Director of Public Prosecutions v Grenworth (a pseudonym)
[2021] VCC 1417
•27 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BROCK GRENWORTH (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 27 September 2021 |
CASE MAY BE CITED AS: | DPP v Grenworth (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1417 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Section 38(1) Crimes Act 1958; s 30B Bail Act 1977; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited: R v Mason [2001] VSCA 62
Sentence:Convicted and sentenced to 6 years and 3 months with 3 years and 10 months to serve
S6AAA: 7 years 6 months with 5 years and 3 months to serve.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | Office of Public Prosecution |
For the Accused | Ms A. Cannon | James Dowsley & Associates |
HIS HONOUR:
1Brock Grenworth[1], you have pleaded guilty to the following offences which carry the following maximum penalties:
[1] A pseudonym.
Charge no.
Charge
Max Penalty
1
Rape – s38(1) Crimes Act 1958
25 years
2
Common Assault
5 years
Summ. Charge 7
Commit an indictable offence whilst on bail – s30B Bail Act 1977
30 pu / 3 months
2The charge of rape is a category 1 offence pursuant to the Sentencing Act 1991. The charge is also a rolled-up charge.
3It also attracts the operation of the standard sentencing provisions.
4I must consider whether you ought to be registered under the Sex Offender Registration Act provisions. If I decide that you should be registered, then the period of registration is for life.
5I note that you have admitted your prior criminal history.
Circumstances of Offending
6The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
7Both you and the victim, Laura Lim[2], were 23 years old at the time of the offending.
[2] A pseudonym.
8You had known Ms Lim since your school days, but you had only been in a relationship with her for a few weeks at the time of the offending.
9On 22 September 2019, you were living at Ms Lim’s father’s house in Melton with her, her father, a housemate, and the housemate’s son. You had commenced the relationship at about the beginning of September and you had been living at that address for about a week.
10You woke on the morning of Sunday 22 September 2019 in what Laura Lim described as a paranoid state. It later transpired that you had used ice, cannabis, and MDMA on at least the preceding Friday night. You have variously told people that you used the night before, and, it appears, on the day; but I accept that your principal drug use was on the evening of 20 September.
11On the evening of 22 September, your anger and paranoia increased. You perceived that the housemate had flirted with Ms Lim. After the offending, you told police that “what’s mine is mine and nobody touches that, [Laura] is definitely mine”.
12You took Ms Lim for a drive when you became increasingly angry. You scared her, causing her to cry. You returned home and eventually, you both went to bed. Your bed was set up in the lounge room of the house.
13Ms Lim fell asleep for a little while and woke to find you placing her hand on your penis. She consensually masturbated you for a period of time. You told her to suck your penis. She refused. You rolled Ms Lim over, and forcibly removed her tracksuit pants. She repeatedly told you to stop and asked you why you were doing this. You inserted your fingers into Ms Lim’s vagina. You held her so that she could not get away as you pushed your fingers in and out of her vagina (part of rolled-up Charge 1 - rape). Although the victim repeatedly told you to stop, you ignored her pleas and continued to hold her down. You removed your fingers from her vagina and penetrated her anus with your fingers in one continuous motion (part of rolled-up Charge 1 - rape). Your treatment and penetration of Ms Lim was rough and it caused her pain. She became breathless from trying to struggle against you and from crying.
14After Ms Lim recovered her breath, she tried to push you away from her. You told her to ‘fuck off’. As she moved from the bed, you pulled her back onto the bed and squeezed her throat tightly. She could not breathe and was seeing stars. Ms Lim thought you were going to kill her (Charge 2 – common assault).
15After you let her go, Ms Lim ran straight out and told her father to call the police. Ms Lim’s father had heard her screaming and yelling. Although you tried to placate Ms Lim, her father took her straight to the police where this incident was immediately reported. You remained at the house and you were arrested later that evening.
16You were on bail at the time of this offending (Summary Charge 7 – commit indictable offence on bail).
17Ms Lim reported the rape and assault to Constable Christy Stevens at Melton Police Station, who observed that she had bruising to the right side of her neck, a slightly swollen throat, a raspy voice, and was coughing. Ms Lim was medically examined at Sunshine Hospital where it was noted that she had petechial bruises on both sides of her neck, which was tender, and some minor bruising to her lower back, arms, and legs.
18The police conducted a record of interview with you after your arrest. You told police that (inter alia):
(a) You were in a sexual relationship with Laura Lim;
(b)You believed that the housemate had been touching Ms Lim. You said of Ms Lim, as I said earlier, ‘what’s mine is mine and nobody touches that’;
(c)It started as consensual sex but then changed direction. You acknowledged that Ms Lim had clenched her legs and you could not open them;
(d) Laura Lim was crying, in tears, and in major pain;
(e) You admitted you penetrated her vagina with your finger but not her anus; rather you ran your finger over it. You tried a number of things to open her legs;
(f) You told police your hands were around her neck and you were squeezing;
(g)You said Ms Lim was saying ‘what is wrong with you?‘ and was screaming for her dad;
(h) It was like there was a spirit in the house and someone else was having sex with Ms Lim.
19You gave evidence on the plea before me. You stated that you had used ice, MDMA and marijuana on the day or days before the offending. You stated of your offending “I wasn’t all there”; that you thought the victim was flirting with the housemate; and you were upset and angry when the victim said no to your advances.
20In the week before the plea hearing, you wrote a letter of apology to the court. You did so at the suggestion of your lawyers. In that letter is stated “I am truly sorry for my actions towards [Laura].”
21Ms Lim read out her victim impact statement on the plea before me. She spoke of the physical and emotional harm you have caused her, how your actions have impacted her future opportunities and relationships with other people, including her family, and of her depression and anxiety caused by your actions.
22The sentence I impose upon the charge of rape attracts the operation of the standard sentencing provisions. I turn now to a consideration of those standard sentencing scheme provisions.
(a) The scheme provides for a standard sentence of 10 years on the charge of rape.
(b) The scheme also provides for a standard non-parole period of at least 60 per cent of the sentence, unless I consider it is not in the interests of justice to do so.
(c) The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence.
(d) Objective factors exclude consideration of matters personal to you as an offender or as a class of offenders. Rather, it is determined wholly by reference to the nature of the offending.
(e)This does not limit the matters which I must or may take into account in determining the appropriate sentence. Nor is it intended to affect what is known as the instinctive synthesis process. The standard sentencing scheme may be considered as a guidepost in the sentencing consideration. However, it is neither determinative nor a starting point from which I must simply remain, or to go up or go down in my sentencing consideration.
(f)In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing. In this way, it is an additional factor to consider in the sentencing process.
(g)Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.
Rolled up count
23The charge you pleaded guilty to is a rolled-up charge. Instead of charging you with individual offences in respect to the non-consensual penetration of Ms Lim’s vagina and anus respectively, those individual charges are rolled into one single charge. The maximum penalty remains the same, however the law provides that a more severe penalty than might otherwise be the case can still be properly applied for a rolled-up charge to reflect the overall circumstances of the offending. This must necessarily take into account the whole of your conduct in the non-consensual penetration of Ms Lim.
Objective Gravity and Moral Culpability
24I now turn to the objective gravity of, and of your moral culpability for, your offending.
25The seriousness of the crime of rape is marked by the fact that it carries a maximum period of imprisonment of 25 years. Moreover, Parliament has characterised it as a Category 1 offence, for which a term of imprisonment is inevitable in the absence of exceptional circumstances. It was agreed by your counsel that a term of imprisonment, setting a head sentence and a minimum term, was the only available sentencing option in this case.
26I have already outlined that I must have regard to the standard sentencing provisions for this offence.
27As the Court of Appeal said in R v Mason[3], rape is an ‘intensely personal crime’ which affects the victim physically and psychologically. It attacks a victim’s sense of self.
[3] R v Mason [2001] VSCA 62.
28I conclude your offence was not premeditated. It did however occur in the context of a domestic relationship. All forms of violence and sexual violence within domestic relationships is to be utterly deplored. Time and time again, the courts have made it clear that the community will not tolerate violence or sexual violence within a relationship. Your use of the phrase to police (to the effect that) ‘what’s mine is mine’ speaks of your attitude at the time - you regarded the victim not so much as your partner but your possession. Underpinning your actions was your simmering jealousy and anger for the perceived flirting.
29Although the sex commenced consensually and although the whole episode was relatively short, your actions were rough, dominating and frightening. Your continuous penetration of Ms Lim’s vagina and then her anus was invasive and humiliating. All the time you were aware of her struggling against you and telling you she did not want this to occur.
30The assault you perpetrated on the victim is a particularly serious and frightening example of this charge. The fact that you pulled Ms Lim back onto the bed after your sexual offending in order to choke her to the point where she saw stars is disturbing and concerning.
31Moreover, I consider your moral culpability for your offending is very high. It was submitted by way of explanation and not by way of mitigation that one expert considered you may have been still suffering from the effects of stimulant intoxication or withdrawal. At the time of the police interview, you raised some notion of a perceived intervention by a spirit. Even in evidence before me, you stated “I wasn’t all there” – impliedly attributing your actions to your drug use. Let me be absolutely clear - it is you and you alone who is responsible for raping and choking Ms Lim.
32Although you have limited prior convictions, your last appearance before this offending involved the contravention of family violence orders, assault, and damaging property. It seems you learned little from that previous appearance.
33Accordingly, your actions will be met by principles of deterrence, denunciation and just punishment.
Personal circumstances
34I turn now to a consideration of your personal circumstances.
35You are 25 years of age, being born in August 1996.
36Your parents separated when you were aged three. Your mother’s new partner, moved into the family home. For the next five or six years, you moved around continuously and lived in insecure accommodation with your mother, stepfather and half-siblings. Your stepfather was a prolific cannabis user. In early 2007, when you were aged nine, your stepfather hanged himself in the garage of the family home.
37Your mother re-partnered with a man who used cannabis frequently and ice occasionally. You did not have contact with your biological father for years. In Year 8, you moved in with your biological father for a period of time. Your father recalls that you ‘didn’t know any boundaries’ although this improved over time.
38When you returned to live with your mother, you began using cannabis. Your mother’s partner, provided and permitted you to smoke cannabis openly at home from the age of 13 or 14. You began smoking ice at around 16. You have used ice on and off since that time. You used ice and MDMA in the days prior to the offending.
39You attended multiple primary schools and had problems with your conduct. You left school at Year 9. Since leaving school, you have had a series of jobs, including working with your father.
40You have been in custody since the date of your arrest. You have been medication compliant since you have been in custody and you are now medicated with sertraline to help your depression and melatonin to help you sleep. Your counsel stated that you are feeling “much better” for being drug-free and medication compliant in custody.
41Since going into custody, you have been in contact with your father and his wife, who you have supported you. Your mother and sister were present at your plea.
42I received character references from your mother, father and cousin. They speak of your loving and supportive family, your caring nature, how drugs and family losses have impacted your life, and your intention to make better choices after your release from prison.
43You have completed a number of courses whilst on remand. I received certificates confirming that you have completed drug courses, life courses, vocational courses and traffic courses. I also received eight negative drug screens dated between November 2019 and November 2020.
Psychological material
44I have read the psychological reports of Dr Owens, psychiatrist, dated 20 February 2020 and Dr Barth, forensic psychologist, dated 7 September 2021.
45Dr Owens interviewed you to assess whether the defence of mental impairment was available to you. He concluded that it was not. The issue of your mental state arose because of your reference to ‘spirits’ being present at the time of your offending.
46Dr Owens read your prison medical records and interviewed you on 10 February 2020. He reports that there is no evidence that you suffer from any acute mental illness.
47Whilst Dr Owens notes that you appeared to have mild depressive and anxiety symptoms, he also noted your history of heavy use of various drugs and concluded that at the time of your offending, the weight of evidence points to your mental state being one of stimulant intoxication and/or withdrawal. He noted however that at interview, you told him that you considered that the victim was not consenting as a result of your interpretation of her body language, but that you were angry and assaulted her in that state of mind. You told Dr Owens that you felt betrayed by the victim talking about something with her housemate earlier in the evening.
48Dr Matthew Barth provided a report dated 7 September 2021 after assessing you on 17 August 2021.
49Dr Barth similarly concluded that there were no indications of any form of thought disorder or psychosis in your mental state. Further, although he considered that you were experiencing symptoms of moderate depression and anxiety at the time of interview, he concluded your symptoms are not sufficiently severe to warrant the diagnosis of a psychological disorder.
50Dr Barth did however conclude that your drug use warranted a diagnosis of cannabis use disorder and stimulant use disorder; both in remission in the controlled environment of prison. Dr Barth considers you have only a formative level of insight into your substance abuse and, given your poor behavioural control you remain at a higher risk of relapsing into drug use upon your eventual release into the community.
51Dr Barth assessed your risk of sexual reoffending as being moderate to high. The main factors which elevate your risks are:
(a) Your young age;
(b)You have effectively not lived in a stable cohabiting relationship for more than two years;
(c) Your prior criminal history contains priors for violence; and
(d) Your offending against an unrelated female victim.
52Dr Barth noted positively however that you do not have a history of prior sexual offending.
53Dr Barth in effect cross checked this risk using a different assessment tool. Again he concluded that your risk of overall sexual reoffending is moderate to high. This could be reduced by specialist sex offender treatment in conjunction with close support and supervision.
54Using this assessment tool, Dr Barth reported that:
The factors which elevate Mr Grenworth’s risk are the fact that he used physical force to control the victim, his offending was underpinned by a sense of sexual entitlement, he has poor insight into his offending, limited coping skills, he has suffered with noteworthy substance abuse problems and has a history of chaotic intimate relationships. Moreover, he has previously failed to comply with supervision measures.
In contrast, Mr Grenworth’s sexual offending was committed over a very brief period of time, there was no diversity in his offending conduct and he does not present with a history of sexual deviance. This mitigates his risk to some extent.
55In stating his professional opinion, Dr Barth emphasised that your thought processes are normal and you are estimated to be low to average intelligence range. Nevertheless, Dr Barth identified several problematic features with your interpersonal and sexual adjustment which have significantly impacted the quality of your intimate relationships.
Primarily, he has a very immature and egocentric view of relationships. He tends to focus excessively on his own desires and is prone to escalating to anger and hostility when he feels his needs are not being met. Moreover, he has a poor concept of appropriate personal boundaries. These issues appear to have been key factors which underpinned his sexual offending and require intensive offence-specific treatment.
56Dr Barth recognises that you are in the early phases of addressing significant drug dependence and that you do not possess the coping skills to remain abstinent when released into the community.
57In both these instances, Dr Barth concludes that you need:
(a) Sex offender treatment;
(b) Substance abuse treatment;
(c) Anger management training; and
(d) Vocational education and training.
58Dr Barth provides detail in his report of all of these requirements. I recommend the report to the prison authorities and the Parole Board when the question of your parole arises.
Submissions
59Ms Cannon, who appeared on your behalf, submitted the following factors should operate to mitigate your sentence:
(a)Your relatively young age at the time of your offending and the fact that you remain a relatively young man now. You were 23 at the time of the offending and you are only 25 now;
(b) Your plea of guilty has a utilitarian benefit;
(c)That utilitarian benefit is even higher in the fact that the plea was made in a time of disruption to the legal system caused by the COVID-19 pandemic;
(d) You have spent two years on remand;
(e) This is your first experience of imprisonment;
(f)There are hardships caused by the COVID-19 lockdown within the prison system;
(g) You will have access to support by way of parole upon release;
(h) You have strong family support;
(i) You have reasonable prospects for your rehabilitation.
60Ms Cannon submitted that, given your age and need for ongoing support, I should impose a sentence with a longer parole period as it is desirable for you to have the benefit of supervision and structure upon your release back into the community, particularly to help guard against relapse into drug use.
61Ms Guesdon, who appeared for the Crown, submitted that a term of imprisonment with a head sentence and a non-parole period is the only available sentence. Essentially, Ms Guesdon submitted your offending was aggravated by the fact that you penetrated the victim’s vagina and anus, that you continued despite your clear awareness of her protestations, and for the fact that you did not respect the boundaries of the intimate relationship you had with Ms Lim.
62The Crown submitted that the following matters are relevant to the sentencing consideration:
(a)Although limited, your prior convictions are relevant as you have convictions for contraventions of family violence intervention orders;
(b)The Crown submitted that you are a youthful offender. You were 23 at the time of the offending and you are now aged 25. Promoting your rehabilitation is a relevant consideration;
(c)Your prospects for rehabilitation were submitted to be guarded. Your claim/attribution to a spirit and then drugs demonstrates your poor insight;
(d)You are entitled to have your sentence mitigated for pleading guilty during the COVID pandemic lockdowns;
(e)Your plea was entered after a contested committal. Your plea has utilitarian benefit, but does not otherwise exhibit remorse.
63I accept that the plea of guilty has utilitarian benefit. I consider this all the more so for the plea being entered during the currency of the pandemic. As the Court of Appeal has observed, it is important to recognise the benefit of such pleas and to encourage the resolution of all matters (where appropriate to do so) in these difficult times. I shall do so in this case.
64I also recognise the burden of imprisonment during the pandemic. It is apparent that as prisons are locked down, you and many others held in correctional facilities suffer an increased burden of imprisonment. Much work, vocational and educational courses are limited or halted altogether; movement around the prison is restricted and face-to-face visits have been largely suspended since March 2020. It has been necessary to use isolation as a strategy in order to create social distancing between prisoners. This has led to long periods of time of lockdown in your cell. The sentence I impose must reflect the hardship of this time.
65In my view, the question of your remorse is a little more complex. You told me that your letter of apology came at the suggestion of your lawyers. As I have noted, it states that you are truly sorry for the victim. Nevertheless, you initially attributed the worst of your offending (the pain caused to the victim) onto a supernatural force. You contested the committal and then you told me in evidence that you weren’t ‘all there’ when you committed the offending. In other words, it appears that you do not yet fully accept that you and you alone are responsible for this offending. As long as you continue to look for other contributors - whether it is this gibberish nonsense about spirits or you attribute it to drugs, then you are still saying “it wasn’t me; I didn’t really do this”.
66If you feel remorse for Ms Lim as opposed to regret for being caught for your own offending, then I can only conclude that it is at best recent and that you could only just be beginning to understand the hurt you have caused her in the wrongfulness of your actions.
67Moreover, I take into account the assessment of Dr Barth in concluding that your prospects for rehabilitation are guarded. As I have noted, on different assessment tools, your prospect of sexual reoffending is rated as ‘moderate – high risk’. You have a lot of work to do. You must complete a comprehensive sex offender treatment program, you must address your drug addictions and your social and interpersonal skills. If you take these steps to address all of these things, then your prospects for rehabilitation will improve markedly.
68I will take into account the fact that you were young at the time of your offending and you remain a relatively young man. Although your prospects of rehabilitation are guarded, you have the whole of your life ahead of you. If you do take these steps of treatment as they become available to you, then your prospects for your rehabilitation may well improve.
Conclusions
69The sentence on the charge of rape that I am about to impose is lower than the standard sentence. After having identified and considered how the seven principles of the standard sentencing provisions apply in your case, and taking into account the other objective factors in this matter, I have determined that the following sentence is appropriate:
70The sentence is therefore as follows:
| Charge Nos. | Charge | Sentence | Cumulation |
| 1 | Rape (rolled-up charge) | 5 years 3 months | Base |
| 2 | Common Assault | 2 years | 12 months |
| Summ. Charge 7 | Commit an indictable offence whilst on bail | 1 month | |
| TES | 6 years 3 months | ||
| NPP | 3 years 10 months | ||
| PSD | 735 excluding today | ||
| 6AAA | 7 years 6 mths / 5 years 3 mths |
71Registration under the Sex Offenders Registration Act 2004 is discretionary. The Court can only make a registration order if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community. The Crown does not seek a registration order be made in this case.
72I have taken into account the circumstances of your offending, your young age and the submissions of both defence and prosecution counsel. I decline to make an order for registration under the Sex Offender Registration Act.
73I note that Ms Lim has been present again on the line for the purposes of the sentencing remarks. Again, I thank you for your courage and your integrity in both coming forward and the reading of your victim impact statement. I wish you well in the future.
74Ms Guesdon, is there anything further from your perspective?
75MS GUESDON: No, Your Honour.
76HIS HONOUR: All right, thank you.
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