Director of Public Prosecutions v Hughes (a pseudonym)

[2018] VCC 165

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELI HUGHES (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 February 2018
CASE MAY BE CITED AS:	DPP v Hughes (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 165

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	Ms T. Schultz
For the Accused	Ms J. Munster

HER HONOUR:

1Eli Hughes,[1] you have pleaded guilty before me to one charge of rape and one charge of sexual assault.  The facts underlying your offending are as follows: 

[1] Eli Hughes is a pseudonym.

2You and the complainant lived together in an intimate relationship.  Sometime in March 2015, the complainant was spending the night with you at your mother's house.  The two of you went to bed together in the evening and she woke to you penetrating her anus with your penis, which she said she could feel pushing in and causing her pain.  These actions underlie Charge 1 on the indictment, rape. 

3The complainant pulled away from you and said "What the fuck are you doing?"  She jumped out of bed, got dressed, went outside to have a cigarette and was crying.  You came outside to her soon after and spoke to her, saying that you were no good for her and that the two of you should not be together.  You apologised and the complainant believed that you were sorry for what you had done and would not do it again. 

4The two of you had a conversation about consent, you telling the complainant you thought she might like it and she saying "How am I supposed to say yes or no if I'm unconscious.  How am I supposed to like it?"  The two of you talked about the issue of consent and the complainant told you that she required "explicit consent".  Sometime later, she showed you a short video explaining the concept of consent.  The relationship continued on, although the complainant was overseas in July and August 2015.  Just before leaving for overseas, she felt something had happened to her while she was asleep and asked if you had touched her anus and you said "No I wouldn't that after the first time." 

5On 10 January 2016 at which time the relationship was ongoing, the complainant spent the day with you and her son at the beach.  Later that night, the two of you went to bed and the complainant fell asleep at about
11 pm.  You were already asleep.  She woke sometime early in the hours of the morning, feeling your fingers touching her anus.  She pulled herself away from you.  Your actions in touching her anus underlie Charge 2 on the indictment, sexual assault.

6The complainant got out of bed and told you to go downstairs to sleep.  You left, and she cried herself to sleep.  Later that morning she confronted you asking "Were you awake or asleep when you did that to me last night?"  You told her that you were asleep at the start but then woke up and admitted to knowing what you were doing and apologised, saying you did not know why you did it.  The complainant told you she did not want you there, asked you to leave and the relationship then ended. 

7Thereafter, you sent a series of Facebook messages to her, in which you apologised for your actions.  The complainant went to police and on 12 January 2016, participated in a pretext conversation with you.  During that call, you made admissions saying you did not know why you had done it, that you "Just like - just played with it, like on the outside" but you did not "remember being like fully in there."

8You were interviewed by police on 14 January 2016, admitting in relation to the first occasion that you woke, realising you had in fact your finger in the complainant's anus and that two minutes later, she woke up and that your finger stayed in her anus during those two minutes, that the complainant had been upset when she woke up and that you thought she had a right to be.  You said that on the second occasion, you thought the complainant must be awake as you felt her hand touching you, so you started playing with her bottom.  You said you did not insert it this time, "but it may have slipped a little."

9The maximum penalty for rape is 25 years' imprisonment.  The maximum penalty for sexual assault is ten years' imprisonment.  The complainant was cross-examined at committal, although this was confined essentially to her alertness at the time of the incident.  The matter was resolved at a third final directions hearing when you pleaded guilty to the two charges. 

10In her victim impact statement, the complainant made clear the severe emotional impact your offending has had on her, stating amongst other things:

"I've spent the better part of the last two years trying to locate the pieces of her broken whole, hoping I'd yield the strength to put them back together.  I've wanted to scream and punch and burn while crying salty, breathy tears that would drip slowly down my face like shards of broken glass.  Thanks to you, shame and self-loathing are familiar territory."

11She described other effects of your offending such as a loss of trust, panic attacks and sleeplessness, further stating:

"Most nights I can't sleep.  For the longest time I didn't eat, I lost my ability to communicate.  I removed myself from society, too scared to allow myself to trust after learning first-hand the true gravity of what someone can do to another person."

12I now turn to your personal circumstances.  You are 30 years of age and you have no prior or subsequent criminal convictions.  You were 27 and 28 years old at the time of the offending.  You were born in Chile and have an older brother and younger half-brother.  You were raised there by your mother and maternal grandmother.  Your parents separated before you were born, your father having almost no contact with your family or providing any material support.  You met him twice in Chile in your early childhood but have had no contact since.

13In 1994 when you were seven, your mother emigrated to Australia.  She then remarried a Chilean Australian, one James Pickering,[2] who had been imprisoned and tortured in Chile during the Pinochet dictatorship.  He escaped and was later accepted by Australia as a refugee and is the father of your half-brother.  The marriage between Mr Pickering and your mother was marked by physical and emotional violence, inflicted both on her, and you and your siblings.  Mr Pickering had psychological issues arising from his torture and imprisonment, and your mother separated from him in 2004, then reconciled, leaving him finally for good in 2006, after which you and your brothers were housed in a refuge.

[2] James Pickering is a pseudonym.

14On arrival in Australia, you spoke no English but attended classes for three weeks and started in Grade 1, which you repeated due to your poor grasp of the language.  Ultimately, you completed Year 12 in 2006 and whilst at school were apparently a talented sportsman who played baseball, soccer and basketball.  After completing Year 12, you studied a certificate three TAFE course in international business and importing, exporting for three to four years but never pursued this.  Over the years, you went on to develop a reasonably strong work history, marked however, by mental health related breaks.

15Before undertaking your TAFE studies, you worked for Australia Post for about eight months, then after completing the TAFE course, worked as a factory process worker for a paper printing company in Dandenong for a further eight months.  You worked as a cook at KFC for about a year, then were unemployed for a period with symptoms of depression, with varying severity, including periods when you were unable to get out of bed or leave the house. 

16In 2012 to 2013, you worked for a telecommunications company, Konnect Australia, running and connecting optic fibres and cables, which employment you held for about 13 months.  In 2014, you held casual employment as an electrician's assistant for several companies. 

17You are currently employed on a casual basis by Jacob Withers,[3] an electrician who supported you in court and who gave evidence on the plea, describing you as a fantastic worker who was intelligent, punctual, followed instructions and who was committed to making something of the trade.  He has offered you an apprenticeship, pending the outcome of these proceedings.  Mr Withers has known you for about seven years and describes you as extremely remorseful for the offending which you had discussed with him. 

[3] Jacob Withers is a pseudonym.

18You have a long history of mental health issues, beginning in late primary school and then again in Year 10, primarily depression.  You did not disclose this or seek treatment, apparently, according to your counsel, not knowing or understanding why your mood was so low.  In 2011 when you were 17, you consulted your general practitioner about anxiety for which you were prescribed diazepam but did not return for review.  You consulted her again in mid-2016 with symptoms of depression and anxiety and were referred to a psychologist and later, psychiatrist for treatment as well as being prescribed antidepressant medication. 

19You attended four sessions of cognitive behavioural therapy with psychologist Oscar Lopez in mid-2016 but stopped coming after you were reported to be coping better.  You attended a further session in late-2017 but did not maintain therapy.  In mid-2017 you again consulted your general practitioner about depression and were recommenced on medication and advised to resume counselling but did not return for review.  You have a history of cannabis and alcohol use, drinking alcohol from the age of 16 at various levels, and smoked cannabis from the age of 17 on a regular basis, significantly reducing this during your relationship with the complainant and ceasing it following the offending.  

20You were in a relationship with the complainant for about a year, she was your first girlfriend.  Initially you were friends and then became romantically involved in early 2015.  Your relationship with her involved your first consensual sexual experience and you moved in with her, and this was also the first time you had ever lived independently of your family.  She had a young son whom according to your counsel, you adored.  You also saw the complainant as more worldly than you, she worked part time, sang in a band and went to university.  Your counsel told me you saw her as fun, strong, confident and assertive, whilst you were anxious, hesitant, immature and naïve.  The relationship ended immediately on the commission of the second offence. 

21You moved home with your mother and have remained in a state of devastation about the loss of your relationship.  You have not engaged in any further sexual activity or had another romantic relationship since.  In terms of the circumstances surrounding the offending, you told police you committed the first offence whilst you were half-sleep but were unable to explain how it happened beyond a desire the get the complainant "in the mood."  In relation to the second offence your counsel told me that whilst you had told police you felt the complainant touching you and began playing with her bottom at which time you were drowsy, you accepted that she was asleep and did not consent.  You apologised to her immediately, later saying in the pretext text, as I have said, that you did not know why you had done it.

22Psychologist Dr Dion Gee whose report dated 24 January 2018 was tendered on the plea, found that you met the DSM-5 criteria for major depressive disorder of moderate severity with mixed features, and an enduring post-traumatic stress disorder, arising from the violence suffered by you and your family at the hands of Mr Pickering.  It appears also that as a child, you suffered sexual abuse but have been unable to disclose this in any particularity beyond showing extreme signs of distress when questioned about it, as noted by Dr Gee.  Dr Gee stated:

"Mr Hughes' enduring impaired mental functioning currently underpins deficits in self-regulation with respect to his cognitive, emotional and behavioural control, difficulties that predate his formal contact with the criminal justice system."

23Dr Gee believed your impaired mental functioning may have contributed to your offending although he did not find there is a causal nexus between the two.  He opined:

"Mr Hughes' background has fostered the development of several interlinking psychological mechanisms that appear to underpin his current disposition and in part help explain his past aberrant behaviour. Mr Hughes advances (1), intimacy and scope social skill deficits; (2), emotional and behavioural misregulation and to a lesser degree, (3), cognitive distortions that appear to make him vulnerable to act out in an aberrant manner."

24Dr Gee also stated "Mr Hughes' aberrant behaviour is best construed as unsophisticated attempts at intimacy, sexual expression/gratification and social connectedness in a man with comprised psychosocial competence” (see paragraph 39). Dr Gee after testing, found the risk of offending you pose in the future was at the low moderate level.

25In my view the tenor of his extremely thorough report supported the submission of your counsel that you are immature and naïve.  While you and your family are permanent residents and despite being here since early childhood, you have never applied for Australian citizenship and remain a Chilean national.  You have no prior or subsequent convictions, as I have said.

26Your counsel, whilst conceding the objective gravity inherent in any charge of rape or sexual assault, nevertheless submitted that your offending fell at the lower end of the scale. She submitted that the offending was spontaneous and opportunistic, occurred on each occasion when you had woken from sleep, that the incident of rape was a single incident of short duration, from which you immediately desisted when the complainant objected.  It involved no abusive reaction, threatening or violent behaviour.  You did not try to keep it secret or suggest that the complainant do so.  You were not in a position of authority or other power imbalance. It involved no ejaculation.

27Ms Munster submitted the second incident also fell at the lower end of the spectrum, being of about ten seconds duration and again was one where you immediately desisted when the complainant woke and complained.  Insofar as the charge of rape was concerned, Ms Munster conceded that you knew the complainant was asleep and breached her trust but pointed out it occurred within the first month of the relationship, which was your first consensual sexual experience.

28Insofar as the second incident was concerned, she conceded that you were not in as inexperienced a position as the first.  She stated that there had been a practice the two of you involving some sexual arousal practices while the other appeared to be asleep but on these occasions, you had overstepped the boundaries of those sexual practices between you.  Again, she said you adored the complainant and her son, and as I already said, remain devastated by the loss of that relationship. 
Ms Munster submitted you had shown deep and abiding remorse from the outset, including remorse immediately following the first incident and again after second incident when you made multiple apologies to the complainant at the time of the incident, and then further multiple text and Facebook apologies subsequently.  She described that remorse as immediate and genuine and which had been repeated in the record of interview to police and to Dr Gee.

29In his report, Dr Gee recommended psychiatric review and monitoring, a one-to-one sex offender intervention program, therapy to address past trauma, longer term psychological treatment around emotional and behavioural control, and psychological treatment focusing on intimate relationships.  It was his view that you had very good prospects for rehabilitation, if given the opportunity to access appropriate psychological intervention "in a timely manner".  Further as it has already been stated in the sentencing remarks, it was his view that appropriate testing administered to assess risk of sexual reoffending placed you at below moderate risk level.

30It was Ms Munster's submission that your genuine remorse; the circumstances of the offending; prospects of rehabilitation; the unlikeliness of reoffending in this way; your prior and subsequent lack of offending history; the support afforded by your family; and the employment opportunities offered by Mr Withers, meant that aspects of specific deterrence and protection of the community were of lesser importance in the sentencing exercise before the court.

31She conceded that aspects of general deterrence, denunciation and just punishment were relevant principles for the court, but it was her submission that the extremely unusual circumstances relating to this case meant that the punitive and rehabilitative imperatives could be appropriately met by the imposition of a properly constructed community corrections order.  Ms Munster also submitted that imprisonment would weigh more heavily upon you because of your pre-existing psychological conditions and the fact that if sentenced to 12 months' imprisonment or more, you faced the prospect of mandatory cancellation of your permanent residence visa and deportation to Chile, where you had not lived since you were a child and where you have extremely limited family and support.

32It was the prosecution's submission that a combination disposition comprising both a term of imprisonment and release onto a community corrections order was open in this case but that the imposition of a community corrections order alone was not appropriate.  Ms Churchill for the prosecution submitted that the second offence had been aggravated by the fact that between the offending, the complainant had explained to you that you could not behave as you did whilst she was asleep, so that you were aware of this at time you committed the second offence. 

33I was referred to the case of DPP v McInnes [2017] VSCA 374, a decision of the Court of Appeal, delivered on 13 December 2017, and a case which in my view was very much on point in a number of aspects. In that case, the defendant raped the complainant whilst she was asleep in a bed they were sharing. There, the learned judge imposed on community corrections order which was appealed as manifestly inadequate by the Director of Public Prosecutions at the Court of Appeal. In a majority judgment, their Honours Priest and Beach JJA, upheld the sentence as within the available range, albeit lenient.

34In that case, McInnes like yourself, had no prior or subsequent convictions.  He too was described as a naïve and immature man, who showed great remorse for his offending, as evidenced by his self-reporting the matter to police.  In that case, McInnes and the complainant were not in a relationship and she had made it clear to him that she had no interest in a sexual relationship with him.  At the time of the offending, the complainant was on sleeping medication, which was known to the accused.

35These factors were not present in the case before this court and were in my view, somewhat more serious than those in the present case.  Furthermore, the accused man ejaculated inside the complainant which was not the case here.  The accused man also conducted a committal which was confined in nature.  He had no pre-existing mental health conditions, nor did he have any prior or subsequent criminal history. 

36In finding as they did, their Honours at paragraph 77, 78 and 79 of the judgment referred to the remarkable facts of the case, which included self-reporting by the accused, (following a promise to the complainant that he would do so, but preceding a text from the complainant querying whether or not he had made such a report and stating that if he did not, she would),   the extraordinary level of remorse, the confined nature of the committal, the full and opened admissions and the fact that he was very naïve, relatively young, had no prior convictions and excellent prospects at rehabilitation. 

37I certainly accept the objective gravity surrounding any rape is always high.  Further, this is a case involving two charge of sexual misconduct, separated by a period of time in which it was made very clear to you by the complainant what the boundaries of acceptable sexual behaviour were.  However I regard your plea of guilty, which in any case in cases of this kind is always significant, as particularly significant and indicative of genuine remorse, this being in addition to the remorse evident in your personal and social media communication to the complainant, your conduct of your record of interview and your presentation to Dr Gee.

38For what it is worth, I observed you to exhibit clear distress throughout the plea hearing, particularly when the complainant read out her victim impact statement.  I accept you truly loved her and her son and are devastated by the loss of that relationship.  I made the observation during the plea, that in my view, it would have been perfectly open to you to seek to run a trial but your instructions were adamant that you wish to enter a plea of guilty and accept the fact scenarios contained the prosecution opening. 

39I do regard this case as unique.  I accept that despite your age at the time of this offending, you were an extremely naïve and an inexperienced man, who had never had a girlfriend, had never left home, were suffering serious psychological difficulties, which resulted as Dr Gee said, in deficiencies in your capacities within a relationship, that the offending was of short duration, lacking most of the more serious surrounding factors, as previously outlined and were, as I have stated several times, accompanied by immediate and in my view, genuine and overwhelming remorse.  I accept that you are a person of excellent rehabilitative prospects and that those rehabilitative prospects are best enhanced by immediate attention to your psychological and psychosocial difficulties.

40Ordinarily, charges such as these would be expected by the community to be dealt with by way of a term of imprisonment to be immediately served.  Indeed, it is unusual in cases such as this, for the prosecution even to concede that a combination disposition was appropriate. 

41Pursuant to s.5(4)(C) of the Sentencing Act, I am obliged not to impose a sentence involving an immediate custodial term, unless I am satisfied:

"that the purpose or purposes for the sentence is imposed cannot be achieved by a community corrections order to which one or more of the conditions referred to in s.48(f), 48(g), 48(h), 48(i) and 48 (j) are attached." 

42Having regard also to the factors to which I must be attentive as detailed in s.5(2) of the Sentencing Act, I am not so satisfied.  In saying this, I very much make the point that such a finding involving charges such as these must indeed be rare and must arise from a unique situation, which I do find exists in the present case.  I am also satisfied that a term of imprisonment would be far more onerous for you than the normal prisoner, given your serious enduring and pre-existing psychological conditions, which in my view, would be undoubtedly worsened by a custodial term.  It is my view that this is one of those rare cases where ordinary members of the community would not necessarily expect a term of imprisonment to be imposed. 

43I have had you assessed for placement on a community corrections order and you have been found suitable.  After anxious consideration, I have decided to impose a community corrections order only in relation to this offending, which in my view, in the most unusual circumstances of this case, adequately addresses both the punitive and rehabilitative demands enlivened in this case.

44What that means is, Mr Hughes, is I am not sending you to gaol.  I am going to place you on a community corrections order.  Before I can do so, I have to explain to you the conditions of the order and they are as follows:  You must report to the Office of Corrections within two working days of the making of this order, that is by Tuesday of this week.  While you are on this order, which will last - there will be two orders.  I think I have to do two, do not I, Madam prosecutor?  They are two - the offending is separated in time.

45MS SCHULTZ:  Yes, Your Honour.

46HER HONOUR:  All right.  So the order in relation to Charge 1 will last for a period of four years.  The order in relation to Charge 2 will last for a period of 18 months and they will run concurrently.  Whilst you are on the order, you must not leave Victoria, except with the permission of the Office of Corrections.  Whilst you are on the order, you must not commit another offence punishable by imprisonment, all right?  So what that means is, you do not - it does not have to be that you commit an offence and go to gaol for it.  If you commit an offence for which you could theoretically go to gaol, like if you knocked off a box of matches from Woolworths, theoretically, you could be sent to gaol for that and that would be a breach. 

47Whilst you are on the order, you must obey all lawful directions of the Community Corrections Office.  You must inform the Community Corrections Office of any change of address or employment, within 48 hours of the making of that change.  You must not attend upon the Community Corrections Office under the influence of drugs and alcohol.  You must report to and receive visits from the Office of Corrections.  I am also going to order that you undertake 300 hours of unpaid community work.  You must attend for mental health difficulties, that is, for psychological therapy.  I am going to order that you undertake a sex offenders program but I am going to make the comment that it should be a one-to-one program.  All right?   Yes, I think that that will do.  All right.  Are you prepared to enter this order?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  Thank you very much.  Have a seat, sir and we will prepare the documentation.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years and order that you serve a minimum term of two years.  Does everyone understand what has happened? 

50VOICE (from body of the court):  I'll explain it to her.

51HER HONOUR:  Your son is not going to gaol.  He's not going to gaol. All right?  Good, thank you very much.

52HER HONOUR:  Yes, that's no problem.  Just so you understand.  Thank you very much.  So Mr Hughes, young men don't usually like going to therapy but you need to.  And you've got a history of you know, starting a bit of therapy and then dropping out.  You can't do this here.  It's very important that you abide by all the conditions of the order.  Do you understand?  All right?

53OFFENDER:  Okay.

54HER HONOUR:  You got it?

55OFFENDER:  Yes.

56HER HONOUR:  I wonder if I should do a judicial monitoring, probably wouldn't hurt.  All right.  I'm going to also order judicial monitoring.  What that means is, you come back here in six months' time and I will get a report about how you're going.  We'll give you a date for the first judicial monitoring.  You can have a seat, sir.  Thank you.

57MS MUNSTER:  How many months, sorry, Your Honour?

58HER HONOUR:  Pardon?

59MS MUNSTER:  How many months did you say, three months' time?

60HER HONOUR:  Six months.

61MS MUNSTER:  That will be the August.  22 August?

62HER HONOUR:  Yes.  So I will see you at 9.30 on 22 August.  The Community Corrections Office will remind you.  All right?  Thank you.

63MS MUNSTER:  Your Honour, my instructor just approached Mr Hughes about the forensic sample application.  I had overlooked that.  I think an application was made.  I don't recall there being any discussion about it on the last occasion.

64HER HONOUR:  Look, I do think it would be most unusual that I not order ‑ ‑ ‑ 

65MS MUNSTER:  Yes.

66HER HONOUR:  ‑ ‑ ‑ one in the circumstances.

67MS MUNSTER:  Might we ‑ ‑ ‑ 

68HER HONOUR:  Just ‑ ‑ ‑ 

69MS MUNSTER:  Might I just approach ‑ ‑ ‑

70HER HONOUR:  Of course you can.  Yes, thank you.

71MS MUNSTER:  Thank you, thank you.

72HER HONOUR:  And I'll explain - this is for your saliva swab.

73MS MUNSTER:  Yes, thank you.  It's my omission, I apologise.  Mr Hughes had instructed that he did not oppose the making of that order and I had overlooked that.

74HER HONOUR:  That's all right, Ms Munster.  That's about the only thing you did overlook.  It was a thorough plea, thank you.

75MS SCHULTZ:  Your Honour, in case it wasn't made on the last occasion, the Crown does seek a forensic sample order.

76HER HONOUR:  Well, I kind of thought you might.  No problem, thank you.  All right.  We'll get you to sign this please, Mr Hughes.

77MS MUNSTER:  Shall I?  Would Your Honour like me to ‑ ‑ ‑ 

78HER HONOUR:  No, he'll be right, I'm sure he's fine.  Thank you.

79MS MUNSTER:  Yes, he will.

80HER HONOUR:  Have we got the - have they all been handed up, or not?

81MS SCHULTZ:  In the event they haven't, I have new copies for Your Honour.

82HER HONOUR:  Thank you so much.  Thank you very much.  All right, can you stand up please, sir?  Within the next 28 days, Mr Hughes, you will need to attend upon your nearby police station, closest one where there's - you'll be given.  There'll be all sort of addresses on it given to you.  And the police are entitled to take a swab from your mouth and I need to inform you if you refuse to provide such a sample, they may use reasonable force in order to obtain that, all right?

83OFFENDER:  Okay.

84HER HONOUR:  Thank you, have a seat.  All right and there we go.  All right, I think that's everything.  Good luck, Mr Hughes.  I thank counsel very much for their assistance in this case.  Here's the community corrections order.  And we are going on circuit, so we will adjourn this court sine die.  Thank you very much.

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