Director of Public Prosecutions v Donald-Roberts

[2018] VCC 1413

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00640

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS DONALD-ROBERTS

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2018
DATE OF SENTENCE:	5 September 2018
CASE MAY BE CITED AS:	DPP v Donald-Roberts
MEDIUM NEUTRAL CITATION:	[2018] VCC 1413

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual assault; Common Assault; Early plea of guilty; Acquired Brain Injury; Compromised intellectual functioning; Moral culpability reduced by offender’s mental health and cognitive difficulties; Impact on victim; Protection of the community.

Legislation Cited:                   Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic).

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571, R v Verdins & Ors (2007) 16 VR 269.

Sentence:  Total Effective Sentence: Three years imprisonment.
  Non-parole period of 18 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn	Office of Public Prosecutions
For the Accused	Mr B. O'Sullivan	Ann Valos Criminal Law

HIS HONOUR:

1Thomas Donald-Roberts, you have pleaded guilty to one charge of sexual assault contrary to s.40 of the Crimes Act 1958 (Vic) and one charge of common assault contrary to common law.

2You further pleaded guilty to a summary offence that on 9 August 2018, you dealt with property suspected at being the proceeds of crime and also that on 9 August 2017 you possessed a controlled weapon without lawful excuse.

3At the hearing of your plea, the prosecutor tendered a summary of prosecution opening which summarised your offending in some detail.  In short, that offending comprised the following:

4At around about 7 pm on the evening of 8 August 2017, you went to visit a friend who I will describe for the purposes of these remarks as XY at an address in North Melbourne.  You then met the victim in this matter who I will describe for the purposes these remarks as AB, who at that time was 19 years of age. During the evening, you spoke with the two women whilst drinking wine from a cask.  Towards the end of the night, you asked XY if you could stay the night at her place however she refused.  At that time, you had apparently been living with your father and stepmother in North Melbourne but due to some problems between you, you were unable to continue to stay there. After unsuccessfully trying to make arrangements to stay elsewhere, you ultimately borrowed a blanket from XY and went to sleep on the roof of your father's apartment building. 

5Sometime later, the victim, AB, came to check on you to see if you were all right.  Once she found you, she sat down next to you and asked if you were okay.  You responded by saying you wanted a kiss. AB said, "No" but you nevertheless sat up and kissed her on the lips with an open mouth.  She reacted by pulling back and you then grabbed her by the back of her head and pulled her face towards you in an attempt to kiss her again. As AB pushed you away and started to get up, you reached up and pulled her back onto the ground and got on top of her using your legs to hold her down.  She struggled and pleaded with you but you did not let her go.  You then pulled the victim's pants down to her knees and pulled at her underpants in an attempt to get them down also.  You then placed your hand inside the front of her underpants and touched her on her vagina. Those actions constitute Charge 1.

6AB was able to roll onto her side so that your hand came up of her underwear.  You began to kiss her on the neck, the victim managed to reach her phone and dialled XY's number.  You continued to try to remove the victim's clothes while she continued to resist you.  She screamed and called for help.  You then started strangling her from behind with your right hand and arm. At this point, the victim struggled to breathe and felt dizzy and faint.  AB broke free but you grabbed her again and in so doing, slammed her head into the ground.  She screamed again and you grabbed her around the throat using enough force to prevent her from making any sound. Those actions constitute Charge 2.

7Once XY heard the sound of the victim screaming calling for help over the phone, she rushed straight to the rooftop where she encountered you pinning AB to the ground and attempting to remove her clothing with one hand and holding her throat with the other.  XY ran over and punched you yelling,

"What the fuck are you doing?"

8You responded by letting go of the victim and stated,

"What's going on?  I blacked out."

9You then left.

10XY called 000 and soon afterwards police arrived and commenced their investigation.  AB attended at the Centre Against Sexual Assault of the Royal Women's Hospital where she was medically examined. She was there found to have sustained the following injuries;

a)Bruising and redness to the right side of her neck;

b)Tenderness behind her left ear;

c)Bruising to her left lower arm, lower back, right knee, on two areas of her right thigh; and

d)A cluster of abrasions on her lower right abdomen.

11You were arrested the following day and at that time, you were found in possession of the driver's licence and Medicare card belonging to a Benjamin Williams.  It is the possession of those items that constitute the summary offence of dealing with property suspected of being the proceeds of crime.

12You were also found with a flick knife hidden in your underwear and the possession of that weapon constitutes the summary offence of possessing a controlled weapon without lawful excuse.

13You were interviewed by police in the presence of an independent third person in relation to the sexual assault allegations and you generally made no comment in respect of those allegations but stated that you could not remember what you did the previous day because you were "off your face". In relation to the cards belonging to Mr Williams, you said that you had found them on a bus earlier that day and you made no comment with respect to your possession of the flick knife.

Impact of offending

14AB provided a Victim Impact Statement of 30 August 2018 which she read to the court.  This offending has had what she described as a "huge" impact on her.  Over the years, she has suffered from a number of debilitating mental health problems and she explained that she was getting her health back on track until this incident.  What you did to her has set her progress back considerably. She stated that after this attack, she felt that she had been badly damaged and/or struggling "worse than ever" such that still, 12 months after the incident, she continues to battle to overcome the setbacks that this has caused her.

15In short, the impact of your offending has been very damaging for the complainant.  That fact must be a significant consideration in formulating the sentence that must be imposed.

Personal History

16You were born 23 March 1993 and are now 25 years of age.  It appears that your mother abused methamphetamine whilst she was pregnant with you and you were born prematurely.  I infer from the psychological material made available on the plea that this must have had an adverse effect on your development.

17From an early age you exhibited significant behavioural problems.  You lived with your mother and father up until the age of seven at which time you were placed in the care of the Department of Human Services. 

18Your parents separated when you were ten years of age.  You lost contact with your father for approximately ten years after that separation. You did return to live with your mother intermittently between the ages of 12 and 14 but because of persistent behavioural problems, those arrangements did not last.

19Whilst in care, you were frequently assaulted and abused by other residents.  You were also introduced to drug use at a very early age.  You attended six different primary schools but you were unable to concentrate.  You were easily distracted and you were disruptive.

20It was evident that throughout your schooling, you had significant learning difficulties and struggled socially.  You ultimately completed Year 8 at Kensington Community School.  Since leaving school, you have been unemployed and in receipt of the disability support pension because of your acquired brain injury.

21As I have indicated, you were introduced to drugs at a very early age.  By the age of ten or so, you were regularly using cannabis and at 12 to 13, you were chroming and soon afterwards began both methamphetamine and heroine abuse.  Thereafter, drug use has been an almost daily feature of your life.  I am told that you currently receive methadone to manage your addiction whilst in custody.

22When you were about 16 years of age other Department of Human Services residents injected you with a large quantity of fentanyl.  Following that overdose, you reported greater difficulty in learning and functioning which led to a diagnosis of an acquired brain injury.

23You suffer from a range of disorders and disabilities including schizophrenia, acquired brain injury, intellectual disability, major depressive disorder, antisocial personality disorder and a substance abuse disorder relating to methamphetamine and heroin abuse. 

24You have an extensive criminal history that generally consists of what might loosely be described as drug and street offending which reflects your struggles with mental health, addictions and homelessness. You have now spent 392 days in custody in respect of these offenses and that is the longest time you have ever spent in prison.  Significantly, you have no prior convictions for sexual assault or sexual offending of any other description.  It is also of some significance that you are now no longer estranged from your father and that both of your parents attended your plea hearing and are now supportive of you.

25Mr O'Sullivan who appeared on your behalf relied upon a psychological report from Alice Crole of 24 May 2018 and a neuropsychological report from Dr Linda Borg of 28 August 2018. 

26In her report, Ms Crole identifies a number of factors which compromise your mental functioning including deficits in your cognitive abilities, exposure to drugs in utero, chronic polysubstance abuse at a young age when your brain was still developing, acquired brain injury sustained from a  drug overdose and repeated physical assaults. It is apparent that you have at various times suffered from symptoms of psychosis and/or schizophrenia although that illness I am told is now being better regulated through medication.  Ms Crole states

"These factors may have further compromised his executive function skills such as the ability to reason, regulate his behaviour, and override impulse for reward."

27Ms Crole goes on to state

"In sum, it is my opinion that Mr Donald-Roberts' cognitive deficits may have reduced his moral culpability in relation to index offence of sexual assault and rape.  Further neuropsychological assessment is warranted to more robustly validate this conclusion. Although he now displays psychotic symptoms in relation to the offending, (e.g. believing he was set up as part of a greater scheme), his moral culpability seems to have been unaffected by his psychotic disorder at the time of the offence."

28Following up Ms Crole's recommendation for neuropsychological assessment, Dr Linda Borg assessed you on 15 August 2018 in order to clarify your cognitive status diagnosis and provide an opinion regarding the impact of your various conditions on your offending behaviour.  Dr Borg was also asked to comment as to strategies to assist you with future treatment and management.

29She states

"At assessment, Mr Donald-Roberts exhibited a high degree of psychomotor agitation.  Speech rate was slow and effective blunting was observed.  Thinking was characterised by ongoing low grade paranoia although responses to questioning revealed some awareness into his current circumstance – despite somewhat egocentric tendencies.

Nevertheless, Mr Donald-Roberts passed measures designed to screen for motivation and appeared to apply appropriate effort on cognitive testing.  Hence, it is considered that his current neuropsychological profile is likely an accurate reflection of cognitive capabilities under the above conditions."

30Under the heading of "Findings", Dr Borg went on to say,

"Formal assessment revealed that Mr Donald-Roberts demonstrated a full scale IQ of 64 (1^st Percentile Range at 95% Confidence Interval = 61-69).  However, numerous statistically significant differences were demonstrated across the various indices and consequently, his Full Scale IQ cannot be considered a reliably summary of ability. Considerable strength was demonstrated in perceptual processing as compared to verbal abilities.  Consistent with overall IQ, Mr Donald-Roberts literacy was at Grade Prep equivalent.  Deficits in higher-order attention negatively impacted on his capacity for memory and new learning bilaterally.  Recall at delay was intact only for material that had initially been repeated.  Without such structure, moderate rates of forgetting were demonstrated.  Response to recognition cues was somewhat variable - albeit within functional limits. In terms of executive functioning, Mr Donald-Roberts demonstrated adequate mental flexibility despite unilateral impairments to reasoning (affecting the verbal domain) fragmented thinking and significant impulsivity.  This was evident in the context of adequate problem solving capabilities."

31Finally, under the heading of "Opinion", Dr Borg concluded as follows,

"His current profile is considered reflective of the combined impact of neurodevelopmental verbal learning disorder with psychiatric and personality factors as well as a mild hypoxic brain injury exacerbating these underlying cortical vulnerabilities resulting in greater compromise to functioning from day to day."

32As to future treatment, both Dr Borg and Ms Crole urge that you should engage with the specialised offender assessment and treatment service to provide sexual offender treatment and that it is imperative you receive ongoing psychiatric treatment and remain abstinent from drugs.

Submissions

33Counsel on your behalf pointed to your plea of guilty as constituting an important factor in mitigating your sentence.  Whilst that plea was not entered at the very earliest opportunity, it was certainly entered before committal and as such has significant utilitarian value and operates to facilitate the course of justice. It is also indicative of some remorse.  I note that some of the comments you made to Ms Crole, which suggest a lack of remorse, were made in the context of exhibiting symptoms of psychosis and, accordingly, I will not place any weight on those comments.

34Mr O'Sullivan submitted that you have suffered from profound disadvantage throughout your life and that disadvantage is relevant to some extent in assessing your moral culpability for this offending.  The principle he relied upon is articulated in the decision of Bugmy v The Queen [2013] 249 CLR 571. He also argued that the complex of illnesses and disorders from which you suffer engage the principles set out in the R v Verdins & Ors (2007) 16 VR 269. In this respect, he relied upon Dr Borg's opinion that,

"It is considered likely that his cognitive deficits were a contributing as opposed to causal factor in his recent offending."

35Your counsel submitted on the strength of those matters that it was open to impose a sentence imprisonment in respect of this offending in combination with a community corrections order directed towards treating the many problems that you have.

36Mr Glynn, who appeared on behalf of the prosecution submitted that the only just and appropriate sentence that could be imposed having regard to the seriousness of this offending was a term of imprisonment with a non-parole period.  He pointed to the particular features of this offending that rendered it very serious including the violence associated with the sexual assault and the high degree of violence which constituted the second charge of common assault.

37A further aggravating feature was the fact that you had been placed on bail in respect of unrelated offending only a few hours before this incident.  Mr Glynn argued that the question of whether the principles in Verdins case were engaged was by no means straightforward.  None of your illnesses or conditions could be said to be causal of the offending although, as I understood Mr Glynn, Dr Borg's opinion could be relied upon to establish some connection between the offending and your particular deficits. In that sense, there was possibly some room for some small reduction in moral culpability and lesser emphasis on general deterrence.  He argued, however, considerations of specific deterrence and protection of the community remained all the more important.

Findings

38This is a serious example of sexual assault and common assault.  I accept the Crown's submissions that the violence associated with the sexual assault and the high degree of violence associated with the common assault necessitates the imposition of a term of imprisonment.  The impact that your offending has had on the victim of this attack reinforces that conclusion.

39I do not accept that it would be either just or appropriate that any term of imprisonment imposed should be combined with the imposition of a community corrections order.  In my view, this is a case that requires the imposition of a term of imprisonment together with a non-parole period.

40I should make it clear to you that the term of imprisonment that must be imposed will be substantially reduced because you have pleaded guilty.  I also accept that your horrific background and the myriad of mental health and cognitive difficulties from which you suffer operate to reduce your moral culpability to some degree and in my view render you much less suitable as a vehicle for general deterrence.

41Whilst it is very difficult to assess your prospects for rehabilitation, it is encouraging that you appear to be amenable to treatment and supervision.  Balancing the various competing sentencing considerations as best I can, the sentences I will impose are as follows. 

42Would you mind standing for a moment please Mr Donald-Roberts?

43On Charge 1, you will be convicted and sentenced to a term of imprisonment of two years and six months.

44On Charge 2, you will be convicted and sentenced to a term of imprisonment of 15 months.

45On the summary offence of dealing with property suspected of being the proceeds of crime, you will be convicted and sentenced to one month imprisonment.

46On the further summary offence of possession of a controlled weapon without lawful excuse, you will be convicted and sentenced to 14 days imprisonment.

47I will further order that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.  The sentences imposed in respect of the two summary matters will be served concurrently with the other sentences imposed making a total effective sentence of three years' imprisonment.

48I will fix a non-parole period of 18 months.

49I will declare pursuant to s.18 of the Sentencing Act 1991 (Vic) that the period of 392 days already served should be declared as part of that sentence.

50I will further declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, you would have been sentenced to a total effective sentence of four years and six months with a non-parole period of two years and nine months.

51I will order forfeiture of the blue-coloured flick knife.

52I will further order that pursuant to s.464ZF(2) of the Crimes Act 1958 (Vic), that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with Subdivision 30(a) of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.

53I should inform you Mr Donald-Roberts that if at the time of the request for the mouth scraping which is to be done under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and - sorry, I will put that again.  If you do not consent to the taking of a mouth scraping by an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.

54Would you mind just taking a seat for a moment please, Mr Donald-Roberts?

55Mr Glynn, if I could check with you, have I covered all of the orders that the Crown sought with respect to this matter?

56MR GLYNN:  Yes, Your Honour.

57HIS HONOUR:  Yes.  Thank you.  Mr O'Sullivan, any matters arising?

58MR O'SULLIVAN:  No, Your Honour.

59HIS HONOUR:  Yes.  I will ask that Mr Donald-Roberts be taken down please.  Thank you.  Can I thank counsel for their assistance?

60MR O'SULLIVAN:  If the court pleases.

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