Director of Public Prosecutions v Donohue

[2019] VCC 1881

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-00370
CR 19-00456

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH DONOHUE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	24 July 2019
DATE OF SENTENCE:	13 November 2019
CASE MAY BE CITED AS:	DPP v Donohue
MEDIUM NEUTRAL CITATION:	[2019] VCC 1881

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr T. Smurthwaite	Stary Norton Halphen

HIS HONOUR: 

1Joseph Donohue, my task is to sentence you for offences set out on two separate indictments.  The first indictment, J11533910, sets out offending committed with a co-accused, Nicholas Hawkins.  The offence on that indictment was an attempt to pervert the course of justice. 

2When I heard the plea and delivered sentence upon Mr Hawkins, I dealt with your offending conduct as well.  However, I will repeat what was said then for completeness.  I will then move to the offending on the second indictment, J11413933.2.  That indictment contains a single charge of sexual penetration of a child under the age of 16.

3In respect of the attempt to pervert the course of justice, what I said in sentencing Mr Hawkins, although you were there at the time, was that the unfortunate set of circumstances that gave rise to the offence of attempting to pervert the course of justice commenced on 23 March 2018, when Mr Hawkins was stopped while driving his father's car in Richmond.  He underwent the preliminary breath test, which returned a negative result.  He was then asked to undergo an oral drug test.  Instead of complying, he drove off at high speed.  At the time, he was not permitted to be driving, as his license had been suspended.

4Two weeks later, the same car, driven again by Mr Hawkins, was seen driving dangerously in Geelong in the early hours of the morning.  Attempts by police to intercept the car had to be abandoned due to the risks that were created.

5Later that day, you and Mr Hawkins - that is, you, Mr Donohue, and Mr Hawkins, went to a police station at Ocean Grove.  You, Mr Donohue, were questioned there and maintained falsely that you were the driver of the car in Richmond in March.

6Later on that day, you went to a chemist shop near the Ocean Grove police station, where you signed a statutory declaration, claiming that you were the driver of the vehicle on 4 May 2018, in the streets of Geelong when the police had to call off the attempted intercept of the car belonging to Mr Hawkins' father.

7Both you men, Mr Hawkins and yourself, Mr Donohue, had been close friends for many years.  It seems that you decided it would be better, or it was decided between the two of you that it would be better for you, Mr Donohue, to claim that you were the driver, rather than Mr Hawkins, because Mr Hawkins had no license.

8Thus for you, Mr Donohue, this was misguided loyalty which now comes at a high cost.  Attempting to beat the charging of the right person for serious criminal offences is itself a most serious crime.  The system of justice must be protected.  Punishments must deter others from thinking such bogus plans are worth the risk.  Also, the punishment must properly denounce this sort of conduct.

9With that said, the attempt to pervert the course of justice that you were involved in was clumsy and likely to be exposed, as it promptly was.  As I said at the time and repeat here, this was not the most grave example of that crime.

10As to the second indictment, on 2 March 2017, the 14-year-old victim was with her personal carer in central Geelong.  The victim has an intellectual disability.  She was a client of the Department of Health and Human Services from time to time.

11The victim met a young friend, and together they left the carer.  They went to where you were living in Geelong.  You were not there at that time.  There were drugs and alcohol at the place.  Shortly after arriving, the victim was given cannabis to smoke.

12At some point that night, after you came home, you and the victim ended up in your bedroom where you had sex penetrating her vagina with your penis, twice over the episode.  This was charged as one rolled-up charge of sexual penetration of a child under the age of 16.  You were 29 years old at the time. 

13In your record of interview, you denied having sex with the victim.  A committal was held, but only after an offer to plead guilty to sexual penetration of a child under the age of 16 was offered by you, through your lawyers, and rejected by the prosecution.  This is of importance in the consideration of the value of your plea. 

14Your plea of guilty is important, as you relieved a very troubled victim from giving evidence.  Your sentence will be less because of this valuable plea of guilty.  Your earlier offer means I see this, in truth, as an early offer of resolution.

15The impact on the victim has not been able to be directly determined.  There is, rightly, a presumption of damage or harm in offending of this kind.  Sexual offending against children creates harm that is often deep and enduring.

16The victim's mother made a written victim impact statement.  It set out what she felt.  She was troubled that she had to see her daughter deteriorate.  There had been difficulties in the past with the young victim, but she saw these as getting worse.  Both her and the siblings of the victim are much troubled by what had happened to the victim.  There were some difficulties with the evidence both of the victim's mother and a DHS worker.

17I take all that was said by the victim's mother in her written victim impact statement into account, and deal with it in a judicial way.  I am not overwhelmed by the impact on the victim, but nonetheless, I take into account that what you did has had an adverse impact upon the victim and her family.  The seriousness of this offending is established by the significant age difference between the victim at 14 and you at 29.  This is exacerbated by reason of her intellectual disability. 

18The availability of cannabis established a context that makes it more unfortunate for the victim.  This was not an intimate relationship with the victim, or in any sense, one that was developing or about to commence.  This was you simply satisfying your own sexual gratification without concern for the young vulnerable victim. 

19However, this was not a planned crime or one involving a breach of trust or exploitation of a relationship with clear power and balances.  There was no cunning grooming.  The circumstances arose there and then in that house, where the victim's friend had taken her, so that that friend could get or use drugs.  In that sense, it is not the most serious example of this offending.  I consider it not at the lowest end, it is above that.  All that said, as to the relative gravity of the sexual penetration of a child who was 14 years of age and had a intellectual disability.  It just only has to be said for this to be seen as a serious crime.  So much was conceded by your counsel.  Thus, denunciation and deterrent loom as the principal sentencing considerations.  The full extent or weight to be given to those sentencing purposes needs to be assessed in light of your personal circumstances, principally your enduring mental ill health.

20As to your personal circumstances, as I said to you briefly in the sentencing remarks that I delivered when dealing with both you and Mr Hawkins on 24 July 2019, you had turned by that point, 32.  Your prior offending commenced in 2006, with three appearances in that year for violence, public disorder and dishonesty offences.  Then you were before the Magistrates' Court again in 2009, 11, 12, 13, 16 and 17, but mostly for shoplifting offences. 

21I was told that you had an outstanding matter dealt with in the Magistrates' Court in October of this year, which you received an adjourned undertaking for twelve months.  You have been placed on community corrections orders to try and help you with your drug problems, for your dual drug addiction and unstable mental health.  But your counsel precis the key matters in your personal life in these terms.

22Your parents separated when you were two and thereafter, you lived with your mother.  You have one half sibling aged 17.  You were schooled to Year 10.  After leaving school, you participated in a carpentry apprenticeship, but discontinued thereafter.  Since then, you have had limited work involvement.  Such work as you have had has been as a removalist or as a painter.  You yourself have two children, aged 10 and eight, but you have negligible contact with one who is overseas and prior to going into custody, limited contact with the other.  You have been on a disability pension since your early 20s.  Throughout your 20s, you experienced lengthy periods of homelessness, but you did have some housing, especially at the time of this offending.  The offending occurred in a house that you had been at for perhaps the longest period of time.  Counsel submitted, perhaps as - but even that was only six months.

23Despite these matters that I have just outlined, you have continued to have the support of your mother who was in court here today.  That is important for your reform and I will elaborate on that shortly.  Your mental health is an important matter in the sentencing synthesis.  You have been, unfortunately, a regular client of the Mental Health Services in Geelong since 2005, when you were at the age of 18.  This is before any offending that came before the Magistrates' Court.

24The records at Barwon Health report your early use of cannabis and amphetamines.  You had a number of admissions as a consequence of acute drug induced psychosis.  Dr Best, the psychiatrist who assessed you at the request of your lawyers, went through the records and thought there were at least fifteen admissions to or attendances at the Emergency Department for psychosis symptoms, either drug induced or otherwise.

25In early 2009 you were seen with significant delusions, auditory hallucinations, drug use and homelessness.  This continued regularly over the next eight or nine years, until your remand.  But it involved you having significant ice use and psychosis as a consequence, suicidal behaviour and a chaotic lifestyle.  Ultimately a diagnosis was come to, being the very serious mental illness of schizophrenia.  There were voluntary and involuntary admissions under the Mental Health Act. 

26Dr Best, as I said, reviewed all the records and wrote the following.  This is in a report dated 14 June 2019:

'That you have a fourteen year history of mental illness and involvement with the Mental Health Services and a diagnosis of schizophrenia.  You have been treated with a range of antipsychotic medications, both depot and oral long acting and otherwise.  There is no doubt that you have a serious mental illness.  The interaction of this and your drug use is a significant problem'.

27Dr Best offered the opinion in the following terms:

'Mr Donohue has a diagnosis of schizophrenia, which is an accepted form of mental impairment.  In relation to the offending and his mental health, he has a long history of binging on ice, which precipitates psychotic relapse.  He has struggled with his symptoms for many years and the notes suggest months of continuous psychotic symptoms at times.

28Given this history and the offending history, it is likely that you struggle to think clearly and make calm and reason decisions at the time of your offending and that your judgment was impaired as a consequence of your mental illness and your illicit drug use.  As such, there appears to be a link between your impaired mental functioning because of your psychotic illness and your offending.  Your psychosis is likely to have effected your capacity to exercise appropriate judgment and make calm decisions and think clearly at the time of your alleged offending. 

29In the end, taking into account this considered opinion of Dr Best, and all the material before me, I consider your impaired mental functioning at the time of your offending, in respect of each matter on both indictments, was not itself drug induced.  Thus I can consider your moral culpability is lowered because of your impaired mental functioning.

30Thus there is mitigation by reason of your impaired mental functioning, in the sense that I will not visit the full weight of denunciation upon you.  So too, is my view that there must be general deterrence, but it is slightly moderated as a consequence of your impaired mental functioning.  You are, because of your impaired mental functioning, your schizophrenia, different and the community would not understand, using you as an example for others who may have sex with children, or attempt to pervert the course of justice.

31You have been in prison for 523 days.  You have done your best, but prison is more onerous on you because of your poor or fragile mental health.  You have not been under consistent treatment and for a time, stopped taking your antipsychotic medication.  You did so because you reason that you needed to be alert, this being your first time in prison.  Your moods deteriorated.  You have, since June when Dr Best provided her report, and July when I commenced the pleas in these matters, you have since then reconsidered this and have resumed your depot antipsychotic medication at the prison at Ravenhall where you are.

32You are in a setting at Ravenhall, which will help you with your mental health problems and it seems you are as stable as you have been in a long time.  This has led to the major development of your mother being willing, and able, to give you a chance to live with her and her partner upon your release.  Your previous drug behaviour and psychotic episodes in the past made this impossible.  This gives a significant boost to your prospects for reform.

33You have done all you can in prison with drug and alcohol courses.  This is to your credit.  You have become a billet which evidences your stable and responsible approach to things.  You are in protection with the rest of the services that you want to use, being available to you.  Thus I will take this added burden into account.  You have developed a more clear headed approach to things and have expressed remorse to your counsel for the impact of your crime upon the victim, having heard the victim impact statements from her mother and the like.  This is also an important development.

34Your counsel made a submission that the reporting of the case in the local paper was a matter that provided extra curial punishment.  Considering what he read out from the paper, I do not consider that this is a matter that gives rise to weight, mitigatory weight being attached to that particular concern.

35The sentence imposed on Mr Hawkins is something that I must consider when sentencing you for the offence that you committed jointly.  He too had serious mental health problems, schizophrenia, delusions and paranoid made worse because of his drug use.  His mental health was well managed in prison and his prospects were, for the first time, quite good.  He was sentenced to 13 months and 14 days imprisonment.  That is the time that he had served on remand and then he was placed on a community corrections order for 18 months. 

36While taking this into account and noting that he, Mr Hawkins, had more offences than you and was more culpable than you in the attempt to pervert the course of justice, in the end, you alone committed the sex offence and that is the most serious matter of all those you face.  Your counsel in a very considered and well prepared plea, both written and oral, submitted that for you at this point in your rehabilitation, and with your stability in your mental health at this time, that a community corrections order ought be considered to be punishment for you, along with the time that you have served to date in prison.  I took your submission to be that the programs that you could undertake, doing a community corrections order would aid you in your rehabilitation.

37The prosecution contended that what you had served in prison thus far was insufficient, and you ought receive a term of imprisonment, discerning of a non-parole period.  In the end, with the proper moderation of this sentence by reason of your mental health and the mitigatory factors such as your improvements and better prospects, I remain of the view that a term of imprisonment, with a non-parole period is the just and appropriate punishment for these offences.

38I am mindful of the principles set out in Bolton and also that you may have to serve every day of your head sentence, but there is and remains, after moderation, a need to denounce and deter others from exploiting circumstances, so that they can have sex with teenagers under the age of 16.  Those vulnerable children need to be protected.

39Thus doing the best I can, I impose the following penalties.  In respect of indictment J11533910, an attempt to pervert the course of justice, I impose a sentence of nine months imprisonment.  For the summary offence of committing an offence while on bail, I sentence you to one month imprisonment.  Those two sentences will run together concurrently, thus on that indictment, the total sentence is nine months.

40For the other indictment J11413933.2, the charge of sexual penetration of a child under the age of 16, a rolled up charge, I sentence you to two years and four months imprisonment.  I order that four months of the sentence imposed on J11533910, be cumulative upon the sentence that I have imposed on the indictment J11413933.2.  That gives a total effective sentence of two years and eight months.  That is 32 months.  I fix a minimum non-parole period of 20 months.  That is, you must do 20 months before you are eligible for parole.

41Five hundred and twenty-three days has been reckoned as the time that you have served on remand, awaiting sentence.  That figure having been reckoned, I declare that the 523 days is part of the sentence that I have just imposed.  I ensure this declaration is entered into the records of the court, so the prison authorities and the Parole Board are left in no doubt that you have already served 523 days of the sentence that I have just imposed.

42Had you pleaded not guilty to these offences and then found guilty of them, I would have imposed a sentence of five years, with a minimum of three for both indictments.  The order that I must make, it is a mandatory order because of the crime that you have committed of sexual penetration with a child under the age of 16.  That is you must be on the register, the Sex Offenders Register.  There is no discretion about that.  Likewise, there is no discretion as to the length of time.  The length of time you must be on that register is 15 years.

43Now what follows is that a document will be produced.  I will sign that document where I have to, to say I have given you a document.  You will then sign a document, Mr Smurthwaite will assist you, saying that you have got the document.  But it is the document itself that counts.  Mr Smurthwaite will explain to you, there are very significant responsibilities that you have to be on the Sex Offenders Register.  And there are very serious consequences if you do not do what is required and there is a lot that is required.

44I will not start to go through it, Mr Smurthwaite will help you in that regard.  All right, so I will sign that document.  Is there any other order required?

45MR McKENRY:  No, Your Honour, they're the matters.

46HIS HONOUR:  Thank you.  Can you just take that down to him
Mr Smurthwaite?

47MR SMURTHWAITE:  Yes, Your Honour.

48HIS HONOUR:  Note that you have signed a document acknowledging receipt of the notification, reporting obligations and the notification reporting period.  My associate will sign that document and serve it - ensure that it reaches the Chief Commissioner of Police.  Is there anything further required in this case?

49MR McKENRY:  No there's not, Your Honour.

50HIS HONOUR:  All right.

51MR SMURTHWAITE:  No, Your Honour.

52HIS HONOUR:  You will take Mr Donohue through what has occurred in terms of numbers and figures and give him so sense.  In the end Mr Donohue, I have not said it to you in the sentencing, but you will be released from prison at some point and your mother says she will take you back in and see how things unfold.  Do not let her down by getting back on drugs.  That will be the end of it.  Do you follow?  Thank you.  Mr Donohue can be taken downstairs.

53MR SMURTHWAITE:  Thank you, Your Honour.

54HIS HONOUR:  I thank counsel for their significant assistance, Mr Smurthwaite. 

55MR SMURTHWAITE:  Thank you, Your Honour.

56HIS HONOUR:  Feel free to head away downstairs and if you're able to ‑ ‑ ‑

57MR SMURTHWAITE:  Thank you, Your Honour.

58HIS HONOUR:  ‑ ‑ ‑ have a chat with Mr Donohue, that'll be kind.  Thank you.

59(At this stage the court proceeded with another matter.)

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