Director of Public Prosecutions v Grasserbauer
[2016] VCC 343
•1 April 2016
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01589
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN GRASSERBAUER |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 March 2016 |
| DATE OF SENTENCE: | 1 April 2016 |
| CASE MAY BE CITED AS: | DPP v Grasserbauer |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 343 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | |
| For the Accused | Ms L. Torres |
HIS HONOUR:
1John Grasserbauer, you have pleaded guilty to one charge of rape. That crime carries a maximum penalty of 25 years' imprisonment.
2You are now 49 years of age and you have no prior convictions, and no matters pending. Your plea of guilty was made at a reasonably early opportunity, and I accept that it is accompanied by profound remorse and shame. You must also, of course, get the utilitarian benefit of that plea of guilty.
3In this particular case, it would have been impossible for the matter to proceed without the admissions you made. In that situation, you get an additional benefit of being virtually the sole evidence against yourself insofar as this matter is concerned.
4I take all those matters into account on your behalf.
5The circumstances are indeed sad in this particular situation. You are now aged 49, as I have said. The complainant in the matter was aged 37. The charge of rape is one of a digital nature. You were the sole supplier of such information.
6You had first met the complainant at a short-term residential treatment facility called PARCs, that is Prevention And Recovery Care services, at which you were both residing for mental illness. You then had a relationship for a period of time, where you had endeavoured to have sex together, but been unable to. It had then been determined that the relationship, apparently, would be platonic.
7It is important, before I go into the actual circumstances of the offending to understand the situation in which each of you found yourselves. The complainant is a person who has and continues, as I understand it, to suffer from mental illness. It is clear from the victim impact statement and materials provided that that has been the case for a significant period of time. I have no other detail as to her condition at that time, and was not prepared to have that investigated in these circumstances.
8Your own position was that you have a long history of severe anxiety spectrum disorder, had panic attacks, avoidance behaviour. You had sometimes been seen as having paranoid delusional thinking, obsessive-compulsive disorder, depression, and had endeavoured to commit suicide on a number of occasions. On the material before me, you have had something in the order of 40 psychiatric admissions.
9Further, upon investigations being carried out at my request during the course of the plea, it has been determined that you suffer from an intellectual disability, and I have the appropriate certificate from Disability Services confirming that.
10It is in that situation of your state of comprehension and state of anxiety, and the complainant's obvious difficulties, that this offending occurred.
11On the evening of 7 February, the complainant went to your house. You had a bottle of wine, and she decided that she would drink and not drive home. She asked if she could stay the night, to which you said yes. The wine was drunk, as well as bourbon and soda, and at one stage she apparently said, "We're getting absolutely wasted". She described herself as being "Extremely drunk. Like falling over drunk".
12At around 1 am, she took Seroquel, which as I understand is an antipsychotic. She sipped on an alcoholic drink and lay down on the couch to sleep. She said that before going to sleep, she made sure her sarong was closed, and she said that she felt safe.
13She said that a few hours later she felt something "down there". She was trying to wake up but kept falling asleep. She looked herself and saw that her t-shirt was up and her bra was pulled down to under her breasts, leaving her breasts exposed. She said that her legs were open and her underwear was down between her thighs.
14She saw you looking at pornography and masturbating, and naked from the waist down. On material presented by your counsel on your behalf, it would appear that the pornographic material had been watched earlier in the evening by the two of you.
15She said that she felt that something had been put inside her vagina, and then asked you, "Do you want to put your cock in me?" To which you said, "No, no, no". She was angry and covered herself up. She went back to sleep.
16She woke again early in the morning and left the house. She drove home and felt embarrassed, told her mother that something had happened, and in any event she then made contact with you asking what had happened. You initially at 8.45 in the morning said, "Nothing, I just undid you", and the conversation went on from there.
17Eventually, within about seven or eight minutes, you said, "I put my hand in there". She then showed those messages to her mother and showed them to a friend. She rang you during the day and was angry with you. She rang you, she said, to see if you were all right. She was concerned that you may harm yourself. She is obviously clearly aware of your history of self-harm, and it was during that conversation that you told her that you were sorry for what you did and began crying.
18The effects of what you have done have clearly been devastating, not only for her but for you. I have listened to the pretext tape. It is clear that you have taken this extremely seriously, and are very, very sorry indeed for the conduct that you undertook.
19She then did a VARE tape, and on 11 February a series of recorded pretext calls were made to you. They are detailed, and I will not go into the total detail of them, other than you were, from your point of view, confessional.
20You were arrested on 30 March and an interview was conducted where you exercised your right to go no comment. I note immediately that that interview was conducted in the present of an independent third person.
21In any event, the matter was resolved at an early stage, with you pleading guilty to the one digital rape.
22I have before me a victim impact statement, which I take very much into account. It is difficult to ascertain in this particular situation what direct circumstances have arisen because of your conduct, because of the pre-existing condition of the complainant. However, as I have indicated to counsel, I sentence on the basis that what you did has had a profound effect upon the victim. I know there is no eggshell principles in these matters, but clearly she was a vulnerable person, as indeed were you.
23The offending has to be regarded as serious. In the normal course of events, it would have called for general and specific deterrence, but in your particular situation I think specific deterrence is of no significance at all. There also must be denunciation and appropriate punishment.
24Again, in the normal course of events, conduct such as this even where the material against the accused person is totally based upon a confession, would normally call, as I said, for a sentence of actual imprisonment.
25What was put to me in this situation is that it is one where, because of all the, and what was suggested, and I accept the compelling circumstances that a community corrections order would be sufficient and within range. The Crown disagreed with that proposition.
26As was said in the Court of Appeal in the matter of Boulton:
"It follows from what we have said that a CCO may be suitable even in cases of relatively serious offence which might previously have attracted a median term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). A sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects for rehabilitation".
27This, in my view, is such a case.
28The material on your behalf can be put succinctly. You are now 49. You do have strong family support, and they have been present during the course of the trial. You clearly have victim empathy, and you clearly are ashamed. You, upon psychological testing, are shown to have an intellectual disability, being, "In the extremely low range of ability compared to the rest of the population".
29That gives rise to principles involved in Verdins. It is clear that you knew what you were doing was wrong, and it is not suggested to the contrary. Indeed, your response to her reaction upon being told shows that. However I consider that a person who has the difficulties that you have had over your life, as I have already outlined in brief form, would have difficulty in terms of equating their conduct at a given time, and accordingly their moral culpability can be moderated to a limited extent.
30Insofar as general deterrence is concerned, again there has to be a sensible moderation of it because of not only Verdins, but because of your general situation.
31Clearly in your circumstances, gaol would be a dreadful experience for you, and if you were imprisoned I think you would be continually on suicide watch, and I think that that would be an act of cruelty, to put it quite bluntly.
32Initially, it was sought to get a Forensicare report. In the end, it became clear that the detailed report was not required. I have read of the conditions that you suffer as provided in a report by your psychiatrist who had been treating you at the time, and Disability Services have provided a report.
33As I have said, they describe you as being extremely low range of culpability, and go through difficulties. You have a compulsive disorder, which seems to make it easier for you in some respects to maintain a household. Your brother looks after you to a large extent, as do the rest of your family. For example, the report says that you were able to utilise public transport, and most times are able to plan journeys to ensure that you are not late. During times of high anxiety you can become flustered and unsure of your whereabouts, and will often use taxis during these times. In those circumstances, you will also contact your supports for assistance.
34You have been, on your information, diagnosed with major depression, anxiety and obsessive-compulsive disorder, and I have already referred to that. You have now been seeing a psychiatrist in respect of those matters, and it is clear that you are in need of ongoing help in a psychiatric help.
35It has only been in very recent times that the intellectual disability has been diagnosed. You have obviously throughout your life suffered from the effects of that, and you have equated that disability to anxiety and the like.
36You have had a number of jobs, but have always found it difficult to maintain them, due to anxiety and panic attacks. You in more recent times have been working as a cleaner, and you have a desire to work.
37Your anxiety and mental health concerns have existed since you were about 14. Your brother has confirmed many suicide attempts over the years, and many attempts at self-harm. As he has pointed out, as I have already indicated, you have had in excess of 40 hospital admissions due to alcoholic poisoning, suicide attempts, or presenting when feeling mentally unwell.
38Because of the recent diagnosis, it is only now that you have been brought through the target group for disability client services and assessed as being eligible to receive services. It is to be hoped that your conditions will be assisted by that situation, and I, so far as that is concerned, have no doubt that it will be.
39You currently reside in an Office of Housing Support provided accommodation in Mentone, and you are close to your family members who can provide that weekly support, particularly when your anxiety is heightened.
40You have now been linked in with a psychologist, a Ms Kathy Lee Smith for counselling, and your first appointment with her was just a few weeks ago. It is also the situation that I had you assessed for a community corrections order, that whilst you do have an awareness of sexual knowledge I am sure that they will have you assessed to see whether you need to do the sex offenders program.
41You have difficulties with alcohol and have used it to self-medicate over a long period of time. Again, that can be looked at, and again assistance to both yourself and in that respect the community, can be gained from it.
42The justice plan obviously takes into account all those matters, and I do not think I have to read out all the medical reports in full. You have had a very difficult life, a very anxious life, and have got to the age of 49 with no offending, and have no matters pending.
43In all those circumstances, I am comfortably satisfied that a community corrections order in this situation is sufficient punishment. I am well aware of what has been said in Boulton. It is a situation where you will be under supervision. You will be undergoing a number of programs. In your particular circumstance, I do not propose to impose unpaid community work. I think you would have a lot of trouble trying to work in a community corrections gang, a lot of trouble indeed.
44However, there will be a deprivation of your liberty to the extent of all the appointments that you will have to attend, the supervision that you will have to undergo. And as I have said, I think those conditions that will be attached are sufficient punishment in this situation, and recognise the seriousness of that you did.
45The community corrections order will be with conviction, which of course is a punishment in itself, and to indicate the seriousness of the offending will be over a period of four years, which is a longer period of time than I normally give in such circumstances.
46The prospects of your rehabilitation can only be effected, I think, through the means that are being employed here. The risk of you reoffending, I think, bearing in mind your age and your remorse is very low indeed, and I sentence on that basis.
47No one can come out of a situation like this satisfied with the end result, and one can only wish the complainant well. However, in these circumstances, taking all those matters into account as best I can, if you agree to be on a community corrections order with conviction for a period of four years, the conditions will be as recommended by Corrections.
48That is, treatment and rehabilitation for alcohol; treatment and rehabilitation for mental health; treatment and rehabilitation for programs to reduce reoffending; and other treatment and rehabilitation, which may well include a sex offenders' course; supervision and the condition that you comply with the justice plan. And if that could be produced, and you agree you can sign that.
49There is no 6AAA because there is no gaol sentence.
50MR DOYLE: Yes, Your Honour.
51HIS HONOUR: That community corrections order is now signed by me. And I also indicate that the outlines of the defence submissions were tendered on the plea, and I have taken those very much into account, and I think I have referred to the particular aspects of it that apply here, though clearly those submissions are there for observation by someone else if they choose to do so. All right, nothing else needs to be done?
52MS TORRES: Nothing else, Your Honour.
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