  He noted that you commenced to smoke cannabis at the age of 21 and graduated to use of amphetamine and occasional heroin.  He noted that you then began to use methylamphetamine and you have been using a limited amount for the past seven years or so.  He noted that you have not been involved in drug rehabilitation.  He found that you were a person of normal intelligence and that you remained cognitively intact.

30Dr Walton in his report found that he doubted whether you are properly diagnosed with schizophrenia.  He describes you as being a substance-dependent person.  He notes that methylamphetamine abuse promotes aggressivity and paranoia and it is highly probable that this phenomena made a significant contribution to your conduct.  He notes that you are a psychologically immature person and that limits your ability to make a comprehensive expression of remorse, but you did express distress and regret about your misconduct.

31He describes your mental disturbance as falling below the mid-point in terms of weighing of a causal contribution in relation to your misconduct.  He did note that methylamphetamine-induced psychosis is certainly associated with impulsive behaviour and markedly elevated risk of aggressivity.  He notes that you remain significantly depressed, and thus will find any period of imprisonment more onerous.  He recommends a trial reduction in your antipsychotic medication.

32On the plea, your counsel did not seek to invoke any specific Verdins considerations to reduce your  moral culpability.  She frankly admitted that there was no material to support that.  It is clear from the report from Dr Walton that your use of drugs does explain your behaviour that day, but of course that does not excuse it.  You denied to the complainant that you were using drugs.  Your Counsel did submit, however, that you are currently depressed and thus will find imprisonment more burdensome and I will take that into account.

33In sentencing you, I also take into account your overall medical condition and background.  You have obviously had a hard life and suffered a significant psychiatric condition, such that you have been on the disability support pension for many years, as well as long-acting medication.

Prospects of Rehabilitation

34Your criminal record indicates that you have failed to respond to earlier non-custodial dispositions.  On the other hand, you do not have any prior conviction for sexual violence.  You have the support of your children, who you remain in contact with.  On the plea, your counsel tendered completion certificates of three courses that you have undertaken while in custody on remand, which I take into account.

35Overall, given your prior record of violence and failure to respond to non-custodial dispositions in the past, I would regard your prospects of rehabilitation as at best fair, particularly given you have failed to accept responsibility for your conduct by way of a plea. 

36I am required to set a non-parole period.  There is no correct or standard non-parole period.  A non-parole period is the minimum period which must be served to meet the purposes of sentencing before being eligible to serve the rest of your sentence in the community, should you be permitted to do so by the authorities.  I fix an appropriate non-parole period having regard to my assessment of your only fair prospects of rehabilitation.

Purposes of Sentencing

37The basic purposes for which a court may impose a sentence of punishment, are deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

38In this case, considerations of general deterrence, denunciation, specific deterrence and protection of the community are particularly salient.  The Court of Appeal has said on numerous occasions that the crime of rape is regarded by the community as a particularly serious offence.  This itself is evidenced by the maximum penalty which I must have regard to.  Denunciation is also a very important sentencing consideration in a case such as this.

39In the case of DPP v FHS, Vincent J said:

"The courts, when dealing with rape cases, must have regard to the vindication of the community's social values, preeminent among which are the protection of the personal and physical safety of its citizens".

40In an earlier decision of Lakeland (19 November 1993 at para 12), the Court of Criminal Appeal said of this offence:

"It attacks the very foundation of a civilized society.  The community, which aspires to high standards of individual dignity, culture, and enrichment of interpersonal relations, must punish severely those of its members who would grossly debase them."

41Here, the offending is in the upper range of seriousness.  It was humiliating, aggressive and violent.  It occurred in the complainant's own home; it has to be utterly condemned.

42In sentencing you, I am required to have regard to current sentencing practices.  In sentencing submissions I was not originally provided with much assistance by both counsel as to current sentencing practices for this offence.  After referring the parties to a couple of cases and the Sentencing Snapshot 176, I invited the parties to provide me with any authorities that might assist in identifying current sentencing practices.  Your counsel referred the court to a number of cases said to assist.  I have considered each of those in order to identify current sentencing practices where the offence covers a wide range of circumstances, for example penile or digital, violent, non-violent, and a range of individual factors including a plea of guilty, age of the offender, antecedents, Verdins considerations and prospects of rehabilitation.

43All these matters make individual cases of only very limited assistance.  The case of Ayol v The Queen [2014] VSCA 151 was referred to. This involved a forced digital rape of a young complainant. The appellant had no prior criminal history and went to trial. On an argument of manifest excess, the Court of Appeal held that the sentence of four years and nine months with a non-parole period of three years was within range, and footnoted a number of cases that illustrated that the sentence was "wholly unremarkable for serious offending of this kind".

44I have considered those cases as providing some evidence of current sentencing practices.  I regard the events here as more serious than in Ayol due to the use of the knife, the associated violence, and your prior criminal record.  In Ayol the Court said that gross sentencing statistics provide only a rough guide as to current sentencing practices.  What is required is the identification of comparable cases, that is cases in which the relevant indicia  of seriousness - and, where relevant, comparable antecedents - are to be found.

45In the recently published Sentencing Snapshot 176 by the Sentencing Advisory Council, it indicates that in the five-year period between 2009/10 and 2014, 192 people were sentenced for rape, and of those nearly 47 per cent received a sentence between four and six years.  The median sentence was five years.  Around 31 per cent received sentences of more than six years.  Those numbers include both sentences imposed after trials and upon those who pleaded guilty.

46Singh v The Queen [2014] VSCA 250 involved an intoxicated 18-year old complainant who had been raped by her employer. The appellate court found the original sentence of seven years' imprisonment was outside range and resentenced the appellant to a sentence of five years and six months with a non-parole period of three years and three months.

47The Crown prosecutor referred the court to the case of Marrah v The Queen [2014] VSCA 119. The case involved a violent digital rape in the context of a breach of a family violence order, a serious assault, and a threat to kill. The appellant had a terribly deprived upbringing, a prior conviction for manslaughter, and depression. The sentence of six years for rape on a plea of guilty was said to be well within the permissible range. The offences were said to have occurred in the family home where the complainant was entitled to feel safe, and was motivated by a desire to control and punish. I see some similarities in this case.

48Each case must be determined on its own facts, but I must have regard to the seriousness of the offences, the maximum penalty, your criminal record, your personal circumstances and current sentencing practices.

49Your conduct on this occasion was absolutely outrageous.  It was a course of conduct commencing with the blow to the complainant's nose, followed by the use of the knife to make a threat, and then the rape itself.  As the latter two events are very much wrapped up in time, I regard it as appropriate to order total concurrency in relation to the sentences for those offences.  Weighing all these matters that I have discussed and the submissions made on your behalf, I sentence you as follows.

50On the count of intentionally causing injury, you are sentenced to 12 months' imprisonment. On the count of making a threat to inflict serious injury, you are sentenced to 18 months' imprisonment. On the count of rape, you are sentenced to six and a half years' imprisonment. That is the base sentence.  I direct that six months of the sentence on Count 2 be served cumulatively on the sentence on Count 4, making a total effective sentence of seven years.  I direct you serve a minimum term of five years before being eligible for parole.

51I declare that you have served 131 days pre-sentence detention, excluding this day. 

52The prosecutor sought a forensic sample, is that right?

53MS FLYNN: I have, Your Honour. There is an application for an intimate sample pursuant to s.464ZF of the Crimes Act and I make that application. 

54HIS HONOUR: Mr Daglas, the prosecution have sought a forensic sample.  Having regard to the seriousness of the offences, I regard it as appropriate to grant them that order and I must advise you that the authorities are entitled to use reasonable force to obtain a saliva sample from you, and they will do that in due course.

55Any other matters from your point of view, Ms Exner?

56MS EXNER:  No, Your Honour.

57HIS HONOUR:  I thank counsel for their assistance in the trial and the plea.

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