Director of Public Prosecutions v Holmes
[2018] VCC 574
•26 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Unrestricted Suitable for Publication |
Case No. CR-17-02358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNCAN HOLMES |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2018 | |
DATE OF SENTENCE: | 26 April 2018 | |
CASE MAY BE CITED AS: | DPP v Holmes | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 574 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – intellectual disability – recklessly causing injury – sexual touching – assault to commit a sexual act relevance of applicant’s mental health – combined sentence of imprisonment and community correction order appropriate
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins (2007) 16 VR 269
Judgment: 22 months’ imprisonment and a Community Corrections Order for a period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S MacDougall (Plea) | Office of Public Prosecutions |
| Ms A McVean (Sentence) | ||
For the Accused | Ms D Guesdon | Victoria Legal Aid |
HER HONOUR:
1 Duncan Holmes, you have pleaded guilty to three charges concerning your conduct in Glen Huntly in the early hours of the morning of 12 June 2017. Charge 1, that of recklessly causing injury, carries a maximum penalty of five years’ imprisonment. Charge 2, that of sexual assault by compelling sexual touching, carries a maximum penalty of ten years’ imprisonment. Charge 3, that of assault with intent to commit a sexual offence, carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending were set out in full in the Summary of Prosecution Opening which was tendered at the plea hearing and which you did not challenge. I sentence you on the basis of the facts set out in that document.
3 According to the prosecution, your victim was an international university student who was walking home from the train station after studying late in the university library in preparation for an examination the next day.
4 You hid behind a tree and approached her when she walked past you. You asked her if she wanted to be friends with you and if she could give you her phone. She did not respond and you became angry. She became afraid and walked into the lit courtyard of a block of flats, waiting there for you to go away. You waited for her and followed her as she walked, and then began to run to her home. You caught up with her, asked her again for her phone, then grabbed her first by the hair, then by the arms, lifting her up and holding her against you. She thought she felt your erect penis through your pants against her back. She screamed and you told her to be quiet. She struggled and her glasses fell to the ground. While pulling her hair, you punched her head and mouth from below with your left hand (Charge 1).
5 You then pulled her into an unlit laneway, and grabbed her phone when she tried to use it. You pushed her to her knees on the ground, but she continued to struggle, and managed to run to the nature strip before you grabbed her again, pinned her to the ground by sitting on her abdomen and forced both her hands to the ground. You told her she was beautiful and demanded that she kiss you. She was very afraid and kissed you (Charge 2).
6 She asked you to let her go and you demanded that she kiss you again. You then produced an electrical cord, held it in front of her neck and told her you would kill her if she did not kiss you again. She screamed and you covered her mouth, then asked her to kiss you again and to touch your penis. You opened your belt and started to remove it. A car approached and she screamed again. You told her to be quiet or you would kill her (the subject of Charge 3). She screamed again. Her screams woke a woman in a neighbouring house, who called 000.
7 Police arrived and you told them that the victim had attacked you while you were out walking. You were arrested. When interviewed a short time later by police in the presence of an independent third person, you told police that you had been drinking heavily that evening, had not taken your pills, had gone out looking through hard waste left on the street, that you could not recall what happened with the victim, and that you were gay and had last been sexually interested in women maybe five years ago. With your consent, police searched your home and found nine empty cans of Jim Beam and Cola, cardboard packaging from 24 cans, and prescription medication. Pornographic videos featuring women were found on your mobile phone.
8 The victim sustained cuts and abrasions to her knees, swollen lips, loss of a tooth requiring tooth implantation, and swelling and bruising to her eyes and face. In her Victim Impact Statement, which was read out in court, the victim stated that the dental treatment required was costly and took five months to heal. She was terrified at the time of the attack, believing that she might be killed. She spent the night in hospital, unable to sleep, and was then unable to concentrate on the examination she sat the next day. She fears that her graduation may be delayed due to her poor performance in the examination. The loss of her tooth prior to implantation affected her confidence and her performance at job interviews. Her cell phone and glasses were damaged to the tune of $1300, the dental treatment was costly (around $4000), and her clothes taken by police cost around $300. She also incurred the cost of flying to Australia to make her statement ($800). Since the incident, she has been too afraid to go out alone at night.
9 Your counsel acknowledged that your offending is serious, was terrifying for the victim, and warrants a term of imprisonment. However, your counsel submitted that the offending was unplanned and was precipitated by alcohol and polysubstance abuse on the night. Your poor memory of the offending should be accepted as genuine, and undermines the reliability of what you told police at the time.
10 Your personal circumstances are set out in detail in the psychological report of Ms Carla Ferrari dated 30 January 2018, which was tendered on your behalf. You are now 22 years old and were 21 at the time of offending. You have an intellectual disability and have been in receipt of the Disability Support Pension since the age of 16. You have an extremely deprived family and social background. Your father left after you were born. Your mother has schizophrenia and has been unable to care for you since you were five years old. Each of your parents re-partnered and had further children, but you are not in contact with their children. Between the ages of eight to 11 you lived in Queensland with your father, who was a heavy drinker and sexually abused you. He then partnered with a woman who physically abused you when you lived with them in Newcastle. When you were 15 they left you by the roadside on a highway near Newcastle and drove off. You returned to live with your mother in Hastings but were removed by the Department of Human Services from her care within a few months. You spent time in foster care and couch-surfed with friends. You attended many different schools in a number of states and had learning difficulties. You left school in 2011 without finishing Year 10. You have no employment history. You started drinking alcohol at the age of eight and using cannabis from about the age of 12 and you have had problems with alcohol since you were 13 years old, at times drinking a carton of premixed spirits per day.
11 Your mental health history is complex. As a child, you were prescribed medication for aggressive behaviour and to treat sleep problems but ceased treatment when the family moved. You reported to Ms Ferrari that you have suffered from depression and anxiety and have been taking Zoloft for a number of years. Since being in prison you have engaged with a psychologist and the medical officer has increased your dose of Zoloft. You disclosed a history of past suicide attempts.
12 Ms Ferrari concluded that when assessed you were suffering from recurrent and severe Major Depressive Disorder, Generalized Anxiety Disorder, and Post-Traumatic Stress Disorder, but that you did not present with a personality disorder or a psychotic disorder. She noted that at the time of offending you had consumed an excessive amount of alcohol as well as several tablets of antidepressant medication. You told her that you recalled smoking cannabis immediately before the offending but denied meeting any women that night, denied any recollection of the offending or of being arrested. You told her that in the past you have behaved erratically and aggressively after smoking cannabis at the same time as consuming excessive alcohol. You were somewhat remorseful for your actions and able to understand the distress you caused to the victim, but had limited capacity to fully understand the seriousness of the offending and how it will affect you in the longer term.
13 Ms Ferrari considered that in spite of your intellectual impairment you are able to distinguish between lawful and unlawful behaviour. However, your intellectual impairment affects your cognitive functioning, perception, judgment and reasoning capabilities. Your deficits in knowledge are compounded by your background of receiving minimal affection, guidance or support, being a victim of abuse, and not having any appropriate role models. You have never been taught how to manage social and romantic situations and your values, attitudes and expectations have been obtained through exposure to sexual material in the media, such as television, movies, pornography.
14 Ms Ferrari assessed your risk of sexual recidivism using a validated tool known as SONAR (the Sex Offender Needs Assessment Rating) as “moderate” overall, but noted that you scored within the “high” risk category in relation to one area of focus, being that of attitudes tolerant of sex offending towards females. Ms Ferrari also opined that these scores were likely to have been elevated due to your intellectual impairment and the associated deficits which can impact your ability to relate to others and which can contribute to misinterpretation of social and behavioural cues from others. Ms Ferrari considered that there are a number of factors which reduce your risk profile: absence of violent or antisocial attitudes; absence of sexual deviance; no history of violence or sexual violence; no personality or psychotic disorder; expression of remorse and some insight into the impact on the current victim; and abstinence from drugs and alcohol while in prison.
15 Ms Ferrari noted that your mental health has worsened in prison, requiring your engagement with a psychologist and an increase in your antidepressant medication.
16 Ms Ferrari concluded that you require specific, intensive support to address your unresolved trauma history, drug and alcohol issues, social and daily living skills, and a tailored sexual offending program to develop your knowledge around consent, boundaries, and sexual regulation.
17
Your counsel relied on your intellectual impairment in a general sense, noting that this impairment impacts on your cognitive function, perception and judgment and reasoning capabilities as well as on your capacity in social interactions to interpret social and behavioural cues. However, no reliance was placed on limbs 1-4 of Verdins.[1] Your counsel did, however, rely on limbs 5
and 6 of Verdins, submitting that you are vulnerable in custody, and that you would find a sentence of imprisonment significantly more difficult than a person without your mental health issues and intellectual impairment.
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’)
18 Your counsel relied on a number of mitigatory factors. You pleaded guilty at the earliest opportunity, being the committal mention stage. Some remorse is demonstrated by your plea of guilty and by your acknowledgement to Ms Ferrari of the distress caused to the victim. You have a limited prior criminal history, with no previous appearances for sexual offending. Your offending to date, which includes charges of theft, attempted theft, reckless cause injury and reckless conduct endangering serious injury, has attracted dispositions including bonds and participation in a Justice Plan, which you completed successfully. You have never been sentenced to a term of imprisonment. You are 22 years old and fall to be sentenced as a youthful offender. For this reason, rehabilitation should be a primary focus of sentencing and the principles of general deterrence should be sensibly moderated, it was submitted.
19 You have been on remand since your arrest on 11 June 2017 and have spent 319 days in custody including today, in the Marlborough Unit at Port Phillip Prison. During your time in custody you have engaged well with staff, willingly participated in work programs, and completed a substance abuse program as well as Level II Certificates in Cleaning Operations and Kitchen Operations. You have also provided a negative urine screen dated 3 March 2018.
20 Although you have been assessed as being a moderate risk of reoffending in relation to sexually based offences, your counsel relied on Ms Ferrari’s conclusion that your major risk factor is consumption of alcohol, particularly when combined with illicit drugs or prescription medication. You recognise this risk, she said. Ms Ferrari concluded that you need intensive support to resolve your mental health issues, drug and alcohol issues, social and daily living skills and developing knowledge around social boundaries. Your counsel submitted that protection of the community is best ensured by you having supervision and access to these supports.
21 In all the circumstances, your counsel submitted that the relevant sentencing considerations can be adequately addressed by the imposition of a term of imprisonment combined with a lengthy Community Corrections Order mandating compliance with a suitably crafted Justice Plan.
22 You were assessed by Corrections Victoria on 12 April 2018[2] as being suitable to complete a Community Corrections Order. The assessing officer recommended conditions including supervision, treatment and rehabilitation, drug assessment and treatment, alcohol assessment and treatment, mental health treatment as well as offending behaviour programs and compliance with a Justice Plan. The officer also recommended the inclusion of a condition for assessment and treatment and participation in the Sex Offender Advice and Treatment Services (SOATS), Disability Pathways. This condition would necessitate a Community Corrections Order of at least 18 months duration.
[2] See CCO Assessment Outcome Report of Eva Kafkalas dated 12 April 2018
23 A Justice Plan dated 17 April 2018 recommended that you be referred to Disability Forensic Assessment and Treatment Service (DFATS) and engage in appropriate services as directed by Disability Client Services.
24 An addendum to the Justice Plan was provided on 24 April 2018 at my request. It outlined the support you would receive through your engagement with Disability Case Management. It noted that the Department of Health and Human Services (DHHS) would allocate a worker who with specialised knowledge and understanding to help you understand and engage with mainstream services provided through your Community Corrections Order.
25 The addendum noted that your case worker will help to ensure that you understand the responsibilities that come with a Community Corrections Order, and work with your Corrections officer to support you throughout the order, in particular, to refer you to mainstream drug and alcohol and a mental health services. In addition, DHHS will assess your sexual offending and disability needs and will at least refer you to the community program at DFATS. It is hoped that you will have an approved NDIS plan prior to your returning to the community, with the help of your DHHS worker providing the information needed.
26 A copy of this addendum report will be provided to Corrections upon the making of the Community Corrections Order.
27 The prosecution submitted that the disposition contended for by your counsel would not adequately reflect the gravity of your offending, and that a straight sentence of imprisonment with a non-parole period ought to be imposed upon you.
28 Your offending can only be described as serious and terrifying for the victim, a young woman walking home alone late at night. She struggled to fight you off and struggled to avoid being dragged into a laneway, before being pinned to the ground by you. The punches to the mouth by you resulted in the loss of a tooth and the need for an implantation and she remains too afraid to go out alone at night.
29 In sentencing you, I have taken into account the seriousness with which Parliament views the offences you have committed, as well as the sentencing principles of denunciation, just punishment, general and specific deterrence, protection of the community and rehabilitation. I have taken into account all of the matters put by your counsel on your behalf, particularly your early plea of guilty, remorse, personal circumstances (including your youthfulness, intellectual impairment and diagnosed mental health conditions) and the absence of relevant prior criminal history. I consider that in the light of your youthfulness the principles of general and specific deterrence must be suitably moderated to give proper weight to the need for rehabilitation.
30 I note that you have never had the benefit of appropriate supports to address your mental health issues, alcohol and drug problems, and the social and behavioural difficulties flowing from your intellectual impairment. I therefore accept the conclusions of Ms Ferrari and consider that the protection of the public will be best served by your receiving intensive assistance by way of participation in the programs directed by Disability Client Services. I accept that as a person with an intellectual impairment as well as diagnosed pre-existing mental health conditions, you will find imprisonment much more difficult than a person not suffering from an intellectual impairment and those mental health conditions. I further accept that while you have been assessed as presenting a moderate risk of reoffending in relation to sexually based offences, I am satisfied that, consistent with Ms Ferrari’s conclusion, your major risk factor is consumption of alcohol, particularly when combined with illicit drugs or prescription medication in circumstances where you have had as yet no intensive support or training in relation to social behaviour.
31 Given the seriousness of your offending, however, I consider in all the circumstances that the appropriate sentence is one of a term of imprisonment combined with a Community Corrections Order. Protection of the public as well as your own rehabilitation can best be accomplished by your being released on a CCO after serving a term of imprisonment so that you can be supervised and supported under an order for a period of three years.
32 I am going to impose sentence. Ms Guesdon, do you want me to do that first and then you will go and - and I will break briefly?
33 MS GUESDON: Yes, Your Honour.
34 HER HONOUR: All right. Would you please stand, Mr Holmes? Ms Guesdon will come and explain this to you in a moment after I have finished this section.
35 On Charges 1, 2 and 3 of the Indictment, I sentence you to an aggregate term of imprisonment of 22 months. I have determined it appropriate to impose an aggregate sentence in this case, as each of the offences form part of a continuing episode of offending which occurred over a very limited period of time.
36 I further order that upon completion of your term of imprisonment you be placed on a Community Corrections Order for a period of three years for the offending comprised by Charges 1, 2 and 3.
37 I declare that you have served 319 days of pre-sentence detention, including today, which is to be deducted administratively from your sentence.
38 The conditions of the Community Corrections Order are that you will be subject to supervision, are required to undertaking drug and alcohol as well as mental health assessment and treatment and to comply with the offence specific programs offered through the Justice Plan. It will be a condition of the order also that you comply with the Justice Plan as directed.
39 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, three years from your release from prison - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Frankston Community Corrections Centre within two clear days of your release from prison. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers.
40 Perhaps I will just read the rest of it and then invite him, if it might be explained to indicate that he understands and accepts.
41 Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Corrections Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending.
42 I indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty, I would have sentenced you to four years’ imprisonment with a non-parole period of two years.
43 The Prosecution has also sought a Disposal Order in relation to the disposal of a plastic coated steel cable. You have consented to that order through your counsel and I will make that order.
44 Yes, Ms Guesdon, would you approach your client and simply explain the terms of the Corrections order?
45 MS GUESDON: Yes.
46 HER HONOUR: Thank you. Perhaps show that to the prosecutor. We are just going to show you draft orders, Madam Prosecutor, and perhaps you can have a look, Ms Guesdon, as well.
47 MS McVEAN: Yes, thank you, Your Honour.
48 HER HONOUR: All right. So you have had the terms of the Community Corrections Order explained to you. Do you understand those?
49 ACCUSED: Yeah.
50 HER HONOUR: All right, and do you consent to signing that order knowing that you will have to comply with a Justice Plan? All right. Have you had a look at the draft orders?
51 MS McVEAN: Yes, Your Honour.
52 HER HONOUR: Are you happy with those? All right. So we will provide the Justice Plan and the addendum report to - sorry, the report from those services and the addendum to Corrections with a copy of the sentence.
53 MS McVEAN: If Your Honour pleases.
54 HER HONOUR: All right, thank you. Ms Guesdon, do you need any more time with your client?
55 MS GUESDON: No, Your Honour. I will see him down in the cells.
56 HER HONOUR: All right. In that case, thank you. We will make those orders and adjourn. Thank you.
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