Director of Public Prosecutions v McDonald
[2015] VCC 1491
•22 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00933
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATHEW McDONALD |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 October 2015 | |
CASE MAY BE CITED AS: | DPP v McDonald | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1491 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms K. Ottrey | |
| of Public Prosecutions | ||
| For the Accused | Mr A. Malik |
HER HONOUR:
1 Mathew McDonald, you have pleaded guilty to one charge of rape. The maximum penalty for rape is 25 years’ imprisonment. The prosecution sought an order for the disposal of certain items. The making of that order was not opposed.
2 The circumstances of your offending are set out in detail in the summary of prosecution opening, which was tendered as Exhibit A. In brief, the circumstances of your offending were as follows. The complainant in this matter was staying at a backpackers’ hostel in Melbourne on Sunday 28 December 2014. The complainant was 22 years old and was on a working holiday in Australia. On that night, the complainant went out with some friends and returned to the hostel at about 6.00 am on Monday 29 December 2014. The complainant stood outside the hostel and smoked a cigarette. You approached her and asked her for a light and some tobacco and you started talking. The complainant noticed that you had some cannabis. You asked her if she wanted to smoke some of that with you. The complainant agreed and you suggested that you could smoke in your room. She agreed to go with you to your room.
3 You both went to your room. You talked and smoked two joints and then the complainant decided that she wanted to leave. You asked if she wanted to stay but she said that she wanted to go to the toilet and sleep in her own room. You asked her to come back after and she said no. The complainant walked towards the door. You asked her to come back. You then got up and stood between the door and the complainant and said that she was not going back. You told her to give you a kiss. She refused and began to feel scared. You then tried to kiss the complainant on the mouth. She pulled her head away and told you no. She tried to push you away with her hands on your chest. You then pushed her against the wall and kissed her on the mouth. She tried to push you away but you were too strong.
4 You then put your left hand down the front of her pants and inside her underwear and penetrated her vagina with one of your fingers. She continued to resist you and try and push you away. You then put a second finger inside her vagina. You then pulled the top of your pants down. The complainant saw your erect penis. She kept trying to push you away but you were too strong. You told her to put her hand on your penis. She refused. You then took her hand and put it on your penis and forced her to masturbate you. You then tried to put your penis in the complainant’s vagina. She struggled against you.
5 You then grabbed the complainant with both of your hands and threw her onto the bottom bunk bed. You tried to pull her pants off. You got on top of the complainant and tried again to penetrate her vagina with your penis. You then inserted your finger once more into the complainant’s vagina and after a few seconds, you removed your finger and penetrated her vagina with your erect penis. The charge of rape covers the introduction of your finger into the vagina of the complainant, and the introduction of your penis into her vagina without her consent. The complainant tried to resist you. You ejaculated inside her vagina and got off her.
6 The complainant then got up from the bed, took her shoes off and put her pants on and left the room. The complainant realised she had left her shoes and access card to her room in your room. She was scared and hid in the linen room for some time, before going to reception and requesting a replacement card. Later that afternoon, the complainant told a friend what had happened and went to the police. You were arrested on 8 January 2015.
7 Victim Impact Statements were provided from the complainant and from her then-boyfriend. In her Victim Impact Statement, the complainant describes how happy she was to be in Melbourne to celebrate the New Year with her new boyfriend. She then describes how your offending and the consequences of that changed everything for her. She had to borrow money and be dependant, which she hated. Most importantly, she lost her previous trust in people.
8 The complainant’s boyfriend was also in Australia on a working holiday. He met the complainant in Sydney. He describes falling in love with her and her general warmth, kindness and love of life. He goes on to describe the impact on her and him of these events. He describes the cost to him in terms of having to provide emotional support to the complainant as well as financial support. He describes the loss of self-confidence, trust and happiness that he feels. He describes the impact that these events had on his return to the United Kingdom.
9 A number of exhibits were tendered on your behalf, including a report from Dr Aaron Cunningham, psychologist, dated 25 April 2012 (Exhibit 2), a report from Isabella Walters, neuropsychologist, dated 5 April 2013 (Exhibit 3) a report from Dr Erin Cunningham, psychologist, dated 7 September 2015 (Exhibit 4), a reference letter from Ian McDonald (Exhibit 5) and a reference letter from Linton Fitzpatrick (Exhibit 6). A bundle of other material upon which your counsel relied was tendered as Exhibit 7.
10 In sentencing you I have taken into account your personal circumstances as outlined by your counsel and in the reports. You are now 29 years old. You lived with your family in outer metropolitan Melbourne until you were 12 when your parents separated. You and your mother lived with an uncle for a time and then moved back into the family home after your father moved into another property. You completed year 12 at school and part of a carpentry apprenticeship. When you were 19 you were involved in a serious motor vehicle accident. You could not work for six months and could not complete your apprenticeship. You subsequently obtained a forklift licence and worked for a time operating a forklift but you have been unemployed and in receipt of a disability support pension since April 2011.
11 When you were 21 your mother left to live with her boyfriend. You moved to live with your father. Your father has told you to move out on several occasions and during those periods you have been homeless and lived in boarding and rooming houses. Your mother and father have continued to support you. Your father was in court for your plea hearing and has visited you while you were on remand. This is despite very great difficulties in your relationship with your father and your prior court appearances for contravening intervention orders in relation to your father.
12 You commenced using cannabis at about 15 and have tried ecstasy and amphetamines. You commenced heavy use of methylamphetamine or ice. You have only had brief periods of abstinence from cannabis and methylamphetamine since that time.
13 Ms Walters diagnoses you as having a “significant acquired brain injury, affecting his verbal memory and some executive functions, and possibly also lowering his verbal skills”. She is also of the opinion that you are suffering from post-traumatic stress disorder related to the motor vehicle accident. Ms Walters says that your verbal memory impairment is quite striking and constitutes a significant disability. She says that you should have been provided with significant rehabilitation and input to help you manage that impairment and minimise its impact on your life.
14 Dr Cunningham also says that you suffer from post-traumatic stress disorder as a result of the car accident. He says that there was some impairment in your thinking and reasoning because of your post-traumatic stress disorder and your acquired brain injury. Dr Cunningham says that you have impairments in your ability to “think consequentially and manage emotional states”. It is his opinion that your drug use would have further compromised your judgment at the time of the offence.
15 Dr Cunningham confirms those opinions in his later report which was done after assessing you during your period on remand. Dr Cunningham says you are motivated to engage in mental health treatment, and management for your acquired brain injury. He also says that you have family support. He says that engagement with community case management would reduce your risk of reoffending.
16 You have admitted a significant prior criminal history in respect of offending including drug offences, assault offences and driving offences. You have no prior criminal history for sexual offending. You committed this offence while subject to a Community Correction Order which was imposed in the Melbourne County Court on 21 May 2014. The Community Correction Order was for two years with a number of conditions to undergo assessment and treatment.
17 You were remanded in respect of this offending for which I am dealing with you on 8 January 2015. On 29 June 2015 you were sentenced to an aggregate term of imprisonment on unrelated offending of two months. On 10 July 2015 you were sentenced to an aggregate term of imprisonment of four months on unrelated offending. Your anticipated release date is 9 November 2015 in respect of that sentence. Those sentences are being served concurrently. Those sentences were imposed for offending which occurred before the offence which I am dealing with you but they do not constitute prior matters for the purposes of this sentence. I have taken into account the period of time of 115 days that you have spent in custody in relation to those matters.
18 In sentencing submissions, your counsel addressed various aspects of your offending and conceded that a sentence of imprisonment would be the appropriate sentence for an offence of this seriousness. In mitigation your counsel relied upon your plea of guilty, which was not made at the earliest opportunity but was made prior to any evidence having to be given. Your counsel also relied on the application of Verdins principles. He submitted that your acquired brain injury and post-traumatic stress disorder could be causally linked to the offending and would go some way to reducing your moral culpability for the offence. Your counsel submitted that general deterrence could be moderated.
19 He also submitted that imprisonment would weigh more heavily on you than a person in normal health. Your counsel also described certain difficulties you had faced in custody. You have been assaulted in prison and have also been subject to a considerable period of lockdown after the riots at the Metropolitan Remand Centre. You have told Dr Cunningham that you had trouble with your cellmates due to you having night terrors and talking in your sleep.
20 Your counsel submitted that it would be appropriate to provide for a shorter than otherwise non-parole period, in order to enable you to undertake rehabilitative and treatment programs on parole. You had undertaken courses on remand, and are on methadone. You also continue to have support from your father.
21 The prosecutor sought an order for registration pursuant to the Sex Offenders Registration Act (2004). In your situation registration is discretionary. The discretion may be exercised if I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community. If such an order is made the reporting period would be for eight years. Your counsel opposed the making of such an order on the basis that the offending was not premeditated or planned and that there were no acts of violence or threats of violence. You have no history of sexual offending and your counsel submitted that I could not be satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community.
22 Mathew McDonald, your offending is clearly serious. You forced yourself upon the complainant. She had clearly and strongly indicated to you that she was not interested in any sexual interaction with you. You penetrated her with your finger despite her protests and despite her physical resistance. You also penetrated her with your penis and ejaculated without using a condom. You exposed her to the potential of pregnancy and sexually transmitted disease. This is clearly an aggravating feature in what is already serious offending. This clearly was an absolutely terrifying experience for the complainant which has continued to deeply affect her. Your offending must be strongly denounced and justly punished. A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment and general deterrence. I consider that specific deterrence should also be given weight in sentencing you.
23 The weight to be given to specific deterrents is clearly related to my assessment of your prospects of rehabilitation. You have pleaded guilty and have accepted your legal responsibility for this offence. You have a long history of other types of offending which has continued despite court efforts to place you on orders which allow for some treatment and rehabilitation, as well as appropriate punishment. You were on one such order at the time of the offending. It appears that you continued to use drugs and committed this offence. That suggests that you were not complying with the order and that it had not yet been significantly effective in achieving your rehabilitation.
24 Your father, in his reference, is very clear that your life changed after the motor vehicle accident. He said you have tried hard to change your life, and have had periods of success but fall back into a lifestyle which includes drugs, bad company and homelessness. Your father says that he has seen a change in you since you have been on remand. You said to him that you regret your actions and are seeking help with addiction and depression. He says that you are reconnecting with your family and that he will continue to support you. Ms Fitzpatrick, in her reference, says that she has known you for about 20 years. She has observed you seeking solace in drugs. She says that earlier along you were a kind and respectful youth.
25 On the basis of Dr Cunningham’s reports, I accept that your acquired brain injury and post-traumatic stress disorder have impacted to a degree on your ability to make reasoned decisions and to understand the consequences of your behaviour. Your offending on this occasion was a significant escalation in your offending. You have difficulties in making reasoned decisions and in stopping substance abuse.
26 You have not responded as positively as might be hoped to rehabilitative orders. I consider that, at present, your prospects of rehabilitation are relatively low. It appears that you have made some attempts in custody to commence your rehabilitation. Your prospects of rehabilitation may well improve if you are able to access appropriate support and case management. I consider that specific deterrence ought to be given weight in sentencing you, albeit moderated in application of Verdins principles. I consider that the application of Verdins principles should also result in some moderation of the application of general deterrence and punishment. I accept that imprisonment will be more difficult for you because of your mental health conditions, and have taken that into account in moderation of sentence.
27 You are entitled to a discount in sentence because of your plea of guilty which was not at the earliest opportunity but which has saved the trauma and expense of a trial. I accept that your plea of guilty is an indication of your remorse.
28 In view of my assessment of your prospects of rehabilitation and the nature of this offending against a virtual stranger in the context of drug taking and your mental health difficulties, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community. For that reason I am making an order for your registration pursuant to the Sex Offenders Registration Act (2004). You will be required to comply with the reporting conditions under that Act for a period of eight years. Shortly, you will be given documentation which explains the requirements of the legislation and your obligations. You will be asked to sign a document to show that you have received that material.
29 Could you please stand, Mr McDonald?
30 On Charge 1 of rape, you are convicted and sentenced to a term of imprisonment of four years and ten months. I fix three years as the period you are required to serve before being eligible for parole.
31 In fixing that sentence and the parole period, I have taken into account the period of time that you have spent in custody on other matters.
32 I declare that you have served 172 days of this sentence by way of pre-sentence detention.
33 But for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years with a non-parole period of five years.
34 I make the order for registration pursuant to the Sex Offenders Registration Act (2004). I also make an order for the disposal of certain items.
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