Director of Public Prosecutions v Lochie (a pseudonym)
[2017] VCC 1323
•15 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYLIE LOCHIE (a pseudonym) |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 24, 25, 28, 29, 30, 31 August, 1 and 4 September 2017 | |
DATE OF SENTENCE: | 15 September 2017 | |
CASE MAY BE CITED AS: | DPP v Lochie (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1323 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Fisher | Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue + George Criminal Lawyers |
HER HONOUR:
1 Rylie Lochie,[1] you have been convicted by a jury of one charge of rape and one of indecent assault.
[1] Rylie Lochie is a pseudonym.
2 The victim, Natalie McKinlay,[2] is your partner, Lauren’s[3] identical twin sister and the sexual assaults occurred in your mother’s home, where you, your partner and one-year-old child, also lived. At the time of the offending you, Natalie and Lauren were all 21.
[2] Natalie McKinlay is a pseudonym.
[3] Lauren is a pseudonym.
3 Natalie McKinlay’s evidence, which by its verdicts, the jury accepted was to this effect. She had gone to Sydney for a holiday to stay with a boyfriend who she had only recently started seeing. Things did not go well in Sydney and she returned to Melbourne, upset. Your mother was away, interstate and Lauren invited Natalie to stay for a few days before she went home and faced the inevitable, “I told you so’s” from their parents.
4 Three days into that visit, after Lauren and the baby had both gone to sleep, you went into the guest bedroom where Natalie was staying. She was in bed, but awake. It was common for you to go into her room and talk. You sat down on the bed beside her and the two of you talked for some time about various matters, including the breakup of the relationship with the young man in Sydney and her distress over it. Natalie said you took a notebook and began drawing on it, then reached over and touched and rubbed her breasts over her clothing. She asked you what you were doing and you said you were drawing her and needed to know what her breasts felt like. That is Charge 1, indecent assault, of which the jury found you guilty.
5 You then drew the bedding down, pulled down the shorts and underpants she was wearing and digitally penetrated her. She told you to stop, but you continued. That is Charge 2 of which the jury found you guilty, rape.
6 Natalie eventually pushed you away and told you to go and tell her sister what you had done, or she would.
7 You left the room. Natalie immediately sent text messages, in an attempt to communicate with the ex-boyfriend from Sydney, his sister and a friend she had met in Sydney and then made a lengthy Skype call to another friend, complaining of what you had done.
8 You meanwhile rang a family friend and spoke to Lauren. According to them, you told both of them that you had sexually touched Natalie, but that she was the initiator and that she had sexually violated you.
9 Lauren then spoke to the Natalie whilst she was still on the Skype call. There is a conflict in the evidence as to what Lauren said to her sister about her understanding of what had happened, but it was common ground that she made it clear that she did not want Natalie to go to the police for fear of the consequences for herself and the child.
10 It is also common ground that Natalie was very distressed and that, although you were present for some of the time, you did not take part in the conversation between the sisters, or between Natalie and her friend on the Skype call.
11 Although Natalie remained at the house for some days after that before returning home, on the evidence, there were no further discussion between Natalie and you, or Natalie and Lauren about what had happened that night. Although there was some conflict in the evidence about this, I think that the evidence that there was minimal contact between you and Natalie for the remainder of the visit and that Natalie went and slept in another room at the opposite end of the house from the wing where the bedroom she had occupied and the baby’s room and the bedroom occupied by you and Lauren, at least until your sister arrived, is likely to be true.
12 Natalie ultimately reported the matter to the police five days later. You were interviewed two months later. When interviewed, you told the police that you had been talking to Natalie in the bedroom for over an hour, when, as she was lamenting the end of the relationship and the manner in which it had ended and was wondering aloud whether the boyfriend had just been using her for sex, that she unexpectedly grabbed your hand and placed it down her pants and on her vagina. You told police you had left your hand on her vagina for about ten to 13 seconds before removing it. You said you left your had there for that time because you were confused about what was going on, because Natalie and your partner, Lauren, are identical twins.
13 This was a bizarre thing to say, given that you had been talking to Natalie about her relationship issues for over an hour, that the light was on in the bedroom, and you were in the spare bedroom, not the one you shared with your partner. Later in the interview, you told the police that since this had happened, intimate moments with your partner were disturbed by intrusive thoughts of the similarity between her and the victim. The “mistaken identity” defence and reference later in the interview to a similar confusion when engaged in sexual intimacy with your partner since the events of this night, provided some support for other evidence adduced in the trial which, Mr Fisher, on behalf of the prosecution, submitted should satisfy me you had a pre-existing sexual interest in your partner’s twin sister and went into the bedroom that night intent on acting on it.
14 Natalie gave evidence that you had previously told her that you had wondered what sex with her would be like, because she was the identical twin of your partner and also that you had commented that night, as you uncovered her, that she and her twin both had “amazing bodies”.
15 Although I am not satisfied beyond reasonable doubt for sentencing purposes that you had a pre-existing sexual interest in Natalie and went into the bedroom that night, in order to act on it, in my view, what you have said and the evidence that I just recounted as to what Natalie said you had said, is a matter that should be considered by Corrections when assessing your eligibility or suitability for participation in a sex offender treatment program.
16 At both committal and trial, Natalie was cross-examined in intimate detail and at great length. Much was made at trial of differences in detail between the account she gave in evidence, what she had said in her statement and what she said during the extremely lengthy cross-examination at committal. Differences in detail as to what Natalie said she had said to the various people to whom she had complained in the Skype call and in the text exchanges following the original text messages, to which I have already referred and what they said she said, were also explored in exhaustive detail and with vigour.
17 Natalie, Lauren, and your sister, who was also a prosecution witness, were all cross-examined to suggest that Natalie was jealous of her twin sister’s life, the loving relationship that Lauren had with you and Lauren’s already having had a child, about Natalie wanting a relationship like yours and Lauren’s, about Natalie wanting a child and even wanting you for herself. It was put to Natalie and argued to the jury that Natalie was motivated to make a false allegation of rape against you because of jealousy, or because she was seeking attention from the boyfriend who had so unceremoniously dumped her in Sydney. As the verdicts make clear, you took the cowardly way out. Instead of owning up and taking responsibility and trying to make amends, you denied it, traduced her reputation, attacked her honesty, blamed her and ruined her relationship with her twin. Your conduct, in effect, forced both twins to choose between you and each other. Lauren chose to believe, or at least to prefer to support you and preserve her little family over her sister.
18 The jury, by its verdicts, rejected the challenges to Natalie’s credibility, both to her truthfulness and her reliability. They rejected the suggestion that she would make up such a monstrous lie, that her twin sister’s partner had raped her, perjure herself, threaten her sister and the baby’s future security and happiness, to force her sister to choose between you and her, because she was jealous of her sister's life, or was trying to get the boyfriend back, or reproach him by attention seeking behaviour.
19 Whilst you cannot be penalised for pleading not guilty, the enormity of these allegations must be considered in the context of the relationships within the families.
20
Natalie and Lauren are, as I have already said, identical twins. In fact, with
a non-identical sibling, two of triplets. On the evidence adduced at trial, they have always been close, closer than they are with the third of the triplets, and with their other siblings. Both Natalie and Lauren spoke of the special bond that they had always, up until this night, shared. Unchallenged evidence was adduced at trial that Lauren was only 19, just out of school and had known you only a month when she became pregnant to you. On the evidence at trial, Lauren's mother kicked her out of home on discovering the pregnancy and Lauren's determination to proceed with it. Natalie was the only member of the family who remained loyal to Lauren, who supported her and remained in close contact with her and you after that. Lauren, Natalie and you, in your interview with the police, all said that you and Natalie had always had a good relationship, that you liked and respected each other and that Natalie looked on you as someone to whom she could turn for support and advice.
21 As Natalie says so compellingly in her victim impact statement:
"By reporting to police, I was made to feel that I did something wrong and my ability to trust and love has been demolished, as I always felt comfortable and accepting of [Rylie]. I am also sad about the effect that this has had on him and his family. I hated myself and attempted suicide at least 27 times in the last two years and I am receiving medical treatment for depression and anxiety. I am grieving the loss of my [sister’s child], my relationship with my sister and family events will never be the same, as we cannot attend the same events. I feel uncomfortable and judged around some family members now. This has torn the family apart."
22 She also said this:
"I have worked hard to manage my feelings of anger and I'm learning to forgive and move forward, but feel like I need an apology for closure. I can't even think what the long-term effect of this will be, I only ever take one day at a time."
23 And, she concluded by saying:
"I would never have reported this to the police had [Rylie] just apologised. All I have ever wanted was for him to say sorry and admit what he had done to me."
24 Natalie was confronted with a terrible dilemma. You denied the offending and called her a liar and the predator. She could complain, report, have you held accountable and wear the blame and guilt for exposing you to the risk of criminal conviction and sentence, and denying the child she loved, as well as you and Lauren, of a father, or live with being branded a liar, having it, as she said, swept under the carpet and wondering if you would treat her or someone else the same way in the future.
25 She decided to report. You maintained your denials and your counter-attack. It was a gamble and you lost. In doing so, you have lost the benefit also of what is one of the most significant mitigatory factors when sentencing a person for sexual offences; acknowledgement of responsibility for the conduct and the consequences; remorse for what you have done, not for the position your own conduct has put you in, but remorse for the impact on your victim and the secondary victims. By that, I mean Lauren, your child and your extended families. There is no evidence of your facing, even belatedly, your responsibility, or seeking to make amends for your conduct. As I have said, you cannot be punished for pleading not guilty, but the weight I give to your prospects for rehabilitation must be tempered by the absence of acceptance of responsibility, or attempts to make amends.
26 I gave you the opportunity to reflect and to acknowledge responsibility after the plea hearing when you had had to listen, as we all did, to Natalie read her victim impact statement aloud and concluded with those words about wanting an acknowledgement and an apology and that having been all she had ever wanted.
27 This offending is a terrible breach of trust. Not only of Natalie’s trust, but also of Lauren’s. It may well have been opportunistic, not planned, but it was calculated and it took place at a time when Natalie was vulnerable. Vulnerable because she was distressed by the breakup of the relationship, because this took place in your home with her sister and the baby asleep in the adjoining bedrooms. No matter how you reacted, no matter how Lauren reacted, things could never be the same between you and Natalie, or between Natalie and Lauren again after this.
28
It is clear therefore, that subject to matters personal to you, denunciation, just punishment and deterrence are significant sentencing factors. There are significant sentencing factors counting in your favour. You were young at the time, 21. You are 24 now. Your relationship with Lauren, I was told, was your first serious relationship, and you were sexually inexperienced until then. At the age of 21, you shouldered - well, from the age of 19 really, you have shouldered well and with a great maturity, the responsibilities of maintaining
a relationship when you are not much more than a child yourself. Your partner was not much more than a child herself and when the unplanned pregnancy occurred so early in that relationship. You have clearly taken on, not only the responsibilities, but savoured and enjoyed the joys, of fatherhood. You have held steady employment from the time you left school at 16 and maintained that employment until shortly after you were charged.
29 You are loved and held in high regard by your family and friends. Your father, described as a strong influence in your life and a strong personality generally, died when you were 15. You have been a great support to your mother since that unexpected and premature loss. You are described by your mother, your sisters, your partner, Lauren and the impressive number of friends and extended family who also provided testimonials on your behalf, in glowing terms. Quiet, polite, respectful, family minded, hardworking, and responsible are terms they used.
30 You continue to have the support of your mother, your sisters, your brother and your partner. They have all indicated they will continue to support you during what was acknowledged on the plea to be the inevitable term of imprisonment that follows from the jury verdicts and on your release. It is planned that Lauren and the child will continue to live with your mother and that you will return home to them on your release. That means there is stability of family support, stability of accommodation and a loving and supportive family around. All of that is highly significant, in terms of matters counting in your favour and reflective of your personality and your character otherwise.
31 You have no other criminal history. You have no history of abuse of drugs or alcohol and there is no suggestion that drugs or alcohol played any role in the offending. There is no evidence of any psychiatric psychological or personality disorder, which would adversely impact on your prospects for rehabilitation. So these matters are all strong rehabilitative factors. They are, however, as I have said, are to be tempered by the absence of acceptance of responsibility.
32 Natalie is not the only one whose mental health has suffered as a result of this. I was told that Lauren had already, at the time of this offending, been struggling with post-natal depression. Whilst I accept that you feel distress at the inability to support her and your mother during your period of incarceration, your distress must be put in context. It could have been avoided had you not betrayed Natalie's trust and Lauren's by sexually assaulting Natalie as you did.
33 You too have found the pressure of the charges hanging over your head to be a significant burden. You had been working as a shopping centre security officer. You lost your security licence as a result of being charged and you have struggled to maintain employment ever since, as the pressure of the charges and the pending trial mounted up on you.
34
Although no reports were produced, I accept that you were, as I was told, engaged in counselling over some months last year and more concerningly, spent a week as an involuntary patient in a secure psychiatric unit following
a serious episode of self-harm or threatened self-harm in March this year. That was at the time that the trial was originally listed to start.
35 I take into account that for these reasons and as a relatively young man, now 24, a first time offender and a first time prisoner, you will find incarceration onerous and I moderate the sentence accordingly.
36 I recommend that your mental health be carefully assessed and monitored and that you be provided with such supports as are necessary in custody. That should include counselling and not simply pharmacological support, if necessary. I recommend that you be assessed and if found suitable, provided with the opportunity to participate in a sex offender treatment program. I have structured the sentence so as to allow for a significant gap between the head sentence and the non-parole period. That is not only reflective of those rehabilitative factors that I have identified, but also so as to permit maximum flexibility to enable any sex offender treatment program to be provided, both in custody and if you are released on parole, in the community.
37 But as Ms Parsons rightly acknowledged on the plea, imprisonment is inevitable following the jury verdicts. This was, as I have said, a shocking breach of trust. Women should feel safe in the presence of the males in their families. They should feel safe in their homes, or the homes of family members where they have been invited to stay. They should not, for one minute, be made to feel responsible for the unwanted, unsolicited sexual assaults of people they should be able to trust and they should not be made, for one minute, to feel responsible for the consequences visited on the offender’s innocent family, or the offender himself, if he is brought to account.
38 Could you now please stand.
39 Rylie Lochie, on the two charges of which the jury found you guilty, you are convicted.
40
On Charge 1 of indecent assault, you are sentenced to be imprisoned for
a period of 12 months.
41 On Charge 2 of rape, you are sentenced to be imprisoned for a period of four years.
42 Those sentences are to run concurrently.
43 I fix the period of two years as the time that you served before being eligible for parole.
44 I declare that you have spent seven days in pre-sentence detention. I direct that that be counted and reckoned as part of the sentence already served.
45 There is no order to be made under the Sex Offenders Registration Act.
46 I am making an order for the taking of a forensic sample. That is to be taken by way of buccal swab. That is a swab like a cotton bud, to be rubbed on the inside of your mouth. I must inform you that, if you do not co-operate in the provision of that sample, then the police are authorised to use reasonable force and they will use the more invasive means of taking a forensic sample, namely a blood sample. Do you understand that?
47 OFFENDER: Yes, Your Honour.
48 Thank you. Did the orders that I pronounced reflect what I said I intended to do?
49 MS PARSONS: No issue, Your Honour.
50 MR FISHER: No issue, thank you.
51 HER HONOUR: And no further orders?
52 MR FISHER: No further orders, thank you.
53 HER HONOUR: Thank you. Can you remove Mr Lochie, please.
54 Please adjourn.
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