Director of Public Prosecutions v Howard

[2018] VCC 62

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01528

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY HOWARD

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2018 (Plea Hearing)
DATE OF SENTENCE:	7 February 2018
CASE MAY BE CITED AS:	DPP v Howard
MEDIUM NEUTRAL CITATION:	[2018] VCC 62

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Mr A. Cecil Ms E. Margaronis
For the Accused	Ms A. Cannon	Mr S.Peterson

HIS HONOUR: 

1Mr Howard, on 18 December 2017 a jury of your peers found you guilty of seven charges of rape.  The seven charges were on Indictment C1610861.  The jury acquitted you of Charge 5 by direction from me as the trial judge. 
Charge 5 was the only charge on the indictment that alleged that you actually touched the victim in anyway.

2You have been prosecuted and found guilty of the seven charges of rape on the basis that you were statutorily complicit in the assisting, encouraging and directing your co-accused, Mr McKean, in the offences of rape of the victim.  The maximum penalty for each of the seven charges of rape is 25 years' imprisonment. 

Circumstances of your offending:

3On 4 April 2015, you attended the vicinity of the Community Centre in Cowes.  You were accompanied by your co-accused, Matthew McKean and his younger brother Andrew McKean.  The three of you had vodka mixed in a bottle of Solo. You also had marijuana in your possession.

4The victim in this case attended at the Community Centre area accompanied by a young male friend.  The victim was unknown to you or your friends.  The victim wanted a cigarette and was provided one by your group.  The young male with the victim was not comfortable with her socialising with your group as you and Matthew McKean were much older than the victim and himself. He left and went home.  The victim remained with your group, smoking cigarettes and drinking alcohol.  The victim's friends, a boy and a girl, joined your group near the Community Centre.  The victim and her two friends, together with you and the McKean brothers, walked to an area behind a nearby shop. 
Once behind the shop, all members of the group drank alcohol and smoked cannabis.

5The victim was intoxicated and starting kissing Andrew McKean who was approximately her own age.  You and Matthew McKean were much older than the victim.  After some time was spent drinking alcohol and smoking cannabis, the group of six then decided to leave the rear of the shop and walk to
Plover Street in Cowes. 

6The McKean's grandmother lived in Plover Street at Cowes and you were staying at the house over the Easter weekend 2015.  Mr Bill Dunn owned the premises at 18 Plover Street in Cowes - this house was two doors up the street from Mr McKean's grandmother's. 

7In the backyard of Mr Dunn's premises was a garage and some old disused cars.  Mr Dunn was not residing at his house at the time.  In the rear of the
Dunn property was a disused Ford vehicle; this was to become the crime scene.

8You and Matthew McKean told the other members of the group, Andrew McKean, the victim and the victim's two young friends to remain in the backyard at Dunn's premises while he went off and retrieved some marijuana and bong or smoking device.

9When you returned, the victim's young friends did not want to use the bong and decided to leave the property.  The victim stayed and got in the backseat of the Ford vehicle with Andrew McKean.  The victim and Andrew McKean were kissing or "hooking up" in her words.  The victim did not want to have any more cannabis.

10You and Matthew McKean started cajoling Andrew McKean along the lines of "Fuck her or we will" or words to that effect.  Both you and Matthew McKean were in the front seat of the Ford. Andrew McKean did not want to have sex with the victim.  The victim was obviously very drunk.  Andrew McKean left the vehicle and went to assist his grandfather who was cleaning up after the market in Cowes.

11The victim remained in the backseat of the Ford vehicle.  You and Matthew McKean were in the front seat of the vehicle.  In respect of your offending,
I make following findings of fact consistent with the jury's verdict of guilty on Charges 1, 2, 3, 4, 6, 7 and 8. 

12After Andrew McKean left the car, you and the co-accused convinced the victim to give you her phone so it could be used as a torch to find some item in the front of the car.  Matthew McKean has then climbed in the rear seat of the car with the victim.  You remained in front seat of the vehicle.

13Matthew McKean then removed the victim's underwear and engaged in sexual assaults upon her.  He inserted his finger in her vagina - that is Charge 1. 
He put his penis in her mouth that is Charge 2.  After these two rapes, he put his penis in the vagina that is Charge 3.

14McKean did not use a condom at any stage.  McKean then inserted his finger into the victim's anus that is Charge 4.  McKean then rotated his body around, put his penis into the victim's mouth for a second time and his tongue in her vagina, Charges 6 and 7.  At this stage, the victim was having trouble breathing and wanted to vomit.

15McKean's final act was to insert his finger in the victim's vagina either at the time she was vomiting out of the car or shortly after she had vomited.  That is the offending in Charge 8.

16During the whole of this sexual ordeal for the victim, you were encouraging McKean and further suggested to him to pull her hair and slap her face in the process.  McKean did as suggested.  In the course of Mr McKean's offending you encouraged, assisted or directed him in the offending.  In the words of the victim, you were ‘egging’ him on.

17In the course of the attack by Matthew McKean on the victim, she was yelling, crying in protest.  You, whilst not physically assaulting the victim yourself, were equally callous towards the victim in the verbal support and encouragement you gave Matthew McKean during the course of the repeated rapes of the victim.  The only glimmer of humanity from you on this night was when told McKean to desist to allow her to vomit. 

18I accept the evidence of the victim that you were actively encouraging Matthew McKean in his persistent acts of humiliation and sexual gratification to the detriment of the victim.  You were enjoying the humiliation and the heinous sexual perversion with complete disregard for the welfare or well-being of the victim. You knew she was 15 years old. You knew she was drunk.  You knew she was diminutive in stature.  You knew she was helpless in the circumstances of the assault by Matthew McKean.

19Yet you joined in the revelry of these offences with McKean.  You watched, you encouraged, you suggested the hair pulling and the slapping of the victim.  Your callousness towards the victim in the circumstances of these offences calls for just punishment.

Victim Impact Statements

20In this case the victim's mother and the victim filed victim impact statements.  The victim impact statements were Exhibit A on the plea.  The victim's mother requested that her victim impact statement not be read in open court.  You have been shown the victim impact statement by your counsel.

21The victim's mother sets out the level of fear her daughter and she now suffer from going out or being alone.  The mother has had to sell her house in Cowes and move to new premises because she did not feel safe in that house. 
She confirms her daughter has gone from a confident, friendly, kind child to someone who is broken and fearful.

22The victim also requested that her victim impact statement not be read in open court.  She sets out in that statement that as a result of the attack on her, she has quit her TAFE course at Year 9 level. She says she cannot leave the house alone as she is so fearful. She describes how she was a dancer since age four but cannot return to dancing because the dance school was near where she had met the two of you, her offenders.  She describes nightmares and disturbed sleep.

23Most importantly, she cannot go anywhere in public unless she is accompanied by a male, because she is so fearful and vulnerable.  She states that she breaks down a lot of the time and has lost her confidence to be outgoing.

24These offences have a significant effect on a young girl at a very critical stage in her life.  It has temporarily halted her education at Year 9 level and left her living in a state of fear for her safety and wellbeing.

Personal Circumstances

25I turn to your personal circumstances.

26At the time of the offence, you were 20 years old.  You are now 23 at the time of this sentence. You have a troubled upbringing.  You are the only child of your biological parents.  Your mother was an alcoholic, your father was a drug addict.  When you were seven, your parents separated.

27The family relationship was marred by domestic violence.  You were the subject of some of that violence.  You describe there being a lot of ‘pushing and shoving’ and arguments between your parents.  You were bullied at school because your mother was known to be an alcoholic.

28In 2009, at age 14, your mother packed you off from Queensland to live with your father in Tarwin in Victoria.  This was a reunion with your father after some seven years absence.  When you were 16 years old, you had a violent clash with your father over your refusal to go to school.

29This resulted in you becoming homeless.  In 2012, your father had his own troubles with the law which resulted in an 18 month term of imprisonment for him.  You moved back into your father's home in Leongatha.

30In 2013 - 2014, you moved to Melbourne and worked as an apprentice chef in a number of restaurants.  You started drinking very heavily.  By August 2014, you returned to live with your mother in Coffs Harbour.  In November 2014, you offended against your mother by assaulting her and threatened to harm by some form of stalking.

31This offending predates the current charges before the court.  You have subsequently been placed on a good behaviour bond in your absence for those offences. 

32You have had a previous appearance in the Korumburra Children's Court on 19 July 2012 for aggravated burglary and false imprisonment.  On 3 October 2013, you were placed on a bond for the offence of contravening a personal safety order. 

33You have a history of violent offending.  You were assessed by David Ball, forensic psychologist for the purpose of this plea.  The report was dated
1 February 2018 and was Exhibit H2 on the plea.  Dr Ball assessed you as having no evidence of frank mental illness such as psychotic ideation, hallucination or delusion.  He stated you have a history of substance abuse and having been living on the fringes of society.

34Dr Ball noted that you finished school at Year 11.  He noted that you did not complete your apprenticeship in commercial cookery but had no trouble finding work when you wanted to work.  You told Dr Ball that you emphatically denied any offending.  This is consistent with the conduct of your trial.  Dr Ball opines that you are more likely to be a follower than a leader, often taking a passive role in social affairs.  This basically fits with your role in the seven charges before the court. 

35Mr Ball diagnosed you as fitting the diagnostic criteria for schizoid-personality disorder.  Dr Ball says your condition is severe.  It was not submitted on your behalf that the principles of Verdins were enlivened by this diagnosis.

36Since the verdicts were entered, you have been imprisoned awaiting sentence.  You have been in Drummond Protection Unit and have not experienced bullying or harassment from other inmates. 

Sentencing Considerations

37I turn to sentencing considerations.

38The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation and denunciation of your action and the protection of the community. 

39In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for them, your personal circumstances and those of your victim.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct in seeking to ensure, as far as possible, you as an offender are rehabilitated and reintegrated into society.

40As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices.  That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and in statistics at the time of the sentence. 

41I have considered these statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices is only one of the considerations I have to take into account when fixing your sentencing.

42You have been found guilty of seven separate charges of rape.  Under the serious offender provisions of the Sentencing Act 1991, your conviction and sentence to a term of imprisonment in respect of Charges 1 and 2 dictates.  I am then required for the sexual charges thereafter to regard the protection of the community from you as a principle purpose for the sentence to be imposed.

43If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6E of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offences.  This means that the sentencing task in respect of Charges 3, 4, 6, 7 and 8 on the indictment is to be undertaken on the basis that the protection of the community from you is a principal purpose for which that sentence is imposed.  To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offences considered the light of the objective circumstances.

44Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 3, 4, 6, 7 and 8 on indictment, the sentence I impose on you are to be served cumulatively. I note here that prosecution did not call for disproportionate sentencing for all the cumulation contemplated in either s.6D or 6E of Sentencing Act, allowing for the matters for which I outline. 

45In my view, it is appropriate to impose only the degree of cumulation to which
I subsequently refer, reflecting as it does several events of offending. 
To do otherwise may produce a sentence which is not appropriate and unjust.

46Your counsel submitted that your offending was a course of conduct and the cumulation on individual charges is not warranted in your case.  I do not accept that submission.  The appropriate manner to sentence you is to fix a penalty for each of the individual charges and then impose such cumulation that properly reflects the further offending over the offence for which the base sentence is imposed.

47The total of the cumulation of the sentences is to be moderated by the principles of totality so that a crushing sentence is not imposed upon you.  Further, the totality of the sentence is to reflect a just punishment for the whole of your criminal behaviour on the night of these offences.

48You have no prior convictions for sexual offending.  You do have a prior criminal history involving violence related offending.  This is hardly surprising given your upbringing and parental behaviour towards you in the past.

49I assess your prospects of rehabilitation as fair.  Dr Ball states that if you accept the jury verdict and attend a sex offender's treatment program, it will assist your rehabilitation.  At present, you vehemently deny any offending against the victim.  Nevertheless, in the past, you have been able to obtain employment if you wanted it and this raises your prospects of rehabilitation upon your release from prison.

50There has been a delay between 6 April 2015 when you were interviewed and August 2016 when you were charged with this sexual offending. 
The manner in which the prosecution case changed between the committal and trial is another factor in your case.  The delay is no fault of yours.

51Nevertheless, your life has been on hold from the time of the interview to the verdicts of guilty.  The delay has been a burden for you and will be taken into account when fixing the totality of your sentence for this offending.

52As I have previously noted, your counsel did not submit Verdins principles have any part to play in the sentencing process. I note that you have a diagnosis for severe schizoid personality disorder.

53You have been held in protection - in a protection unit - whilst on remand prior to your sentence for these offences.  It is anticipated that you remain classified as a protected prisoner for the entire sentence.  I take into account you will serve the majority of your sentence in protection when fixing your total sentence.

54You have been brought up in a violent family setting, you have been subjected to violence from both of your parents.  These factors have caused disruption and dislocation in your formative years.  This background may explain but not excuse your role in this violent sexual attack on the victim in the charges before the court.

55The offending in this case is of a most serious nature.  The victim of the offending was a 15 year old girl. The offences were egregious in the degrading and inhumane treatment of your victim.  The factors indicative of seriousness of the offending are as follows:

(1), the very young age of your victim.  She was a 15 year old girl or child at the time of the offence;

(2), you had supplied both alcohol and cannabis, to the victim, prior to you offending;

(3), you took her to a secluded place, a disused car in the backyard of an absent owner;

(4), your victim was vulnerable and unable to escape or defend herself from you or your co-accused;

(5), you watched and verbally encouraged McKean to engage in multiple episodes of sexual assault upon the victim; 

(6), you encouraged and suggested to McKean that he slap and pull the hair of the victim in the course of these sexual assaults.  This was an act of purely gratuitous violence in the addition to those sexual assaults.

(7), you watch McKean and egged him on in his sexual attacks on the victim for his sexual gratification and your perverted gratification.  Your offending was to totally degrade and humiliate the victim. 

56Your offending was an example of callous disregard for the welfare and well-being of a young defenceless victim. 

57You will be required to report to be supervised under the provisions of the
Sex Offenders Registration Act for a period of 15 years.  This is an order made pursuant to statute and is not a consideration I take into account when sentencing for the seven charges of rape.  You will be given a copy of that order at the conclusion of this sentencing process.

58At the time of offending, you were 20 years old, a year younger than your
co-offender, McKean.  You are a relatively young offender.  As a young offender, the other sentencing considerations are relevant but sentencing disposition is to promote a young offender's rehabilitation.

59This approach will benefit the interest of the individual offender and the community as a whole.  However, in cases such as this where a young girl is violently raped on numerous occasions and two offenders are involved in that offending, the degree of criminality requires that the sentencing objectives of specific and general deterrence, denunciation, just punishment and the protection of the community become more prominent in the sentencing calculus and that the weight attached to youth is reduced.

60In short, as the level of seriousness of the criminality increases, there will be a corresponding reduction in the mitigating effect of the offender's youth.

61Your offending is of grave nature and your youth is a lesser sentencing consideration as a result.  Nevertheless, I have taken into account your age and have moderated the totality of your sentenced. 

62Your role in this offending is different from your co-offender McKean.  You did not engage in any direct physical sexual offending against the victim. 
Your offending was one of the encouraging, egging on and directing McKean in his criminal acts.  Further, you do not have the extensive criminal history of your co-accused, McKean.  This is your first experience of imprisonment.

63The totality of your offending calls for the substantial term of imprisonment to mark out the considerations of specific and general deterrence, just punishment, denunciation of your offences and the protection of the community.

64I have fixed a non-parole period that allows for you to take advantage of the parole system to assist you to re-enter society and turn your life around after serving a long term of imprisonment for someone of your age.

65Will you both stand please?

66Mr Howard, I sentence you as follows:

67In respect of Charge 1, you are convicted and sentenced to four years' imprisonment.

68In respect of Charge 2, you are convicted and sentenced to five years' imprisonment.

69In respect of Charge 3, you are convicted and sentenced to fives' imprisonment.  That is the base sentence.

70In respect of Charge 4, you are convicted and sentenced to four years' imprisonment.

71In respect of Charge 6, you are convicted and sentenced to five years' imprisonment.

72In respect of Charge 7, you are convicted and sentenced to four years' imprisonment.

73In respect of Charge 8, you are convicted and sentenced to four years' imprisonment. 

74In relation to cumulation, the base sentence is that set out in Charge 3 which is five years' imprisonment.  To that sentence, the following cumulation is ordered:

75In respect of Charge 1, the sentence in that, three months.

76In respect of Charge 2, six months.

77In respect of Charge 4, three months.

78In respect of Charge 6, six months.

79In respect of Charge 7, three months.

80In respect of Charge 8, three months.  That is a total effective sentence of seven years imprisonment.  I fix a non-parole of five years' imprisonment. 

81I declare that you have served 70 days of pre-sentence detention. I further order that you be placed on the Sex Offenders Register for a period of 15 years, I have signed the disposal order and I also order that you are to provide a forensic sample under s.464ZF of the Crimes Act and I will just explain to you what that means, Mr Howard.

82I have ordered that you provide a sample, a forensic sample.  The process will be that the authorities will come and take a swab from your mouth.  If you do not comply with that, they have the power to use reasonable force to obtain one.  Do you understand what I have just said to you?

83OFFENDER HOWARD:  Not really.

84HIS HONOUR:  Do you want me to explain it again?

85OFFENDER HOWARD:  Yes please.

86HIS HONOUR: Certainly. I have made an order under s.464ZF of the
Crimes Act.  That is for the authorities to take a forensic sample from you so they have a record of your DNA.  They are authorised to take that sample, it is usually done by a swab from your mouth.  If you do not comply with that, then they are empowered to use reasonable force to obtain such a sample.  Do you understand what I have just said to you?

87OFFENDER HOWARD:  All persons?

88HIS HONOUR:  For the record of the DNA.  Your DNA.  Your counsel will further explain it to you.

89HIS HONOUR:  We'll just have these two sex offender register paperwork prepared.  Does that cover all issues, members of counsel?

90MR PATTON:  Yes, Your Honour.

91MS CANNON:  Yes, Your Honour.

92HIS HONOUR:  Thank you.

93HIS HONOUR:  Yes, thanks.  When these sex offender register documents are printed I'll ask counsel to go and explain it to them.

94MR PATTON:  Yes, Your Honour.

95MS CANNON:  Yes, Your Honour.

96OFFENDER HOWARD:  Excuse me, Your Honour, can I have my mother?

97HIS HONOUR:  Beg your pardon?

98OFFENDER HOWARD:  I haven't had contact with her ‑ ‑ ‑

99HIS HONOUR:  No.

100OFFENDER HOWARD:  ‑ ‑ ‑ since I've been in custody.

101HIS HONOUR:  Thank you.  I think that completes the sentencing process.

102MR McKENRY:  Yes, Your Honour.

103HIS HONOUR:  I just want to thank counsel and their instructors over the course of this proceeding - both trial and the pleas - for your assistance in the conduct of this matter.  It's obviously very difficult for everyone and I want to thank you.

104MS CANNON:  Your Honour pleases.

105MR PATTON:  As Your Honour pleases.

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