Director of Public Prosecutions v Maude

[2014] VCC 1727

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-14-01147

DIRECTOR OF PUBLIC PROSECUTIONS

V

JOSHUA MAUDE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	16 October 2014
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	DPP v Maude
MEDIUM NEUTRAL CITATION:	[2014] VCC 1727

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 D. Mandie
For the Offender	Ms M.J. Mykytowycz

HIS HONOUR:

1Joshua Maude, you have pleaded guilty to two charges of sexual offending.  The first charge is a charge of rape.  The offence of rape has a maximum penalty of 25 years' imprisonment.  The second charge is a charge of indecent assault.  This offence has a maximum penalty of ten years' imprisonment.

The background to the offending.

2On an occasion between 1 December 2013 and 20 January 2014 you, Joshua Maude, filmed the genital and anal area of the first victim, Alyse Bulle (a pseudonym). Ms Bulle was unconscious at the time of the offending.  During the process of filming the victim's genitals, the accused, that is you, penetrated her outer vaginal lips with your fingers.  Ms Bulle had known you for approximately 18 months and considered you a friend.

3

On another occasion, during the same time period, the accused filmed the genital and anal area of the second victim, Deanna Becket (a pseudonym). 

Ms Becket was unconscious at the time of the offending.  Whilst filming Ms Becket, you used your hands to spread apart Ms Becket's legs and buttocks in order to expose her vaginal and anal area.

 

Ms Becket had known you for years and more recently, around this period, had commenced a girlfriend-boyfriend relationship with you.

The circumstances of the offending.

4On an evening between 1 December 2013 and 20 January 2014, the victim, Ms Bulle, attended at your home in Cowes for a going away celebration for the victim, Becket, who was leaving Phillip Island to return to Melbourne.  A number of other mutual friends also attended the going away party.  Whilst at the accused's home, the victim, Ms Bulle, and you, both commenced consuming alcohol.  Ms Bulle was drinking wine and orange juice and she stated that she had drunk a lot "Like I was pretty drunk." 

5Later that evening everyone from the party left your home and attended at the local Cowes Hotel.  Whilst at the hotel Ms Bulle consumed a number of vodka and orange drinks.  During the evening the victim, Ms Becket, left the hotel early and she did not return to your home but went and stayed the night at her own home. 

6The victim, Bulle, and a number of other friends all left the hotel at the end of the evening.  They returned to your home, where they stayed for the night.  Ms Bulle was hanging out in your bedroom with you.  Ms Bulle was lying on your bed when she began to feel sick.  She then went to the toilet and vomited.  Two of Ms Bulle's friends then assisted her to clean up the vomit and you gave Ms Bulle a toothbrush and you helped her to clean her teeth.  Ms Bulle's friends then went out into the lounge room, where they slept for the night, and Ms Bulle went to sleep on your bed.

7From the point of going to bed, the victim, Ms Bulle, had no further memory of anything occurring that night.  When Ms Bulle went to bed, she was wearing red underwear and a pair of shorts which she had unzipped because they felt tight.  The following morning, when Ms Bulle woke up, she went to the toilet and her vaginal area stung a little when she passed urine.  Otherwise she did not notice anything that was unusual.

8On another occasion, in January 2014, Ms Bulle stayed overnight at your home.  On this occasion you had left the home at approximately 1 pm to go to work, leaving Ms Bulle alone at the house.  Ms Bulle decided she would watch a movie on your computer before leaving the house.  Consequently she entered your computer password and she commenced looking for movies in the folders on the computer.  Whilst looking in one of the folders, Ms Bulle discovered a video of the second victim, Ms Becket.  The video was of Ms Becket's vaginal and anal areas.  Ms Bulle then discovered two videos of herself.  The videos were of both Ms Bulle's vaginal and anal area.  Ms Bulle recognised her red underwear and shorts as being the clothing that she had been wearing on the night when she had been heavily intoxicated and stayed overnight in your bed. 

9Ms Bulle tried to email copies of the videos to her own email address and she also tried to send herself copies of the videos via Facebook.  These attempts were unsuccessful, so Ms Bulle then used the camera on her mobile phone to film the three videos whilst they were playing on your computer.  Ms Bulle then deleted the two videos of herself from your computer, but she left the video of Ms Becket, as she thought that it may be required as evidence at a later date.  Ms Bulle then packed up her belongings and left your house.

10

Ms Bulle immediately reported her discoveries to her mother, and shortly thereafter Ms Bulle and her mother attended an appointment with

Ms Bulle's psychologist.  After consulting with the psychologist, Ms Bulle decided that she would advise Ms Becket of the videos that she had located on your computer. 

11

Ms Bulle then contacted Ms Becket and advised her of the videos which she had located on your computer in relation to both herself and the one relating to Ms Becket.  Ms Bulle subsequently met with

Ms Becket and she showed her the videos and she also provided

Ms Becket with a copy of the video which related to Ms Becket.  Ms Becket identified herself as being the victim in one of the videos.  Ms Becket has no recollection of the occasion when you had taken the video of her.  Ms Bulle also sent a text message to you advising you that she had located the videos on your computer.  Ms Bulle told you that she was disgusted that you had betrayed her trust in such a manner. 

12On 29 January 2014 Ms Becket reported the matter to police and an investigation into the matter started.

The videos.

13The first video in relation to Ms Bulle runs for four minutes and six seconds.  During the video you used your hands and fingers to manipulate the outer lips of Ms Bulle's vagina.  At approximately two minutes and 34 seconds into that video you had one of the fingers on each of the victim's outer vaginal lips.  You used your fingers to spread the lips apart.  You then used a third finger to rub between the outer vaginal lips and appears to be rubbing around the entrance of Ms Bulle's vaginal canal.  At approximately two minutes 47 seconds your finger appears to go into her vaginal canal up to the first joint of the finger.  During the video you also used fingers to separate Ms Bulle's buttocks in order to expose and film her anal area. 

14The second video in relation to Ms Bulle runs for two minutes and 22 seconds.  During that video you used your hands and fingers to manipulate the outer lips of Ms Bulle's vagina, during which you penetrated the outer vaginal lips.  You also filmed the victim's anal area.  That is the charge of rape, those incidents.

15The video in relation to Ms Becket runs for 51 seconds.  During that video you focused the camera on the victim's vaginal and anal area. 

The conduct of you after the offence.

16On 20 February 2014 you were arrested and conveyed to the Werribee Police Station for the purpose of conducting a digitally recorded police interview.  During the interview you stated that you had used your mobile phone to film both Ms Bulle and Ms Becket whilst they slept in your bed.  You then further stated that it was a voyeuristic urge that you could not explain. 

17

In relation to the video of Ms Becket, you stated that it would have been late at night and you were not sure whether you were drunk or not.  You stated that Deanna, who is Ms Becket, would have been lying next to you in bed on your left-hand side.  At the time she was wearing knickers and a

T-shirt.  You stated that you pulled down her knickers and you videotaped her vagina for about a minute and a half.  You stated that in relation to touching her, all you did was to pull and move her legs out of the way.  As I say, that is the indecent assault.

18

In relation to the videos of Ms Bulle, you stated that it was the same type of video as the one you took of Ms Becket.  You stated the videos of

Ms Bulle went for about a minute and that she was on the right-hand side of the bed and that you were on the left-hand side of the bed.  You stated that on the night you were extremely drunk and Ms Bulle was also extremely drunk.  You stated that it was voyeuristic and you did not know why you did it.  You stated that Ms Bulle was wearing shorts and that you had pulled her pants down and exposed the area for about a minute and a half.  You stated that there were two videos of Ms Bulle taken on the same night within a short timeframe of only about ten to 20 seconds.  You stated that she was asleep at the time.

19In relation to the Ms Bulle videos, you admitted that you used your hands to play with the outside of Ms Bulle's vagina, and you admitted that you may have inserted your fingers inside her vagina.  This is the charge of rape.

20You have made full admissions to your offending and you have stated that when you committed the offences you were extremely drunk.  That fact does not excuse your offending.

21In the record of interview you have expressed remorse and shame.  I accept that you have indicated your plea of guilty to these charges at the earliest time, just before committal mention on 26 June 2014.  I accept that your plea of guilty has the utilitarian value of preserving court resources and sparing your victims from giving evidence against you.  Your plea also provides certainty of outcome for your offending. 

22In your case the Crown case was a strong one, that you had provided the proof of your offending by video recording your criminal activity and then storing the images on your computer.  I also accept that your plea of guilty is a sign of your remorse.  This indicator of remorse is consistent with your history to the psychologists, Stanton and Ball.

Victim Impact Statements.

23

In this case I heard from Ms Becket, the victim of your indecent assault charge.  In her case two victim impact statements were actually filed.  In them she speaks of constant anxiety, trouble eating and sleeping.  She said she had lost trust in men, she cannot reach out for relationships because at or about the time of your offence against her, you were in a relationship with her.  She says she now thinks that people she has known for a long time have the potential to hurt her.  She reported how she cries for hours at a time. 

Ms Becket has been deeply affected by your offence.

24Ms Bishop (a pseudonym) read out her victim impact statement.  Ms Bishop is the mother of the previous witness.  Ms Bishop confirmed the impact that the offending has had on her daughter, including the sense of betrayal and violation her daughter feels.  She says that her sleep is affected and the fear of being hurt haunts her daughter constantly.

25The victim impact statement of Ms Bulle was also read in open court by the prosecutor.  Ms Bulle did not attend court.  In her victim impact statement, she says she has lost her trust in males, even in a friendship sense.  She stated she had to leave the local area, as she was labelled "the girl that Josh raped."  She stated that she has gone to university and has tried to move on with her life.

26Ms Bulle set out the medical tests for the sexually transmitted infections and the HIV tests and the nervous wait for the results that she endured.  She described these procedures for those tests as another violation of her.  She stated she feared seeing Joshua again. 

27It is clear from the victim impact statements that your offending has had a significant effect on the lives of your two young victims who were, at the time of your offending, only 18 and 20 years old.

Personal circumstances.

28You are now 36.  At the time of the offences you were 35.  At your plea, your mother and father attended court to support you.

29When you were two or three years old, your parents separated.  Up until the age of ten, you lived with your mother and maternal grandmother in Glen Waverley.  At that time your mother married Michael Gapper.  You were then in Grade 5.  At that same time - that was your mother's third marriage you all moved down to Phillip Island.  Initially you attended Newhaven College until the end of Year 9.  Your father had been paying the school fees, but fell on hard financial times with the result that you had to commence Year 10 at Wonthaggi College.

30You dropped out of school midway through Year 12 and went to live with your father.  You described yourself as an average student. You excelled at basketball, playing A Grade at the age of 14 in Cowes and in Korumburra.  You had some prospects of training and going to the US to play basketball.  That did not occur.

31After you left school, you started an apprenticeship as a chef.  The apprenticeship was commenced in Phillip Island but completed in Melbourne.  Once you qualified as a chef, you moved around Australia from job to job and progressing to head chef positions.  You were starting to have mental health issues at this time and, in particular, depression.  You returned to work as a chef at Phillip Island to give you some stability. 

32In late 2010 or early 2011 you commenced work at Isola Di Capri Restaurant in Phillip Island.  Your were drinking heavily and started using cannabis and cocaine to help you feel good.  You befriended the victims in this case. 

33In late 2013, early 2014 your work and life were getting out of control.  This is the period of time you committed these offences. 

34You state in your record of interview that at the time of offending you were either drunk or high on coke, meaning cocaine, or extremely intoxicated.

35After you were contacted by your victims about the videos, you went to your father's place in Hoppers Crossing to live.  You wanted to dissociate yourself from Phillip Island and the people there.  You sought psychological treatment from Mr Stanton.  You have not worked since leaving Phillip Island.  You are medicated for depression with Moclobemide, 300 milligrams daily, and (zopliclone) for insomnia.  You have no prior convictions.

36

There are two psychologists' reports tendered on your plea.  Exhibit 3 was a report from your treating psychologist, Peter Stanton, which was dated

13 October 2014.  Mr Stanton diagnoses you with severe depression.  He says your depression has been longstanding.  In his opinion, you are remorseful for your offences and have genuine guilt and shame.  He says you reported to him you felt it was wrong when you were offending, as in at the time of the offending.  Mr Stanton says that you understand that you have betrayed the trust of these two women.  He says you do not suffer from any sexual disorder and present as a remote risk to reoffend.  Most significantly Mr Stanton expressed a concern that incarceration could increase your depression and your suicidal ideation.  I accept that your depression condition will make incarceration more onerous for you.

37David Ball, psychologist, prepared a report dated 10 October 2014.  That was Exhibit 2 on the plea.  Mr Ball reports that you expressed uncomplicated remorse, regret, shame and disgust at your criminal offending.  Mr Ball is of the opinion that you have drifted into social isolation and alienation.  Mr Ball has diagnosed you as suffering from persistent depressive disorder with anxiety.  He describes your depression as of moderate severity.  He is of the opinion that you are a low risk of recidivism but that risk increases with your depression.  He recommends continued treatment for your depression condition.

38I have noted the personal references which are Exhibit 4 in this plea.  The reference from your mother sets out the remorse and shame that you have expressed to her for your offending.  She says that drugs and alcohol and loneliness were the main causes of you losing control of yourself. 

39The reference of Kerry Haynes speaks of your shame at the offence and how you are now off the drugs and the alcohol.  Kerry Haynes trusts you and says you are best when employed and occupied.

40Paul Crosby has employed you in the past as a head chef.  He says you are a decent, hardworking and trustworthy person.  He stated you are sincerely remorseful for this offending.

41I have noted the contents of your letter of apology read by your counsel, which was Exhibit 5 in this plea.

Sentencing considerations.

42The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. 

43In sentencing you, I must have regard to a range of matters, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims.  I am required to balance the interests of the community in denouncing your criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders such as yourself are rehabilitated and reintegrated into society. 

44I accept that you are remorseful and that you have pleaded guilty to these charges.  You are entitled to a sentencing discount for your plea of guilty, as I have previously outlined in these reasons.  You suffer from depression, for which you have been receiving medication and counselling.  I accept that incarceration would be more onerous for you and that you will need to access treatment whilst in custody for your depression. 

45You have no prior convictions and now are 36 years old.  Your prior good character does indicate a more positive chance of rehabilitation upon your release from custody. 

46The offence of rape is a serious offence and carries with it a maximum term of imprisonment of 25 years.  In this case, the rape is by penetrating the victim's vagina with your finger or fingers.  At the time your victim was unconscious on the bed.  The aggravating features of this offence are that the victim was a much younger woman who was a friend of yours.  You breached that trust between the two of you.  The victim was unconscious and unable to do anything to protect herself from your attack on her.  This was a deceit perpetrated upon her of the most serious kind and was only discovered because you filmed the offences with a mobile phone.  You subsequently transferred those images onto your laptop computer for keeping.  Your victim discovered the videos on your computer.  This was how you were detected.

47In respect of the offence of indecent assault, the maximum penalty is ten years' imprisonment.  The victim in this charge was also a much younger woman than yourself and you had either commenced a relationship with her or did so shortly after you had offended.  You breached her trust by indecently assaulting her in the course of your attempts to film her vaginal and anal area.  At the time of your assault she was unconscious and was unaware and unable to resist your activity.  Again, you have uploaded these images onto your computer for keeping. 

48I am mindful of Court of Appeal Winneke P's warning in R v DH, where he said:

"The sentencing judge must be wary of the danger that the sentencing process will be unbalanced by producing an emotional reaction to the videotaped offences and by the fact that the offender chose to video tape his depraved conduct."

49The prosecution and defence counsel agreed that the prosecution's summary adequately and accurately set out the offending and the contents of the DVD, which was Exhibit B.  Out of respect for the victims, I have not viewed the DVD and it was not necessary for me to do so, given the contents of the prosecution's summary.  That course also ensures there is no inappropriate emotive response by me to the DVD of the offences themselves.

50The sentencing purposes of general deterrence, just punishment and denunciation of this criminal conduct are enlivened in this case.  The principle of specific deterrence is also applicable given that the sexual offending occurred on two separate occasions to two separate victims.

51The prosecution have applied for an order that the prisoner be placed on the sex offenders register to report for life.  The test is that I, as the sentencing judge, have to be satisfied beyond reasonable doubt that there is a real risk that you, the prisoner, will reoffend.  I am not so satisfied. 

52Two psychologists who have examined you assess you as a low risk of reoffending.  The prosecutor relied on the fact that there were two victims and two occasions in this case and that the prisoner's behaviour was of a compulsive nature.  Those submissions do not satisfy me to the standard enunciated in Bowden’s case that the sex offender register order is appropriate in your case.

53I sentence you as follows:

54In respect of Charge 1, you are convicted and sentenced to three and a half years' imprisonment.  This is the base sentence.

55In respect of Charge 2, you are convicted and sentenced to two years' imprisonment. 

56I order that one year of the sentence in Charge 2 be served cumulatively on the sentence in Charge 1.  That is a total effective sentence of four and a half years.

57I fix a non-parole period of three years' imprisonment before you are eligible for parole. 

58Pursuant to s.6AAA of the Sentencing Act, I would have sentenced you to a period of six years' imprisonment with four and a half years non-parole period but for your plea of guilty to these charges.

59I have signed the forensic sample order which was sought and consented to.

60Was there anything else?

61MS MYKYTOWYCZ:  Only one matter, Your Honour.

62HIS HONOUR:  Thanks.

63MS MYKYTOWYCZ:  Just the very last matters in your sentencing remarks refer to the case of Phillips.  I believe Your Honour was probably referring to the case of Bodan in relation to the sex offender ‑ ‑ ‑

64HIS HONOUR:  Bodan, was I?  yes.

65MS MYKYTOWYCZ:  Yes, in relation to the sex offenders register.  That's all, Your Honour.

66HIS HONOUR:  Yes, all right.  Sorry, yes, Bodan.  Thanks or that correction.  Is there anything else, Madam Prosecutor?

67MS MANDIE:  Sorry, Your Honour?

68HIS HONOUR:  Was there anything else other than what I've announced?

69MS MANDIE:  No, no.  No, thank you, Your Honour.

70HIS HONOUR:  I have signed the orders, the forensic sample orders.  They are here.

71MS MANDIE:  Thank you.

72HIS HONOUR:  Yes.

73MS MYKYTOWYCZ:  One other matter, Your Honour.

74HIS HONOUR:  Yes.

75MS MYKYTOWYCZ:  Custody management issues.

76HIS HONOUR:  Yes, thank you.  On the order, officers, this man has psychiatric difficulty with depression, and I will ask that he be watched immediately you take him out there and that it be noted on whatever records you keep in the Victoria Police and ensure that it is handed on to Corrections when the handover happens.  I will endorse that on the order.

77MS MYKYTOWYCZ:  Does Your Honour need to endorse the medication that he's currently on as well in the order?

78HIS HONOUR:  No, it's just a standard order which says that he is:  (1) to be managed; and according ‑ ‑ ‑

79MS MYKYTOWYCZ:  As Your Honour pleases.  Thank you.

80HIS HONOUR:  Has he got his medication with him?

81MS MYKYTOWYCZ:  He has.  He's come prepared, Your Honour, it's all there.

82HIS HONOUR:  Yes.  So as long as he's got proof for what it is for the officers, he'll be given a ‑ ‑ ‑

83MS MYKYTOWYCZ:  It's all there.  Thank you.

84HIS HONOUR:  Yes.  Thank you.  You can remove the prisoner, thank you.  Ms Mykytowycz, thanks very much for your assistance in this case.  It's a very difficult case.

85MS MYKYTOWYCZ:  I'm grateful for that, thank you, Your Honour.

86HIS HONOUR:  Thanks very much, Madam Prosecutor.  That's just an ongoing thing.  Thank you very much.

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