Director of Public Prosecutions v Maslin
[2019] VCC 662
•13 May 2019
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01231
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYLER MASLIN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2, 3, 6 & 7 May 2019 | |
DATE OF SENTENCE: | 13 May 2019 | |
CASE MAY BE CITED AS: | DPP v Maslin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 662 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Rape – Plea of guilty.
Legislation Cited: Sentencing Act 1991
Sentence: Youth Justice Centre order for a period of 2 years and 6 months; Forensic sample order made; 6AAA declaration: Youth Justice Centre order for a period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J. Kantor | David Tamanika Solicitor |
HIS HONOUR:
1 Tyler Maslin, on 2 May 2019 you appeared before me to stand your trial in respect of indictment number H13479187 that contained three charges of rape. The matter resolved and, on 3 May, indictment number H13479187.1 was filed over that contained one charge of rape as representative of two events of rape. You were arraigned and pleaded guilty to the single representative charge. Your plea was adjourned to Monday, 6 May and was part heard into Tuesday, 7 May.
2 Tendered as Exhibit A on the plea was the Summary of Prosecution Opening which was read aloud in court. The charge to which you pleaded guilty can be summarised in short compass.
3 You had been in a sexual relationship with the victim for some weeks prior to your offending. The relationship was broken off at your instigation. You had left a T-shirt and a belt at the victim’s flat and on 21 December 2017, you arrived by invitation at the victim’s flat between 5.30 and 6.00pm in order to pick up your items of clothing. The victim had left the door to her flat unlocked in anticipation of your visit. You entered the flat to find the victim lying in bed as she was not feeling well. You sat on the end of her bed and the two of you spoke for a short period of time. Eventually, you took the victim’s underwear off but the victim told you that she did not want to have sex with you. Despite this, you lay on top of her and put your penis into her vagina. You penetrated the victim and withdrew before ejaculation. Thereafter, you lay beside the victim. After a short period of time, the victim got up off the bed and got dressed. (Charge 1, rape) Charge 1 is representative of another incident of penile/vaginal rape.
4 After the incident that founds Charge 1, you, together with the victim, drove to McDonald’s in Wendouree and bought takeaway food. Together you went to the lake and ate the food. When you had finished eating, the victim asked you if she could go home. You wanted to watch the sunset, and the pair of you watched most of the sun set. You then drove to the victim’s flat and, during the trip, the victim fell asleep in the car. You arrived at the victim’s flat between 8.00pm and 9.00pm. You woke the victim who went inside her flat while you stayed in the car.
5 The victim took off her dress and got into bed wearing only her underpants and soon fell asleep. After texting a number of your friends from your car, you entered the victim’s flat and lay beside her. You put your fingers in the victim’s vagina for about a minute (an uncharged act) and then put your penis into her vagina. The victim woke up and became aware that you were lying on her right side facing her with her left leg placed over your hip or waist area and your penis inside her vagina. The victim pretended that she was still asleep. You withdrew from the victim’s vagina and the victim pretended to wake up by stretching.
6 After the second incident of penile/vaginal rape, the victim left her flat and went to a neighbour’s house. The victim was upset and asked her neighbour for a cigarette, and when asked what was wrong, told her neighbour that she woke up and found you inside her. The neighbour called the police.
7 At about 11.45 pm, police attended outside the victim’s flat. They observed you sitting in your car outside the flat. You were arrested and interviewed under caution on two occasions. The first interview commenced at 1.00 am and concluded at 1.33 am on 21 December 2017. The second interview commenced at 5.55 am and concluded at 7.14 am.
8 During the second record of interview, in respect to the facts that support the charge on the indictment, you told police that the victim kept asking you to hug her and that you kept pushing her away. Eventually, you commenced to have sex with the victim in the missionary position. You told police that you pulled the victim onto yourself and that she was on top and that she started to cry and said to you 'why do we keep doing this to ourselves?' And that you looked at her and said 'I’m not sure'. You said that the victim hopped off and after that you lay in bed together talking. You did not ejaculate. (See Record of Interview Questions and Answers 346-357.)
9 Your account sits in stark contrast to that of the victim. Mr Kantor of counsel, who appeared on your behalf on the plea, accepted the victim’s version as being the basis upon which you should to be sentenced.
10 In respect to the second incident of which Charge 1 is representative, in the first record of interview you told investigators:
'Well it all started off as we just come back from having tea at the lake. She’d gone inside, that was all good, I was on me phone just sending a message or two to some mates. I come in, did some stuff, went and lied in bed. I dunno, lied there for a bit, didn’t really know if she was awake or not. She must’ve been talking in her sleep because I thought she was awake and, yeah, just – yep. And then about 5, 10 minutes later, kinda thought to myself, "I don’t think she’s actually awake". So I stopped altogether. And then probably another 5 minutes later, she woke up and she asked why I’m still awake, and I was just playing on my phone. She went to the toilet, come back, asked why the bed and everything was all over wet. Feeling like an idiot because of what I’d done, I said, "I’m not sure".' (See record of interview Question and Answer 20)
11 Later in the first interview, you told the police:
'… When we were hugging and stuff I kept trying to roll over but she kept pulling me back, and I was thinking, "alright" yep so then started … yeah I kept rolling back over my way and she kept pulling me back, so … and so I put my hand in her, she started moaning like normal. And then, yeah, put my dick in and then she just stopped. And I was like, "well that’s not normal" … so I pulled out, and when I was pulling out I’d gone and then she went’. (See record of interview Questions and Answers 173-177)
12 You maintained in the record of interview that during the second act of intercourse the victim climaxed.
13 As to the second incident, your plea was based on the proposition that you believed that the victim was consenting and when your belief changed that you immediately withdrew from the victim but that the initial belief could not be regarded as reasonable in the circumstances.
14 Tendered as Exhibit B was the Victim Impact Statement which was read aloud in court by the victim. As a result of your conduct, the victim feels a constant and deep sense of shame, she regards herself as a damaged person. She is no longer happy and outgoing as she once was. She described herself as withdrawn socially, isolated, sad, angry and scared. She turned to drugs and alcohol and even self-harm as a result of your conduct towards her.
15 The complainant struggles to find work because of a lack of confidence in herself, and that the prospect of meeting people causes her fear and anxiety. She struggles with intimacy. Further, she listed the symptoms from which she suffers under the headings of PTSD, depression and anxiety. Your conduct has had a profound effect upon the complainant.
16 At the time of your offending, both you and the complainant were aged 18 years. You are presently aged 20 years. Accordingly, you were and are a young offender. You are without prior conviction.
17 In respect of the second act of intercourse, you felt that you had done something wrong and sent a text to the victim in those terms. You left the victim’s flat and sent her a text which said 'I’m going home ok?'. The victim replied with a text asking why, to which you responded 'because I feel like I have done something wrong'. The victim sent a further message to you stating 'I’ll be there soon', and you replied 'don’t worry, I’m going. I’m so sorry'.
18 Tendered as Exhibit 4 were a bundle of 24 references, the names of the authors of these references are set out in Exhibit 3, your counsel’s submissions on plea. Throughout each of the references there are the continuing themes that you are a gentle and caring person, a person who is always willing to help whenever help is needed. You are a person who has been involved in the community with the local football and cricket clubs, as well as the Country Fire Authority unit in your town.
19 Your referees write that you have expressed remorse for your conduct and its consequences upon your victim as well as your embarrassment and shame for the pressure and upset that you have brought upon your family.
20 You are a young man of some capacity despite being of 'low average intelligence' and being dyslexic. (See Exhibit 1)
21 Tendered as Exhibit 2 were your school reports from Grade 4 until you completed the Victorian Certificate of Applied Learning (VCAL) in December 2015. These reports demonstrate that you were a hardworking student who required assistance from a teacher’s aide throughout your education. It is noteworthy that one of your teachers and the teacher’s aide who assisted you throughout your entire school life, are character referees for you.
22
Tendered as Exhibit 1 was the neuropsychological report of Dr Melissa Marot. This report documents your dyslexia and the various tests conducted by
Dr Marot on you. It adds nothing to the matters to which I have already referred, and your dyslexia was not prayed in aid in support of an argument based on
R v Verdins.
23 What is plain from all of the school reports is that you were consistently behind the rest of your class in your ability to read, but that with the assistance of a teacher’s aide you were able to develop strategies to cope with your dyslexia.
24 In respect to your personal background, you are presently 20 years of age and a third year apprentice butcher. Your employer is one of your referees. You have two younger brothers aged 17 and 13. Your father managed a cattle farm near Cobden whilst your mother worked nightshifts at a nearby aged care facility. You have a supportive family. Your education history is set out in Exhibit 2.
25
You were seen by Dr Aaron Cunningham, psychologist, on 3 May 2019.
Dr Cunningham’s report became Exhibit 6 on the plea. You told Dr Cunningham that you had had three significant romantic relationships, including the one with the victim. It is of note that the young woman with whom you had your first romantic relationship is one of your referees, and that after the relationship ended you remained 'great friends'. In the reference she writes that you are remorseful as well as being conscious of the effect of your offending on your family and friends.
26 Dr Cunningham assessed your risk of sexual reoffending using the well-known and accepted assessment tool, Risk for Sexual Violence Protocol (RSVP). You present as a low risk of sexual reoffending.
27 You presented to Dr Cunningham as emotionally immature and as having difficulty communicating emotions and thoughts, as well as having difficulty in coping with stress and change.
28 It is to be noted that you attempted suicide on being charged by the police.
29 Dr Cunningham opined:
'Placing a low risk individual into a high risk group of offenders presents a risk of contamination. Further, there is a risk of Mr Maslin being vulnerable to manipulation and abuse in an adult jail. Mr Maslin presents as impressionable when separated from the structure and support of his parents.'
30 You are young offender and in such circumstances rehabilitation is usually more important than general deterrence, further a youthful offender is not to be sent to adult prison if such a disposition can be avoided particularly if he is beginning to appreciate the effect of his past criminality. (See The Queen v Mills [1998] 4 VR 235 at 241) I am satisfied that you do realise the effects of your offending and that that the principles enunciated by Batt JA in Mills apply to you.
31 I was satisfied that the pre-requisites set out in s.32 of the Sentencing Act 1991 applied to you and accordingly I adjourned the further plea of this matter so that a report might be obtained for your suitability for a Youth Justice Centre Order.
32 Having received from the Department of Justice and Community Safety a report that finds you suitable for a Youth Justice Centre Order and taking into account your plea of guilty, your expressed remorse and your excellent prospects for rehabilitation I am satisfied that a Youth Justice Centre Order is the appropriate disposition in your circumstances.
33 Rape is a serious crime punishable by 25 years’ imprisonment. However you are a young offender. You have the support of your family and the wider community in your town. You pleaded guilty and I am satisfied of your remorse and have made a positive finding in respect to your prospects for rehabilitation. I am positively of the view that a term of imprisonment is not appropriate in your circumstances as you are vulnerable to the adverse influences that exist in the adult prison system and that your rehabilitation in the present circumstances is more important than general deterrence and that a term of imprisonment in your case must be avoided.
34 Will you please stand.
35
Taking into account the circumstances of the offence and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to be detained in a
Youth Justice Centre for a period of two years and six months.
36 Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for you plea of guilty I would have sentenced you to be detained in a Youth Justice Centre for a period of four years.
37 Are there any other matters?
38 MR CORDY: As Your Honour pleases. There was an application for a 464, Your Honour. There's not, there should have been. So I make that application. Your Honour will be aware of course of the rationale behind - - -
39 HIS HONOUR: Yes. No, I - - -
40 MR CORDY: - - - the making of such order. A matter for Your Honour's discretion.
41 HIS HONOUR: Mr Kantor, do you have instructions in the matter?
42 MR KANTOR: I do, Your Honour, and it was contained at the bottom of my submissions, it's not opposed.
43 HIS HONOUR: Please, Mr Maslin, be seated.
44 MR KANTOR: The application isn't opposed.
45 HIS HONOUR: Is not opposed?
46 MR KANTOR: Is not opposed.
47 HIS HONOUR: Then I don't believe - - -
48 MR CORDY: One will come through in a moment, Your Honour.
49 HIS HONOUR: Mr Maslin, would you please stand. The Crown has made application for what's known as a forensic sample, that is a scraping from your mouth, and I have granted that application because of the seriousness of the circumstances of your offending warrant the order. The order is not opposed and the granting of the order is in the public interest. I must inform you that if at the time of request you do not consent to the taking of a mouth scrapping under the supervision of an authorised member of the police force than the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
50 MR CORDY: As Your Honour pleases.
51 HIS HONOUR: I hand down one copy of the order. You'll note on the back there's some irrelevant information, I've struck it out and signed it as such.
52 MR CORDY: As Your Honour pleases.
53 HIS HONOUR: Now, Mr Maslin, what's going to take place now is that you'll be removed from the dock and taken to the Ballarat police station where you will be held until shortly members of the G4S organisation will conduct you to the Youth Justice Centre. Would you remove the prisoner, please.
54 I like to thank counsel for their assistance in the matter. Mr Kantor, you are excused.
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