Director of Public Prosecutions v Mollison

[2016] VCC 413

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-15-01717
CR-15-01718

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN MOLLISON
MS MCHALE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2016
CASE MAY BE CITED AS:	DPP v Mollison
MEDIUM NEUTRAL CITATION:	[2016] VCC 413

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	Mr K. Doyle
For The Offender (Mollison)	Mr R. Burn
For The Offender (McHale)	Mr S. Moglia

HIS HONOUR: 

1Raelene McHale and John Mollison, you have each pleaded guilty to a charge of rape.  You are 48 years of age and 64 years of age respectively.  You,
Ms McHale, have no relevant prior convictions.  You, Mr Mollison, do have a prior conviction for incest, but it is now of some antiquity.  There is some debate about what that was all actually about, but in this particular situation it is not of great significance.

2Insofar as all this is concerned, remorse is somewhat problematic, but you must of course each get the utilitarian benefit of that plea of guilty, particularly in your situation, Ms McHale, because on my view of the overall material and the way this unfolded, you had a reasonable chance of acquittal had you proceeded with a trial.  I do not hold that view insofar as you are concerned, Mr Mollison.

3Bearing in mind your ages and the relative lack of prior convictions, it becomes a difficult sentencing proposition.

4Was there a s.464, Mr Doyle?  I think there was.

5MR DOYLE:  Can I check that?

6MR BURN:  That was consented to ‑ ‑ ‑

7HIS HONOUR:  I just do not want to drag everybody - I am sure there was.

8MR BURN:  At the last hearing, Your Honour.

9HIS HONOUR:  Yes, sorry.  Thank you. 

10Insofar as you are concerned, Mr Mollison, there will be an order made for the providing of a saliva sample.  That order having been made, I must advise you that should you refuse to provide such a sample to police they may use reasonable force to take it from you and that order is made and handed down.

11The circumstances of the offending are not only described in a comprehensive Crown opening, but were indeed videotaped by you, Mr Mollison.  I viewed that videotape prior to the plea and watched it with some revulsion.  Based upon the way in which the police proceeded in terms of it being put on your behalf that you did not really do much in it, I watched it again with a more analytical view.  It is clear to me, watching that, and bearing in mind the materials that have been provided on behalf of each of you, that Ms McHale is acting at your behest.  You encourage her, you basically set it up, you film it, you are asking her to be in different positions so you can film better and it is quite clear to me that you are getting a form of sexual gratification from watching it.

12As I have said, you are 48 years of age and 64 years of age respectively.  At the time that this occurred you were both living in Toora.  The complainant, and I will not use his name so there is no privacy issue, so you understand why I am doing that, was 20 years of age at the time of the offence and living at Foster.  He was a friend of a daughter of yours.  He had clearly, on the basis of the victim impact statements that have been provided, difficulties in life.  He was attending school as a late age student and I have no doubt that the circumstances that surrounded him and were put upon him on that night, he had very limited capacity to deal with. 

13In any event, on 8 October 2014, he travelled with the daughter to the house in Toora.  He stayed the night, sleeping on a mattress on the floor.  On the next day he spent the day there with the daughter.  You, Mr Mollison, asked him if he would stay the evening and he eventually agreed to do so.  At around about 3 o'clock the daughter left the house.  You drove her.  When you returned the victim drank approximately three stubbies of beer. 

14There was then a situation where on the Crown opening, and I cannot go beyond this, "consensual" sexual intercourse took place with you, Ms McHale, and the victim.  That "consensual" sexual intercourse was promoted by you, Mr Mollison. 

15I am limited of course in the way in which I can impose sentence here because I have to operate on that basis.  Bearing in mind the limitations of that young victim and the circumstances in which he found himself, I could well understand that the parents of him would view this as something that had been connived at and planned and carried out.  I, in this situation, cannot sentence on that basis, I have got to sentence as a judge, not as a parent, but I make it very clear I have total sympathy for the way in which they undoubtedly view this dreadful behaviour.

16In any event, after that "consensual" sex took place, in which you assisted and encouraged the victim, he went and lay down on a mattress in the lounge room.  You went into the lounge room and told him to go back to the bedroom to continue to have sex with Ms McHale.  He said, "I can't and I'm ready to pass out."  At that stage he said he had his eyes closed.  He could hear but he could not really move his body.  Whether he could be described as a medical term as unconscious or not, I do not know, but certainly on the video it is clearly apparent that he is not participating in any way, shape or form in what is taking place.  Whether he was simply unable to deal with and function with the stress of the situation in which he found himself does not really matter, it is abundantly clear to anyone watching that video that he is not consenting.  In any event, I will come back to that in a moment.

17You, Ms McHale, after your partner had arranged that, went into the lounge room, pulled down the victim's pants and underwear and engaged in a series of non-consensual sexual acts with him.  As I said, you, Mr Mollison, were present during this.  You filmed the offending.  Now that I have watched it again and listened to it in a more analytical approach, it is clear that you frequently are giving instructions to your partner as to what to do.  You ask her to get into different positions so you can film it better and you keep asking her questions about it.  She, and bearing in mind that she has refused to ever speak about this to even a psychologist, does not answer you very often. 

18It is clear that, in my view watching it, that you are the driving force.  You did physically become engaged in all this.  At one stage you were both trying to roll the victim onto the top of Ms McHale.  He ultimately left the house.  He had sent the daughter a text message saying, "Your Mum just fucked me while I was passed out."  Once that message was received, the daughter phoned you, Mr Mollison, and following that you said, and this is an indication of your state of mind, that the complainant or victim must be awake because he had sent a message to the daughter. 

19You, Ms McHale, had then gone into the lounge room and tried to masturbate the victim again and he played, at that stage, dead.  You, Mr Mollison, basically threatened him.  It was at that point that he ran from the house and caught a lift to Foster and then called his father.  He was found in a distressed condition, and I do not understand this but quite some distance from where he was apparently left by the kindness of the neighbour.

20The victim's father came to get him and, realising what had occurred and the situation in which he found himself, contacted the police.  Each of you were interviewed and each of you, quite within your rights made a "no comment" record of interview.

21In this particular trial, defence for each of you, has argued that a community corrections order would be within range, bearing in mind the observations in the case of Boulton with which I am very familiar.  In Boulton and I only need to refer to a part of it, it says:

"It follows from what we have said that a CCO may be suitable in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as for example aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).  The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable to satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects for rehabilitation."

22I am not going to go into the other aspects of Boulton, that is what is relied upon, saying that the existence of CCOs allows what would have normally been automatic gaol effectively to be reconsidered.

23In this situation the Crown's position is that anything other than an active custodial sentence would be not within range.  I understand that submission.

24What has caused me real difficulty in this sentencing process is that the Crown has put the charge as two particular acts, that being the introduction of the victim's penis into your mouth, Ms McHale, and the introduction of his penis into your vagina.  The prosecution concedes that each of you should be dealt with on the basis that you were not giving any thought to whether the victim might not be consenting.  I have never even charged a jury on that principle. 

25Insofar as you are concerned, Ms McHale, having watched it and being aware of your own personal circumstances, I can understand how that could be.  In your particular situation, Mr Mollison, having watched it and bearing in mind your comment afterwards that "He is awake," I find that that concession is extraordinarily generous.

26Clearly, the not giving any thought is - others may disagree with this and they are welcome to - not giving any thought to it, it verges upon a form of negligent rape.  What has to be borne in mind is that it carries exactly the same penalty.  It is an act of omission rather than an act of commission and that has caused me real concern in this particular situation.  As I think I have just said, I have never sentenced on this basis before and on talking to other judges I am unaware of anybody who has, though it must have occurred.  As I understand it there is no Court of Appeal authority on the point.

27The prosecution very helpfully gave me a number of cases that they relate to relationship situations.  This is not a relationship situation.  What clouds the issue, particularly insofar as you are concerned, Ms McHale, is that I have to sentence on the basis that what must have only been a matter of a couple of minutes, or a few minutes previously, the victim was having consensual sexual intercourse with you and you were not present when the conversations that took place with the victim about not wanting to do it, or not being able to do it took place.  You, Mr Mollison, were.

28It is clear that rape is, in my view, virtually always a serious crime, but as I have said the concession in this matter makes it difficult.  There are aggravating features in that there were two of you present.  The filming of it and the way in which you caused it to be filmed, Mr Mollison, I think is clearly aggravating.  After that it is difficult to determine what objective gravity should apply where that concession has been made.

29I then look at matters personal to you to see whether a community corrections order would be sufficient in this situation. 

30Before I do that, I talk about the devastation that your actions have caused, whether by act, or omission, or commission.  The young victim has put in a victim impact statement where he says that this has caused depression.  Clearly on any basis it was very distressing for him.  He has had difficulties in the past, he now has greater difficulties.  He finds that he does not like going around the town because he is concerned that other people know and it has caused real problems with his interpersonal relationships and friendships.

31As I have said, and I do not think I need to go into all the detail of it, it is contained within the victim impact statements and also the brief, he was a very vulnerable young man.

32There was a further victim impact statement from his mother, made on behalf of her, and the victim's father.  In these sorts of situations, and normally we are talking about much younger children, but I am very conscious of the vulnerability of this particular victim, is the common feeling by the parents that they have failed their child, that they, totally unreasonably of course, but feel as if they have failed to protect him and that they have got to live with what they see as something that they somehow or other should have been able to stop.  That is not the case and almost never is in these situations.  That is one of the very real, very long term and very distressing sometimes consequences of the actions such as you two undertook.  She says that you two took unfair advantage of their son and I think that is understating it to a large degree.  I take those victim impact statements into account.

33As I said, the crime has to be regarded as serious, in the normal course of events calls for general and specific deterrence, denunciation and appropriate punishment.  The normal course of events would be that a custodial sentence would be imposed.

34There were matters put before me where wholly suspended sentences had been imposed in not dissimilar situations and I raised some myself.  Suspended sentences of course required exceptional circumstances for this charge, certainly in more recent times, whereas a community corrections order does not.  It then becomes a question as to whether in respect of each of you looked at individually, and the situations are individual, whether such a disposition would be appropriate or would be simply inadequate.

35Firstly, so far as you are concerned, Ms McHale, tendered on your behalf was a helpful outline of submissions and also a psychological assessment by a psychologist, Mr Parker.  I have already taken into account your particular becoming involved in this offending and I accept that in counsel's submission that this offending, so far as you are concerned at least, does not have some of the factors that are associated with more serious examples of rape.

36I have also taken into account the benefit of your plea of guilty.  It is hard to assess remorse because you will not discuss this with a psychologist.  The psychologist seems to think that is out of shame, or whatever.  Whether it is out of that, or a fear of him, or I do not know what it is about, it is difficult to assess, but I will give you the benefit of the doubt in relation to it.  The two of you have been together for some 30 years and, as I understand it, have
11 children between you. 

37Your counsel described you as having a dependent relationship on Mr Mollison and, having watched that video and what I have been told here, I have no doubt that that is the case.  Clearly, as is pointed out in Mr Parker's report, your intellectual capacity is low.  It has been found that you are a low risk of further offending, and I would have thought in this situation that is probably right, and that you were very likely depressed at the time and have low self-esteem.  The submissions made on your behalf that you were acting at the instruction of Mr Mollison and, in my view, that is correct.

38The submissions have then gone to discuss the various roles, and I think I have outlined that.  Mr Parker says that your risk of reoffending is low due to age and not having a forensic history.  He points out, as I have indicated, that he could not assess your level of understanding as to what had occurred, or the wrongness of it.  He says that could be for embarrassment, shame, low self-esteem, or other matters.  It need not be necessarily from intellectual deficit. 

39Your family history is not a good one.  Your range of IQ is in the range of
74-90, which is low-average.  Your family situation is reported.  You do not apparently use drugs and you do not have a problem with alcohol.  You do have medical problems but nothing which would impact upon a gaol sentence.  According to you, you have not had psychiatric or psychological treatment in the past.  You said to him that you have experienced a sleep disorder and you sleep a lot of the time during the day.  You said to the psychologist that in your existence you do little else except watch TV.  It is in those circumstances that all this has been brought about. 

40In the end, in your particular situation, bearing in mind the concession by the Crown and I still must honestly say I am struggling with, I think that a community corrections order is sufficient, but I do so with some reluctance. 

41In this situation there will have to be a significant punishment aspect of it and, accordingly, if you agree, you will be on a community corrections order with conviction, which is a punishment in itself.  It will be for a period of four years.  There will be 300 work hours.  There will be the programs that have been recommended by the Office of Corrections in their report, which your counsel has a copy of and they will be mental health, programs to reduce reoffending in which you will be undoubtedly assessed for a sex offender's program and treatment and rehabilitation with other programs as well as supervision.  I will be ordering that any hours that are spent doing programs can be counted as community service hours.

42That is a longer community corrections order than I would in my normal capacity make, but in your particular situation I think it has to show how serious this offending is, albeit there being very little chance of it occurring again.

43(Community corrections order signed and acknowledged.)

44The community corrections order is made and Ms McHale can leave the dock.

45You, Mr Mollison, in my view were the instigator and proponent of this.  Anyone who has any doubt about that need only watch the video that you so conscientiously made.  You, as I have said, have prior convictions but of antiquity.  You have a dreadful background and I accept what is in the psychological report and I accept what your counsel says about that. 

46It is clear that from a very young age you were exposed to violence and sexual abuse, alcohol and drugs.  You were placed in boys' homes and orphanages during your childhood where you suffered further physical abuse.  You were educated to Form 4 level and after that relied on forms of self-education.  There is a report from Dr Myers from 1980 about your circumstances. 

47I am told that you now do not have a problem with alcohol and do not use illicit drugs.  You have been diagnosed by Mr Parker, the psychologist, who also diagnosed your partner, as having a post-traumatic stress disorder that would not appear to have been diagnosed previously and you are now in your 60s.

48You told him that you have in fact 23 children.  You told him, that is Mr Parker, that you were a friend and father figure to Ms McHale, tolerating her and loving her and you said that you allowed her to see other men.  You described yourself as having a great love for people and to do things for others that do not benefit you.  Bearing in mind what occurred here one has to regard that with a certain degree of skepticism.

49Insofar as that post-traumatic stress disorder is concerned it is far from uncommon for people who have had your background as a child to have such a condition.  He says that you do suffer from it and in his view you are of significant risk of self-harm.  I take into account that that would make it more difficult for you in all probability in a prison environment and I take that into account, it does not even need Verdins to do that.

50He says that your mental health would impact on your capacity to think consequentially and would thus restrict your ability to act in socially appropriate ways.  He concedes that in your situation that post-traumatic stress disorder cannot produce a causal link in your offending but it is a significant contributing factor.  I am not quite sure what that is supposed to mean.  In any event, I take that into account certainly insofar as an active custodial sentence is concerned, but when one looks at, and literally looks at what occurred here, it is hard to see any diminution of moral culpability. 

51I accept that you do have very poor physical health indeed.  Your counsel has pointed out a number of matters and I firstly think that in your situation now specific deterrence probably will not be of real concern, but clearly an active custodial sentence would cause you difficulty with your health.

52You have, inter alia, diverticulitis, hypertension, obesity, cirrhosis, diabetes, myelitis type 2, hypercholesterolemia, hypertriglyceridemia and a whole raft of other conditions.  You are on many medications and I have before me, as I have clearly obviously taken into account, a report from the Foster and Toora Medical Centre which outlines your medical history and all the medications that you are on.  That will remain on the court file and there is no need, I think, for me to simply just read it all out.  There is no evidence before me that any of those conditions, or any of those medications could not be provided in a gaol situation.  There is no suggestion here, as there sometimes is in these matters, of there being a risk of not living out the sentence. 

53As I have already indicated, or hope I have indicated, I find myself hamstrung by the concession in your situation to the moral culpability in terms of the actual act itself.

54The prospects of your rehabilitation, the risk of your reoffending are pretty much up to you.  It is hard to think that you would do something like this again, but general deterrence and appropriate punishment in a situation such as this have to play a significant part.  Any right minded member of a community would be horrified by what you did and any parent in the community would be even more horrified. 

55In the end I have determined that whilst because of your condition and age it does not need to be a lengthy one, that an active custodial sentence, together with a CCO, if you agree, is the only appropriate sentence.  As I have indicated, because of those other factors relating to you personally and because of the way in which the case has been presented before me, I have given a sentence significantly lower than would have otherwise been the case, but sentence there has to be.

56The community corrections order, if you agree, will not contain work hours, but will contain the same conditions as those for Ms McHale.  I make it very clear to you that the community corrections order will be for a period of three years from your release from gaol.  If you do not agree to that community corrections order, the sentence that I am going to announce will not take place and there will be a greater custodial sentence imposed with a minimum term.  Just so you clearly understand that before I pronounce the sentence I intend to impose.

57You, Mr Mollison, on the charge of rape, are sentenced to be imprisoned to be imprisoned for a period of six months, to be followed by a with conviction community corrections order of three years with the conditions I have outlined.  Sorry, no I have said - go.  Take her out.  Take her out. 

58I said three for the CCO, in fact I meant to say, Mr Mollison, the CCOs for the same duration.  That was my error, sorry, my associate has pointed it out to me.

59There is no PSD, is there?

60MR DOYLE:  No, Your Honour.

61HIS HONOUR:  There is no 6AAA because it is a combination.

62MR DOYLE:  No.

63(Community corrections order signed and acknowledged.)

64HIS HONOUR:  All right, that community corrections order is made.  There are no other orders I need to make? 

65MR BURNS:  No, Your Honour..

66HIS HONOUR:  All right.

67MR BURNS:  I have an updated medical report again which ‑ ‑ ‑

68HIS HONOUR:  I have taken it all into account. 

69MR BURNS:  Of custody matters.

70HIS HONOUR:  Sorry?

71MR BURNS:  The details ‑ ‑ ‑

72HIS HONOUR:  You can give those to the police.

73MR BURNS:  For his treatment and ‑ ‑ ‑

74HIS HONOUR:  You can give it to the police.

75MR BURNS:  Thank you.

76HIS HONOUR:  All right.  Mr Mollison, you have heard what I have had to say.  That community corrections order, so long as you understand, if you breach it you will be brought back and I will give you what I would have given you without that concession by the Crown, I can assure you.  Also, Mr Moglia, I appreciate your position, but if you just make sure your client understands particularly now what the consequences of a breach would be, any benefit of the doubt as to remorse just disappear.  Just so she clearly understands what the consequences will be if she breaches it.  I am not saying that to you personally, I understand your role, but just so she understands that.

77MR MOGLIA:  Yes, Your Honour.

78HIS HONOUR:  Yes, thank you.  Yes, thanks, Mr Burns.  All right, you can take Mr Mollison now please.  Yes, thanks, gentlemen.  Yes, thank you.  You are excused.

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