Director of Public Prosecutions v Drake

[2019] VCC 841

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00178

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN DRAKE

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 June 2019
CASE MAY BE CITED AS:	DPP v Drake
MEDIUM NEUTRAL CITATION:	[2019] VCC 841

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr P. Rose

HIS HONOUR:

1Jordan Drake, you have pleaded guilty to one charge of aggravated burglary, which carries with it a maximum penalty of 25 years and six charges of rape, which also carries with it a maximum penalty of 25 years. Twenty-five years is the second highest maximum penalty set by the Parliament of Victoria. You have also pleaded guilty to two charges of assault with intent to commit a sexual offence, which carries with it a maximum penalty of 15 years; one charge of attempted rape, which carries with it a maximum penalty of 20 years; and one charge of sexual assault, which carries with it a maximum penalty of ten years.

2This offending occurred in the early morning of Sunday, 14 October 2018.  It occurred in the home and its surrounds of your victim.  You, a five foot seven inches tall man, 25 years of age, of strong build.  Your victim, a petite woman, standing four foot eleven inches, weighing then some 45 kilograms.  She was 56 years of age.

3She identified you in part by a tattoo on your chest, which read, 'BRAVE'.  It occurred to me last night, which was the 75th anniversary of D-Day, where there was bravery, that there was also bravery that Sunday morning. It was hers; your victim’s bravery.  There is not a person in this court who will not see the irony that you could have that word, 'BRAVE', tattooed on your chest.  You, that Sunday morning, became every woman's worst nightmare.  And so I turn to the circumstances of this offending.

4You resided Shepparton with your partner and have six children. On the evening of the Saturday, 13 October 2018, you attended the Shepparton Show and then went on drinking alcohol with friends. Before midnight you knocked on the door of a unit in Shepparton, where a Kirk Stanton[1] resided.  There are four units there and you and Mr Stanton had known each other for a few years, but were not close friends.

[1] Kirk Stanton is a pseudonym.

5In his statement he says of you, having knocked on his front door he saw you standing there.  You said,

'Hi [Kirk], sorry to bother you so late.  Can I get a cool drink or a couple of dollars to get one?'

6He replied, 'No'.  There was some general chitchat for another minute or so.

7He describes you as quite stocky, solid in chest.  He also said that you were topless, which he thought it was a bit odd because it was quite cold.

8Your victim resided alone in her home in the unit next door to Mr Stanton's unit.  She had recently separated from her husband and moved into the unit. Most of the furniture was in storage.  Her bed was a camp bed in the lounge room. She had returned from her work that Saturday evening at about 10pm.  She watched TV, she knitted. She had changed into her pyjama pants and T-shirt.  She knew that the doors were locked, the windows were shut and secured with dowel sticks. She felt safe in her own home and so she went to bed on her camp bed. There were no lights on in the house.

9At about 5.30am that Sunday morning you forced open the bedroom window.  You entered with the intention of assaulting the occupant, a woman you had seen around. She did not know you. And so you entered, knowing her size and knowing where she lived.  Having got into the bedroom through the bedroom window you banged on the wall trying to find the light switch. Your victim was awoken. She got up to investigate.  As she approached the bedroom you turned on the bedroom light. She saw that you were naked, except for shorts that you held over your crutch. She fled to her bathroom, shutting the door and holding it closed with a foot, whilst pushing at the top of the door.

10You obtained a knife in the kitchen and attempted to force the bathroom door's latch using the knife. But when the tip of the knife broke off you used your strength to force open the door. You grabbed her. She, having sought harbour in her own unit.

11You forced her back into the lounge room, she did not resist as she was fearful that you would hurt her. You pushed her onto the camp bed face down. You pulled down her pants and inserted several fingers into her vagina, whilst rubbing her clitoris.  Thus, Charge 2, rape, and with the entry into her house Charge 1, aggravated burglary.

12You then pulled her onto the floor, grabbed her by the hair on the back of her head and shoved her head onto your penis. You were lying on the lounge room floor, you told her to suck it and lick it.  She initially turned her head away but you forced your penis into her mouth and made her suck on it and lick it also.  Charge 3, rape.

13She tried to flee. She ran and reached the front door, unlocked the deadlock and started to push it open, but you dragged her back into her own unit and shut the door. You resumed touching her vagina, which is not the subject of a Charge.

14Twice she had fled from you, once into the bathroom and once to the front door.  In what proved to be the first of a remarkably resourceful, and I might say brave acts, she had the presence of mind to suggest that the two of you should have coffee in order to distract you. She put on her dressing gown, which was on the floor and slipped a phone into one of its pockets. You helped to make two coffees and the two of you went out her back door to drink them. She hoped that this what create a further opportunity to escape from you. But you did not sit down and hovered over her.

15Pausing there, here was a clear opportunity for you to break off your attack upon her, to reflect on what you had already done and to stop. 

16You then told her some of your life story. Saying that you had seen her around and that you wanted to write her a letter. You said that you were friends with Kirk.  A reference of course to Mr Stanton and his unit next door, and that you had been at his place. She said that she knew Kirk was the name of her next door neighbour and she had an adjoining wall as part of the units, and she assumed that you were talking about her neighbour.

17You said that you started writing her a letter while she was at Mr Stanton's place.  Obviously not true. You also said that you had eight children, though as I understand it you had six, and a 'missus', as you described your partner.

18She asked you if you had a job and you told her that you had been in prison for seven years. She noticed that you had a word tattooed on your upper-chest in capitols, which I have averted to. Whilst drinking her coffee you continued to rub your hands over her body, which is not the subject of any charge but sets a context for the other charges that follow. You kept alternating between trying to arouse her and trying to get her to suck your penis. You again inserted your penis into her mouth. Charge 4, rape.

19When she did not cooperate you turned her around and pushed your penis against her anus. Charge 5, assault with attempt to commit a sexual offence.

20You having been unable to penetrate her anus you then briefly penetrated her vagina with your penis, which caused her pain. Charge 6, rape.

21She kept telling you that it was hurting. You said that you wanted to shave her vagina in the shower and picked her up and carried her inside, putting her down near the back door.

22Rape and humiliation was for you the order of the day. 

23Again, with bravery and resourcefulness she managed to convince you to go back outside so that she could smoke. The two of you went outside and she sat on a chair smoking. You spread her legs, knelt in front of her and inserted several fingers into her vagina.  Charge 7, rape.

24As you digitally penetrated her you licked inside her vagina. Charge 8, rape.

25You again mentioned shaving her vagina. You picked her up and carried her inside the unit. You then pushed her up against the back door and tried to penetrate her vagina with your penis. She told you, you should give up as she was suffering from menopause, which had 'stuffed up' her vagina.  Nonetheless you attempted to penetrate her for a few more minutes. Charge 9, attempted rape.

26She then again tried to distract you by telling you that she was hot and sweaty and needed to go outside in the cool air. You agreed to her going outside a third time, but you held onto her and did not give her a chance to escape. You continued trying to get aroused and 'mauling' her vagina with your hands.  Charge 10, sexual assault.

27You continued attempting to make her give you oral sex, which she refused.  You pulled her legs apart and tried to penetrate her vagina yet again with your penis, but she held her legs together. You then turned her around and unsuccessfully tried to penetrate her anus with your penis, which is the last Charge; 11, assault and attempt to commit a sexual offence.

28Again she tried to distract you by asking you to get her a drink of water and told you that there was a tap at the back of the unit. You, wary, told her to come with you. She pointed out that you could get her water in the watering can. You then said you needed to go to the toilet and began to walk back into the unit.  After having taken several steps she ran out the side of her unit and down the driveway of the unit towards the road. Eventually making her way to the backyard of her neighbour’s house and knocking on the door. She rang 000 whilst she waited for the door to be answered. Her neighbour let her into the house while she spoke to the police, telling them, 'I've been raped'.

29Her neighbour observed that she was shaking uncontrollably and was really distressed.  Having let her into her home she locked all the doors.  The responding unit received the call and 7.40am and arrived soon after.

30It is important to observe at this stage that there is no charge of unlawful detention and you are not to be sentenced for a charge that is not on the Indictment.  Though it provides the setting in which these offences occurred, namely your intrusion into her home, your controlling influence over her, your physical violence towards her and your keeping her in the premises. All for one purpose, your sexual gratification.

31I have once mentioned the opportunity that you had at the beginning of this, what was to become some two hour period of sexual attacks upon her, to reflect, to stop. But there were of course more than one such opportunity.  At the end of the day she fled from her own home.

32It is useful at this point to turn to her first statement, which became Exhibit 3 on the plea, in order to better understand how she felt during this period of time.  In paragraph 7 she wrote:

'As soon as I saw him, I ran to the bathroom and shut the door. I tried to hold the door shut by putting my foot against the bottom of the door and pushing on the top. He was far stronger than me and forced it open. Once he got the door open I thought "shit I'm dead"'.

33Whilst in the lounge room with her having been pushed onto the bed face down and you digitally penetrating her vagina she said in her statement at paragraph 9:

'I was too scared to move. I had the thought to scream but was worried that he would kill me if I did. I was so scared I couldn't think straight. I couldn't say exactly how long he did this but it felt like a long time'.

34During one of the breaks that she had engineered there was a conversation, which is detailed in paragraph 16 and 17:

'I asked him why Kirk had all the bars on his windows and he told me that somebody had robbed him at some stage and that's why he got them.  I asked him if he had a job and told me that he had been in prison for seven years. I wasn't sure if he meant total or in on stint. He also told me that he was very smart and that his mother had died on “the drink”. The guy then told me that he was from Yarrawonga and that he was either son of or related to the Scott family. I took that to mean the well known family from Shepparton. 

During the conversation he told me that he eight kids and two of them were twin boys who were four years old.  He told me he had a missus but didn't say anything else about her'.

35In her second statement, which became Exhibit 5, at paragraph 12 it is written:

'I remember being asked if I thought the man had been affected by drugs or alcohol when he was assaulting me. I am sure that he wasn't affected by either. He didn't slur his words or smell of alcohol. He didn't stumble around or anything like that. I've seen a few drunks in my time and he definitely wasn't in that shape. To me he seemed like he was fully in control or what he was doing and saying.'

36She concludes in that last statement, in the last paragraph by adding to how she escaped from you:

'I remember that when I eventually ran off from him, I heard him yell and carry on. I knew that he couldn't really follow me because he was stark naked and I was almost to the road in front of my units'.

37You have a long history of polysubstance abuse, with drugs and also alcohol.  You told the police that you had been drinking, and as I glean, taking drugs during the course of the day and evening. Given your history of chronic substance abuse I am satisfied that you were drug or alcohol affected, although that was not apparent your victim. I am satisfied beyond reasonable doubt, however, that you were clear headed throughout these events. You knew precisely what you were doing. Your attack on her was prolonged and determined, only stopping because she escaped from you.

38It is necessary for me to consider the objective criminality of your offending.  You knew of her and where she lived.  You came to the premises, her home, with that knowledge. You broke into her home, you violently confronted her.  She sought refuge in her own bathroom and you physically opened that bathroom door and physically moved her from the bathroom to her own camp bed in the lounge room. There was a start contrast in your strength and hers.  There was a stark contrast in your size and height compared to hers. There was a stark contrast in your weight and hers. You used all of this to your advantage.

39The attacks on her were prolonged. You penetrated her digitally and with your penis, and tried to penetrate every orifice of her; in the main, succeeding. This was a gross violation of her body, in her own home. It occurred in the early hours of what should have been a peaceful Sunday morning. The assaults occurred over approximately two hours. You had, as I have said, a number of opportunities, engineered by her to stop, to reflect. You did not. There are no less than six actual rapes, each with a level of violence. She tried to resist, she had no chance. She was terrified of you. And so I turn to the effects upon her of your criminality.

40Her victim impact statement is relatively short. That does not mean it was not harrowing reading. She feels dirty, ashamed, disgusted, embarrassed. She should not. None of this was of her doing, but that is what you have done to her. She was setting up a new life, having separated from her husband. This was a place for her security.

41She describes being physically exhausted from lack of sleep, having lost no less than 6 kilograms to her weight. In February of this year weighing 39 kilograms.  She now no longer feels that she can live alone.  She has gone from being a happy and confident and capable woman, which has now all been taken away from her. She writes that her independence was extremely important to her and rightly so. I will quote one sentence: ‘This has devastated me as I am too frightened to live alone’.

42Now that this chapter in her life is drawing to a conclusion hopefully her resourcefulness, her bravery and her confidence will, to some degree, return.

43I have carefully analysed your criminal history, as set out in the 14 pages of your criminal record. It reveals that some nine years ago you were dealt with in the Children's Court for three charges of attempted armed robbery. You have been dealt with for assaulting or resisting police on six occasions, unlawful assault on two occasions, damaging property on seven occasions, affray on one occasion, threatening to inflict serious injury on another occasion and behaving in riotous manner on two occasions. You have but one charge relating to entry of premises without lawful excuse and a number in relation to you being involved in public disturbances; being drunk on five occasions, threatening words, behaving in an offensive manner, profane words on some four occasions, and dishonesty offences, three charges of theft and one charge of obtaining property by deception.

44You have been dealt with in relation to breaching court orders concerning bail on eight occasions, breaching community corrections order on six occasions and contravening family violence intervention orders also on six occasions.  Noteworthy, there are no offences of a sexual kind.

45I have had the benefit of most thorough and sensible plea from Mr Fitzgerald, together with his written submissions.  He put by way of explanation, but not excuse that you were alcohol and/or drug affected.  I accept that submission, it goes in some way to explain your conduct but not in any way to excuse it or diminish it.

46As I have said you are a 25 year old man. You identify as Aboriginal. Your father was a violent drunk, as was your stepfather. You were subjected to sexual abuse at the hands of two older males from the age of five. Everything that a child expects in being brought up has been denied you. Instead of peace in the home there was violence, which you witnessed from an early age and suffered from yourself. There were drugs, there was alcohol. The family, if that is a word that can be given to what you were provided, moved much and so of course not only was your family life disruptive, so too was your education.

47In a scenario that is all too common you also started to drink at the age of 11 and ever since have been a heavy drinker. You began to use cannabis at the age of 12 and then from the age of 17 commenced to use methylamphetamine, ice, and have been a regular user of it ever since. You left your home, perhaps better, escaped, at the age of 12.

48Whilst in youth detention you made use of that period, completing your Year 11 and 12 VCAL. You also attempted and completed every course that you could during that period of detention, including carpentry, information technology, transport and other hospitality related training. You have had various jobs, working in building sites, working with a cabinet maker and at an abattoir.

49You have been in a long term relationship with your partner, though there has been problems revolving around your drug and alcohol abuse. You have made attempts to address your substance abuse, spending six months in Birribi, which was a court ordered rehabilitation program and three months at Galiamble on a voluntary basis when you were around 21 or 22 years of age.  You were close to your mother. Sadly she passed away in 2015.

50You have been in custody since your arrest and you have during that time completed other courses. Indeed, everything that you could have done, in terms of course work in custody, you availed yourself of. You are, as I understand it, a model prisoner. It would seem to me that your period in youth detention and your period in adult gaol have been the only periods in your life of relative stability and perhaps that says it all.

51You have variously expressed remorse for your offending. Your partner in her letter, 4 June this year, concluded her letter by saying:

'I can say that in the time I have known Jordan he has shown that he can be a decent, hardworking and trust worthy person with the ability to love unconditionally'.

52She, I observe, having been with you for approximately eight years.  You have six children of that relationship, including the twins that you told your victim about on this night.

53I have also had the benefit of reading Mr Jeffrey Cummins psychological report.  In it you recounted to Mr Cummins what he records in paragraph 22, saying to him:

'I know I've done what I'm pleading guilty to, but I don't remember doing this.  Also I don't want to blame the alcohol or the drugs. What I've done is disgusting and I have to take ownership for this and I have to be punished'.

54Whether you have no recollection of these events or not I wonder about.  For you also stated to Mr Cummins, as recorded in paragraph 25:

'He stated that on the afternoon prior to the offending he had be drinking alcohol at a mate’s house from around 2pm.  He said – “Me and my mates then went to the Shepparton show and we were probably drinking there and then we went back to a party and I must have been drinking more there.  I remember flipping my shit a few times at the party.  Like I shouldn't have been at the party.  I should have been at home with Ashlea and our kid – that's where I should’ve been.  On that evening I’ve probably used some Ice and some MDMA. I don't remember shooting up, but I do remember getting hold of some fresh needles, so I probably was shooting up'.

55How you have a recollection of those events during that day but none of the morning following is beyond me.

56Having taken an extensive history from you it was Mr Cummins' view that your risk of reoffending is moderate-high.  He considers without formal testing that you are in the below average range, with an IQ of around 85.

57In the penultimate paragraph, 49, Mr Cummins observes:

'At interview he stated he was currently feeling very motivated to remain a ‘model prisoner’. At interview he spoke about victim empathy, although in my opinion his insight in relation to the extent of the severity of the victim's traumatisation was currently relatively limited'.

58I accept that assessment.

59You have pleaded guilty at the earliest opportunity.  Those pleas of guilty are used in two ways:  first, their utility.  The matter proceeded by direct hand-up brief at the committal hearing and you have pleaded guilty before me, thus avoiding a trial.  Significantly, this has also had the benefit that your victim has not had to go through and rehearse again the events of that morning, both at the committal hearing and a trial.  In addition, I am satisfied in the circumstances of this case that your pleas of guilty do evidence further remorse for your conduct.

60You are a 25 year old man. Still young. Your prospects of rehabilitation were put by Mr Fitzgerald as fair.  Subject of course to the caveat that you do not return to alcohol and/or drug abuse. That is a significant caveat. In the event when you are released you do so your prospects of reoffending are high, if not extremely so. Your prospects of rehabilitation will fall to zero, that is your choice that is your challenge.

61By dent of your conviction on Charge 2 and 3, both charges of rape, all the subsequent charges, 4 to 11, result in you being sentenced as a serious sexual offender.  The consequence of which is that the protection of the community is the principle sentencing factor I must, and do, take into account. It also means that in relation to any orders for concurrency or cumulation relating to those offences, there must be orders for concurrency.

62I would add that even without that categorisation of you being a serious sexual offender, protection of the community would be the principle sentencing factor in relation to you.

63In relation to the six charges of rape the provisions in relation to standard sentencing are enlivened.  The standard sentence for rape is ten years.  It is but one of the multitudinous matters that I must take into account.  It stands no higher than any other factor, nor lower.

64I have the benefit of Mr Fitzgerald's written submissions, which unusually I accepted as an exhibit, JD2 (attached), because of the fact that there were references to the principles in relation to standard sentencing set out in those written submissions, which Mr Moore, on behalf of the prosecution, agrees with. I do no more than say I apply the principles set out in those written submissions at paragraphs 43 to 48.

65I have also had the benefit of reading Champion J's sentencing reasons in the matter of the R v Peter Raymond Brown [2018] VSC 742 at paragraphs 77 and following, which I have read.

66Other matters that I must take into account include general deterrence. That is deterring others from like offending. A clear message must be sent to the community that people are entitled to live in their own homes and feel safe, not to have their home invaded and certainly not to then be subjected to sexual assault within their own home. It is plain also that the sentence that I impose must deter you from further offending. The sentence that I impose must also provide for just punishment for what you have done and denunciation of your appalling conduct on this Sunday morning.

67This case has presented a particularly difficult exercise in sentencing you because there are no less than 11 charges.  A sentencing principle which I have steadily borne in mind and taken into account is the need to impose a sentence, or sentences, which in total are appropriate. When I have mentioned that there are 11 charges here, that is not to suggest that the indictment is an overloaded one, i.e. one where there are too many charges. Each of the charges here is well warranted.

68However, sentencing on 11 charges, many of which carry with them maximum penalties of 25 years' imprisonment, namely the charge of aggravated burglary and the charges of rape, present a particular sentencing problem. How is it that I can achieve what I consider to be overall the appropriate sentence?  There are two courses open. One, ordering appropriate concurrency and cumulation, and another, reducing the individual sentences from that which I would otherwise impose.

69This matter was dealt with by the High Court in Mill v R [1988] 166 CLR 59, in the joint judgment of Wilson, Deane, Dawson, Toohey and Gaudron JJ, at p.65, where their Honours wrote:

'Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below that which would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred'.

70As I have already stated in relation to Charges 4 to 11 you are to be sentenced as a serious sexual offender. Though, appropriately, the prosecution do not submit a disproportionate sentence should be imposed. I accept that.

71Here the individual sentences may in some cases be seen as modest. For example, the sentence that I intend to impose on the charge of aggravated burglary of six years. Thus, I have deployed both orders for concurrency and cumulation as well as modest sentences in the main, in order to achieve the total sentence that I intend to impose upon you.

72In addition, you are to be treated as having committed a single class one offence under the Sex Offenders Registration Act, resulting in you being registered as a sexual offender for a period of 15 years.

73And so I turn to the individual sentences that I impose upon.  Ms Jackson, would you provide counsel with copies of the schedule (attached).  Because of the complexities of the matter I provide counsel with a schedule of offences.

74Stand, Mr Drake.

75On the charge of aggravated burglary, I sentence you to be imprisoned for a period of six years. On each of the charges of rape I also sentence you to be imprisoned for a period of six years. On the charge of attempted rape, I sentence you to be imprisoned for a period of three years. On each of the charges of assault with intent to commit a sexual offence, I sentence you to be imprisoned for two years. On the charge of sexual assault, simpliciter, I sentence you to be imprisoned of one and a half years.

76Without going through the various complex orders for concurrency and cumulation, I sentence you to be imprisoned for a period of 12 and a half years.  I set a minimum non-parole period of eight years.

77I declare that but for your pleas of guilty I would have sentenced you to a period of 16 years and set a minimum non-parole period of 12 years.

78I declare the pre-sentence detention, excluding today, is 235 days. I will also make the ancillary orders as requested by the prosecution.

79Take a seat, Mr Drake.

80The orders in relation to him being registered a sexual offender have to be served upon him, do they not, Ms Jackson?  I make the disposal order.

81Now, gentlemen, if there is an error in the sentencing orders, because of their complexity, please advise me. I will revisit the orders, but I understand they seem to be appropriate. So far as the court records are concerned.  Are there any other matters?

82MR MOORE:  No, your Honour, that completes the matter.

83HIS HONOUR: Just wait for a minute.  Ms Jackson, the sexual offences order, is that to be served on the accused now or in the cells?  Keep Mr Jordan there please.  No handcuffs, he is going to have to sign documents concerning sexual offending register.  Take a seat, please.

84Whilst that is being done, if I may direct you directly, Ms Ash, I thank you for the dignity and the way in which you have conducted yourself.

85Mr Rouse, would you take those documents to Mr Jordan.  Yes, remove Mr Jordan, please.

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