Director of Public Prosecutions v Maddock

[2019] VCC 524

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-00882

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAX JOSHUA MADDOCK

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JUDGE:

HER HONOUR JUDGE WILMOTH

WHERE HELD:

Melbourne

DATE OF HEARING:

4 April 2019

DATE OF SENTENCE:

16 April 2019

CASE MAY BE CITED AS:

DPP v Maddock

MEDIUM NEUTRAL CITATION:

[2019] VCC

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: Pleaded guilty to one charge of rape – complainant known to accused - both aged 20 – force used – long term effects on complainant – youth – good prospects for rehabilitation  - genuine remorse – reduced need for specific deterrence – immaturity and social anxiety.

Cases Cited: Tutchill v R [2018] VSCA 269, DPP v Elfata [2019] VSCA 63, DPP v MacArthur [2019] VSCA 71.

Sentence: Three years imprisonment with one year six months non-parole period

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms A. Hassan (at plea)

Ms A Martin (at sentence)

OPP

For the Offender

Mr D Dann QC  with

Ms L. Thies (at plea)

Ms L Thies ( at sentence)

Galbally & O’Bryan

HER HONOUR: 

Max Joshua Maddock, you have pleaded guilty to one charge of rape which occurred on 19 July 2017.  You had known the complainant for several years and you had previously been in a relationship with her for a few months when you were both aged 15.  At the time of the offending you were both aged 20.

An incident occurred in 2016, which is not the subject of any charges, when you, while visiting the complainant's house, pushed her over a coffee table and pulled her pants down.  She saw that you had your pants down and told you that her mother would be home soon.  You pulled up your pants and apologised. 

On 15 July 2017, you contacted the complainant by Facebook and told her you would be coming home from Cambodia on 19 July and you wanted to see her, as you were upset about things that had happened.  These things were not related to her in any way but out of concern for you she agreed to go to your house on 19 July.

Her mother drove her there at around 7 pm and the arrangement was that she would call her mother when she was ready to be collected.  You told the complainant that your brother and his friend would be there later but that your parents were still in Cambodia. 

In conversation in your bedroom, sitting on your bed, you told the complainant that you were in trouble with the police because of an incident involving your ex-girlfriend.  She, the complainant, told you some of her troubles.  You got up from the bed and pushed the complainant down onto the bed with your hand around her throat.  You pulled her pants down and commented sarcastically about her underwear, while still applying pressure to her throat.  You touched her in her genital region and then bit her breast.  The complainant was very distressed and cried and told you to stop and get off her but you ignored her. 

You pulled down your pants and put your penis into her vagina, keeping it there for two or three minutes, during which time she was crying and telling you to get off.  You removed your penis, put it close to her face and rubbed it against her mouth, trying to get her to suck it but she turned her head away. 

You stopped and the complainant sat up and put her clothing back on.  You told her you were sorry.  Your brother appeared in the doorway and you told the complainant to act normally.  She did so and played games with you and your brother until her mother collected her about 10 pm.

On 22 July you contacted the complainant via Facebook and said "Now it's all my fault.  I'm like a fucking bulldozer that wrecks everything in my path".  

On 29 August 2017 the complainant made a police statement and a few days later she took part in a “pretext” call with you in which you admitted that you had raped her and said you felt awful.  You were arrested on 18 October and on
27 April 2018 a contested committal took place at which the complainant was cross-examined. 

On 31 January 2019 you were arraigned and pleaded guilty. 

Although you have no prior convictions you pleaded guilty in the Magistrates' Court to charges arising out of the incident referred to earlier, when on 18 June 2017 you pulled a knife on the new partner of your former girlfriend.  That incident occurred in June, about a month before the offence for which I am sentencing you. 

On 3 August 2017 you were placed on a 12 month good behaviour bond without conviction and with a condition that you complete a men's behavioural change program.  You completed that program within several months. 

As for the gravity of the offending in this matter, clearly it was not planned.  Indeed, it was spontaneous and opportunistic, but it did not occur in a vacuum.  You had tried once before to take advantage of the complainant sexually and you had acted violently towards your ex-girlfriend's partner just a month earlier. 

The offence against the complainant was a breach of the trust that she had placed in you and you exploited her kindness.  She protested at what you were doing and was obviously distressed, but you continued anyway.  You were violent towards her in the choking gesture that you employed, with pressure on her throat.  You did not use a condom, which can be regarded as an aggravating feature of such behaviour, and your actions were humiliating for her. 

The effects upon her are described in her victim impact statement.  She refers to the anxiety and profound anguish she has suffered since the assault on her, and its effects on her ability to study and work.  She gave up her university course and cannot hold down a stable job, as she was able to previously.  She stated that she suffers flashbacks and nightmares and cannot understand why, as her friend, you did what you did.  She had gone to your house in the spirit of friendship, to help you when you were upset, and you exploited that. 

Victim impact statements have also been provided by the complainant's mother and by the complainant’s partner.  Her mother feels guilt at having driven her daughter there that night and having collected her afterwards, not knowing what had happened.  She was horrified when she heard about it months later.  She stated that her daughter was barely functioning or communicating afterwards, that she lost weight, became depressed and withdrawn from her family. 

Her mother's health in turn was affected and she has struggled to continue working to support the family as a single mother.  Her partner described the complainant's disturbed sleep and her consequential fatigue, resulting in her having to sleep on weekends.  She prefers not to go out for fear of running into you and she no longer has the courage to work or study. 

He described her as "going through despair as her happiness and trust in people has been so brutally taken away from her". 

Turning now to your personal circumstances.  You are a young man from a good family, well-educated and have none of the indicia of social disadvantage so commonly seen in those who appear before the courts.  When you experienced bullying at secondary school, and suffered anxiety and depression, your parents, both professional people, knew what steps to take to address this and they obtained help for you and moved you to another school. 

You began university studies in Environmental Management and Sustainability but last year you deferred your course, as you were having trouble focusing on it.  You have a good work record from an early age, doing part time work as a school student, and working full time as a labourer recently. 

Together with your parents and two older brothers, you have been involved in a wide range of community activities, including sport, Scouts, environmental programs and overseas aid.  At the time of the offence you had just returned from Cambodia where, with your family, you had been volunteering with a community organisation.  Your parents, brothers and others, including your partner, have written references for you, providing details of these activities and attesting to your good character, and importantly, to the remorse you have expressed and to your good prospects for rehabilitation.

A considerable amount of material relating to your mental health was provided and it reveals several relevant issues.  Dr Barth, a forensic psychologist with whom you consulted recently, described your feelings of social anxiety, insecurity and alienation, which you reported to him, and he diagnosed an adjustment disorder with depressed mood.  You had earlier sought assistance for these problems during your teenage years, and last year a psychiatrist prescribed anti-depressant medication.  Recently a possible diagnosis of attention deficit disorder has been explored and medication has been trialled. 

Dr Barth described you as an immature and unsophisticated young man who does not suffer from any entrenched sexual deviance, but he considered that you have, and I quote here, ". . . a tendency to approach relationships in a
self-centred manner which means that his empathy and ability to recognise the emotional needs of others is not well developed". 

You have begun to tackle your emotional and interpersonal problems since engaging in treatment and it would seem that your present relationship of some ten months with your partner supports that opinion, a matter which is important for your rehabilitation. 

Dr Barth considered that your risk of sexual re-offending is moderate, taking into account the circumstances of your offending and your limited insight, as well as the more positive aspects of some protective factors, such as the absence of a significant mental illness, sexual deviance, or severe substance abuse issues. 

Your brother, Gareth, described your reaction to being charged with the offence, and the other charges which originally accompanied it.  He said you were extremely distraught and “borderline inconsolable”, and that the gravity of the offence and the uncertainty as to your fate has had a severe and negative impact on your mental health. 

Your counsel submitted at the plea hearing that this amounted to a significant deterrent effect on you.  You have voluntarily attended eight sessions of a sex offender treatment program with Mr Geoffrey Burrows, to assist you to gain insight into your offending, to enhance victim empathy and to develop a solid relapse prevention plan to reduce the risk of recidivism.  These are good indications for rehabilitation, as is your remorse.

That remorse is not only inherent in your plea of guilty, but also in the fact that you apologised to the complainant immediately and in a Facebook conversation with her a few days later.  In the “pretext” conversation in September 2017 you told the complainant how sorry you were and you expressed this also to Dr Barth and to your family and friends.  Indeed, they report that you are profoundly remorseful and deeply ashamed. 

In view of the nature of the charge, the objective gravity and the serious impact of the complainant, the only appropriate disposition is a custodial term.  The maximum term of imprisonment for the offence is 25 years.  I was referred to several cases which bear some similarity with this case and also to the Sentencing Advisory Council Sentencing Snapshot, which might provide some guidance. 

In Tutchell v R  the circumstances were very different, involving two terrifying rapes accompanied by threats and violence by a man the complainant had only met that night.  The offender there was sentenced to eight years' imprisonment with a non-parole period of five years and nine months. 

More similar features to this case were present in the circumstances of the sentence in DPP v Elfatah.  The offences were held to be at the lower end of the range of seriousness, in that the parties had been in a relationship which had just ended and the offending occurred as, and I quote from the case, ". . . . a breach of an agreement as to the limits of intimacy in the context of a longstanding relationship . . .".  The sentence for rape in that case was two years' imprisonment with three months cumulation of a six month sentence for stalking.  The minimum term before eligibility for parole was one year.  That sentence establishes that a broad range of sentences are available, depending on the circumstances of the case. 

Other sentences to which I was referred fell between the sentences in Tutchell and Elfata.  The Sentencing Advisory Council Sentencing Snapshot provides statistics as to imprisonment rates and lengths of imprisonment in rape cases, and from these statistics it emerges that the median principle imprisonment length of the past few years, until 2016, was five years.  The median length of a non-parole period was four years, with the most common non-parole period being between three and four years. 

Since the plea hearing in this case the decision in DPP v MacArthur was decided.  Mr Dann, who appeared on your behalf in the plea, foreshadowed the imminent handing down of this decision submitting that it was a case of stranger rape and the circumstances were very different from this case.  Indeed, that is so and there is no need for me to hear any further submissions in relation to it. The offender in that case was sentenced for multiple offences including one charge of rape and two charges of attempted rape.  The offender was a stranger who had met the complainant on a tram and the rape was committed in a public place in the early hours of the morning.  There was a number of aggravating features and the court held that the sentencing judge was correct in characterising the offending as being very serious examples of the charges of rape and attempted rape.

The court held that the sentence imposed by the sentencing judge was manifestly inadequate and increased the sentence for the charge of rape from five years to six years and six months.  The circumstances in MacArthur were very different from this case, but the sentence, together with the others mentioned, does assist in providing a yardstick for an appropriate sentence. 

There are a number of mitigating circumstances to be taken into account in your case, Mr Maddock.  The first is your youth.  You are aged 21 and that plays an important part in the assessment of your prospects for rehabilitation, and the significance to be placed upon it.  Your rehabilitation is a very important aspect of the sentence I must impose. 

I heard from Ms Hassan, the learned prosecutor, that efforts were made to expedite the hearing to take place before you turned 21 in June last year, to leave open the option of youth detention rather than adult prison, but this proved impossible. 

Quite a long delay has occurred, not unduly long in the circumstances, but you have had the prospect of likely imprisonment hanging over your head for almost two years.  On the other hand, you have put that time to good use, demonstrating those early steps towards rehabilitation.  It has been well established that you are profoundly remorseful, which is a good indicator of prospects for rehabilitation, and the steps you have taken towards gaining better insight into what you did are also encouraging.

You have good family support.  You have been engaged in treatment and you have demonstrated a capacity for a stable life of work and studying in a stable relationship. 

Your plea of guilty is another indication of remorse, in that by pleading guilty and avoiding a trial you have saved the complainant from having to give evidence again.  It was not an early plea but you had already apologised to her and it is clear that your remorse is genuine. The plea is also of value by assisting the progress of the case and facilitating the operation of the criminal justice system.  For all those reasons you are entitled to a discount on your sentence. 

This will be your first experience of prison and your youth, emotional immaturity and vulnerability owing to depression, call for careful moderation of the length of your prison sentence.  Dr Barth stressed the importance of this consideration saying, and I quote, ". . . Mr Maddock's immaturity, naivety and his interpersonal dependency will make him a relatively vulnerable prisoner, particularly due to pathological offenders he's likely to encounter in a custodial environment".

The offending was opportunistic, in that there was no planning or prior intention, but as I have already noted what you did was not out of the blue and that is relevant to the need for specific deterrence.  That need is somewhat reduced by your efforts so far but it still relevant to the sentence.  General deterrence must play the most important role, in that sexual offending must be deterred and a stern sentence should be seen to assist the community's efforts to change the culture of gender-based violence.

In determining an appropriate sentence I have weighed these matters carefully in order to achieve the required balance and to avoid the sentence being crushing upon you. 

Would you stand now please, Mr Maddock?  I sentence you to three years' imprisonment, to serve a minimum period of one year and six months before being eligible for parole.  If you had pleaded not guilty, I would have sentenced you to four years' imprisonment with a non-parole period of two years. 

I declare that you have been in custody for eight days, which I shall cause to be noted on the court record and to be reckoned as having been already served. 

The prosecution has applied for an order for a forensic sample of saliva to be obtained and you have given your consent to that through your counsel.  The police have the power to use reasonable force to obtain that sample.  I trust that will not be necessary. 

Ms Thies,I don’t think there are any other matters, but are there any other custody management issues you'd like me to note?

MS THIES:  Yes, there is just one, Your Honour.  I'm instructed that Mr Maddock is only having access to one of the two medications that he had been prescribed and that's the Lexapro.  I'm instructed he's not receiving the dexamphetamine that had been trialled.  I just wonder if perhaps the report of Professor Bruce Singh could perhaps be given to Corrections, just to ensure that any medications required can be given?

HER HONOUR:  I'll see if that can be done.  Thank you, Ms Thies.

MS THIES:  Thank you, Your Honour.

HER HONOUR:  Ms Martin, any other matters?

MS MARTIN:  No, thank you.

HER HONOUR:  You may take Mr Maddock down, thank you officer. 

MS THIES:  As Your Honour pleases.

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