Director of Public Prosecutions v Holwell

[2016] VCC 1784

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

AT SALE
CRIMINAL JURISDICTION

CR-16-00137

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES REGINALD WILLIAM HOLWELL

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Sale
DATE OF HEARING:	11 November 2016
DATE OF SENTENCE:	22 November 2016
CASE MAY BE CITED AS:	DPP v Holwell
MEDIUM NEUTRAL CITATION:	[2016] VCC 1784

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Ms G. Connelly	Matthew White & Associates

HIS HONOUR:

1Charles Reginald William Holwell, following a trial that occupied five sitting days in this court at Sale you were found guilty by the jury of two counts of rape contrary to s.38 of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.

2You have also pleaded guilty to -

3(i) One charge of recklessly causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is five years imprisonment.

4(ii)  Two charges of contravening a family violence intervention order contrary to s.123A of the Family Violence Protection Act 2008.  The maximum penalty for that offence is a fine of 600 penalty units or five years imprisonment.  

5(iii) Intentionally causing injury contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is ten years imprisonment.

6(iv) Theft, contrary to s.74 of the Crimes Act 1958. The maximum penalty for that offence is ten years imprisonment.

7You have also pleaded guilty to the related summary offences of –

8(i) Driving in a manner dangerous contrary to s.64 of the Road Safety Act 1986. The maximum penalty for that offence in this case is a fine of 240 penalty units or two years imprisonment, and

9(ii) Exceeding the prescribed blood alcohol content contrary to s.49(1) of the Road Safety Act 1986. The maximum penalty in this case is a fine of 180 penalty units or 18 months imprisonment.

10You have admitted an extensive criminal history including, on my reckoning, 18 convictions or court appearances for offences of assault or intentionally causing injury, and eight convictions or court appearances for contravening a family violence intervention order.  You also have a range of convictions for other offences and numerous serious traffic convictions.  All sentencing dispositions ordered in your case have failed to rehabilitate you. 

11The charges to which you have pleaded guilty follow negotiations with the prosecution, and I accept that you indicated at an early stage in the proceedings your willingness to plead guilty.  I have taken your pleas into account in your favour in mitigation of sentence and I accept that you are, to some degree, remorseful for what you have done.

12A summary of your offending was read to the court during the plea hearing and tendered in evidence. 

13The victim of your offending was your then partner; a young woman, 27 years old, who you had met in 2014.  During the course of your relationship you were abusive and violent towards her, and on 28 March 2014 an interim intervention order was granted restraining you from committing family violence in respect of the victim.  You breached that order and a final intervention order was made on 22 April 2014.  You then breached that order, and then on 8 December 2014 you were sentenced to four months imprisonment in relation to a charge of criminal damage.

14On 9 February 2015 you were released from prison in Melbourne and the victim of your offending picked you up on your release.  You both drove to Moe, where you purchased two bottles of spirits and visited your brother.  The victim had planned that you would travel to Lakes Entrance together, where she had rented a house for both of you.  She wanted to make a fresh start with you, and you had promised her that you would not be abusive towards her and would not consume alcohol.  You immediately betrayed her trust on your release from prison and consumed much of the alcohol you had purchased.  You were drunk and abusive to the victim as she drove from Moe to Lakes Entrance.

15On your arrival in Lakes Entrance you and the victim checked into a motel.  In a motel room you were again abusive towards her, accusing her of being "unfaithful" to you when you were in prison.  She attempted to leave the motel but you restrained her, assaulted her, and raped her by forcing her to perform oral sex upon you.  You then forced your penis into her anus.  She left you in a motel after you fell asleep.  Despite your appalling criminal actions the victim was prepared to allow you to stay at the house that she had rented in an effort to stabilise your relationship.

16On 16 February 2015, during the course of an argument with the victim when you were, again, intoxicated, you punched her in the face, causing bruising and swelling.  Despite this the victim continued to support you until 10 April 2015, when you were, again, intoxicated, and subjected her to a sustained and vicious assault.  You punched and kicked her repeatedly and choked her.  She was bleeding profusely as you continued your cowardly and brutal attack.  I have viewed a number of photographs taken by police who attended at your house depicting the shocking injuries you inflicted on a vulnerable and fragile young woman who was endeavouring to help you rebuild your life.  When neighbours attended the house in response to your offending you drove away at high speed in the victim's car.  Some distance away you lost control of the vehicle and rolled it, causing extensive damage to her only asset.  A blood sample taken from you revealed a reading of .204 per cent.

17Your offending is extremely serious.  You raped the victim on the same day you were released from prison for breaching an intervention order intended to protect her.  Despite this she continued to support you.  In response you assaulted her, and on the last occasion that you did so you subjected her to a terrifying ordeal.  Your attack on the victim on 10 April 2015 caused multiple injuries to her, and she experienced severe pain and was hospitalised for four days.  The compression you applied to her neck and throat had the potential to place her life at risk, although the evidence does not support a finding that such a risk arose in this case.

18Your offending involved three separate instances of serious violence directed towards your domestic partner.  Your cowardly actions must be denounced in clear terms by this court, and you must be punished for your offending.  The sentence that I impose must be calculated to deter you from offending in this manner, and it also must state clearly to the community that offending of this nature will attract significant terms of imprisonment on conviction.

19Whilst you have demonstrated some remorse for your offending, your crimes involve a course of conduct characterised by repeated breaches of trust that the victim had placed in you. 

20I have received in evidence a victim impact statement of the victim, and of her mother, and I accept that your offending has had a deeply traumatic effect on each of them. 

21I now turn to your personal circumstances. 

22You were born on 13 August 1982 and are now aged 34.  You have an extensive criminal history for offending, which is clearly relevant to the sentencing exercise in this case.  Your childhood and developmental years were marked by disadvantage and disruption.  Your father was an abusive alcoholic, and your mother, a drug addict; although she has now recovered from that illness.  You were often in foster care and attended numerous schools.  You are semi-literate.  You have two siblings; a brother and a sister.  Your sister was seriously injured in a house fire when she was two years old, and this caused further trauma to you, and to your family, as you were growing up.  You began abusing alcohol and illegal drugs of dependence at approximately age 13. 

23Yours is a tragic history, and it has no doubt contributed to the development of your violent and abusive personality.  It is clear that you suffer from alcoholism, and alcohol has contributed to your offending to a significant degree.  Nevertheless, your work history is reasonable and there have been occasions when you have been engaged in ongoing employment.  You have one child from a previous relationship, which was also characterised by your abusive and violent behaviour.

24I have received in evidence a neuropsychological report of Mr Martin Jackson in response to a request by your legal representatives for an opinion as to your cognitive capacity, and whether you suffer from an acquired brain injury.  Mr Jackson's opinion is as follows:

"Mr Holwell clearly has a severe acquired brain injury, primarily as the result of a traumatic brain injury that occurred at age 17, as well as possibly due to an additional component due to chronic substance abuse.  The traumatic brain injury was clearly present at the time of the offending (as well now), given that it occurred many years ago.  It is likely that his cognition was worse at the time of the offending due to an exacerbation of his condition as a result of current substance abuse.  It is also clear that Mr Holwell has significant anxiety and depression, although it is not clear when this commenced.  He also has anger control problems, which he reports started after the traumatic brain injury at age 17."

25And further:

"Mr Holwell's condition does not affect his ability to understand the wrongfulness of his actions.  Furthermore, he does not have a primary disorder of impulse control as measured on the current assessment, although it is highly likely that he would have had significant disorder of impulse control, or disinhibition, when intoxicated."

26And further:

"As above, Mr Holwell has clear impairments of his working memory, processing speed, new learning memory and executive skills, which significantly impact on his ability to think clearly, make calm, reasoned decisions and appropriate judgments.  Furthermore, he also reports a disorder of low frustration tolerance and anger control, which affects his ability to control his emotions.  This would be even worse when he is intoxicated.  I have no doubt that the combination of his traumatic brain injury, acquired brain injury due to substance abuse and acute intoxication were major contributors - if not the only cause of his offending behaviour.  He was highly intoxicated at the time and, in fact, reports that he was pretty much in a blackout for three days."

27And finally:

"Mr Holwell's acquired brain injury indicates that his prospects of rehabilitation are poor.  He gets overwhelmed easily, he has trouble learning new information and forgets things very quickly.  He has poor problem solving skills and his thinking is very black and white.  He will find it very difficult to be rehabilitated if techniques such as cognitive behavioural therapy, relapse prevention, et cetera, are not used.  He does not have the cognitive skills to be able to benefit from talking therapy."

28It is accepted by the prosecution, and it is, in my opinion, clear that the principles enunciated by the Court of Appeal in The Queen v Verdins (2007) 16 VR 269 are engaged in your case. However, as emerged in submissions, I do not accept that your acquired brain injury was the only cause of your offending. In my opinion your offending has multiple causes. Alcohol abuse was obviously a significant factor, and in my opinion your disrupted personal development resulted in you, in turn, developing a violent propensity. You grew up in an abusive environment, and this must have contributed to the propensity that I have referred to.

29I do not accept that your moral culpability is to be moderated to a significant degree in this case.  Your offending involved a course of conduct towards your victim.  These were not episodes of short term loss of self-control.  Furthermore, you are aware that alcohol contributes to your offending, and you have a history of subjecting your domestic partner, or partners, to violence.  Specific deterrence and general deterrence, in my opinion, remain important considerations in your case.

30As stated by Mr Jackson your prospects for rehabilitation are poor, and on your release from prison you will require support in a highly structured environment where your access to alcohol and illegal drugs is strictly regulated if you are not to re-offend.  However, I accept that your acquired brain injury will increase the hardship of prison in your case, and that you are an isolated and lonely prisoner.  This will, in turn, increase your psychological vulnerability.

31In arriving at an appropriate proportionate penalty in your case I have also had regard to the principles of totality, and the decision in that regard of the Court of Appeal in DPP v Clunie [2016] VSCA 216.

32I also accept that the injuries that you suffered as a result of the motor vehicle incident on 11 April 2015, caused by your dangerous driving while heavily intoxicated, will also cause you a degree of hardship in prison, and on your release.

33You have a significant criminal history in respect of violence, and violent, abusive behaviour towards your domestic partner.  You have now been convicted of rape and I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of the community, and accordingly I will make a Sex Offender Registration order in this case.

34In relation to Charge 1 on the first Indictment; the charge of rape, you are convicted and sentenced to be imprisoned for four years.

35In relation to Charge 2 on that Indictment you are convicted and sentenced to be imprisoned for four years.

36In relation to the second Indictment; on the charge of recklessly causing injury you are convicted and sentenced to be imprisoned for one year and six months.

37On the charge of contravening a family violence order you are convicted and sentenced to be imprisoned for six months.

38On the charge of intentionally causing injury you are convicted and sentenced to be imprisoned for two years and six months.

39On the charge of contravening a family violence order you are convicted and sentenced to be imprisoned for nine months.

40On the charge of theft you are convicted and sentenced to be imprisoned for six months.

41In relation to the related summary offences; in respect of the charge of driving in a manner dangerous you are convicted and sentenced to be imprisoned for three months.

42In relation to the charge of exceeding the prescribed BAC level you are convicted and sentenced to be imprisoned for one month.

43Charge 1; the charge of rape on the first Indictment, is the base sentence.  I order that two years of the sentence in respect of the second charge of rape, nine months of the sentence in relation to the charge of recklessly causing injury, 18 months of the sentence in respect of the charge of intentionally causing injury, and three months of the sentence in relation to the charge of theft be served cumulatively on each other, and cumulatively on a sentence in respect of the first charge of rape. 

44This makes for a total effective term of imprisonment of eight years and six months.

45I order that you serve five years and six months before becoming eligible for release on parole. 

46I declare that you have served 591 days by way of pre-sentence detention, not including today.

47In relation to the charges that you have pleaded guilty to, but for your plea of guilty I would have imposed a total effective term of imprisonment of seven years and fixed a non-parole period of five years. 

48All driver's licences held by you are cancelled and you are disqualified from obtaining a driver's licence in the State of Victoria for a period of five years. 

49You will be placed on the Sex Offender Register for a period of 15 years.  My associate will provide you with information in that regard.  Are there any further orders required, Mr D'Arcy?

50MR D'ARCY:  Is there a disposal order?

51HIS HONOUR:  Yes, I've made the disposal order.

52MR D'ARCY:  Thank you, Your Honour.

53HIS HONOUR:  Ms Connelly?

54MS CONNELLY:  Nothing, Your Honour.

55HIS HONOUR:  Thank you.  Yes, what time are we on tomorrow, ten?  Ten.  The court will adjourn till 10 am tomorrow.

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