Director of Public Prosecutions v Dart

[2015] VCC 167

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY DART

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 – 23, 27 January and 23 February 2015
DATE OF SENTENCE:	23 February 2015
CASE MAY BE CITED AS:	DPP v Dart
MEDIUM NEUTRAL CITATION:	[2015] VCC 167

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Offender	Ms O. Trumble	James Dowsley & Associates

HIS HONOUR: 

1Gregory Charles Dart, on 27 January this year, you were convicted by a jury after a short trial of two charges of rape.  You are now 30 years of age, and were 26 years of age at the time that the offending took place.  Obviously, having been convicted by a jury, you did not get the benefit of the discount for a plea of guilty and clearly in your situation, there is no evidence whatsoever of remorse.  You do not have prior convictions for sexual offending.  You do have a number of prior convictions for violence against, as I understand it, a female though those convictions date from 2004 to 2007 and involved something in the order of three separate actual gaol sentences.

2The first thing is that because of the nature of the offending that you will be placed on the sex offenders register, and I advise you that the reporting conditions will be for 15 years - and if you could just get him to sign that, please.  Could you go down with him please Ms Trumble if you would.

3The first thing I take into account insofar as this matter is concerned is that it occurred back in 2011, and you were not charged for over a year after that.  You were then apparently the subject of a warrant which was not executed for about a year, but in any event, you now fall to be sentenced some four years after the event.  That is a significant factor in this sentencing process.  I also am very much aware that you were acquitted by direction on four charges on the original indictment, and the material in relation to those simply goes to the lead up to the offending as it took place.

4The circumstances of the offending were that the complainant was 17 years of age.  She has a mild intellectual disability with an IQ score of 56 and suffers from Attention Deficit Hyperactivity Disorder and Asperger's spectrum.  You yourself clearly suffer from ADHD and have done for a significant period of time.  You had known each other for about two years as you had been in a causal relationship with her sister during 2010.  You had previously had consensual sex with the complainant about a  year earlier, and there had been contact since.  On 11 March 2011, at approximately 9.41 pm, the complainant sent a group text to her friends asking how they were.  You answered that text.  A series of exchanges then took place, and I accept for these sentencing purposes that the complainant in effect invited you to her house.

5Evidence was given by her mother of various conversations that took place, but I would not place a great deal of reliance upon that.  In any event, between two and three o'clock in the morning you arrived in your car at the complainant's house.  She says she was having a cigarette outside.  I suspect she was meeting you.  In any event, you went in and the mother of the complainant was in bed as she said she was unwell.  She tried to telephone her daughter, but was effectively told to "fuck off" each time she rang.  The two of you sat in the lounge room in the unit, on the couch.  I point out at this stage that your record of interview gave a very different description as to what took place, as to what the complainant did.  I am certainly not sentencing you for any of the conduct that occurred prior to those charges for which you have been convicted. 

6I, in general terms, accept her description beyond reasonable doubt of what took place.  She said that in the kitchen area you pulled her up against you and pinched her bottom.  She said you then went to the living room area and were again seated on the couch.  She was playing on the floor with her dog, when you placed your hand up her dress and inserted your fingers into her vagina.  You were also kissing her on the mouth.  You then took her underwear off, and at that point in time, she said no.  She said she did not want you to.

7Those incidents to that point gave rise to two indecent assaults and a rape.  The verdicts of acquittal were directed because there was no evidence before the jury that even if the complainant was not consenting, that she had conveyed that lack of consent to you.  There was a situation then when, on the couch, she had turned her head away and had said no from then on in.  The jury were clearly satisfied beyond reasonable of a verdict with which I agree, that you were fully aware that she was not consenting.

8She was again on the floor playing with one of her dogs, when you got off the couch and pushed her onto her back.  You then got on top of her and were kissing her while putting your fingers into her vagina.  That gives rise to charge 5 of rape.  You then pulled your own pants down, pulled your penis out, put it into her vagina and started having sex with her.  She said "very hard".  You then ejaculated, saying to her "you're so tight".  That gives rise to charge 6 of rape.'

9Apparently her mother then turned her light on in a bedroom and the complainant went to speak with her.  During that period of time, it makes really no difference in this overall circumstances, you left.  She then contacted you in one form or another, saying, "Where are you?  Did you just leave?" 

10She complained to her mother, who did very little about it at that point and in any event, you were subsequently interviewed.  When you were arrested and interviewed, you denied even any knowledge of the complainant.  Your record of interview was not merely a series of denials but was quite aggressively defensive.

11In any event, DNA swabs had been taken and you were not charged until some time after the DNA results of those swabs showed that there was an extremely high probability indeed that you had had penile sex with her, and had ejaculated inside her.  As a consequence of charge 6, she had a child.  That child was taken from her by DHS.  I have before me a victim impact statement which clearly outlines the distress and ongoing concern that has had for her.

12I am not in this sentencing situation going to speculate as to what totally took place within that room.  You would clearly have  been aware of her disabilities at least, and you went ahead and had sex with her totally disregarding her wish not to.  A child resulted.  Charge 6 is a serious example of rape, in my view, though certainly not at the highest end of the scale.  It calls for the application of general deterrence as well as in your situation, I believe, specific deterrence, despite a psychologist saying the risk of re-offending in a sexual nature is low.  There must also be denunciation and appropriate punishment.  As I indicated, the victim impact statement talks about the ongoing psychological damage that this rape has caused to this girl, and obviously I take that into account. 

13It is my view that you were invited there but for whatever reason, she determined that she did not want to have sex with you and you just simply went ahead regardless.  A significant custodial - active custodial sentence is inevitable.  Tendered on your behalf were a number of reports from Ms Lechner, psychologist, Mr Simmons, psychologist, a credit bail report and a Dr Jarman.  In your favour, you have clearly good family support who have been here throughout this trial with you.  You are regarded as having a low risk of sexually re-offending, though I note that you have previously been incarcerated on those number of occasions for domestic violence including assaults, threat to kill, breaching intervention orders and the like.

14You do not have the benefit of any of the principles in Verdins and obviously, as I have already indicated, you ran a trial.  The reports can be summarised in fairly brief form.  Dr Simmons said that you described your childhood as extremely troubled.  You went to six primary schools and a number of high schools.  You told your counsel that the happiest time you had at school was 12 months in a special school.  You were expelled in year 8 or 9, bit hard to work out which, for misbehaviour.  You have clearly, throughout your time at school, been engaged in fighting, general disruption and had great difficulties with that schooling.

15You have been diagnosed in the past with attention deficit disorder, and I refer to the report of Dr Jarman which goes back 2002 and clearly describes that condition.  You were diagnosed back then and were treated with Ritalin, dexamphetamine and Catapres and you also apparently had an EEG at around about that time.  You have had a number, before you were five or six years of age, of very serious traumatic incidents.  You were at one point present when your father was crushed by a motor vehicle and you thought he was dead.  You have been bitten in very savage circumstances as described to me by your counsel on the face by a dog, which required a lot of stiches and that apparently had ongoing concerns regarding self-esteem.  You also had the trauma of watching a motor vehicle in which your sister was a passenger hit a tree.  Those matters clearly must have had an effect upon you as a child, although none of the reports tendered on your behalf find that you have a post-traumatic stress disorder.

16You have at times, with what would appear to be drug-induced psychosis, been treated with Seroquel and Avanza.  Your counsel described to me the relationship that you had whereby all these prior convictions and gaol sentences arose.  You started using cannabis at about the age of 15, and then used amphetamine later on in life.  For someone who has been prescribed dexamphetamine as a child, that is not an unusual occurrence.  This offending, however, does not seem to me to be related to drug use but the aspects of drug use are important in terms of your long-term rehabilitation.  You told Mr Simmons that you had been on a disability support pension for as long as you could recall.

17I have taken into account all of the matters contained in this report, and also the matters outlined in Carla Lechner, the psychologist's report.  You would appear to be of average, perhaps low average intelligence and you are cognitively and emotionally immature.  You do seem to have an inability to see the other person's point of view and obviously become aggressive with anger problems when confronted or when denied.  The effect of those considerations in how this offending came about is really unknown to me, other than it became clear from the complainant that she regarded you as being most certainly a stronger and more angry, if I can put it that way, person than her.  You are in a current relationship and have the support of that partner.  You also, from a previous relationship, have a nine month old child.  It will not be until you are classified, I would suspect, that you will be able to see that child in prison but I accept what your counsel tells me that certainly over the last nine months or so, your parents have played an active part in endeavouring to achieve an element of stability in your life by contact with that child.  That should give you a basis for future hope.

18You were sentenced back in 8 March of last year to 180 days, with roughly 60 already having been served and that was in the Magistrates' Court.  Prior to receiving that sentence you have attended with the credit bail program, and I have read the report that has been forwarded by them.  Quite clearly, there were difficulties involved in all that but to your credit you attended all the appointments that were made for you, and it would appear that you made a genuine attempt to continue with your rehabilitation.  After you have completed the sentence that you were given back in March, you have not re-offended and I take that into account along with, as I have said, the significant delay that has occurred in all this.  So I take into account all those matters that I was told by your counsel, and the reports that have been tendered on your behalf.  In the end, however, it remains a serious offence.  It was a rape which had serious consequences for your victim and there must be a significant custodial sentence even allowing for the mitigatory factors that have been put.  I intend to give total concurrency for reasons of totality, and because they are very much part of the same incident.  In those circumstances, it is difficult to differentiate between forms of rape and I do not purport to be doing so though one gaol sentence is significantly less than the other and the fact of a child originating from one of them is a very significant factor in that.

19In any event, taking all those matters into account on charge 5 of rape, you are sentenced to be imprisoned for a period of two years.  On charge 6, four years.  I direct that those sentences be served concurrently.  It is an effective head sentence of four years.  I direct that you serve a minimum term of two years and four months, before becoming eligible for parole and direct that 27 days be reckoned as having been served under this sentence.  There are no other orders I need to make?

20MR DOYLE:  No, Your Honour.  No, sorry ‑ ‑ ‑  

21HIS HONOUR:  That's - all right.  Just take him now.

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