Director of Public Prosecutions v Mullins (a pseudonym)

[2020] VCC 1257

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MULLINS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2020
DATE OF SENTENCE:	17 August 2020
CASE MAY BE CITED AS:	DPP v Mullins (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1257

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 K. Farrell	The Office of Public Prosecutions
For the Accused	Mr A. Patton	Robert Davis – Barrister and Solicitor

HER HONOUR:

1Thomas Mullins[1], you have pleaded guilty before me to one charge of rape.  The facts underlying this offending are as follows.  On 2 November 2013 you and the complainant in this matter, Stephanie Greene[2], who was then 16 years of age, attended her boyfriend's 17th birthday at his home in Ballarat.

[1] A pseudonym

[2] A pseudonym

2Ms Greene’s then boyfriend was Mark Douglas[3], who was also a very close friend of yours, Mr Mullins.  A number of other teenagers attended the party including Ms Greene’s friend, Maria Guerroro[4].  Both you and Ms Greene were drinking alcohol.

[3] A pseudonym

[4] A pseudonym

3At about 10.30 or 11 Mr Douglas was put to bed by his mother who was supervising as he was drunk and had been vomiting.  Everybody else then left apart from Ms Greene and yourself.  You were both staying at
Mr Douglas’ house overnight.

4Ms Greene was in Mr Douglas’ bedroom getting ready for bed and had changed into a T shirt which she wore over underpants.  You called out from the kitchen asking Ms Greene where the cups were and she went in and asked you what you were looking for.

5You told her and she opened the overhead cupboard, reached up and grabbed one and at this time had her back to you.  You then grabbed her on her left buttock, Ms Greene turned around and you pushed her shoulders against the counter, slid your right hand down inside her underwear and inserted your finger into her vagina.  Those actions underlie the charge of rape on the indictment.

6After two or three seconds Ms Greene told you to stop but you just looked at her and then after another two seconds she pushed you off and said no.  During the offending you had knocked over knives on the bench.  Ms Greene said she was going to bed and told you to clean the mess up.

7She went to the toilet before going to bed and while she was in the bathroom you sent her a selfie on Snapchat with the message, 'You are so tight'. 
Ms Greene then went into Mr Douglas’ room and got into bed but before falling asleep messaged you telling you not to tell anyone what had happened.

8The next morning when she woke up you were watching a movie on the couch and she asked you if you had fingered her and you said yes.  Mr Douglas’ then came out of the bedroom but Ms Greene did not know what to do and did not tell him what had happened and left his house later that day.

9At about 10 am the next day Ms Greene called her friend, Ms Guerrero, and told her that you had called for her, pushed her up against the kitchen counter and molested her and also told Ms Guerrero about the messaging.  At that time she was crying and asked Ms Guerrero what she should do.

10On 4 November 2018 Ms Greene told her boyfriend that you had sexually abused her and when he asked what that meant told him that you had called out to her and had, 'Attacked her and fingered her'.  She said that she had told you no but that you did not stop straight away.

11There were then a series of messages between yourself and Mr Douglas on Snapchat where he asked what had happened and you admitted grabbing Ms Greene's buttocks and that she had told you to stop.  You said you thought you had fingered her but it stopped pretty quickly and that it was stupid.  You later admitted that you had 'fingered' Ms Greene and that you had done the wrong thing.

12Eventually Ms Greene a few days later spoke to her mother, told her what had happened and police were notified.  Ms Greene made an initial report on
12 December 2018 and then a few months later made a VARE.

13After the VARE was finished, that occurring on 5 April 2019, Ms Greene called you on what's known as a pretext call during which you said you regretted everything and said you were really, really sorry.

14On 17 April 2019 you went to the Ballarat police station by appointment.  You were interviewed and exercised your right to give no comment answers to questions put to you.  Ultimately this matter proceeded to a committal hearing on 17 October 2019 which proceeded by way of straight hand up brief and a plea of not guilty was entered.

15Eventually the matter was listed for trial to commence on 29 June 2020.  However, there was a sentence indication hearing on 10 June 2020 at the end of which you entered a plea of guilty.  It is accepted by the prosecution that this was an early plea of guilty although not a plea made at the earliest stage.

16However, as a result of the way proceedings have been conducted there has been no cross-examination.  In particular, Ms Greene has not been subjected to the trauma of giving evidence and being cross-examined and the community have been saved the time and expense of a trial.

17The maximum penalty for rape is 25 years' imprisonment.  It is extremely clear from the victim impact statement that your actions on that night have had an enormous and very adverse effect upon Ms Greene.  Her statement was read out to the court.

18In that victim impact statement Ms Greene outlined how your actions have affected her for two years since this offending occurred and probably will for the rest of her life.  She detailed the decline of her self-esteem, feeling disgusted with her body, putting on weight to keep herself safe.

19She also experienced frequent panic attacks and routine nightmares, the development of a state of hypervigilance, a diagnosis of anxiety and the need therefore to attend counselling appointments fortnightly.  Very sadly her VCE year was affected, she already in a difficult position having to be the main carer for her mother who was ill.

20Ms Greene also had emotional and difficulties in the way I have outlined and ultimately she received a low ATAR score and could not get into university.  She has now begun to attend TAFE and this has added two years to her studies.

21I certainly accept and am satisfied that your offending against Ms Greene has had a terrible effect upon her life, emotionally and educationally and that it is likely that these struggles would be ongoing for the foreseeable future.

22I now turn to your personal circumstances.  You are now 20 years of age and you were 18 at the time of this offending.  In 2018 you were undertaking Year 12 and engaging in VCAL, which you obtained.

23On completing your secondary education you took up an apprenticeship being an apprenticeship in carpentry with a large construction firm in Ballarat.  Apart from this offending you have had an unremarkable social history.

24You have grown up in a prosocial and supportive family.  You are the youngest of three sons born to your parents.  Your father is a truck driver, your mother works at the local supermarket.  You have got two older brothers who live independently and who are working.  It appears no member of your family has ever been in criminal trouble.

25You have reported to Youth Justice and to psychologists, David Ball and Kim Dowse, a stable and happy history with your family with whom you still live.  You report positive relationship with your brothers and with your parents.

26Probably the most disruptive aspect of your life to the time of being charged in the way you have been has been the development when you were 13 of Type 1 diabetes.  You are insulin dependent and you have to self-inject four times a day.

27As I have said, I received reports from psychologist, David Ball, who undertook an assessment for the purpose of this hearing.  He then referred you to Kim Dowse, a psychologist on whom you have attended twice for treatment.  They report that you have no anti-social characteristics, that you do not present with any mental health difficulties, you do not present with any difficulties with drugs or alcohol.

28It is clear and I accept on this night of the offending that you were intoxicated but there does not appear anywhere in the materials a suggestion that alcohol has been any sort of problem for you.

29I received a number of positive references from family friends and from your employer, Mr White[5], who spoke of your qualities as an employee.  He is aware of this offending but is prepared to keep your job open for you.  You have therefore a number of extremely important protective factors.

[5] A pseudonym

30They are that you have never been in trouble before, that you come from a supportive and prosocial family, that you are in gainful employment, and that you are so well regarded by your employer that he is prepared to keep work open for you as I have said.

31Additionally I am informed by your counsel that you have started up your own furniture making business on the side which is flourishing which you conduct from your parents' property and you have a strong interest in undertaking eventually a further apprenticeship in this area and to go into the field of furniture making in the long term.

32You have attended schools locally without incident.  You have been very involved in sport in your local area in cricket, football and netball.  You no longer play but you participate as a voluntary umpire and you are still involved with the clubs.

33In other words, ordinarily you would be a young man having grown up in good prosocial circumstances, would never have expected to find himself before a court, particularly not in the circumstances of being charged with and dealt with by a court for an offence so serious as rape.

34It was submitted by the prosecution that I should regard your offending as involving some entitlement to treat women in this way because of the rather offensive Snapchat message you sent to Ms Greene soon after this offending, that is, 'You are so tight'.

35I note in Mr Ball's assessment of you that he regards you even - and the report is dated July of this year - as a still relatively immature young man.  The way he put it was, 'Overall Mr Mullins impressed me as an immature man developing his capacity to exercise generally good judgment and to plan and execute positive and self-sustaining behaviours'.

36The message you sent to Ms Greene in no way does you any favours,
Mr Mullins, but I am prepared to take into account the fact that you were only 18 years of age and that that message rather than necessarily involving entitlement involves an immature attitude to women generally.

37If I be wrong in this I am comforted by the fact that Mr Ball then goes on to say, 'However, he presented some insight into his offending and general psychological functioning'.  In her letter to the court Ms Dowse on whom you have attended twice described you as being demonstrative of empathy towards your victim.

38She stated, ‘Thomas said he let everyone down but mainly the victim.  He said she would have been very upset and probably fearful from then'.  You also spoke to Ms Quin, the youth justice officer who assessed you for suitability for a youth justice centre detention.  In her report she stated, 'Mr Mullins has expressed regret for his offending and has demonstrated a degree of victim empathy by identifying that the victim would have felt scared, has lost trust in people, particularly men, and would feel cautious about attending social events with others due to fears of being assaulted again.'

39If you did demonstrate entitlement at the time, which I am not necessarily persuaded that message means, I am satisfied that this offending has had a salutary effect upon you.  Ultimately the situation is that you have continued in your employment, you have undertaken psychological counselling, you have developed greater empathy for the effect that your offending has had upon the complainant.

40At the end of the day the prosecutor is quite right in submitting that whilst you may be able to pick up your life the effects of your offending upon Ms Greene have been extremely serious and may make it far more difficult for her to get back to a life where she is not bedevilled by at the very least the emotional impacts of your offending against her.

41As was conceded from the outset the fact that rape is such a serious crime means that questions about how a court should respond are confined to a discussion of whether you should be placed in adult custody or in a youth justice centre.

42Rape involves the serious violation of any victim of it and the reactions and responses and sufferings outlined by Ms Greene are entirely typical of those expressed by the hundreds and hundreds of rape victims this court has seen pass before it.

43It is a serious violation, it has serious effects and the courts must respond seriously and sternly.  It is important that a message is sent out to the community that persons who offend in this way can only expect to be dealt with in a stern manner.

44I agree with the prosecution's submission that offending of this type should also involve the application of principles such as denunciation of the conduct and reflect just punishment.

45In terms of the mitigating matters that I must take into account in respect of you, Mr Mullins, primarily I must take into account your youth.  Given your age at the time of your offending and your age now youth is a particularly significant matter for the court to take into account.

46It has been a constant principle that where persons are young offenders as you were and as you now present rehabilitation is a particularly important principle.  That is because it is recognised that reform is best achieved by young offenders through rehabilitation rather than by straight punishment.

47In addition you have no prior convictions.  I am satisfied given your previous good history and your subsequent history of employment, you are now as I have said a second year apprentice, you are clearly a skilled young man who will go on to I have no doubt carve out a successful career in the areas of your choice, and also given the fact that both Ms Dows and Mr Ball have found you to be a person who is at a low risk of reoffending I regard your prospects of rehabilitation as extremely good.

48That impacts upon another principle that the courts often have to take into account in sentencing in cases of this kind and that is the principle of protection of the community.  Given your remorse which I accept as genuine, given the positive circumstances of your family, your employment and your lack of previous or subsequent offending, that principle of protection of the community is not one to which I need have regard in my view.

49Nor do I regard specific deterrence as being a principle to which I need pay attention in any particularly significant way in the sentencing exercise.  By specific deterrence I mean dealing with you in a way that teaches you a lesson, if you like, that discourages you from offending in such a way in the future, I am satisfied as I have said this has been a very salutary lesson for you, not just in terms of developing victim empathy but in terms of understanding the serious consequences of your offending.

50I note in particular that you have developed a degree of anxiety about the results of this court case and I am satisfied you are a low risk of appearing before a court in the future.  Indeed had you not behaved in this way I would be surprised if you would ever have appeared before a court for criminal offending.

51The fact that you were drunk at the time of this offending does not reduce your moral culpability, Mr Mullins, but I do accept your counsel's submission that it places in context the way in which this offending came about.  I note that as a result of this offending you have given some thought to your alcohol consumption even though it was not a problem for you, and now rarely drink and when you do, you do not drink very much.

52Again this is a protective factor and also indication that you have taken this offending and your actions seriously.  I also accept that there was a degree of immaturity in the offending that you undertook and a degree of immaturity in the message that you then sent to Ms Greene.

53Ultimately it is my view for the reasons that I have outlined that whilst you must be dealt with by way of a custodial disposition this should take the form of a term of detention in a youth justice centre.  I note that the standard sentencing provision in relation to rape is ten years' imprisonment.

54The prosecution have conceded that this offending falls into the low to mid-range of seriousness.  Again it is very important that Ms Greene understand this is simply a process whereby the circumstances of this sexual assault, being rape, is compared with other rapes if you like.

55I accept in the circumstances that this was of short duration, that it was impulsive and that you did not pursue Ms Greene once she had pushed you off and in those circumstances I do regard this offending as falling below the mid-range of seriousness.

56The ten year standard sentence applies to rapes found to be in the mid-range of seriousness.  Additionally the standard sentence is based on the objective factors of the offending.  The Court of Appeal have made it clear that standard sentencing is to be regarded as but one of the constellation of sentencing factors that a court must take into account.

57Taking into account the standard sentencing, your excellent prospects of rehabilitation, your youth, your lack of prior history, your remorse, your low risk of reoffending and the host of prosocial factors that I have outlined more than once in these sentencing remarks I am satisfied that the appropriate term for the charge of rape is 16 months in a youth justice centre.

58In making that determination as to the appropriate period of time for such detention I also take note that you have been assessed as suitable for placement in a youth justice centre and in her report Ms Quin, the youth justice case manager noted your positive prospects of rehabilitation, your remorse.

59She also stated that you demonstrated impressionability and, 'Is considered likely to be subjected to undesirable influences in an adult prison'.  This is an important factor to be taken into account in the assessment for suitability for placement on a youth justice centre term of detention and I accept what she has said.

60I also note that the prosecution has conceded that the impact of your offending overall is lessened because of your youthful age and the age of
Ms Greene.  There was also an acceptance that the offending was short and spontaneous.

61Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of detention in a youth justice centre of three and a half years.  You are also by virtue of this offending, being Class 1 offending, placed on the Sex Offenders Registration for a period of 15 years.

62Is there anything else I need to attend to, Mr Patton or Ms Farrell?  Does that cover everything?

63MR PATTON:  Nothing from me, Your Honour.

64MS FARRELL:  Nothing, Your Honour, just I am aware there is some media listening in and just to emphasise that there is to be no identification of the complainant in this matter.

65HIS HONOUR:  Yes, and that also includes I think the names of Ms Greene's former boyfriend, Ms Greene herself, the location I think of the offending.  I think it is fairly well known in terms of those people and I think also probably Mr Mullin’s address.  Would that be right, Ms Farrell?

66MS FARRELL:  Yes, Mr Mullin’s address, Your Honour, there is no issue with that.

67HER HONOUR:  That should not be reported either.

68MS FARRELL:  No, Your Honour.

69HER HONOUR:  Thank you very much.

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