Director of Public Prosecutions v Edwards

[2023] VCC 285

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-01334

DIRECTOR OF PUBLIC PROSECUTIONS

v

WONYARNA EDWARDS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2022, 14 February 2023, 28 February 2023
DATE OF SENTENCE:	28 February 2023
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2023] VCC 285

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW      

Catchwords:  Charges of rape, common assault, theft, contravening a conduct of bail, committing an indictable offence on bail and trespass – protracted assault of complainant in her home - Aboriginal offender – weight gain and diagnosis of diabetes whilst in custody – violent criminal history – diagnosis of alcohol related neurodevelopmental disorder, post-traumatic stress disorder, major depressive disorder, adjustment disorder – application of standard sentence scheme – delay – Bugmy – Verdins – early plea of guilty – reporting period of life

Legislation Cited:                  Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Victorsen v R [2020] VSCA 248; Bugmy v R (1990) 169 CLR 525; Verdins v R (2007) 16 VR 269;

Sentence:Total effective sentence of six and a half years' imprisonment with a non-parole period of four years' imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Office of Public Prosecutions
For the Accused	Mr G. Chisholm	Kurnai Legal

HIS HONOUR: 

Introduction

1At the outset, I propose to sentence you, Mr Edwards, to a total effective sentence of six and a half years' imprisonment and fix a non-parole period of four years' imprisonment. I will declare the 1,480 days of your pre-sentence detention as time served under my sentences today. 

2Wonyarna Edwards, you pleaded guilty to common assault; rape and theft. You also pleaded guilty to two summary charges of contravening a conduct condition of bail, one charge of committing an indictable offence on bail and one charge of trespass. 

3These guilty pleas were entered after the acceptance of my sentence indication.

4Sentencing has been delayed to enable you to explore the connection between your detention and your sizeable weight gain and the onset of type 2 diabetes.

5The circumstances underlying these offences are set out in Exhibit A, which is a document entitled 'Summary of prosecution opening'. Your counsel agrees with its contents. 

Circumstances 

6In the afternoon of Thursday 21 June 2018, the complainant caught a bus. She intended to travel to Castlemaine[1] to shop. A little later, you caught the same bus. You and the complainant chatted. You told her you were hungry. She offered to buy you some food after she finished her shopping. You arranged to meet. However, you did not meet at the shops but did so at a bus stop. She gave you $5 to buy food.

[1] A pseudonym.    

7At 2.14 am on Saturday 23 June 2018, you knocked on the front door of the complainant's residence. She answered by opening the door. She opened the security door and you charged inside. This constitutes the summary charge of trespass.

8Your body struck her and she fell. You grabbed her by the hair and began hitting her in the back of her head. You began to choke her. She struggled. She tried to escape but you grabbed and threw her to the floor. 

9You grabbed her by the throat and hair and said: 'You're gunna die cunt. Do you want to die?' She screamed for help and you told her to shut up.

10You turned her over onto her stomach, grabbed her by the hair, pushed her face into the mattress, trying to smother her. You said: 'You’re going to die' and something like 'I'm gonna rape your mother, your father, your brother, your sister, your aunty, your uncle'. She begged you to stop.

11You turned her around and put you hand to her throat. You released her throat and punched the mattress beside her and then punched her face a couple of times. Fearing for her life, she begged you to stop. You did.

12She lifted her legs to protect herself. You pushed your body onto her legs, causing her knee to strike her bottom lip and causing it to bleed.

13You pulled her leggings down and grabbed her hair and started choking her. You put a hand over her mouth to prevent her screaming.

14After two or three attempts, you penetrated her vagina with your penis three or four times. This constitutes the charge of rape. In moving your body back and forth, your head butted her forehead three or four times. This was painful.

15You withdrew and started masturbating. You then tried to force your penis into her mouth. She clenched her teeth and you were unsuccessful. You continued to masturbate. You 'reefed' her around by the hair, pulling chunks of her hair out and began hitting her in the head.

16Somehow, she got to her feet. You heard a noise. You thought it was the police. You told her to be quiet, threatening to kill her and her family. She ran, you grabbed a foot and she fell. You then struck and choked her and told her to shut up.

17She got up, ran out of the front door. You got a knife from within the kitchen and said: 'Do you want me to cut myself?' and 'Would that make you feel better?' She told you to go and you apologised. You left the unit. She said do not come back and you said you would not. All of these instances of assault constitute the charge of common assault.

18Later, she found her phone was missing and realised you had stolen it. This constitutes the charge of theft.

19Later that day you were arrested. You were interviewed and denied the allegations concerning the events at the complainant's home.

20At the time of you committing these offences you were on bail. This constitutes the charge of committing an indictable offence while on bail. Being at her home in the early hours contravened a curfew condition of your bail. By staying at 1 Duke Street[2], you contravened another conduct condition of your bail.

[2] A pseudonym.    

Victim impact statement

21On 20 October 2022, the complainant made an impact statement. 

22Your attack preys on her mind. As she put it in the first paragraph of her statement:

Every night since the rape I think about the reasons why he did this. We both grew up in the same town. We need to have the same workers at the residential unit. I have known him since I was 12-14 years old.

23Each week, she experiences flashbacks of the incident. Surprisingly, her mother did not believe her when she complained of the rape. This has changed her relationship with her mother. Others in the community did not believe her either. Your guilty pleas have demonstrated the truthfulness of her complaint, which must be of some relief to her.

24After the rape, she returned to substance abuse, something she had avoided for two years.

25After the rape, she lost the care of her young son. It took considerable time for her to regain his care. She has had to explain to a seven-year-old the circumstances of what happened and why they were parted. Her son is now afraid of losing her, and them being hurt.

26Her intimate relations with her partner deteriorates after each court event.  More particularly, she has a suspicion of men generally and of persons who appear drug affected.

27Her access to indigenous events and services is restricted due to the size and status of your family.

28She fears your release and has bought guard dogs in anticipation.

Criminal history

29Between 24 February 2012 and 23 August 2017, you appeared in a criminal court on 10 occasions and have been found guilty or convicted of 48 charges.

30You have been sentenced to imprisonment or detention on six occasions. The longest period was 24 months' detention in a Youth Justice Centre imposed on 8 August 2012 when you were 16 years old.  Forms of violence are a constant theme in your criminal history. There are 23 convictions or findings of guilt covering offences such as assault, intentionally causing injury and criminal damage. 

Personal

31You are now 26. You were 22 at the time of the offending. You have a sister and five half-sisters. Your parents are indigenous. Your mother is of the Kurnai people. You have little knowledge of your father's background. They frequently fought and argued together. In your presence, your father was violent to your mother and she was violent to other adults. You witnessed their violence and the violence of other adults, being uncles and aunts. Both of your parents drank alcohol and used drugs. In fact, your mother was an alcoholic. Your parents separated when you were young.

32Your sister was removed from your mother's care when she was six or seven. She remained in foster care and never returned to the care of your mother. You would often run away from home to see your sister.

33At six or seven, you were also removed from your mother's care and placed in foster care. You did not stay with one foster family but lived with several foster families. You believe the changes were due to families not wanting older boys. You believe your foster families were not good for you and you would have been better off with your mother.  For much of your early childhood, your father was imprisoned. He died in 2014 through complications due to his consumption of alcohol. 

34Your formal education ended when you were aged 14 and in Year 6. To reach Year 6 by the age of 14 was due to repeating Years 4 and 5 and three attempts at Year 6. You attributed repeating year levels to changes of residences. Nevertheless, your formal education was severely limited. You did not attend secondary school. It is a long time since I have encountered someone with so little formal education.  

35After leaving school, you have had almost no employment, relying almost entirely on government benefits.

36You first smoked cannabis at the age of seven but your use of that drug did not become regular until you were 14. At times, your use was heavy. For about six months when you were 14, you used inhalants heavily. You used methylamphetamine from 18. When in the community, you still use cannabis and inhalants. 

37You have thought about, planned and even attempted suicide. The last attempt was in early 2022 where your attempt to slash your arm was thwarted.

38Presently, in custody, you received monthly injections of Suboxone and take Avanza, an anti-depressant.

Psychologists

Borg

39Linda Borg is a neuropsychologist. At the request of a case manager with the Court Integrated Services Program, she assessed you on 27 April 2016[3].

[3] Report dated 27 April 2016.

40After considering five factors including your clinical presentation, Dr Borg diagnosed you as suffering from an alcohol related neurodevelopmental disorder, a post-traumatic stress disorder and features of depression and low-grade paranoia. She made several recommendations including psychological counselling and drug and alcohol treatment. She suggested ways in which therapists could deal with you.  

March

41Evrim March is a clinical neuropsychologist. At the request of your solicitors, Dr March interviewed you on three occasions in October 2022[4].  Within the limits of an assessment by audio-visual link, Dr March found you were within the low average to average range for most cognitive functions except what he called the 'working memory domain' where he assessed you in the borderline to low average range. 

[4] Report dated 9 October 2022.

42Dr March apparently agreed with Dr Borg's broad diagnosis of alcohol related neurodevelopmental disorder. Additionally, he diagnosed post-traumatic stress disorder, a major depressive disorder, a severe substance use disorder and a moderate alcohol use disorder. The last two disorders were in remission because you are in prison or were in prison. The major depressive disorder was described as of moderate severity with anxious distress and chronic suicidal ideation.

43Dr March noted your paranoid thinking style and a reduced ability to trust others. This kind of thinking can result in altercations.

44He declined to diagnose you as suffering from an adjustment disorder now and also declined to diagnose any personality disorder through a lack of information and, possibly, expertise.

45Overall, he considered you suffer from moderate mental illness requiring medicines, psychiatric review and psychological treatment.  Cognitively, he considered your abilities had improved in custody except you're your working memory, which was in decline.  

Discussion

Purposes

46Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

47Each of those purposes is engaged in your case.

48Section 5(2) of the Sentencing Act sets out matters which are to be taken into account where relevant.

Gravity of the offending

49The offending covered by the charges is grave. It involves a protracted assault upon the complainant in her home where she should expect to be safe. 

Maximum penalties

50The maximum penalties for the offences are:

·        rape – 25 years' imprisonment;

·        common assault – 5 years' imprisonment;

·        theft – 10 years' imprisonment;

·        trespass – 6 months' imprisonment;

·        commit an indictable offence on bail – 3 months' imprisonment;

·        contravene a conduct condition of bail – 3 months' imprisonment.  

Standard Sentence Scheme

51On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences for which standard sentences are prescribed.  The offence contained in the charge of rape is one such offence. The standard sentence for that offence is 10 years' imprisonment. What is the meaning of a standard sentence?

52First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[5] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[6]  Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[7]

[5] S 5A(1)(b).   

[6] S 5A(3).      

[7] S 5B(2)(a).

53In Victorsen v R,[8], the Court discussed the standard sentence scheme.  At paragraph 18, it said:

In Brown, this Court said that a judge

when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'.  This requirement

·     is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;

·     does not affect the established 'instinctive synthesis' approach to sentencing;

·     does not require or permit 'two-stage sentencing'; and

·     does not otherwise affect the matters which the court may, or must, take into account in sentencing.

[8][2020] VSCA 248.

Delay

54This proceeding has taken a very long time to reach this stage. You were charged with offences, including rape, on 23 June 2018.

55There was a protracted committal hearing. The first listing was adjourned because you were not brought to court. The second attempt started on 28 August 2019 and continued discontinuously until 19 October 2019.

56In this court, there have been six directions hearings, two special hearings, two mention hearings and five listings for trial. Apart from the fact these charges have hung over your head for so long without resolution, there is the fact that much of your time in custody has been spent in the restricted circumstances caused by the pandemic and the reactions to it. This has curtailed face to face contact with your family. It has limited educational and other programmes.

Bugmy

57As to your moral responsibility, your counsel submits the factor identified by the High Court in Bugmy v R[9] applies in your case:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.

[9]169 CLR 525 at [44].

58In the same paragraph, the Court noted the conflicting purposes of punishment may mean a deprived background does not have the same or any mitigatory effect in relation to other purposes of sentencing.      

59Your childhood was indeed one of profound deprivation. An example of the effect of it can be seen in your attempted suicide while in custody and your efforts at physically harming yourself. 

60Dr Borg's diagnosis of alcohol related neurodevelopmental disorder is caused by this deprivation. Your childhood experiences have left you with a longstanding and untreated post-traumatic stress disorder. Despite Dr Borg's diagnoses, there has been little treatment until, ironically, when you entered the prison system.    

61Dr March re-iterated these points, concluding at p10[10]:

These factors, together and separately, provide a basis for sustained symptoms of trauma and they increase the risk of developing mental health issues, including personality disorders and substance use disorders.

Limited education, unstable housing and lack of employment are significant factors that continues to disadvantage Mr Edwards, and will continue to do so upon his return to community. 

[10] At p 10.

Verdins

62For the purposes of Verdins v R[11], I agree with your counsel's submission of the application of principles 3 to 6 of the principles set out in that case.

[11] (2007) 16 VR 269.

63I cannot see how principle 2 applies here. There is no question that I must impose a sentence of imprisonment. In respect of the charge of rape, to an extent, I am constrained as to the length of the non-parole period by s11A of the Sentencing Act.

64Your mental impairment engages principle 3. It moderates the sentences. The fact of your mental impairment lessens the number of persons who would see your sentences as a deterrent to them to commit the same or similar offences. Fewer such persons would identify with you.   

65Although your mental impairment raises principle 4, specific deterrence, its moderating effect is offset by the need to deter you and protect the community from your violent disposition. As the Court in Bugmy’s case noted[12]:

Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

[12] At [44].

66Dr March noted your mental impairment 'has to some extent weighed upon him more than it would have on most prisoners'[13]. This view supports principle 5.

[13] At p 11.

67Despite persistent treatment and medicines, your depressive symptoms remain. One aspect is your persistent thinking about suicide and attempts at suicide and self-harm while in custody on this occasion and before. According to Dr March, your risk of suicide is moderate to high and requires intervention. You have received interventions, but the risk remains. These matters establish principle 6. 

68The application of these principles require collectively a significant moderation in the sentence.   

Guilty pleas

69In relation to the charges, in terms of the timing of your pleas of guilty, they were entered at an early opportunity. 

70By pleading guilty to the charges, you have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy. Although I note the victim gave evidence at a special hearing.

71At the present time pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[14], where the Court said:

As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.'

[14][2021] VSCA 169 at [35].

72Your guilty pleas are evidence of your remorse for the offending. Overall, they entitle you to a significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty but had been found guilty.

Weight and diabetes

73When you entered prison, you weighed about 90 kilograms. Since then, your weight increased dramatically. Presently, you weigh about the 130 kilograms. Additionally, you have been diagnosed with Type 2 diabetes.

74You instructed your counsel you eat when you are sad. You believe you have not received any mental health treatment regarding your weight gain. The fact of your weight gain distresses you because other indigenous males died after putting on similar amounts of weight. You believe you have not been seen by a nutritionist despite your weight gain.

75Emma Scheele is an acting director in Health Services and Clinical Governance at Justice Health. On 13 February 2023, she affirmed a very detailed affidavit concerning your medical, psychological and other treatment while in custody.  Overall, Ms Scheele described 93 attendances with a variety of practitioners in the period of your detention. In addition, presently, you attend the medical centre daily for the monitoring of your diabetes and medicines.

76Your weight and other issues associated with it have been assessed very frequently since June 2019. During 2021, 2022 and this year, you have received attention monthly.   

77To an outsider, the level of your care is exemplary.  I could not find the fact of detention has materially contributed to your weight gain or the onset of diabetes. 

78Your counsel invited me to impose a head sentence less than that which I indicated earlier. I see no justification in the additional information and material to do so.

Sentence

79On Charge 1, a charge of common assault, I sentence you to 2 years' imprisonment.

80On Charge 2, a charge of rape, I sentence you to six years' imprisonment.

81On Charge 3, a charge of theft, I sentence you to one months' imprisonment.

82On the summary charge of contravening a conduct condition of bail, I sentence you to 14 days' imprisonment.

83On the summary charge of committing an indictable offence on bail, I sentence you to one months' imprisonment.

84On the summary charge of trespass, I sentence you to one months' imprisonment.

85The sentence on the charge of rape is the base sentence. Six months of the sentence on Charge 1 is to be served cumulatively on the base sentence. The other sentences are to be served concurrently with each other and the other sentences. And I make note that I have had regard to s16(3C) of the Sentencing Act in reaching these conclusions.

86I will set a non-parole period of four years' imprisonment.

87I declare the 1,480 days of your pre-sentence detention (excluding today) as time served under my sentences.   

S 5B(5) statement

88Section 5B(5) of the Sentencing Act requires me to explain how the sentence I have imposed on the charge of rape relates to the standard sentence for that offence. Plainly, the sentence I imposed is less than the standard sentence, considerably so.

89I have considered the standard sentence as a factor in the sentence I have imposed. After considering the other relevant factors including the gravity of the offence, the effect on the victim, your appalling upbringing and how that plays out in terms of the principles in Bugmy’s case and Verdins’ case, I consider the sentence for the charge of rape is appropriate.   

Sex Offender Registration

90Where a person is convicted of the offence of rape then s11(1) of the Sex Offenders Registration Act 2004 may apply. The Director’s counsel submits I should order you comply with the reporting obligations of the Act. If I do, relying on s34(1)(c)(iii) of the Act, the Director submits I should order you report for the rest of your life. That clause applies if you have ever been found guilty of a Class 1 offence or one or more Class 2 offences.

91On 26 July 2016, you were ordered to report for 15 years. By virtue of s34(4)(a), you are now deemed to have been found guilty of a Class 1 offence. The reporting period is for the remainder of your life.  

92You are still young. Reporting for the rest of your life will be an onerous task. However, you were already subject to an order and committed a brutal offence against the victim. It is appropriate to require you to report for the remainder of your life.      

Section 6AAA

93Absent your guilty pleas, I would have sentenced you to a total effective sentence of 10 years' imprisonment.  

Disposal Order

94I will make the disposal order in the terms of the draft.

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