Director of Public Prosecutions v Day (a pseudonym)

[2022] VCC 312

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

WALTER DAY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 January 2023, 28 February 2023
DATE OF SENTENCE:	6 March 2023
CASE MAY BE CITED AS:	DPP v Day (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 312

REASONS FOR SENTENCE

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Subject:Criminal law – sentence – guilty plea

Catchwords:              Sentencing – cause injury intentionally – threat to kill – rape – 32 year old male offender – no active psychiatric disorder – moderate risk of further sexual and violent offending – category 1 offence – standard sentence of 10 years – serious sexual offender – high objective gravity – relevant criminal history of violence – history of breaching court orders – victim not a stranger – some degree of remorse – custody made harder due to COVID – Worboyes – guarded prospects of rehabilitation

Legislation Cited:      Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic) – Sex Offenders Registration Act 2004 (Vic)

Cases Cited:DPP v Mokhtari [2020] VSCA 161 – Brown (aka Davis) v The Queen [2020] VSCA 60 – Worboyes v The Queen [2021] VSCA 169

Sentence:Total effective sentence: 11 years – non-parole period: 7 years 3 months – declared pre-sentence detention: 1,123 days – s6AAA declaration: 12 years 6 months with a non-parole period of 8 years 3 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	P. Teo	Office of Public Prosecutions
For the Accused	J. McQuillan (for plea)	Bayside Solicitors
A. Tickner (for sentence)

HIS HONOUR:

1Walter Day,[1] you have pleaded guilty to causing injury intentionally (maximum penalty 10 years), making a threat to kill (maximum penalty 10 years), rape (maximum penalty 25 years; standard sentence 10 years; two charges), and common law assault (maximum penalty 5 years) relating to the events of 2-6 February 2020.

[1] A pseudonym.

Summary of offending

2The agreed basis for your guilty plea is set out in the prosecution opening dated 5 October 2022.

3In summary, in about February 2019 you and Ms Courtney Morris[2] commenced an intimate relationship. You broke up but reconciled a few times until Ms Morris ended the relationship for the final time in October 2019.

[2] A pseudonym.

4In January 2020, you started spending time with one another again. Among other things, you would take drugs and have casual sex together.

5On 1 February 2020 Ms Morris visited you at your mother's home in Hampton Park where you were staying in the garage.

6While you were together, you both used various amounts of GHB, an illicit drug that can cause euphoria, relaxation, drowsiness, impaired movement and speech, among other effects. Ms Morris also took her prescribed dose of Suboxone at about midnight. Ms Morris became drowsy due to the combination of drugs.

7At about 1 am on 2 February 2020 you started to question her aggressively about whether she had been with other men. You threatened that you would hit her if she did not tell you the truth. In fact, you punched her about four times to the head. You grabbed her by the jaw and forced her head into the ground three or four times. To protect herself, Ms Morris curled up on the couch in an attempt to protect herself. She held her arms over her head while you kept hitting her. This caused her swelling and bruising and some of her hair to be pulled out. (Charge 1, intentionally causing injury).

8You then threatened her, saying 'you’re not getting out of this alive' (Charge 2, threat to kill).

9You told her that you were going to rape her to 'make her feel how you felt'. You taunted her by saying 'your two minutes of fun, was it worth it'. You yelled at her to get onto the inflatable bed face down. She complied, reluctantly, and covered her head with a pillow for protection from you.

10You told her that she could resist, but that 'it would happen either way'. You pulled down her jeans and your own pants. She told you repeatedly 'don’t do it'. You then penetrated her anus with your penis repeatedly over an extended time, during which you called her a 'putrid whore' and told her that you were not going to stop (Charge 3, rape).

11At the end of that, you told her that her 'sexual punishment was over' and that she should 'get out'.

12Ms Morris, with only her top on, asked if she could put her clothes back on, but you refused. In an attempt to escape from you, she ran into the yard, but could get no further than a locked gate.

13She returned to the garage and told you that she needed to go the toilet, but you refused to let her back inside. Instead, you told her to use the ground, which she did. After about 10 minutes you let her back inside.

14Later that morning, she left and arranged for her ex-partner to pick her up from a nearby shop. Noticing her in pain and bruised, he asked what had happened. She told him she had been in a car accident in order to hide the truth of what you had done to her.

15The next day, 3 February 2020, you went to Ms Morris's home with two of your friends and took her to a mutual friend's home in Pakenham. After arriving there, she again took GHB and then fell asleep, waking the next morning at around 11 am.

16During that night, just after 3 am and while Ms Morris was unconscious and her pants having been removed, you penetrated her anally with your penis. She had not consented to this, and you knew that she was unconscious and not in a position to decide whether she consented (Charge 4, rape).

17You video recorded the incident on your phone, also without her consent.

18A few days later on 6 February 2020, you were again at a mutual friend's home with Ms Morris, using GHB. During that night, again while she was asleep, you searched her phone and found emails she had sent to a friend. You became angry and threw her phone at her. You threatened her by saying, 'I thought you would have learnt your lesson'. You then punched her to her head (Charge 5, common law assault).

19The mutual friend saw this, told you to leave and you did.

20

The next morning, on 7 February, Ms Morris again contacted her

ex-partner and asked for his help. Upon meeting her, he pressed her about what was going on and she told him you were an animal and you had raped her. He took her to the police where she reported your offending.

21In her Victim Impact Statement dated 14 December 2022 (Exhibit A), Ms Morris revealed that due to your actions, she suffers from increased anxiety that leads to panic attacks. She struggles to sleep. She has had to have teeth removed and replaced with costly dentures in part due to your violence. Her bruises took weeks to recover. She has been depressed and unable to function well, being scared of loud noises and unduly frightened by day-to-day occurrences. She is under ongoing treatment.

Procedural history

22Police arrested you soon after the complaint on 7 February 2020 and you have remained in custody since that date.

23Police interviewed you about the allegations and while you admitted you had sex with Ms Morris while she was unconscious, you said it was consensual because she had previously said it was okay and knew what was happening. They seized your mobile phone and found the videos you had recorded in relation to Charge 4.

24You conducted a contested committal hearing on 17 March 2021, during which Ms Morris was cross-examined about the events in question. You were committed for trial on 18 March 2021.

25Your trial was set down to commence on 18 May 2022. On the first day of the trial you pleaded guilty to the current charges, a second allegation of assault and an allegation of theft having been withdrawn.

26Your guilty plea, coming at that late stage, nevertheless had some utilitarian benefit. It permitted the Court to hear another trial that may not have been reached during a time when the resources of the Court have been sorely strained due to the Covid pandemic. You will receive some further recognition for your plea in these circumstances.

27You have remained in custody during the entire period of COVID restrictions. You have been the subject to extra burdens during that time, including lockdowns, limited or no personal visits, restricted access to courses and other programs. I accept that this has made your time in remand more burdensome, and I will moderate your sentence accordingly.

Personal circumstances

28You were 32 at the time of offending and are now 35 years old. You are the youngest of five children and grew up in Hampton Park. You reported a volatile homelife in part due to your father's alcoholism and violence to your mother and siblings. While some material reported that you were yourself the victim of sexual abuse, your counsel specifically withdrew any reliance upon that suggestion.

29Your family life became fractious following the separation of your parents in 1992 when you were five.  You report close contact since with your sister and mother, but little to no contact with your remaining family.

30Although you report only intermittent contact with your father in your teenage years, he died when you were about 19 and you were only told about it on your 21st birthday. This had a significant effect on you.

31Your mother is now 78 years old and suffers from severe arthritis and kidney disease. While you have been in custody, she has been hospitalised for health reasons including fractures due to falls. Prior to your remand you acted as her primary carer, and you have ongoing concern for her welfare.

32While it was not suggested that any hardship your mother suffers due to your absence is exceptional, I accept that knowing you are not able to provide in-person support for her makes your time in custody harder for you.

33As a child you attended Hampton Park Primary School and then Hampton Park Secondary School. You remember being bullied at school for your 'weight, acne and clothes'. You left half-way through Year 11 to join the workforce.

34You worked as a roof tiler for six months and then as a butcher at a local supermarket for about a year. You went on to commence an electrical trade, working for a small business and subsequently started an electrical apprenticeship. Later, you completed an apprenticeship in carpentry.

35In your undated letter to the Court (Exhibit 6), you stated that you started smoking cannabis and drinking alcohol when you were 14 years old. You later started taking methylamphetamines and when you turned 30, your downfall began when you started using ice.  

36You acknowledge that at the time of offending you were involved in a toxic circle of relationships with people who fostered your drug taking. You smoked cannabis daily, used ice and consumed GHB regularly. It is clear that your drug taking was a relevant factor in your offending and this will feature in your risk of re-offending when you return to the community.

37During your remand in 2021 you completed courses and programs (Exhibit 5). You completed the 24-hour drug treatment program, the Take Stock program and vocational programs, all of which is to your credit. You have worked in the metal workshop, meat work and in despatch, which you say keeps you busy and out of gaol politics.

38You report you regularly go to church services. I hope that this provides some encouragement to look inwards at your attitude towards violence against women and your drug use.

39You attend Narcotics Anonymous while at Karreenga prison and rely on a letter from David O’Halloran who coordinates those meetings and confirmed your attendance (Exhibit 3).

40You have not yet taken part in courses focused on anger management, violence prevention and sexual offending while in custody, although you say you are willing to do so.

41You have a relevant criminal history dating back to 2007 when, for an assault and being drunk in a public place, you were placed on a community correction order. In 2016, you were convicted and fined for a further assault and making a threat to kill. In 2018, you were convicted and fined for breaching a family violence intervention order.

42In early 2019, for causing injury recklessly and breaching a family violence intervention order against Ms Morris, the same victim as in this case, you were convicted and placed on a community correction order with conditions that you be supervised, engage in mental health treatment, and participate in programs to deal with your offending behaviour.

43Later, on 24 October 2019, you returned to court on a breach of that order and for further offending against Ms Morris consisting of breaching an intervention order and assault. You were sentenced to 39 days imprisonment in combination with a further CCO requiring you to be supervised and engage in relevant programs.

44At the time of your offences in this case, you had been released from prison for about 10 weeks and were on a community correction order for relevant offending against the same victim. Any success you had on that order clearly did not prevent this significant escalation in your offending.

45Consultant Clinical Psychologist, Dr Paul Grech assessed you and provided reports dated 29 September 2022 (Exhibit 1), 22 November 2022 (Exhibit 2) and 23 February 2023 (Exhibit 4). He stated that while you report a constellation of symptoms, in his opinion, none suggest any active psychiatric disorder.

46Your counsel, Mr McQuillan relied on the following opinions of Dr Grech:

(a)   You are ashamed, embarrassed and remorseful about your offences having made poor decisions at the time due to being affected by your cannabis use;

(b)   You experience prison harder because of your anguish due to not being able to care for your mother;

(c)   You are a low risk of future violence;

(d)   You are a very low risk of escalating violence if you remain drug free;

(e)   You are at the low end of the risk continuum for sexual offending;

(f)    You are keen to avail yourself of treatment for sexual offending;

(g)   You have improving insight.

47As to your risk of further offending, I note that Dr Grech's opinion in his first report was that your risk of future sexual offending was at the 'low end'. He stated that he formed that opinion based on a four-item screening tool. When questioned about this opinion, he expressed confidence that if he were to apply a more detailed assessment tool, his opinion would not change.

48

In his February 2023 report (Exhibit 4), he stated that he had by then applied the STATIC-2002 risk assessment tool and that you scored on only 3 of the 13 items that it contains. On that basis, he calculated your risk to be

low-moderate, to adopt a description of your total score provided by the tool.  He said this was consistent with his previous indication about your risk.

49When questioned in Court during a further plea hearing, however, he conceded that he had made a number of errors. He accepted that there were in fact 14 items to the STATIC-2002.

50As to item 8, whether your case involved an 'unrelated victim', he conceded that he assessed you on an incorrect understanding of the term – he said he thought 'unrelated' referred to cases where there were more than one victim and that the victims were unrelated. When asked to refer to the coding rules for this item, he accepted that the item was rather directed to the relationship between the offender and the victim. He agreed that you should be scored for that item.

51After being asked to review whether he scored you correctly on other items, he agreed that he had failed to do so properly.

52Ultimately, Dr Grech agreed that you should be scored as having satisfied 8 out of the 14 items in the risk assessment tool. This resulted in you being in the moderate risk range. Your individual score, he admitted, rather than being in the low end of the spectrum, actually placed you in a group of offenders who re-offend somewhat more than the median sexual offender.

53Dr Grech offered no real explanation for his failure to assess you correctly. To be clear, his assessment of your risk stated in his most recent report, Exhibit 4, was incorrect to a significant degree.

54I do not make any finding about whether Dr Grech intentionally misled the Court. I do, however, find that his opinions based on his risk assessment in Exhibit 4 do not meet the applicable standard for expert evidence as set out in the relevant Practice Note to which he, himself, referred on p2 of his November 2022 report (Exhibit 2).

55My dissatisfaction with this risk assessment leads me to question the reliability of other opinions expressed by Dr Grech.

56As to opinions that your counsel relied upon, set out in (a)-(g) above, I find as follows.

(a)   Remorse and the cause of your poor decision-making. Dr Grech made no reference to you using ice at the time or in the lead up to your offending, only cannabis. This is surprising because he had reference to your letter (Exhibit 6) in which you wrote that from age 30 you used ice. While I am concerned that Dr Grech's assessment of the circumstances of your contrition may have understated the relevant factors, I am willing to accept that you appreciate the seriousness of your offending now and that you are beginning to understand the nature of its consequences.

(b)   I have accepted that you find prison harder, knowing that you are not able to care for your mother on a day-to-day basis.

(c)   Risk of violence. In his first report Dr Grech stated your risk of future violence 'may be considered to be a low to moderate risk' (Exhibit 1, p 12). In his second report he changed that opinion to you 'may be considered to be low risk' (Exhibit 2, p 12). The basis for his opinion was stated as follows:

'The examiner also made reference to the RRASOR (Rapid Risk Assessment for Sex Offence Recidivism; Hanson, 1997) and items from the Sexual Violence Risk-20 Scale (SVR-20; Boer, Hart, Kropp, & Webster, 1997) in formulating an opinion in relation to Mr. Day's risk of re-offending sexually.'

The report makes no mention of any risk assessment relating to violent offending as distinct from sexual offending. In the context of Dr Grech's unreliable opinion about your risk of sexual re-offending and the lack of any stated basis for a distinct assessment of your risk for further non-sexual violence, I am not satisfied that you are lower than a moderate risk of future violence. You may be a higher risk, given your history of violent offending, but I cannot be sure of that.  

(d)   Risk of escalating violence if drug-free. There being no indication in the material of any basis for a further distinct assessment of this type of risk, I am not satisfied of the reliability of this opinion. It remains, however, that your recent offending has occurred when you have been affected by drugs and your abstinence may well reduce your risk. But this remains to be seen.

(e)   Risk of further sexual offending. I will disregard Dr Grech's opinion in Exhibit 4, as I have already indicated.

(f)    Interest in rehabilitation. Dr Grech stated an opinion that you are keen to engage in treatment. His field of work includes providing such treatment and I am willing to accept that he has detected a promising degree of interest in you for it. In my view, however, regardless of statements you make at this stage of your sentence, the real value of treatment is to be determined when you have proven your engagement in it, for example, at a time when you are being considered for parole.

(g)   Insight. Dr Grech stated your insight is improving. I am willing to accept this, given he has assessed you on more than one occasion. It must be said, however, that the degree of your improvement is a matter for future assessment.

57Your letter (Exhibit 6) candidly outlines your family history, engagement with employment and your experience during your remand. You made no mention, however, of the effect of your conduct on Ms Morris. This is telling of your level of remorse. I note that Dr Grech observed you were guarded about your offending and expressed shame and embarrassment for 'putting your own family through it'. I am prepared to accept your remorse is genuine, but that it is limited with respect to the victim. I attribute little to moderate weight only to your remorse, consistent with your late plea.

Sentencing issues

58Rape is an inherently serious offence. It is an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological.[3] The community expects that the courts will unequivocally denounce and punish conduct of this kind and send the clear message that it will not be tolerated.

[3] DPP v Mokhtari [2020] VSCA 161.

59The seriousness with which offences of rape will be dealt is also reflected by it being a 'category 1 offence' under the Sentencing Act, requiring courts to impose a term of imprisonment unless certain narrow exceptions apply. No such exceptions arise in your case.

60Further, its seriousness is reflected in the applicable 'standard sentence' of 10 years. The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range. It is a guidepost that I will take into account along with the maximum penalty and all other matters relevant to your case, including your personal circumstances.

61In your case, Part 2A of the Sentencing Act, which provides for heavier sentencing of serious offenders, applies. You will be considered a serious sexual offender if I impose imprisonment on Charges 2, threat to kill, and 3 for rape. The consequence of that is that when sentencing on Charge 4, rape, I must regard community safety as the primary sentencing purpose and impose a disproportionately long sentence to achieve this purpose, if necessary. I must order that that sentence be served cumulatively upon other sentences, except to the extent that I order otherwise.

62In your case, the prosecutor does not submit that I should impose a sentence on Charge 4 that is disproportionate to what you did that night. However, I must not order concurrency in relation to this sentence under the totality principle so as to undermine the intention of the serious offender provisions.

63The objective gravity of your rapes of Ms Morris is very high. You beat her immediately before anally penetrating her. You did so knowing she was in a weakened and vulnerable state due to her medication and drug use. She repeatedly told you not to do it, making it clear to you that she was not consenting, but you went ahead in spite of her plea. You berated and demeaned her while you raped her. Further, you committed this most serious assault on her bodily and sexual integrity, by your own words, to 'punish her'.

64The second occasion was only a day later. Again, Ms Morris was vulnerable and asleep or unconscious when you raped her. While this incident was not said to include other acts of physical violence such as the previous occasion, you took footage of what you did to her without her consent – a serious act of denigration. It is made more serious by virtue of the fact it was a repetition of what you did only a day before.

65You did all this within weeks after being released from prison and while you were serving a community correction order both for previous violent offending against the same victim.

66Both incidents, considered objectively, fall above what might be considered the middle of the range of seriousness for this offence.

67Just punishment for such heinous crimes, strong denunciation, and both general and specific deterrence call for a lengthy sentence of imprisonment in this case.

68You have a criminal history of some significance, if only because of the repeated offending against the same victim involving assaults and breaches of orders that were tailored to prevent such offending and to assist you to deal with the personal problems that contributed to you committing them.

69I have not lost sight of the fact that the incidents currently before this court are the first of a sexual nature. However, your ongoing violence is very concerning. Your offending can to some extent be distinguished from worse cases on the basis that it is not said you engaged in any significant planning, you were not a stranger, you did not use weapons and you did not offend against Ms Morris in her own home.

70Further, in your favour, you have pleaded guilty, albeit late, you have accepted responsibility for your actions, you have to some extent facilitated the course of justice, you have some degree of remorse, you have saved Ms Morris from having to give evidence at trial although you contested the committal, your time in custody during the pandemic has been harder than it should have been,[4] and your plea should be warranted with an appreciable reduction in sentence because it helped clear the backlog of cases in this court.[5]

[4] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

[5] Worboyes v The Queen [2021] VSCA 169.

71I regard your prospects for rehabilitation, bearing in mind your history and repeat offending as well as your stated interest in treatment, to be somewhat guarded.

72In all the circumstances, I regard your offending to be moderate to high in all the circumstances and must attract a lengthy term of imprisonment. I am required by s11A of the Sentencing Act to set a non-parole period of at least 60 per cent of the total sentence. In all the circumstances, including your history and recent breaches of therapeutic orders, that period will be set higher than that minimum.

73I sentence you as follows:

(a)   On Charge 1, intentionally causing injury – 2 years

(b)   On Charge 2, making a threat to kill – 6 months

(c)   On Charge 3, rape – 9 years

(d)   On Charge 4, rape – 8 years

(e)   On Charge 5, common law assault – 1 year

(f) Having sentenced you to imprisonment on Charges 2 and 3, being a sexual offence and a violent offence arising out of the one course of conduct as defined by Part 2A of the Sentencing Act, you are a serious sexual offender for the purposes of that Part. Accordingly, on Charge 4, I have sentenced you as a serious sexual offender and have regarded the protection of the community as the principal purpose for that sentence. I have not imposed a sentence on that charge that is disproportionate to your offending, but I have had regard to your status on this offence in determining the degree of concurrency to be ordered in relation to it.

(g)   Six months of the sentence on Charge 1 is to be served cumulatively upon the sentences imposed on Charges 3 and 4.

(h)   Six years 6 months of the sentence on Charge 4 is to be served concurrently with the sentence on Charge 3.

(i)    The total effective sentence is 11 years.

(j)    I fix a non-parole period of 7 years 3 months.

74I declare that you have served 1,123 days pre-sentence detention and direct that this period be reckoned as a period already served under this sentence.

75In accordance with s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed 12 years 6 months and fixed a non-parole period of 8 years 3 months.

Ancillary orders

76The prosecutor applies under s11 of the Sex Offender Registration Act 2004 for a Sex Offender Registration Order.

77Such an application may be made because you have been found guilty of two charges of rape of an adult, each of which is a Schedule 3 offence under that Act, rendering you a serious sexual offender under that Act and therefore liable to such an application.

78I may make such an order if I am satisfied beyond reasonable doubt that upon your release you pose a real risk to the sexual safety to one or more persons in the community. If I find that you are, I may only proceed to make the order if, having balanced the serious burdens that such an order would place on you against the nature and gravity of your risk that you pose, I am satisfied that the order should be made in order to achieve the purposes of the Act, namely, to reduce offending and assist investigation.

79I am not satisfied beyond reasonable doubt that you will pose a real risk of sexual safety to anyone upon your release.

80You fall into a category of offenders that reoffend at a rate somewhat above the median, but not a high-risk offender. This offending was against one person, a casual sexual partner, over a relatively short period when both of you were affected by drug use. I find that those circumstances and the lack of any other sexual offending in your history suggest that your offending was significantly context specific.

81Even if I am wrong about the degree of risk you will pose upon your release, having balanced the onerous reporting obligations that would flow from making such an order against the magnitude of the risk and the nature of it that you pose, I would nevertheless have refused the application.

82The prosecution seeks a forfeiture order in relation to the phone you used to take the videos relevant to Charge 4. That order is unopposed, and I make the order, as sought.

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