Director of Public Prosecutions v Fellows (a pseudonym)
[2019] VCC 1619
•8 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| Grant Fellows (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September 2019 | |
DATE OF SENTENCE: | 8 October 2019 | |
CASE MAY BE CITED AS: | DPP v Fellows (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1619 | |
REASONS FOR SENTENCE
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Catchwords: 2x charges of rape
Sentence: 6 years' imprisonment. 3 years and 8 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms Malobabic | |
| For the Accused | Mr J. Taaffe |
HIS HONOUR:
1 Grant Fellows[1], you have pleaded guilty to two charges of rape. The maximum penalty for each charge is imprisonment for 25 years.
[1] A pseudonym name
2 The offending here in Charge 1 occurred between 10 September 2012 and 31 December 2014. In Charge 2 it occurred between 1 January 2016 and 9 November 2016.
3 The victim made a statement to the police on 23 November 2016 and you were first interviewed about the allegations on 6 February 2017 when you made a no comment record of interview as is your right. You were not charged for some time. There was a filing hearing on 19 January 2018 and a committal mention on 9 March 2018 and a contested committal on 10 July 2018. The charges resolved into a plea on 14 March 2019. You were arraigned and pleaded guilty on 8 April 2019 and I heard your plea on 25 September 2019 at which time you were remanded in custody for sentence.
4 You have served 13 days pre-sentence detention.
5 I treat you as having pleaded guilty at an early time. By your pleas of guilty you have saved the time and costs of a trial before a jury. By your pleas you have admitted responsibility for your offending and you have advanced the administration of justice. You have saved the victim from having to again give evidence and be cross-examined. For these reasons you are entitled to a reduction in sentence. I also treat your pleas of guilty as evidence of remorse on your part for your offending. The reduction in sentence that I have afforded to you because of your pleas of guilty will be set out in the sentence that I will shortly deliver.
6 Your offending is summarised in a prosecution summary that was tendered in evidence and read to the court by the prosecutor, Ms Malobabic. Your counsel, Mr McMahon QC who appeared with Mr Taaffe conceded the summary is accurate and forms a proper basis upon which I can proceed to pass sentence. In those circumstances it is not necessary that I here repeat in detail a full description of your offending and will do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with what is set out in the prosecution summary.
7 You and the victim were living in a de facto relationship having met in 2001. There is a child of your relationship with the victim, a boy born in 2003 and the victim has children from another previous relationship. After the victim became pregnant in 2002 your relationship with her is said to have progressively deteriorated. The victim was reluctant to partake in and fulfil all of your sexual desires. This was especially so when you would make sexual demands of her whilst drunk.
8 The offending in Charge 1 occurred on an occasion when you came home drunk and the victim agreed to have sex with you. During the course of consensual sexual intercourse you inserted your finger into the anus of the victim, hurting her. The victim screamed and told you to remove it and she was panicking and crying. But you did not comply with her requests to you to remove your finger and you told her she had problems and was frigid and persisted with your finger in her anus despite her pushing you away.
9 You told psychologist Michael Bilyk that on previous occasions you had inserted your finger into the anus of the victim on a consensual basis. That may be so. This charge proceeds on the basis that the victim did not consent to you penetrating her anus in the way that you did, and asked you to remove it which you did not, and that you did not give any thought to whether or not the victim was consenting or might not be consenting.
10 After this unwanted penetration occurred the victim left the bed and slept on the couch. You apologised to her and told her that you did not know why you did what you did. The victim told you never to touch her again whilst drunk.
11 The offending in Charge 2 occurred sometime during the next two years or thereabouts. You came to the victim's house when she was sick and frail. She was asleep in her room and she awoke to find you on top of her with your penis erect and in her mouth. You were holding her head and she could not get away from you and she was unable to speak. You were aware the victim had not consented as she was asleep. You ran from the house. The victim ran to the bathroom and vomited. In a subsequent pretext phone call you spontaneously admitted that what you had done in the second charge was wrong and that you regretted what you had done.
12 Each of these offences was committed in the context of an ongoing albeit fragile relationship between you and the victim where you acted towards her in a totally inconsiderate way as if she was there to accommodate your sexual desires come what may. At no time did you stop to consider whether she would consent to your sexual acts.
13 However, in my view, given the nature of the relationship between you and the victim, your offending falls towards the lower end of the range in Charge 1 occurring as it did whilst in the course of a consensual sexual penetration, and mid-range in Charge 2. In Charge 2 you raped the victim whilst she slept.
14 Offending in both charges was not planned, and the horrid acts themselves apart, was not associated with violence and the victim was not physically injured. Your offending I think has to be seen in the context of the kind of unusual relationship you appear to have had with the victim.
15 I received into evidence a victim impact statement from the victim which was read by the prosecutor. Your offending has not unnaturally left her feeling very unsafe and untrusting of men. It is the experience of the court that such victims suffer from this kind of offending for a very long time and this case seems no exception. In passing sentence I have taken the content of the victim impact statement fully into account as I must.
16 In sentencing for these crimes I must have full regard to application of the sentencing principle of general deterrence and the sentence must serve to denounce this kind of offending within a relationship. I must also have regard for the need to ensure, so far as possible, your rehabilitation and the sentence must ensure just punishment.
17 I turn to matters personal to you and your background. You are aged 63 and you have no prior convictions for any offending. This offending aside you have lead an unblemished life.
18 Your counsel filed with the court a helpful outline of submissions which I marked as Exhibit 1 on the plea.
19 You were brought up in a working class family and you have lived a fairly simple straight forward life. You left school at Year 9 and commenced a job in the maintenance section of the railways, a job that you have maintained ever since. You change the oil in compressors and gearboxes. You enjoy fishing and camping and being on your own. You have spent considerable time in the past assisting family members.
20 You purchased the home that you and the victim shared. The victim ran the house with your consent, she being in receipt of a pension. The two of you had a joint bank account until you were asked to leave in 2011. A few months later the victim asked you to return, you resumed an intimate relationship with her.
21 Whilst living with the victim you provided for the victim and her family and you have arranged to pay child support whilst in custody. The house was recently sold and the proceeds divided 65/35 per cent in favour of the victim. You also provided the victim with half of your superannuation, $104,000.
22 I admitted into evidence a psychological report of Michael Bilyk, Exhibit 2. Psychometric testing of you shows you have a low average IQ. Your alcohol intake has caused you problems in relationships and in work relationships. Michael Bilyk assessed you as being of low risk of re-offending. You were also assessed as being not anti-social with no relevant criminal history and with a strong work and employment history. I accept the opinion of Mr Bilyk.
23 I received written character references from your brother, Richard, who spoke favourably of you and the help that you have in the past given to him and others in time of need. Your brother was in court to support you.
24 I also received a written reference from Anne Foster and she gave impressive evidence on your behalf. You have been living on a property owned by her and her husband at Donnybrook. You live in a converted bus and you eat with the family. Ms Foster holds your power of attorney and will look after your financial affairs whilst in prison. What comes through is that you are a quiet and unassuming man not fully conversant with the ways of the world. Ms Foster says you are a person easily taken advantage of and that you are honest and trustworthy.
25 It was not put that there are any Verdins principles that need be taken into account in sentencing you. I was not told of any immediate health concerns. You do use a hearing aid but you have no prescribed medications. You are of very slight build and this will be your first time in custody which I think you will find difficult. I assess your prospects of rehabilitation as being good.
26 Mr McMahon conceded appropriately that a term of imprisonment and the fixing of a non-parole period was inevitable having regard to the seriousness of the charges and the maximum penalties prescribed by the parliament. He asked for a merciful disposition which would see you return to your simple life as soon as possible.
27 As I said earlier, I think your prospects for rehabilitation are good and I doubt you will re-offend in this way. Because of this I have reduced the length of the non-parole period. In my judgment there is no need for the sentence here to reflect specific deterrence. However the sentence that I will now pass must reflect general deterrence so that those who would seek to offend as you have within a relationship, get a strong message that this kind of behaviour will not be tolerated. The sentence I will make will denounce you criminal conduct and also reflect just punishment.
28 On Charge 1 you are convicted and sentenced to a term of imprisonment of two years.
29 On Charge 2 you are convicted and sentenced to a term of imprisonment of five years.
30 I direct that one year of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 2 making a total effective sentence of six years imprisonment.
31 I direct that you serve a minimum term of three years and eight months before being eligible for release on parole.
32 I note that you have served 13 days pre-sentence detention. Accordingly, pursuant to s.18(4) of the Act, I declare that the period of 13 days be reckoned as time already served under the sentences passed this day and be noted accordingly in the records of the court and deducted administratively.
33 For the purposes of s.6AAA of the Act, I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of nine years' imprisonment and I would have fixed a non-parole period of six years.
34 The prosecution also seeks the making of a forensic sample order under s.464ZF of the Crimes Act 1958. The making of that order was not opposed and for the reasons stated in the order I have signed it which means that whilst in custody you may be approached by a police officer to provide a forensic sample from your body and if you refuse the police officer may use reasonable force to obtain the sample from you which is in the form of a swab from your mouth.
HIS HONOUR: Any questions arising out of that?
COUNSEL 1: No, Your Honour.
MR TAAFFE: No, Your Honour.
COUNSEL 1: As Your Honour pleases.
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