Director of Public Prosecutions v Howard
[2015] VCC 369
•26 March 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00033
Indictment No E13308064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRANT JOHN HOWARD |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 March 2015 | |
CASE MAY BE CITED AS: | DPP v Howard | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 369 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet. | Office of Public Prosecutions |
| For the Accused | Mr B. Newton. |
HER HONOUR:
1 Grant John Howard, you have pleaded guilty to one charge of common law rape. The maximum penalty for that offence at the time you committed the offence was 10 years’ imprisonment.
2 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening which was tendered as Exhibit A. In brief the circumstances are as follows.
3 At approximately 1.00 am on Sunday, 24 November 1984 the 18‑year-old young woman who was the victim of your offence was walking home from a hotel near where she lived. You were then 27 years old and were living in the same area. You did not know the victim. You had been working that day as a shunter for V/Line at the North Melbourne rail yards. You came from the railway station. The victim saw you in a reserve she was walking past and kept on walking. You followed her. The victim heard your footsteps and began to walk quickly in an effort to get away from you.
4 Approximately 300 metres from the hotel the young woman had left, you came up behind her. You grabbed her and told her to shut up or you would kill her. You then dragged her around the corner into the entrance of a laneway. The victim protested. You told her to pull her dress over her head. You engaged in various sexual activities, and despite the victim’s protests ultimately forced her to place your penis at the opening of her vagina and penetrated her vagina. The young woman was crying uncontrollably at this stage. You then left her lying on the ground and walked home.
5 The young woman ran back to the hotel and then, with the assistance of a passing vehicle, went to the police station to report that she had been raped. Later that day she was medically examined and forensic medical specimens were taken. She was found to have a number of injuries consistent with bruising and the activities that you had forced her into.
6 In 2012 forensic examination of the samples taken from the young woman and her clothing identified a male DNA profile. This profile was linked to you. A forensic sample voluntarily provided by you when you were interviewed by police on 2 October 2014 later showed a strong match between certain of those samples and your DNA.
7 You were arrested on 2 October 2014 at your home in New South Wales. You were interviewed and were cooperative with the police. You made significant admissions in the record of interview and were upset during the interview about your offending. You described to the police a considerable amount of detail that you recalled from the incident, and you accepted the young woman’s version of the incident. You said that you regretted the offence.
8 The extent of your cooperation is further demonstrated in your non-opposition of extradition from New South Wales to Melbourne and your plea of guilty being entered at the earliest opportunity.
9 The young woman is now a mature married woman. She provided a Victim Impact Statement (Exhibit B) which she read in court. She described the impact of your offending at the time at the time of this offence and the terror she felt. She described how she felt afterwards, both mentally and physically. She also described the ongoing negative impact that your offending has caused in her life. That ongoing impact includes her ongoing anxiety and fear when out at night, mistrust of men and the impact that this offence has had on her relationship with her husband, with whom she clearly has a very supportive relationship. The victim also described how the crime has been weighing heavily on her for all this time and her anxiety because she did not know who the offender was. She said:
“This crime has had a profound impact on my life in many ways. It stole my innocence and robbed me of my dignity, but not my integrity.”
10 The Victim Impact Statement was given with great courage and dignity. It is clear that this crime has had a profound impact on the victim but in my view it has clearly not robbed her of her dignity. It is to be hoped that finally knowing who it was that did this to her may be of some assistance to her in dealing with this matter in the future.
11 In sentencing you I have taken into account your personal circumstances, which were set out by your counsel and in the report of Mr Jeffrey Cummins, psychologist, dated 10 February 2015 (Exhibit 1). You had a difficult and deprived childhood, growing up in the Sydney area. You are one of five children. Your father had problems with alcohol and was violent towards your mother. Your mother is an indigenous woman and you identify yourself as an indigenous man. Your mother left your father when you were about seven, taking the youngest child with her. You had no regular contact with your mother again until your late twenties. In more recent times you have not had regular contact with your mother although your partner has visited her regularly. Your three siblings who remained living with your father have all been in trouble with the law and you have lost contact with them or have had little contact with them. Your father subjected to you and your siblings to physical discipline while you were growing up. A kindly neighbour gave you some affection and support and you maintained contact with that lady.
12 You left school when you were fourteen in order to work. In general you have worked in seasonal fruit-picking.
13 You have been with your current partner since late 1989. You and she have three children. You have lived with your partner in New South Wales and recently have been living in Ministry of Housing accommodation.
14 You have admitted a prior criminal history. Your offending goes back to early Children’s Court matters and in the main involves offences of dishonesty.
15 It is also admitted that you have a significant criminal history subsequent to this offence which is relevant to your personal circumstances and your prospects of rehabilitation. Of particular relevance is an offence of indecent assault which was committed in June 1986. You were sentenced to one year’s imprisonment in relation to that offence cumulative on a sentence of six years’ imprisonment which was imposed in relation to an offence of supplying heroin. You appealed the sentence and the judgment of the New South Wales Court of Criminal Appeal on 12 March 1987 was tendered as Exhibit C. According to that judgment, that offence involved forcing a woman into some bushes in a public area where you obtained sexual gratification from her but did not attempt to penetrate her.
16 Your appeal was dismissed, and you served the sentence of seven years with a non-parole period of four years. During that period of imprisonment in 1988 you were hit on the head. You had blackouts and seizures, and in 1998 it was confirmed that you were suffering from temporal lobe epilepsy. You have been on a disability pension since that time and have not been able to work.
17 At the time of the offence for which I am sentencing you, you were in Melbourne in an attempt to remove yourself from known associates in New South Wales in an effort to stop using heroin. I note that you were on bail in respect to the heroin supply charge when you left New South Wales. It appears that you were successful in ceasing heroin use in part by using cannabis. At the time of this offence you were in a relationship with your former wife and your eldest child was only a few months old. You subsequently had another child from that relationship. You have recently been advised that your elder son does not want to have any contact with you after hearing of this offence.
18 Mr Cummins assesses you at being at low/moderate risk of committing a further sexual offence. He is of the opinion that you are currently severely depressed. He is of the view that a significant component of that is reactive but I note that you have been prescribed an anti-depressant for the last four to five years as well as medication in respect of your temporal lobe epilepsy and a cardiac cond. Mr Cummins is of the opinion that if you continue to feel as depressed then imprisonment will be more onerous for you. Mr Cummins says in his report:
“Mr Howard expressed rigorous guilt, shame and remorse concerning his offending behaviour. At interview he verbalised issues of relevance to victim empathy.”
19 A letter from your physician, Dr H. Johnson, dated 30 May 2014, was tendered as Exhibit 3. That letter confirms that you have some problems with your heart, although the physician says that you will be followed up and that currently you need no surgical intervention.
20 A letter from Dr Andre Loiselle, neurologist, dated 15 January 2013, was tendered as Exhibit 2. That letter confirms that you have ongoing epileptic activity in the left temporal lobe and will need anti-epileptic treatment indefinitely. You told Mr Cummins that on some days you would have multiple seizures. Your counsel described these seizures as being the physical effect of shaking on you, together with an effect on your left eye. He said that in custody, whilst you are on remand, you had been having up to ten seizures a day, but that this was reduced at the present to about four seizures a day. During the plea hearing you suffered one of these seizures, during which you were apparently able to follow the proceedings and were able to tell me that. That experience enabled me to observe the effect of the seizure on you. It is clear that these episodes have a significant physical effect on you. That physical effect will, in my view make you vulnerable in custody.
21 In your conversation with Mr Cummins you made some attempt to identify motivation for this offending in suggesting drug use or marital difficulties may have played a part but you did state that there was no excuse for your offending. You said that over many years you had attempted to repress memories of this offending, and that you had often asked yourself how the victim could have recovered. Your counsel said, and I accept, that, when read the victim impact statement, you were upset, and made the comment that the offence had “destroyed her”.
22 Character references from your partner and daughters were tendered as Exhibit 4. A further reference was read from an Aboriginal elder in New South Wales. Those references speak positively of your relationship with your partner, your support from your family, your remorse and your generosity towards other people.
23 In sentencing submissions, your counsel relied upon a number of matters in mitigation of sentence including:
(a)your cooperation with investigators;
(b)your plea of guilty;
(c)your remorse; and
(d)your prospects of rehabilitation.
24 Your counsel also submitted that in respect of this offending, the Court should take into account that there was very limited premeditation and your difficult and disadvantaged childhood background. Your counsel particularly relied on the decision of Marrah v R [2014] VSCA 119.
25 Your counsel also submitted that your poor physical health and mental health ought to be taken into account, in that your time in jail would be more onerous because of these difficulties.
26 Your counsel also submitted that in application of the totality principles, it should be taken into account that you were sentenced in August 1986 to a term of imprisonment of seven years with a non-parole period of four years.
27 The prosecution, in sentencing submissions, accepted that your plea of guilty was presented at the earliest opportunity and that you had been cooperative with investigating police and made a confessional record of interview. The prosecution accepts that you are entitled to a significant discount in sentence in respect of these matters. The prosecution also accepted that you are remorseful.
28 The prosecution submitted that, in terms of gravity, this offence fell into the high range, below that of the worst category but above that of the mid-range category.
29 The prosecution accepted that it went in your favour that you had not committed a sexual offence since 1986. The prosecution also accepted that your depression would be a relevant consideration which would engage principle 5 of the Verdins principles, but submitted there should not be any substantial moderation. The prosecution accepted that your temporal lobe epilepsy would be a relevant sentencing consideration, but submitted it should not operate as a significant mitigating factor as your condition could be treated in custody.
30 The prosecution was able to provide a document outlining some relevant sentencing statistics entitled “Sentencing Statistics Higher Criminal Courts Victoria 1985”. The prosecutor said, despite searches, the prosecution was unable to find a similar case from that period where the accused had been charged with common law rape rather than rape with aggravating circumstances.
31 The prosecutor submitted that a significant term of imprisonment was warranted, although a “lower than conventional non-parole period” was open.
32 Mr Howard, it is clear to you, as well as to anyone who hears about this crime, that your offending on this occasion was very serious. You committed a sexual attack on the victim in a public place. She was only 18 years old and vulnerable. You threatened her and dragged her into a deserted alleyway. The act of rape was preceded by other acts of a sexual nature. These matters do not aggravate your offence, but show that the rape itself was not committed in isolation. You caused the victim pain and engaged in unprotected sexual activity, exposing her to the risk of pregnancy. Her ordeal lasted approximately 10 minutes and she suffered physical injuries.
33 In addition to those matters, this attack has continued to haunt her for the last 30 years. She has been profoundly affected by what you did.
34 Any woman of any age is entitled to walk in a public place without fear of sexual attack. Hearing of this type of offending causes other women to be fearful and anxious when walking in public places. I accept the categorisation of this offending as lower than worst but higher than mid-range as contended by the prosecution. Your offending must be strongly denounced and justly punished. A sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation and general deterrence.
35 In terms of sexual offending, I consider that you have good prospects of rehabilitation given that you have not committed any sexual offence since 1986. You are remorseful, you have positive character references, you have family support and you have mental and physical health difficulties. I consider that specific deterrence does not need to be given any weight in sentencing you.
36 There are a number of matters which I have taken into account in mitigation of sentence. I accept that you are genuinely remorseful. You have clearly and consistently expressed your remorse and regret from the moment of arrest onwards. You have demonstrated an ability to relate to the pain and suffering caused to the victim in this matter. Those matters are reflected in the apology you have read in court (Exhibit 5). You accept your legal and moral responsibility for your actions. Your plea of guilty is a demonstration of your remorse and has also saved the victim having to relive her horrendous experience at a committal proceeding or trial. You have also saved the community the expense of a contested committal and trial.
37 I have taken into account, in assessing your moral culpability, that you had a deprived and disadvantaged background with very little by way of good moral examples and were relatively young at the time of this offence. Those matters do not, in any way, excuse your behaviour but are relevant sentencing considerations.
38 I have taken into account, in application of the principle of totality, that you were sentenced to a term of imprisonment of seven years with a non-parole period of four years in 1986 and a sentence of 12 months’ imprisonment in 2006. I note in particular a number of similarities in the offending which occurred in 1986 with the offending for which I am sentencing you, and I have taken that into account also.
39 I have taken into account, in application of Verdins principle 5, that you suffer from depression. This will make your time in custody more onerous and also I consider there is a risk that your depression could worsen, especially given that you are being sentenced to a term of imprisonment in Victoria and your family and home is in New South Wales. Your distance from your family and their difficulties in visiting you because of the expense will cause you additional hardship in gaol.
40 I also consider your temporal lobe epilepsy to be a matter which operates in mitigation of sentence in application of a similar principle set out in Verdins, in that you will find imprisonment more difficult because of your health difficulties caused by that condition and your seizures. My view is that you are particularly vulnerable in respect of other prisoners whilst you are having seizures and I also accept that you feel a degree of vulnerability because of your physical frailty.
41 I have been advised that as a result of reports in the media as to this matter you are now a protection prisoner and I take that into account as imposing additional hardship on you in custody.
42 Because of your remorse, low risk of further offending, personal circumstances and good prospects of rehabilitation in respect of sexual offending, together with your physical and mental health difficulties, I have imposed a lower non-parole period than I would have otherwise.
43 Grant John Howard, on one charge of rape, you are convicted and sentenced to four years’ imprisonment. I fix two years as the period you are required to serve before being eligible for release on parole. I declare that you have served 175 days of this sentence by way of pre-sentence detention.
44 Your conviction in respect to this offending means that I have a discretion as to whether to require your registration under the Sex Offenders Registration Act 2004. The Crown made no application in respect of that and I do not consider it appropriate, given the lack of a history of sexual offending over the last 25 years, to make such an order.
45 But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years and six months with a non-parole period of four years and nine months.
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