Director of Public Prosecutions v Mitchell Douglass (a pseudonym)
[2018] VCC 242
•8 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MITCHELL DOUGLASS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2018 | |
DATE OF SENTENCE: | 8 March 2018 | |
CASE MAY BE CITED AS: | DPP v Mitchell Douglass (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 242 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing.
Catchwords: Sexual offending – Aggregate sentence of 4 years imposed – 2 year non-parole period fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Karamicov (Plea) Ms I. Siriwardana (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Swiney | Melinda Walker |
HER HONOUR:
1 Mitchell Douglass,[1] you have pleaded guilty to one charge of detain for sexual penetration and one charge of assault with intent to commit a sexual offence.
[1]Mitchell Douglass is a pseudonym.
2 Objectively, both of the offences are serious and that is reflected in the maximum penalty prescribed by Parliament, ten years’ imprisonment in respect to Charge 1 and 15 years’ imprisonment in respect to Charge 2.
3 You have admitted your prior criminal history. There are convictions spanning the period from 14 December 1994 to 2 May 2007, that relate to drug-related offending including possess, use, cultivate and traffick cannabis and some firearms offences.
4
In the past, Courts have imposed a variety of dispositions including
community-based order, fines, and a wholly suspended sentence.
5 I shall now proceed to sentence you on the basis of the summary of prosecution opening that was read at the plea hearing and exhibited.
6 The offending the subject of the two charges took place on 4 August 2016 at Thomastown, and concerns you detaining a woman, Rayya Tuma,[2] against her will with the intention of taking part in an act of sexual penetration and on that occasion, you also intentionally applied force to her without her consent, in circumstances where you intended that she take part in a sexual act, and where you did not reasonably believe that she would consent to taking part in that sexual act.
[2]Rayya Tuma is a pseudonym.
7 Ms Tuma was not known to you. She was a recent arrival to Australia.
8
The offending occurred in the early hours of the morning of Thursday,
4 August 2016. Ms Tuma had left her home at approximately 5.45 am in order to walk to Lalor Railway Station where she intended to catch a train to work. As she was walking in the direction to the railway station, along her usual route, she noticed a car driving along Mackey Street in the opposite direction. She was alone in the street and this was the only car on the road that she noticed. The car was being driven by you. You drove past her. As she was walking towards the Lalor Railway Station, she noted that your car had turned and was driving in her direction, on the incorrect side of the road.
9 You stopped the car beside her and wound down the driver’s side window and called out to her, offering her a lift. She refused the offer and said that she did not need a lift and that she was going to Lalor Station which was not far. You then offered to drop her off at the station.
10 Again, she essentially walked off ignoring your suggestions. You drove your car past her and stopped approximately three to four feet ahead of her. You got out of your car and stood in front of her.
11 You grabbed Ms Tuma by her wrist causing her to scream. You told her that you would drop her off at the station and that she should not scream. Still holding her by her wrist, you pulled her towards your car. You opened the front passenger door and pushed her into your car, closing the door behind her. You then got into the driver’s seat and locked the doors. You drove your car past the railway station heading in the opposite direction towards the city.
12 Ms Tuma was screaming loudly and admonished you in a loud voice. You then had a general conversation with her whilst driving along Station Street past the Thomastown Railway Station. You made a left turn onto High Street and then continued along High Street to Austarc Avenue where you made a right-hand turn into a quiet industrial area. She asked you why you had brought her here as there was no railway station.
13 That constitutes the circumstances of Charge 1, detain for sexual penetration.
14 The victim was wearing a hat on her head and you placed one hand on her head and then used the other hand to open the zipper of your pants. You told her you wanted to have sex with her. She responded by pushing you off as hard as she could. She opened the door and fled from the car, running towards High Street.
15 That constitutes Charge 2, assault with intent to commit sexual offence.
16 You then followed her in your car and stopped the vehicle once more. You got out of your car and stood in front of her. You told Ms Tuma again that you wanted to have sex with her. She removed her phone from her handbag and pretended that she was calling the police and her husband. You then got back into your car and drove away back towards the railway station at Thomastown.
17 Ms Tuma then ran onto High Street and successfully obtained assistance from another driver who stopped his vehicle and drove her to the Keon Park Railway Station where she caught a train into the city. Whilst on the train, she submitted a report concerning your offending to the online Crime Stoppers.
18 When she arrived at work she told her husband about what had happened. Thereafter police became involved and the matter was formerly reported and investigated.
19 On 17 August 2016, you were arrested and interviewed by police. You admitted that you were driving your vehicle on the morning of 4 August 2016. You told police that you came across the victim and you said that you thought you knew her, so you pulled over. You realised then that you did not know her. You said that the victim then asked you if you would drive her to Reservoir Railway Station and you agreed.
20
You maintained to police that the victim got into your car voluntarily and that she chatted and flirted with you as you drove. You then turned into
Austarc Avenue with the intention that you receive oral sex from Ms Tuma. You asked her if she would repay you for driving her to Reservoir Station by giving you oral sex.
21 You said she then panicked and ran away from your car. You tried to comfort her and tell her that it was all right, and that she did not need to give you oral sex and only needed to say so, and that she did not need to run away from the car in a panicked state. You denied touching the victim’s body in any way.
22 Police charged you and you were remanded in custody where you have remained. This is the first time you have been held in adult custody.
23 The offending is a serious example of both charges. You preyed upon a lone, vulnerable woman who was attempting to travel to her place of work in the early hours of the morning. At the time of the offending, it was dark and there were no other people in the vicinity. Your actions would have caused her to be very fearful and would have upset her greatly.
24 She was asked to provide a victim impact statement but has not completed one. I have read the statement that she provided to the police which confirms that she was in real fear.
25 I consider that your offending merits clear denunciation by the Court and that both general and specific deterrence and the protection of the community are important sentencing factors.
26 The matter was the subject of a contested committal hearing at which the victim was required to give evidence and be cross-examined.
27 The matter resolved to a plea of guilty to the two charges on the indictment on 22 November 2017 shortly prior to the listing of the trial.
28 You will be given a discount in respect to your plea, notwithstanding that it was entered at a late stage in the proceedings. There is still utility in the plea.
29 On your behalf, Ms Swiney conceded that the offending was of a particularly serious nature, with aspects of the incident likely to be truly frightening for the complainant. She highlighted, however, that some aspects of the offending were unusual, in that the complainant in her statement described that you spoke in a loud voice but did not seem angry, and that you did not use force when you placed your hand on her head and said, "I want to have sex with you".
30 I accept that there was no overt use of violence, nonetheless, you did overpower the victim to coerce her into your car.
31 I have had regard to your personal history and background.
32 You are aged 49. It is of note that you do not have any prior convictions for any offences against the person where violence is involved, or any other sexual offending and I have taken that into account in your favour.
33 You are the youngest of a sibship of five. You have had limited contact with your biological father as your parents separated soon after your birth. Your mother re-partnered again and remained with your stepfather until she passed away in 2004.
34 When you were young, you moved from the Carlton area to Kew where you attended primary school. You had learning difficulties and problems with literacy skills. You were the subject of bullying at school. You were taunted and ridiculed due to your learning difficulties. You left school after completing Grade 9.
35 You then undertook a panel beating apprenticeship that you completed and worked in the trade for a couple of years before purchasing your own gardening business.
36 You became ill after approximately four years and then gave up that business. You were then employed as a garbage collector. You took 12 months of compassionate leave to care for your mother when she was in her final stages of terminal illness.
37 Following her death, you then returned to work. Soon thereafter, you were devastated by the death of your 11 year old daughter and your former partner who were killed as a consequence of a motor vehicle accident. You had further time off work and then continued working as a garbage collector. You were employed thereafter for about 14 years by Cleanaway as a gardener.
38 You were terminated from your employment in November 2015.
39 You were off work on WorkCover due to an injury. That matter was then the subject of a successful unfair dismissal claim, in the context of you being dismissed whilst you had an injury from work.
40 At the time of the offending, you were also undergoing treatment in respect to the WorkCover injury.
41 You have had long term relationships but have never married. You have a 28 year old daughter with the partner of your first serious relationship. Your second daughter and her mother were tragically killed as a result of the motor vehicle collision that I have earlier referred to. The loss broke you and as a consequence, you began abusing alcohol to cope.
42 It is said in the report that you have had a succession of what is described as "Toxic relationships." The last relationship ceased about six months prior to the offending.
43 Your first daughter has a son who is aged nine years. In the past you enjoyed a good relationship with your grandson and you would care for him on alternative weekends. However, those arrangements ceased six months prior to your offending after you had a falling out with your daughter. Your daughter was present in Court at the plea hearing. She remains interested in your wellbeing.
44
A report was received from Carla Ferrari, consultant psychologist, dated
19 February 2018. She details a history of alcohol and substance abuse. You are a long term user of cannabis.
45 There is a 25 year history of daily cannabis use, though you quit ten years ago by your own volition and you have remained abstinent. You have been using methamphetamines intermittently for the past five years. You were using that drug more after you were terminated from your employment in November 2015.
46 You have, however, remained abstinent since you have been on remand. You have never engaged in any detox or rehabilitation treatment programs in the past.
47 Ms Ferrari considers that at the time of the offending you would have likely met the criteria for substance abuse disorder, specifically amphetamine-type use disorder with moderate severity. She does not consider that you meet the criteria for that disorder currently, and states that you are considered to be in sustained remission.
48 In her report, she notes that you are pleading guilty to the charges and have expressed genuine remorse, shame, and disappointment in your actions to her.
49 You expressed an understanding of how distressing the ordeal must have been for the victim. You do not offer any explanation for your offending. You state that you were under the influence of methamphetamine, and maintained the narrative that you gave to the police at the time you were interviewed.
50 However, importantly you do acknowledge vehemently that such behaviour was unacceptable and you repeated multiple times to Ms Ferrari how disgusted and sickening it was to think that you could have been involved in such behaviour.
51 You now acknowledge that it was inappropriate for you to make a sexual request to the victim, and strongly deny any intention to harm her, rape her, or abduct her. You maintained your claim that the victim willingly got into your vehicle and requested that you drive her to her workplace, as she had missed her train.
52 As discussed during the course of the plea hearing, I will be sentencing you on the basis of the prosecution opening, and do not accept the explanation that you have given in respect to the circumstances of the offending. The narrative that you have clung to reflects a lack of insight on your behalf, and does diminish to a degree your expressed remorse.
53 I do accept, however, that you are genuinely ashamed and remorseful for your behaviour, and the distress that you caused the victim. Through your plea of guilty, you accept the consequences of your actions and you now have some insight and demonstrate appropriate victim empathy.
54 Ms Ferrari completed a risk assessment in respect to you and overall, taking into account your situation, she considered that you were a low risk of any sexually based recidivism. She referred to a number of protective factors that were indicative of positive prognosis that mitigate against your reoffending.
55 She noted you expressed sincere remorse for the offending and appreciation of how it has affected you, the victim, your family, and others. She noted your disgust and concern at the charges and your expressed disappointment that you did engage in such heinous behaviour in stark contrast to your beliefs, values, and attitudes towards women and children.
56 You have a supportive family whom you believe are suffering as a result of your actions, and you worry for their wellbeing.
57 You have now demonstrated good insight and you are able to express appropriate remorse and you have derived benefit from your time in prison in that it has given you the opportunity to reflect on the seriousness of the offending and to recognise its impact and also the impact of your substance use on your mental state, judgment, and behaviour.
58 Importantly, you have indicated a willingness to engage in psychological treatment to address your depressive symptoms and substance use, so as to develop ongoing coping mechanisms so as to reduce the risk of further relapse.
59 That evidence was not contested. Given Ms Ferrari’s expressed opinion and the protective features that have been highlighted, I consider that you do have good prospects of rehabilitation.
60 It is accepted by your counsel that by reason of the nature of your offending that a term of imprisonment is the only appropriate disposition.
61 Ultimately, I consider that a term of imprisonment to be imposed is the only appropriate sanction in all the circumstances. Given that the offending, the subject of the two charges are founded on the same facts and form, and are part of a series of offences of the same or similar character, it is appropriate to impose an aggregate sentence of imprisonment in respect to the offences.[3]
[3]s9 Sentencing Act 1991
62 The formal Court orders are:
63
In respect to Charges 1 and 2 on the indictment, you will be convicted and sentenced to an aggregate term of imprisonment of four years and I fix a
non-parole period of two years' imprisonment.
64 I make the declaration of pre‑sentence detention. I declare that you have spent 568 days' pre‑sentence detention and direct that that be entered into the records of the Court.
65 I make the order pursuant to s.464ZF of the Crimes Act 1958. I note the order is by consent. I have had regard to the seriousness of the circumstances of the offending, and consider that it is in the public interest that such an order be made.
66 Finally, I make an order that you are to be the subject of the Sex Offenders Registration Act 2004 for a period of eight years. Both Charges 1 and 2 are Class 2 offences, given that they are listed in Schedule 2 of the Sex Offenders Registration Act 2004, s.7(3). You are therefore subject to mandatory reporting under the Act, s.6.
67 For the purposes of reporting, as the two charges arise out of the same incident, they are treated as a single offence s.33(3)(a), and the length of reporting is eight years, s.34(1)(a).
68 So a notice will be provided to you, setting out the important information about your obligations under that Act, and if you would not mind, Ms Swiney, just getting your client to acknowledge that.
69 MS SWINEY: Yes, Your Honour.
70 HER HONOUR: So the s.464ZF order will be made in chambers and provided to the Crown.
71 MS SIRIWARDANA: Thank you, Your Honour.
72 HER HONOUR: All right, thank you.
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