Director of Public Prosecutions v Mullett
[2016] VCC 761
•5 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00159
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MULLETT |
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JUDGE: | Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | Thursday 5 May 2016 | |
CASE MAY BE CITED AS: | DPP v Mullett | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 761 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S Klopper | |
| of Public Prosecutions | ||
| For the Accused | Ms J Smith |
HER HONOUR:
1 Daniel Mullett, you have plead guilty to one charge of rape, Charge 1 and you have also pleaded guilty to a related summary charge of contravening a family violence intervention order, summary Charge 1. The maximum penalty for rape is 25 years imprisonment. The maximum penalty for contravening a family violence intervention order is two years imprisonment.
2 The circumstances of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A. The circumstances in brief are as follows. From 1998 until April 2014 you were in a relationship with the complainant. You and she have three children together. The complainant had maintained a position that she wanted to remain friends with you and wanted you to be part of the children's lives. It had been agreed that from April 2014 you would ask the complainant if you could visit before coming to her home.
3 On the evening of 11 July 2014, you visited the house where the complainant was living with her children. You and she had consensual sex. You had talked about it before hand and the complainant had confirmed that she did not want to resume a relationship with you.
4 On Tuesday 15 July 2014, you and the complainant sent messages to each other throughout the day. After dinner that evening you sent messages to the complainant suggesting that you were annoyed because she was not responding promptly to your messages. You also suggested that she was going to see another man. At about 9 o'clock that night, you phoned the complainant again. You abused her and accused her of being with a new man. She thought you had been drinking and did not want to argue so she ended the call. You phoned her about four times between 9.44 pm and 9.46 pm and the complainant did not answer. The complainant asked her older son to sleep in her bed with her and locked all the doors. The complainant told your son to put the phone in a safe place and he hid it in a couch in the lounge room. At about 10 pm they went to bed. Your younger son was watching television in the lounge room.
5 At about 10.30 pm the complainant woke up with you yelling and standing over her. You yelled at your son to get out of the bedroom and told your two sons to go to their bedroom at the other end of the house. You shut the bedroom door and shouted at the complainant. You then hit the complainant on the head and face. You kept asking her who the other man was. The complainant said there was nobody else. She attempted to defend herself and tried to push you away but you overpowered her. You grabbed her T-shirt and pulled her into a sitting position on the bed, then pushed her back down. You used the T-shirt to hold her down by the neck. She was shaking and crying.
6 You asked her if she felt humiliated, to which she responded “yes”. You then said, "This is being humiliated" and ripped her underpants. She tried to pull her T-shirt down and she slapped her. You stuck your finger in her mouth until she gagged. You then put your hand forcefully into her vagina. The complainant was not sure if it was your whole hand or just fingers. It was very quick but it hurt and caused her to cry out. That is the subject matter of the charge of rape. You asked her if she had liked it. She was crying and said “no”. You continued to yell at her and hit her.
7 One of your sons went and got the phone and dialled Triple 0. You were shouting at the complainant accusing her of cheating on you. When police sirens sounded outside you stopped yelling and hitting the complainant and said you would kill her if she had called the police. Your son let the police into the house and you were arrested.
8 The complainant was examined by a doctor who observed various swelling, abrasion and bruises to her head and neck, chest and abdomen and right thigh.
9 On 16 July 2014, you were interviewed by police. You said that you gone to the house to try and sort things out with the complainant and got into an argument with her about why the children were not in bed. You made admissions about grabbing her and shaking her. You said that you were physically fighting with her but denied choking her. You denied punching her or digitally penetrating her. You said you were not there to hurt her but you just wanted to know the truth.
10 On 1 August 2014, a further record of interview was conducted and you apologised for your actions and said it was not your intention to scare the complainant. You said you had had way too much to drink and really should not have been there but that you did not do what had been alleged.
11 On 29 July 2014, you sent a text message to the complainant saying that you hoped she could drop the charges against you. You said you were sorry. On 1 August 2014 shortly after 5 am you came to the house. You said you wanted to talk. You asked her to drop the charges and said that you knew what you did was wrong. Police arrived about ten minutes later and arrested you. These are the matters covered by Summary Charge 1 of contravening a family violence intervention order.
12 This matter resolved on 16 November 2015 after a contested committal. You were arraigned and pleaded guilty on 20 November 2015 with a trial date of 23 November 2015 being vacated.
13 In her Victim Impact Statement, which was tendered as Exhibit B, the complainant describes her feelings on the night of fear for herself and her sons. She also describes her fear of what you might do to her. She also describes the pain that she felt during the assault and afterwards, the complainant describes her ongoing feelings of fear and lack of safety.
14 In sentencing you, I have taken into account your personal circumstances as outlined by your counsel. You are now 39 years old. You grew up in country Victoria. Your father is an indigenous man who works as a cultural heritage officer. He had difficulties with alcohol during his life. Your mother and father separated. Your mother has been a very supportive parent to you. She was in court to support you. You completed Year 12 and obtained various qualifications including as a tyre fitter. You have always been employed in various positions.
15 At the time of this offending you were sharing a house with a number of others. Since that time you have lived at times with your current partner with whom you have a five year old son or with others, including your mother. Your current partner remains supportive of you, although you are living apart at present.
16 You have admitted a prior criminal history which includes only one prior court appearance, although that court appearance is relevant in terms of the type of offending. On 22 December 2010 at the Dandenong Magistrates' Court, you were convicted on charges of recklessly causing injury and making threat to kill. On the recklessly causing injury charge, you were convicted and placed on a community based order for 12 months. The conditions included assessment and treatment for alcohol issues and to complete a men's behaviour change program. The complainant in this matter was the victim of those offences.
17 Your counsel relied on the psychological report of Dr Mathew Barth dated 10 March 2016 which was included in the folder of defence materials Exhibit 1. Your counsel said that at the time of the offending you were abusing alcohol and Dr Barth described your alcohol consumption as being long-standing and "unequivocally pathological". Your counsel said that this was relevant in particular to the issue of addressing community protection and your prospects of rehabilitation. Your counsel also relied on Dr Barth's opinion that you do not:
Endorse offence supporting cognitive distortions regarding rape or non-consensual sexual activity with others.
18 Your counsel also relied on Dr Barth's opinion that you:
Did not reveal any signs of deviant cognitions with regard to sexual behaviour and there was no evidence of other indirect factors typically associated with sexual deviancy.
19 Dr Barth in his report comments on your difficulty managing intense emotional experiences when placed with conflict. He says your emotional awareness is poor and you are prone to escalating to feelings of resentment when you feel you are being challenged. His opinion is that your poor coping skills have increased your propensity to react with aggressive behaviour. He suggests that your abuse of alcohol would have served as a further disinhibiting factor. He says that your conflict resolution skills are very simplistic and you are prone to behave in a domineering manner. He says to your credit that you have committed to sustained treatment and have told him that you have gained more benefit from your engagement in the positive lifestyle program.
20 Dr Barth notes your progress but says further intervention is warranted. He suggests that you currently pose a moderate risk of recidivism for sexual offending but that risk could be reduced by specialist sex offender treatment together with supervision and support. He says your insight to the offending remains limited. Dr Barth recommends specialist sex offender treatment, anger management training and alcohol related education and counselling.
21 You have also engaged with Terry Melvin, psychologist, and attended six sessions. Mr Melvin in his letter dated 8 October 2015 says that you have renegotiated your relationship with your father and there has been some contact. He says that your mood has also lifted to a degree and you have successfully refrained from drinking.
22 A number of character references were included in the material in Exhibit 1. Those references include references from your current partner, her mother, your mother and friends. They speak of your success as a young person in sports, especially softball, and of your positive relationship with your current partner and your son with her. They also speak about your alcohol problems and the efforts you have made to deal with those problems as well as your expressions of remorse in respect of this offending. They also speak positively of you as a worker and as a friend.
23 Your counsel conceded that the offending was serious but submitted that your offending was unplanned and relatively spontaneous. Your counsel submitted that imprisonment in combination with a community correction order would provide for the appropriate sentencing considerations, as well as facilitating your continued rehabilitation.
24 In mitigation, your counsel relied on a number of factors including:
(a) your plea of guilty;
(b) your remorse;
(c) your good prospects for rehabilitation;
(d) your willingness to participate and engage in treatment.
25 Your counsel submitted that in view of the principles espoused by the Court of Appeal in Boulton v R [2014] VSCA 342 and the circumstances of this offending and your circumstances, the appropriate sentence would be a sentence of imprisonment in combination with a community correction order.
26 The prosecutor in sentencing submissions submitted that a sentence of imprisonment with a non-parole period was warranted and appropriate, given the seriousness of this offending including the significant level of violence involved. The prosecution also referred to your prior criminal history and the subject matter of the breaches of the intervention order.
27 The prosecutor addressed a number of features of your offending and in particular that this was a circumstance of family violence against the complainant in her own home. The prosecutor accepted that you had made a start of rehabilitation but also placed reliance on Dr Barth's opinion that your insight remained limited.
28 Daniel Mullett, there are a number of very serious aspects to this offending. You were not invited to go to your ex-partner's home despite previous agreement. You went in at night when you were intoxicated. You were angry and went with the intention, you say, of finding the truth. In my view, that means you went in with an intention to angrily confront the complainant, your former partner and the mother of your children. I accept that there is no evidence that you entered the house with the intention of physically harming her in any way, but you were aggressive from the outset. You, for some unexplained reason, felt that you were entitled to get information from your ex-partner about her life and to behave in a bullying and demanding way towards her in order to get that information. She had become fearful because of your earlier messages and her fears were realised. You became increasingly verbally aggressive and physically and sexually violent. You sought to intimidate, humiliate and sexually abuse your ex-partner. You did this knowing that two of your children were in the house. This must have been a terrifying experience for your ex-partner and your children.
29 You had previously offended against the same complainant causing her injury in a context which involved alcohol. On this occasion, you had clearly been drinking and given your long history of alcohol abuse and anger problems, you ought to have known that you should stay away from the complainant. The complainant was in her own home with her children and ought to have been able to feel safe. Instead of that, she was brutally sexually assaulted by you with accompanying physical violence and verbal abuse. Your offending continues to have significant negative consequences for her.
30 Despite your prior offending and sentence, your arrest, being charged and having an interim intervention order in place which you consented to, two days after the offending, you contacted the complainant to apologise and see if she would drop charges against you. You then went around to her house in the early morning on the same mission. That suggests that your insight into your offending and your ability to control your own behaviour was severely limited. I accept your insight has since improved, but the message must be sent to you and others that you cannot subject your partners or ex-partners to violence and expect to avoid significant punishment when you breach a court order placed on you to prevent further violence.
31 I have considered the application of the parsimony principle. Your offending constitutes a very serious example of violent offending in the context of a former domestic and intimate relationship. In my view, no other sentence than a sentence of imprisonment with a non-parole period could adequately meet the sentencing considerations of denunciation, general deterrence, just punishments, specific deterrence and community protection.
32 Whilst there are a number of matters I accept in mitigation, including that your rehabilitation has commenced, I am of the view that a combination of a sentence of imprisonment together with a community correction order would not constitute sufficient punishment to meet the sentencing purposes that I have outlined.
33 In my view your prospects of rehabilitation are moderate at best. You have previously offended. You did courses with the purpose of amending your behaviour and providing greater insight. That purpose was not achieved to a sufficient degree to prevent you from offending on this occasion.
34 I accept that you have made efforts since your release on bail to engage in counselling and that you have gained some insight. I accept that you are a hard working person who wishes to remain in the community in order to have a relationship with your current partner and son. It is clear from the references that are provided that you have a number of very good qualities; that is also evident in the fact that complainant was prepared to remain friendly with you and to have you involved in the life of the children. Very sadly you destroyed any trust that she might have in you by your actions and behaviour on this night. You have also raised severe doubt as to your ability to persist with any rehabilitation and determination to avoid alcohol and the consequence of your poor anger management and insight.
35 Controlling your behaviour is not simply a matter of avoiding alcohol. It is also necessary for you to gain much greater insight than you currently have. I base that view on the contents of all the material including the report of Dr Barth. I consider that specific deterrence and community protection must receive significant weight in the sentence to be imposed given your prior offending and my assessment of your prospects of rehabilitation.
36 You are entitled to a discount for your plea of guilty which was only entered after a contested committal and at a relatively late stage, but which has saved the trauma and expense of a trial. I accept that your plea of guilty is a demonstration of your genuine remorse.
37 In sentencing you, I have given consideration to current sentencing practices and to the application of the principle of totality when considering the degree of cumulation between the sentences for the two offences. Some cumulation is warranted due to the different nature of the offending covered by the summary charge and its gravity.
38 Please stand, Mr Mullett. On Charge 1, you are convicted and sentenced to a term of imprisonment of four years and six months. On summary Charge 1, you are convicted and sentenced to a term of imprisonment of nine months.
39 The sentence on Charge 1 is the base sentence. Three months of the sentence on summary Charge 1 is to be served cumulatively on the sentence on Charge 1. The total effective sentence is four years and nine months imprisonment.
40 I fix three years as the period you must serve before you are eligible for release on parole.
41 I declare that you have served 294 days of this sentence by way of pre-sentence detention.
42 But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
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