Director of Public Prosecutions v Duggan

[2019] VCC 1186

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02242

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH DUGGAN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2019 & 1 August 2019
DATE OF SENTENCE:	2 August 2019
CASE MAY BE CITED AS:	DPP v DUGGAN
MEDIUM NEUTRAL CITATION:	[2019] VCC 1186

REASONS FOR SENTENCE
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Subject:

Catchwords:  Rape; Young stranger; Secluded place; Deprivation suffered during developmental years; Principles of Bugmy applied; Moral culpability; Hardship of imprisonment; Good prospects of rehabilitation

Legislation Cited:
Cases Cited:  Bugmy v The Queen (2013) 249 CLR 571
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victoria Legal Aid

HIS HONOUR:

1Kenneth Duggan, you have pleaded guilty to one charge of rape, contrary to s.38(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.

2You pleaded guilty on the day your matter was listed for trial in the County Court at Bairnsdale and following committal proceedings.  Yours is not an early plea, but it has spared the community the conduct of a criminal trial and more significantly, the victim of your offending, the distress of giving evidence at trial. The court was informed that she was very relieved by your plea and I have taken it into account in your favour in mitigation of sentence. 

3You had admitted one prior court appearance in 2017, in relation to wilful damage, for which you were placed on an adjourned undertaking.  You are therefore to be sentenced on the basis that you have no criminal convictions.

4A prosecution opening was read to the court and tendered in evidence and your offending maybe summarised as follows –

5On Saturday, 22 July 2017, you spent the evening consuming alcohol with family and friends at a house in Bairnsdale and in the early hours of the following morning, left the premises following an argument.  You also argued with your partner and were conveyed by police to Bairnsdale police station, to be placed on a Family Violence Intervention Order.

6You left the police station prior to this occurring at 4.30 am and met the victim of your offending in the area of Lucknow Street in Bairnsdale, she too was on foot and had been consuming alcohol.  You told the victim you knew a shortcut to the street that she resided in and then led her to a vacant allotment.  You forced her to the ground, removed her pants and inserted your penis into her vagina without her consent.  You were not using a condom and you ejaculated inside her body. 

7Following this rape, you walked a short distance with her before she went home and immediately reported your offending.  At 8.35 that morning, you were arrested by investigating police and during the course of a record of interview, denied your offending.  You were charged with rape and remanded in custody.

8I have received in evidence a Victim Impact Statement of the victim who was 20 years of age and a complete stranger to you at the relevant time.  Your offending has had a deeply traumatic effect upon her and she is now socially isolated and in fear when alone.  It is plain that your offending is of the utmost seriousness.  Your crime involved a degree of planning.  You were heavily intoxicated and simply forced yourself on a young stranger, in a secluded place in complete darkness. 

9The sentencing principles applicable in the circumstances of this case are well established and the sentence I impose must be calculated to protect the community from offending of this type.  The sentence I impose must deter others from offending in this manner and you must also be punished for what you have done.  You must also be deterred from re-offending, although for the reasons I will detail below, I am satisfied that your prospects for rehabilitation are properly described as good.

10I now turn to your personal circumstances. 

11You were born on 3 March 1986 in Sale and are now aged 33.  You are indigenous and your language group is Gunaikurnai and Wurundjeri.  You are currently in a longstanding stable relationship and have the ongoing support of your partner and her family. 

12Your childhood and developmental years were characterised by destruction and disadvantage.  Your mother was the victim of a homicide and from a young age you were exposed to poverty and drug and alcohol abuse.  You resided in numerous DHHS placements and foster homes. You were often subjected to physical and emotional abuse whilst in care and your formal education ceased in Year 10.  You are semi-literate.  You commenced abusing alcohol and cannabis at the age of 12. 

13Despite your tragic personal background, you do not have a criminal history.  This is both exceptional and very much to your credit.  I accept that the principles enunciated by the High Court in Bugmy v The Queen (2013) 249 CLR 571, are engaged in your case and the deprivation you have suffered is relevant to my assessment of your moral culpability.

14Furthermore, I have received in evidence a comprehensive neuropsychological report of Mr Martin Jackson, setting out your personal and psychological history.  I accept that you function intellectually at a borderline level and that you have an acquired brain injury by reason of alcohol abuse.  Your capacity for reasoned decision making is correspondingly impaired and particularly so when you are intoxicated.  Whilst there is no clear relationship or annexes between your neuropsychological condition and your offending, it is in this context that it took place.  I also accept that your cognitive impairment will increase the hardship of imprisonment upon you. 

15On 16 March 2018, you were released on bail and attended the Yoowinna Wurnalung Aboriginal Healing Service and drug and alcohol counselling on a regular basis in Lakes Entrance.  You have not used either alcohol or illegal drugs since your remand on 23 July 2017.  Which is also a factor relevant to your prospects of rehabilitation.

16You have taken significant steps on the path for recovery and I accept that this sentence should provide you with an incentive to continue that progress.  Whilst your offending is properly described as a mid-range example of a very serious offence, there are also powerful factors to be balanced by me, in arriving at an appropriate proportionate sentence in your case. 

17The standard sentence provisions of the Sentencing Act 1991 were not operational at the time of your offending and are therefore not engaged in this case.

18In the result, the sentence of the court is as follows –

19On the charge of rape, you are convicted and sentenced to be imprisoned for seven years. 

20I direct that you serve four years before becoming eligible for release on parole.

21But for your plea of guilty, I would have sentenced you to a term of imprisonment of eight years and fixed a non-parole period of six years. 

22I declare that you have served 237 days, not including today, by way of pre-sentence detention. 

23I have made the forfeiture order. 

24Thank you.  We will adjourn until 10 am.

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