Director of Public Prosecutions v Dempsey

[2018] VCC 959

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17 02354
CR 17 02355

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL DEMPSEY

‑‑‑

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING	12 April 2018
DATE OF SENTENCE:	4 June 2018
CASE MAY BE CITED AS:	DPP v Dempsey
MEDIUM NEUTRAL CITATION:	[2018] VCC 959

REASONS FOR SENTENCE
‑‑‑

Subject: Rape - 1 charge - common assault - 1 charge - intentionally causing injury - 1 charge
Sentence: 15 years' imprisonment/non-parole period 11 years.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Piekusis
For the Accused	Ms Lamovie

1HIS HONOUR:  Michael Dempsey, you have pleaded guilty to one charge of rape for which the maximum sentence is 25 years imprisonment.  That offending occurred on 1 April 2017.

2In addition, you have also pleaded guilty to two charges arising from two separate incidents both of which occurred on 15 July 2017.  Charge 2 is a charge of common assault for which the maximum penalty is imprisonment for 5 years.  Charge 3 is a charge of intentionally causing injury for which the maximum penalty is imprisonment for 10 years. 

3The circumstances of your offending are contained in a prosecution summary dated 15 March 2018, which I marked as Exhibit B.  The summary was read in open court by the learned prosecutor Ms Piekusis and your counsel Ms La Movie agreed that it was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is therefore, not necessary that I here describe in full all of the circumstances but will do so in an abbreviated way.  These sentencing remarks must be read however, in conjunction with what is contained in the prosecution summary.

4The victim in Charge 1 was a 19 year old woman.  She was a German national holidaying in this country.  She was unknown to you.

5At about 10.30 pm on the night of offending you travelled with a friend in a taxi to Frankston.  The both of you went to the Grand Hotel where you consumed alcohol before you were asked to leave by security staff.  You then went to a take away food shop in Frankston where you both met another female friend.  Soon after the three of you went to the Pier Hotel where you played the pokies and consumed more alcohol, and you were then driven to the Frankston Surf Life Saving Club car park where you smoked methylamphetamine (ice), before the three of you went to a house in Seaford where together you watched YouTube clips.

6At about 2.53 am, you left the house supposedly for a cigarette.

7Meanwhile the victim, who had been to the football with friends at the MCG, arrived at the Seaford Station by train at approximately 3.07 am.  She was alone.  She left the train station and commenced walking home.  While doing so she needed to go to the toilet and stopped in a picnic area of the Seaford North Reserve to relieve herself pulling down her jeans to do so.  As she was about to stand up you approached her pulling her arm causing her to fall backwards landing on her back.  The victim was unable to pull her jeans up.

8You lay on top of the victim and pressed against her whilst swearing at her.  The victim managed to push you off, and run a short distance away but you persisted and chased her down despite your own pants being down to your ankles.  You pulled the victim back down to the ground and she landed on the asphalt surface of the car park.  You again lay on top of the victim penetrating her vagina with your penis causing her pain.  You were erect, and did not wear a condom.

9You placed your thumbs on her throat and pushed her down into the ground causing her more pain.  The victim pushed your hands away but you again put your hands on her throat and pushed down again.  The victim pleaded with you to stop.  She told you she was from Germany and aged 17.  You asked her if the guys in Germany were doing this as well.  You then placed a hand inside the victim's mouth and pushed down to the back of her throat.  You did this repeatedly causing the victim to gag and you caused scratches and abrasions to her throat.

10You told the victim to spit into your hand which she did.  You then grabbed the back of her hair and pulled her head down.  You ripped the victim's T-shirt and bra open, breaking her bra.  Whilst all of this was going on you continued to sexually penetrate her vagina with your penis. 

11The victim eventually stopped resisting you, fearing what further you might do to her if she continued to struggle.  Eventually you stopped and withdrew your penis from her.  You sat next to her and told her she could go whereupon she grabbed her backpack and jacket and ran to her residence barefoot leaving behind her pants and shoes.  She was unable to say how long your attack on her took other than to say it, "Felt like a long time".

12You took the victims jeans and shoes and threw them away no doubt conscious of your need to avoid detection.  You had been captured on CCTV approaching the scene of your crime at 2.56 am although you could not be recognised from the footage as it was dark and you were very much in the distance.  The victim had also been captured clearly on CCTV alighting the train and moving from the station and walking along Railway Parade, Seaford towards the point where you attacked her.  The police have also painstakingly plotted on a computer program, your movements relative to the victim.  This was tendered in evidence on a USB stick exhibit B.

13At 3.25 am, your male friend sent a text to you, to your mobile phone enquiring as to your whereabouts.  You replied to this message at 3.56 am, stating you had gone for a walk.  A short time later you re-joined your friends at a hotel, telling them you had gone for a walk.

14When the victim got home she showered and complained of having been raped and the police were called.  Her jeans and shoes were recovered some days later and given to the police.  DNA evidence would later link you to this crime.

15A medical examination of the victim at 8.50 am, the following morning revealed she suffered a number of injuries in the form of bruising, abrasions and lacerations consistent with your attack upon her to her head, neck, chest, abdomen, back, buttocks, right arm and hand and right leg and foot and the left leg and foot.  A feature of the injuries found to exist on medical examination was the existence of petechial bruising to areas of the head and neck and chest and abdomen.  Such a finding can sometimes be associated with choking or strangulation.

16Examination of the victim's genital revealed 3 x 3cm area of bruising and swelling surrounding a 5cm laceration of the posterior fourchette, as well as a rounded abrasion measuring 1 cm in diameter to the left side of the hymen.  Blood was also present in the area of the high vagina but the source was not visualised because it was too painful for the victim for the examination to continue.

17When you were apprehended after the offending in Charges 2 and 3, strong DNA evidence linked you to this offending in Charge 1.

18Obviously, your offending in charge 1 is a serious example of the crime of rape, a description accepted by your counsel.  No doubt disinhibited by having consumed the dreadful drug ice, as well as having consumed alcohol, before you attacked the victim, you brazenly attacked and raped a vulnerable young woman who was alone, and in a relatively isolated but public place in a park, in the early hours of the morning.  Your crime of rape was associated with both violence and force injuring the victim, and was utterly degrading and belittling of her.  You subjected the victim to what could only have been a terrifying ordeal, not only inflicting the shock and horror for her of being sexually violated, but because of the ferocity of your attack upon her you placed her in fear of what you might physically do to her.  That fear was well justified given the force with which you placed your hand down her throat.

19True it is that you acted alone, and your attack upon the victim would appear to have been unplanned and spontaneous and you were unarmed and you did not attempt to hide your identity although it was dark. 

20These facts do little to reduce the level of seriousness of your offending for which your moral culpability is very high.  I agree with the submission of the prosecutor that the circumstances of your offending in Charge 1, place this offence towards the upper level for this offence.  The level of seriousness for which this offence can be gauged from the fact that the parliament has proscribed a maximum penalty of 25 years imprisonment.  Sentencing in a case such as this for this offence must properly apply the principle of general deterrence.  That is to say, people like you who in a drug and alcohol fuelled state, seek to violently rape women who are alone at night in a public place, must be deterred from doing so by the sentences imposed by the courts.  Because of matters that I will come to later, in your case the sentence must also properly apply specific deterrence to ensure you do not re-offend in this way and the sentence must serve to denounce your offending, and so far as is possible protect the community from you.

21I admitted into evidence as Exhibit E, a victim impact statement from the victim in Charge 1.  In it she details how your offending has affected her life.  What she has set out is a story of which the courts are only too familiar, resulting as it does from this kind of offending.

22She has recovered from the physical injuries you imparted upon her, but emotionally and psychologically she has not.  She lacks confidence and feels unsafe when alone.  She becomes anxious and nervous at different times.  She thinks about what you did to her every day, and wrongly she blames herself for having given you the opportunity to act as you did.  Needless to say, she has negative thoughts about Australia because of what you did to her. In passing sentence I have taken the victim impact statement into account as I must.

23I turn to the second charge.  Three and a half months later you again offended against another woman. 

24On 15 ^July, you boarded a train at Richmond station at about 6.30 pm, after having consumed about 15 beers and ice at a local hotel.  You sat opposite the victim in Charge 2, who was seated listening to her iPhone and minding her own business.  As the train came to a stop at Hawthorn station you stepped towards the victim rushing at her and you grabbed her from her seated position by her jacket and hair.  You then dragged her out of the train and across the station platform for approximately three metres.  You pulled her by the hair.  Your intent seems to have been to drag the victim out of the train as you as you dragged her towards the exit point.

25The victim screamed for help and fortunately members of the public came to her assistance, whereupon you released hold of the victim and escaped running towards Burwood Road.  The victim sustained injuries of a grazing kind to her right hand, bruising to her right elbow, right hip, right knee and some hair was ripped from her skull.  CCTV footage depicts you getting onto the train at Richmond and leaving the train at Hawthorn, dragging the victim by her hair on to the platform at Hawthorn station.

26And so again you attacked a woman whom you did not know in a violent unprovoked attack, in a very public place on a train.  You used force and injured the victim.  Again, you were affected by the drug Ice to which you were addicted and alcohol.  Again, your offending would appear to have been unplanned, spontaneous, and you did not use a weapon, but again those facts do little to reduce the high level of your offending for this offence. 

27In my view, the victim was lucky to have escaped with moderate injuries.  Had it not been for the intervention of members of the public who intervened and chased you from the scene, the victim may have received more serious injuries.  The victim is depicted in the CCTV.  She picked herself up and reboarded the train.   Nonetheless, your sudden and unprovoked attack must have been a terrifying experience for the her.  After all, before you attacked her, all she was doing was minding her own business whilst seated on a train. 

28I admitted into evidence a victim impact statement from her which I marked as Exhibit F.  At first she feared for her life.  She said she didn't fight back because she did not know if you were armed with a weapon.  As sudden and as violent as your attack upon her was, that is perfectly understandable.  She continues to be apprehensive and unsure of people even in public places and is forced to relive the events somewhat, as she still has to travel on the train and passes the scene of your crime on her way to and from work on a daily basis.  All of this is perfectly understandable and a direct result of your offending.  In passing sentence I have also taken the victim impact statement from the victim in Charge 2 into account, as I must.

29In my view, your offending in Charge 2 violent and as sudden as it was, is probably within mid-range for this kind of offence.

30A short time later the offending in Charge 3 occurred.  It was also aimed at a woman alone.  After you left the scene at the Hawthorn station, you remained in the area.  One can only conclude that you were totally disinhibited by drugs and alcohol.

31The victim in Charge 3 left her apartment located nearby and walked to a nearby tram stop in Burwood Road, but having missed the tram she decided to walk to Richmond station.  This is a perfectly normal thing for any woman to do at 6.45, in the early evening.  But as she walked along Burwood Rd, she came into your sight and you ran across the road and grabbed her in a bear hug style from behind, pinning her arms to her upper body and dragging her into some nearby bushes.  The victim felt you lifting her towards a garden bed on Burwood Road.  She fell to her knees, whereupon you repeatedly punched her to her face and head.  She screamed loudly for help.  You told her to, "Stop fucking screaming and get into the bushes,"   The victim fell to her stomach whilst you continued to punch her head and you attempted to push her further into the garden bed.  The victim continued to scream during your assault upon her.  You said, "Stop fucking screaming or I'll kill you,"

32You then grabbed her around the neck with both hands and placed pressure around her neck causing her to choke.  In her statement, the victim said things then became blurry for her.  Whilst you chocked her you continually stated, "I'm going to fucking kill you,"  The victim thought she was going to die, she became dazed and confused from lack of oxygen.

33You only stopped your assault when interrupted by members of the public who came to assist.  One such person armed himself with a golf club and came to assist.  You ran from the scene chased by members of the public who commendably made a citizen's arrest of you.  The victim suffered pain, bruising, abrasions and swelling as a result of your assault.  Photographs of her injuries depicted in Exhibit D evidence the degree of violence that you imparted to her, especially the bruising and abrasions evident on her head, face and eyes. 

34This was a violent, cowardly attack by you.  It is a very serious example of what is a serious offence.  There are a number of aggravating features of it.  You attacked a woman alone, near a park at night and by using your fists and strength, inflicted a high level of violence resulting in the injuries to the victim.

35Again, you did not use a weapon and you were not disguised and your offending was unplanned and spontaneous, but those features of your offending are hardly ameliorating.  Your offending was again very serious.

36The victim in Charge 3 has also made a victim impact statement, Exhibit G.  She too has recovered from the physical injuries but she has had to change the way she lives and her daily activities which she previously took for granted.  She no longer feels safe in a number of situations. She says she has a feeling of dread upon waking up and in the weeks after the assault suffered anxiety. She has had to move out of the house she shared near the scene of the crime because she has a connection with your assault upon her when she walks out the front door.  The attack occurred only metres from her home. She has had to go home and live with her parents.

37You have pleaded guilty to the charges and that is to your credit.  You pleaded guilty at the first committal mention.  By your pleas of guilty you have saved the time, and costs of perhaps three trials.  By your pleas of guilty you have thus facilitated the course of justice.

38I treat you as having indicated that you would plead guilty at the earliest opportunity.  There was no committal hearing and your pleas have saved each of the victims of your crimes from having to give evidence against you and from having to relive the terrible ordeal to which you subjected each of them.

39Further, I treat your pleas of guilty as evidence of your remorse for your offending and I note you have expressed your remorse to Dr Gee, a psychiatrist who examined you for the purposes of furnishing a report of his opinions about you for the purposes of this plea hearing. 

40I turn to some matters related to your background and personal circumstances.

41You are now aged 26.  When arraigned you admitted a number of prior convictions from 8 previous court appearances.  You have convictions for criminal damage, dishonesty, possessing dangerous articles, driving offences, theft of  motor vehicles, possession of methylamphetamine and other drugs, trafficking cannabis, possession of both prohibited and controlled weapons and other offences.

42You have had a number of community corrections orders and breached all but one of them.  On 16 December 2016, at the Dandenong Magistrates' Court, you were convicted of driving and drug offences and placed on a Community Corrections Order for six months with conditions which you failed to comply with, and your offending in Charge 1 occurred whilst this community corrections order was on foot.

43On 26 March 2014, you were convicted in the Dandenong Magistrates' Court of recklessly causing injury.  You received a community corrections order on that occasion which you breached. 

44The circumstances of that offending involved violence by you towards another woman, your former girlfriend.  I received a summary from police records that shows in March 2013, you broke up with your then girlfriend after she tired of your drug use.  You would not take no for an answer and you pursued her trying to get her phone.  When she refused, you grabbed her in a bear hug and she fell to the ground where you wrestled with her causing her to suffer scratches to her hand and face.  This happened in public. A passer-by observed you over powering the victim placing yourself between her legs.  Whilst you did this you were observed to be pulling her hair whilst you attempted to grab her phone from her.

45Your criminal record is perhaps typical of a long term drug user.  The conviction in 2014 for recklessly causing injury must be taken into account here.  In sentencing you I must have proper regard to the principle of specific deterrence.  The sentence must be sufficient to deter you from offending again.  You have been given a number of non-custodial dispositions in the past in an effort to assist you to rehabilitate yourself whilst out of custody.  By and large you have shunned the opportunities given to you by the courts.  This is your first time in custody.

46Ms La Movie provided a helpful lengthy outline of her submissions on your behalf which I marked as Exhibit 1.  She conceded that for this offending you must receive a significant prison term.  She submitted your offending occurred in a context of increasing use of both drugs and alcohol.  She submitted that your chances of rehabilitation are enhanced because you have now attained some insight into the harmful effects of substance abuse on your emotional regulation.  She submitted you are now aged 26 and you were 25 at the time of the offences, and you are still relatively young.  With appropriate level of support prior to release and supervision whilst on parole Ms La Movie submitted your prospects for rehabilitation will be increased.  In this regard, she relied upon the evidence and a report from a psychologist Dr Dion Gee dated 15 February 2018, Exhibit 2.  Dr Gee interviewed you at the Melbourne Remand centre over three hours on
19 January 2018.  During this time he also conducted psychometric assessments and risk assessments related to your risks of re-offending in a sexual way.

47I appreciate that you are still relatively young and that much of your offending is drug related.  From what you told Dr Gee, it appears that your offending against women and your attitude to women has its genesis in failed past relationships, and how you perceive yourself as being wrongly treated by past girlfriends.  I accept that your rehabilitation depends upon you receiving proper treatment for your drug and alcohol problems and for your attitude to women.

48However, you have been a long term drug user and you have had many opportunities in the past to receive treatment and change your ways, but you have not because you have not been motivated to grasp the opportunities you have been given.  I accept that based on what you told Dr Gee that you have some limited understanding and insight into what causes you to offend which suggests a glimmer of hope for your rehabilitation, but in my view your prospects for rehabilitation remain poor.  Much depends upon you ridding yourself from drugs outside of a prison setting and completely changing your attitude to women.

49You do have a supportive family and your mother was in court to support you.  I also received into evidence a letter from your brother who told me that he will be there for you to assist you when released.  You have some work skills and you have had some relatively recent employment history.

50You are one of two boys to your parents.  You were raised in Springvale and Cranbourne.  Your mother works as a nurse and your father runs a cattle farm.  Your brother works in the construction industry.

51You had normal schooling completing year 12 and you involved yourself in sporting activities.  You commenced a course at Chisholm TAFE with an apprenticeship in metal fabrication.  You completed almost three years of study whilst working in your father's then business.  However, you dropped out after conflict with your parents about your drug use.  They asked you to leave the home and for 2 to 3 years you struggled to find somewhere to live.  Your family has maintained contact and support but they would not tolerate your drug use.  That is perfectly understandable yet you did nothing about it.

52You did some casual concreting work, and in 2017 you commenced working at a company engaged in fire testing.  By June 2017,  you were employed on a full time basis.  At the time of your arrest you were living with the friend with whom you were drinking and imbibing drugs on the night of the first offence. 

53I accept that drugs have ruined your life.  You were drug affected at the time of all this offending.  That helps explain your offending, butt in no way excuses it.  I was told and accept you have struggled with addiction to methylamphetamine (ice) since the age of 19.  You do not inject but smoke the substance.  You unsuccessfully attempted treatment whilst subject to Community Corrections Orders.  I was told you tried with some success to stop using ice after the first offence of rape but you smoked the drug again on the day you committed the other offences.

54I was told you were diagnosed with depression aged 19, after the breakup with your first significant relationship.  Your general practitioner placed you on a Mental Health Treatment Plan and diagnosed Lexapro for depression and anxiety.  You also had counselling.  You stopped this treatment because you thought you were not making progress.  In custody on remand at the Hopkins Unit at Ararat, you have been again prescribed Lexapro.

55You were moved to Ararat Hopkins Unit from the remand centre in July 2017, after you were assaulted by other prisoners.  You are visited in prison by your parents and brother and they contact you by phone.  You are on the waiting list for drug and alcohol programs and you work in the metal fabrication factory at the prison Monday to Friday.  You also play football.

56Dr Gee was of the opinion that you have some limited insight into the fact that your drug taking has played a part in your offending.  He also thought you appropriately acknowledged that you would need treatment for your mental health and well-being in order to regulate your emotional state and better understand your aberrant behaviour.  In his report, Dr Gee said that you expressed appropriate empathy for the victims of your crimes describing your conduct as inhumane.

57Dr Gee expressed a number of opinions.  He thought you have a long standing dependence on drugs and alcohol, generalised anxiety and depression.  He thought you suffer a remerging depressive disorder of mild to moderate severity with melancholic features.  In passing sentence I have taken this into account and note that you are now appropriately treated in custody.  You told Dr Gee that you are managing all right in prison.

58As to the assessment of your future risk of sexual violence using the Static 99R Assessment, Dr Gee thought you to be well above average risk.  Using the RSVP assessment tool this assessed you to be a moderate to high risk of re-offending sexually.  He opined, "Mr Dempsey presents with a moderate-high risk of re-offending sexually in the future, and presents with a moderate risk of future general violence."

59Dr Gee made a number of general recommendations that will assist your rehabilitation.  These included custodial treatment for your mental health, a group based sex offender program, intensive group based intervention. 

60Ms La Movie having conceded that the seriousness of your offending means that I must impose a significant term of imprisonment.  She also conceded that some cumulation is warranted for the individual charges.  However, she submitted that this must be balanced against the principles of both totality and parsimony which must also apply.  She agreed that in sentencing I must properly apply important principles of general deterrence, just punishment, protection of the community and denunciation.  But she submitted applying these principles, the sentence imposed must not overwhelm rehabilitation, which I must also have regard to.  I accept you are still relatively young and that you will be middle aged, under 40 years when released from prison.  I accept there is still some hope you can lead an offence free life.  But in my view, the hope is but a slim one as attempts to have you change your ways in the past have not worked, not only by the courts but also by your family.  As I said earlier, I regard your prospects for rehabilitation as poor.  I must also properly apply the principle of specific deterrence and I must protect the community from you.

61Ms La Movie asked that I provide for a generous period on parole, which she submitted, would enhance your prospects for rehabilitation.  I have fixed what I consider an appropriate non-parole period.  If granted parole when eligible you will have a possible four year period on parole which should be sufficient to enable you to access the kind of assistance you require.

62On Charge 1 rape, you are convicted and sentenced to a term of imprisonment of twelve (12) years.

63On Charge 2 assault, you are convicted and sentenced to a term of imprisonment of two (2) years.

64On Charge 3 intentionally causing injury, you are convicted and sentenced to a term of imprisonment of four (4) years.

65I direct that one (1) year of the sentence imposed on Charge 2 and two (2) years of the sentence imposed on Charge 3, cumulate upon the sentence imposed on Charge 1 making a total effective sentence of fifteen (15) years imprisonment.

66I direct that you serve a minimum term of eleven (11) years imprisonment before being eligible for release on parole.

67I declare there has been 324 days pre-sentence detention, of the sentences passed this day, and I direct that 324 days be reckoned as having been already served under the sentences passed this day and be entered into the records of the court and be deducted administratively.

68For the purposes of section 6AAA of the Act, I state I have imposed sentences being terms of imprisonment, and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of twenty (20) years and I would have fixed a non-parole period of fourteen (14) years.

69Charge 1 rape, is a class 3 offence for the purposes of the provisions of the Sex Offenders Registration Act 2004.  Pursuant to s. 11 of that Act, the court on sentencing you for the offence of rape has a discretion to make a sex offender registration order, the effect of which is that you will have reporting obligations for a period of eight years under that Act.  The making of that order was not opposed.  Further, I am satisfied beyond reasonable doubt that you pose a sexual safety risk to women in the community generally.  Accordingly, I make a sex offender registration order the effect of which you are a registered sex offender with reporting obligations under the Sex Offenders Registration Act 2004 for 15 years.

70I have been asked to sign a disposal order relating to various items.  This application was not opposed and I have signed the order.

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