Director of Public Prosecutions v Durham

[2018] VCC 1974

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01458

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE DURHAM

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2018
DATE OF SENTENCE:	19 November 2018
CASE MAY BE CITED AS:	DPP v Durham
MEDIUM NEUTRAL CITATION:	[2018] VCC 1974

REASONS FOR SENTENCE
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Catchwords:              Criminal law – sentencing following revocation of a Residential Treatment Order – rape and sexual assault – immediate term of imprisonment imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	John Cain Solicitor, Public Prosecutions
For the Accused	Mr J. McLoughlin	Victoria Legal Aid

HER HONOUR: 

1Luke Durham, I will be sentencing you in respect to the two charges that you have entered pleas of guilty for, being one charge of rape and one charge of sexual assault. 

2On a previous occasion on 7 November 2016[1], I set out in full the penalties for those charges and they are, 25 years' imprisonment for rape and 10 years' imprisonment for sexual assault. 

[1] DPP v Durham [2016] VCC 1659.

3I adopt my reasons for sentence insofar as they set out the prior criminal history and also the circumstances of the offending.  I will not be repeating those details.

4In formulating the appropriate sentence I have to impose just punishment. I have regard to the matters put in mitigation and they are, firstly, when apprehended you made full confession in relation to your offending.  And therefore your cooperation was significant and I have had regard to the principles expressed in the decision of Ellis[2] and I have allowed a discount for your confession, in particular, in relation to the rape charge.

[2]R v Ellis [1986] 6 NSWLR 603, 604 (Street CJ).

5This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and the making of a confession of guilt of that offence and that principle has been applied in Victoria and it is known colloquially as the “Doran discount”[3] and that has been applied in the circumstances of your case.

[3]Ryan v R (2001) 206 CLR 267, 272 (McHugh J), 295-296 (Kirby J); R v Brazel (2005) 153 A Crim R 152, 159 [21] (Callaway JA); R v Doran [2005] VSCA 271, [14]; R v CLP [2008] VSCA 113.

6I have also had regard to the plea of guilty entered at the earliest practical opportunity.  There is real utility in the plea and through the plea you have spared the complainant the distress of cross-examination.  It is also is evidence of your remorse and the facilitation of justice. 

7I have had regard to the fact that all the principles of Verdins are enlivened in this case and your intellectual disability has been comprehensively documented in the report of Kylie Bowden, dated 28 May 2016, and the up to date material, in particular, the reports of
Dr Joseph Sakdalan have informed the court about your disability. 

8You are described as having a moderate intellectual disability and therefore general deterrence and denunciation needs to be sensibly moderated.  I make a finding that your moral culpability is low and I note that you are not a suitable candidate for emphasising specific deterrence having regard to your disability.  I accept that you remain vulnerable within the prison system, and that there is also a likelihood that prison may exacerbate your conditions.

9Finally, I note that following the imposition of the Residential Treatment Program Order, that because of difficulties that were experienced by you not being amenable to treatment, that that order was cancelled and you were returned to prison.  I refer to and adopt all my reasons for decision in relation to the application to revoke the Residential Treatment Order dated 15 August 2018, and incorporate those into these sentencing remarks.

10There is a total of 646 days that you have spent at the Residential Treatment Program, in a secure environment.  I have taken that period into account in a general sense in fixing the period of imprisonment.  I expressly have applied the principles as set out in Akoka v The Queen[4].  I do accept, in the circumstances of your complex condition, that is described in the various reports, that the treatment failure is as a result of your profound intellectual and psychological problems. 

[4] {2017] VSCA 214

11I have had regard to the effects of your background of significant dysfunction and deprivation.  That does not diminish over time or with repeated offending and that has been given full weight in formulating the sentence I am about to impose[5].

[5] Bugmy v R 92013) ALR 192

12In sentencing you I must regard protection of the community from you as the principal purpose of sentencing and that is because you - in respect to Charge 2, that is because you have, recorded in the records of the court that imprisonment has been imposed in respect to sexual offences on a previous occasion and on this occasion in respect to Charge 1, and therefore the serious sexual offender provisions apply.

13To achieve the purpose of the protection of the community, the court may impose a disproportionate sentence to the sentence that would otherwise be imposed.  The Prosecution has submitted that a disproportionate sentence is not required in your case. I accept that I can adequately protect the community with the sentences otherwise available to the court on the charges before me.

14I will direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on Charge 2, for which I am about to sentence you. 

15Section 6E of the Sentencing Act directs that every term of imprisonment imposed it the circumstances where a sentence is imposed on a serious sexual offender that any such sentence be served cumulative unless the court directs otherwise.  And I do propose to do so in the circumstances of this case.

16I have had regard to the principles of totality, limited somewhat because of the regard that needs to be given to the statutory presumption of cumulation for serious sexual offences. 

17In respect to Charge 1, the rape charge, the formal court order is that you will be convicted and sentenced to three years and six months' imprisonment.  In respect to Charge 2, sexual assault, you will be convicted and sentenced to one year imprisonment.

18I make the following order for cumulation.  Six months of the sentence imposed upon Charge 2 will be cumulative upon the sentence imposed on Charge 1, making your total effective sentence of four years. I fix a non-parole period of two years. 

19I make the following declaration of pre-sentence detention.  I declare that you have already served 318 days of the sentence imposed and I direct that that be recorded in the records of the court.

20I make the following s.6AAA declaration.  But for your plea of guilty, I would have imposed a term of imprisonment of seven years, to serve five years.  And they are all the orders that I need made, I understand.

21MR PICKERING:  Yes, Your Honour.

22HER HONOUR:  Yes.  Good.

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