Director of Public Prosecutions v Newall
[2014] VCC 2130
•11 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-14-01821
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON NEWALL |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2014 | |
DATE OF SENTENCE: | 11 December 2014 | |
CASE MAY BE CITED AS: | DPP v Newall | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2130 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of kidnapping committed 13 years previously – defendant at time of offence aged 17 years and 11 months and acting under the direction of his father, who was the principal offender, and subsequent to the kidnapping committed sexual offences on the victim in which this defendant played no part – delay of 10 years before defendant interviewed – delay of further 15 months before defendant charged – further delay in matter coming before the County Court, notwithstanding defendant’s cooperation with police and indication of preparedness to plead guilty – cooperation with prosecuting authorities by defendant in making a statement implicating his father – undertaking on oath by defendant to give evidence in accordance with his statement, if required – remorseful plea of guilty – defendant was a youthful offender at the time of commission of the offence – psychological distress and addictive behaviour flowing from intrusive memories of subject criminal offending – sentence of nine months’ imprisonment wholly suspended for a period of two years.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms M O’Brien | Robert Stary Lawyers |
HER HONOUR:
1 Aaron Newall, you have pleaded guilty to one charge of kidnapping, which carries a maximum penalty of 25 years’ imprisonment.
2 The circumstances of your offending are detailed in the summary of prosecution opening for plea (Exhibit “A”). This offending occurred 13 years ago, in December 2001, when you were 17 years and 11 months old. At the relevant time, you had travelled from your home in Shepparton, where you were living with your mother and stepfather, to stay with your father, who lived in a converted bus in a trucking yard at Brooklyn.
3 Approximately one week prior to this offending, at the direction of your father, you had hidden in the boot of his motor vehicle when he drove to St Kilda and entered into an arrangement for a young prostitute, Julie Murray,[1] to give him sex. Shortly after Ms Murray got into the car, your father stopped the car and you emerged from the boot and, by your presence, assisted in your father’s abduction of the young woman, who was taken to the bus in which your father lived. In the bus, she was raped by him. You played no part in the sexual offending.
[1]A pseudonym
4 One week later, a very similar situation occurred where, again, you were directed to get into the boot of the car by your father, who, again, then drove to St Kilda and entered into an arrangement for a young prostitute, Alexia Corbett,[2] to provide him with sexual services. Once she got into the car, your father drove to a car park in Albert Park and you were directed by your father to get into the back seat with her and to cover her head. She was sobbing and your father yelled at her not to put her head up. Your father drove back to the trucking yard in Brooklyn, where his converted bus was located. The gates to the yard were opened and Ms Corbett was taken into the bus, where your father committed sexual offences against her. It is not alleged that you participated in the sexual offending.
[2]A pseudonym
5 Ms Corbett subsequently made a report to a worker with the Salvation Army Bridge Centre in St Kilda, but this report was not passed on to police. It was not until 20 December 2011 that you were interviewed in relation to the kidnapping of Ms Corbett. You admitted being present in the boot and in the back seat of your father’s car when she was kidnapped. You were not charged with the offences until 12 March 2013. The Prosecutor stated that this was related to the fact that your father was serving a sentence of imprisonment interstate and could not be interviewed until he was transferred back to Victoria. Your matter resolved into a plea and, on 25 September 2014, you assisted the Prosecution by making a statement implicating your father in the offending. It is accepted by the Prosecution that there has been delay, which is in no way attributable to you, and that you pleaded guilty at the earliest opportunity. Further, before me you gave evidence on oath that you are prepared to undertake to give evidence in accordance with the statement made to police on 25 September 2014, if required to do so.
6 You are presently aged 30 years, having been born on 8 January 1984. Following your admissions to police in relation to the abduction of Julie Murray, you pleaded guilty to her kidnapping and, on 11 December 2002 in the County Court at Melbourne, His Honour Judge Ross convicted you and sentenced you to a term of imprisonment of 18 months, which was ordered to be wholly suspended for a period of two years. On that same date, your father pleaded guilty to kidnapping, three counts of rape of Ms Murray and also theft, and was sentenced to eight years’ imprisonment with a non-parole period of six years. His Honour accepted that you were young and had acted at the behest of your father, but had become aware soon after emerging from the boot that your father was abducting the young woman and she was resisting both physically and emotionally, and you assisted him by your presence in the back of his vehicle. The same situation applies in the matter before me. The extent of your involvement in the kidnapping of Ms Corbett appears to be very similar to your involvement in the kidnapping of Ms Murray.
7 You come before the court with no prior convictions, although your conviction for the kidnapping of Ms Murray in 2002 is a subsequent conviction. You successfully served that suspended sentence. Subsequently, in 2003, without conviction, you received an adjourned undertaking for receiving property which was the proceeds of crime. You successfully complied with the undertaking and the charge was dismissed on the adjourned date. In 2008, you were convicted of recklessly causing injury and assault in company and placed on an 11 month Community-Based Order, which you successfully completed. In 2008, you were convicted and discharged for being drunk in a public place. In 2013, you were fined $500 for theft and attempting to commit an indictable offence. Also, you were convicted and fined for contravening a Family Violence Intervention Order.
8 In a plea on your behalf, Ms O’Brien told the court that you grew up in Shepparton. You are one of three children and your parents separated when you were seven years old. She stated that your childhood was marred by violence and your father physically abused you regularly by striking you with a belt and throwing you up against walls. You also witnessed him being violent towards your mother. Following your parents’ separation, you continued to live with your mother. Some years later she started a relationship with a new partner, to whom you had difficulty relating. So, at times, you would go to stay with your father in his converted bus in Brooklyn. It was in the context of such a visit that the offending against Ms Murray, and, also, against Ms Corbett, occurred.
9 On one view, if you were old enough to travel from Shepparton to visit your father, you should also have been old enough to distance yourself from his appalling offending, particularly once you had become aware the previous week of what had occurred with Ms Murray. It is plain that it would have been a very nasty shock for Ms Corbett to find that she was being abducted, not only by your father, but, also, by a second man. It is clear from her statement to police that she was very, very frightened. On the other hand, I have no difficulty in accepting that your father was a brute of a man and that you were scared of him and feared violent recrimination from him if you did not do as he said. I also accept that, although you feared him, as you told police, you also looked to him for love in the context of not having a good relationship with your stepfather. You were under the age of 18 years and a youthful offender and, had you come before a court without delay, the principle of rehabilitation would have been the predominant principle in sentencing you, as was the case when his Honour Judge Ross sentenced you in relation to the kidnapping of Julie Murray.
10 Tendered on the plea was a report from consultant psychologist, Carla Lechner, dated 4 December 2014 (Exhibit “4”). Ms Lechner took a history from you that you are haunted by the look of fear on the face of the victims of each of the kidnappings and, subsequently, used drugs and alcohol as a means of blocking out these memories. She took a history that you have been exposed to a lot of violence, which you found traumatic, and you were very distressed by the sexual offending perpetrated by your father against Ms Murray and Ms Corbett. You told her that you continue to suffer nightmares and flashbacks to what happened. I accept that this is so and, indeed, it was mentioned by you when you were interviewed by police in relation to the kidnapping of Ms Corbett in 2011.
11 Ms Lechner stated that, although you had commenced smoking cannabis the year before the offending, you increased your use of it after the offending and, also, began to drink to excess in order to block out negative feelings. She stated that you had developed symptoms of depression and anxiety and your maladaptive way of dealing with stress, by substance abuse, only served to aggravate those symptoms. She considered that you have symptoms of a cannabis use disorder, alcohol use disorder and major depression, as well as features of Post-Traumatic Stress Disorder.
12 Ms O’Brien stated that you struggled at school academically and, because you found it so hard, tended to become the class clown. You were effectively asked to leave school at the end of Year 10 and, then, commenced an apprenticeship as a baker with Bakers Delight, but found undertaking the academic side of that qualification too difficult for you. This self-report is consistent with the testing undertaken by Ms Lechner, who assessed you as being in the average to low range of intelligence, after administering two sub-tests of the Wechsler Abbreviated Scale of Intelligence. She stated that you need verbal instructions to be explained carefully and slowly in order to facilitate understanding
13 From 2003, you were in a de facto relationship with your partner, Leanne, for a period of seven years. She already had three children, to whom you related as a father, and, together, you had another child, Breanna, who is now 11 years old. Ms O’Brien stated that you had managed to support your family by holding down a number of jobs in bakeries and also as a welder, even though you did not obtain any formal qualifications. It would appear that you have a reasonable work history, but alcohol abuse has been a significant problem. You are now separated from Leanne, but see all the children very regularly. You are particularly close to Breanna and are hopeful of taking over her custody shortly, by agreement with her and her mother.
14 In March this year, you were diagnosed at St Vincent’s Hospital with acute renal failure secondary to nephritic syndrome. This causes symptoms of severe headache, left-sided abdominal pain and blood in your urine. Various medical records relating to it were tendered as Exhibit “2”. Apparently, your brother was diagnosed with the same condition some time ago and has already reached the point where he requires dialysis. You have been told that, currently, your kidneys are operating at approximately 30 per cent of their function and that this function will continue to deteriorate to the point where you require dialysis and, ultimately, kidney replacement. As a consequence of this condition, you have been unable to work since March this year and have qualified for a Disability Pension.
15 Mr Newall, as you are aware, the offence of kidnapping is a very serious offence, as reflected by the maximum penalty of 25 years’ imprisonment. Although you knew what your father was up to when, within a week of the kidnapping of Ms Murray, he, again, asked you to get into the boot prior to the kidnapping of Ms Corbett, I consider your moral culpability for the offending to be very substantially less than that of your father. It is plain that he was the person who devised the plan and, indeed, its purpose was to serve his own deviant sexual interests. You were under the age of 18 years and in a vulnerable position, with a fractured family life and an ambivalent attitude towards your father from whom you wanted approval and love, even though he apparently had a vile temper and a brutal nature. The fact that yourself and your siblings and mother were physically and mentally abused by your father is attested to in a reference from your mother, which was tendered as Exhibit “3”.
16 Your counsel stated that your father’s attitude was demonstrated in his Record of Interview where, in answer to Question 256, he told police that it was “fairly normal” that he would give you “a belt up the arse”. It would appear that he failed to give you the love and care and guidance that a child should be entitled to expect of a father and, instead, was an appallingly bad example to you and dragged you into his criminal world. It is plain from his criminal history, which was tendered as Exhibit “1”, that he was well acquainted with the criminal justice system since he first appeared before the Children’s Court in 1972. Thereafter, in Victoria, he accumulated a host of appearances for dishonesty, firearm offences and, also, two assaults. In New South Wales, he was dealt with for injury, dishonesty and driving offences, and in Queensland, also, he was convicted of dishonesty offences. Subsequently, between 2011 and 2012, he has been sentenced in Western Australia for reckless driving and seven charges of sexual penetration without consent. Your father was a very experienced criminal prior to 2001 and should be deeply ashamed of his criminality and the immorality of dragging his teenage son into this offending.
17 When interviewed by police on 20 December 2011, you were cooperative and answered their questions. You showed empathy with your victim by acknowledging how scared she must have been. You stated that it was wrong of you to be there, and wished that you had not, and that you could say sorry to your victim, but acknowledged that that would not do any good. You said you did feel sorry for your victim and felt bad because possibly you could have done something, but you were too stupid and too afraid of what your father would do to you. You stated:
“What do you do when it’s your father, and you gotta do what, you know, what your father says, otherwise you cop the punishment? When you grow up with him well, yeah, you’d realise. I didn’t have a good home like most people, with him, he was a fuckin’ dog.”
You went on to say that if you had disobeyed him “he would’ve smashed me. He don’t care. He hasn’t got a heart.”[3]
[3]Answers to Questions 306 and 307, Record of Interview, page 44
18 You told police that it did not matter that the victim worked as a prostitute, she was still another human,[4] and:
“You never forget somethin’ so bad that happened to you, so how can you get it out of your brain? I’ve been tryin’ for 10 years, now it’s coming back again.”[5]
[4]Answer to Question 71, Record of Interview, page 10
[5]Answer to Question 35, Record of Interview, page 5
19 I accept that your plea of guilty is genuinely remorseful and, when speaking to police and to Ms Lechner, you have demonstrated empathy with your victim. The Prosecution accepts that your pleas of guilty were entered at the earliest possible time. In these circumstances, you are entitled to a very high discount upon the sentence which, otherwise, would have been imposed. In addition, by reason of your co-operation with police and undertaking to give evidence against your father if required to do so, you are, also, entitled to a lesser sentence than otherwise would have been imposed.
20 In addition, I take into account in your favour the very considerable delay in this matter being brought to court. In the light of your psychological symptoms relating to the offending, as detailed in Ms Lechner’s report, I accept that the matter has weighed heavily upon you.
21 Further, I take into account, insofar as I am able, that you were a youthful offender at the time and dispositions which might have been available had the matter been expeditiously brought to court, are no longer available.
22 Thus, although kidnapping is a very serious offence and, generally speaking, emphasis would need to be placed upon general deterrence and also specific deterrence, since you had been involved in a similar offence one week earlier, there are very substantial mitigating factors in your favour.
23 Accordingly, although I consider that the objective gravity of the offending does require a term of imprisonment to be imposed, I have concluded that it should be very much reduced in length because of the factors that I have mentioned and, in addition, that it should be wholly suspended. It is notable that the Prosecution did not submit that an immediate custodial term of imprisonment should apply in your case. The length of the sentence and the fact of it being suspended, are related to matters peculiar to you. In determining that the matter should be suspended, I have taken into account not only your remorseful plea, co-operation with police and delay, but also the fact that your psychological conditions and your serious kidney condition would make the serving of an immediate custodial term of imprisonment more onerous than for a prisoner without such conditions. Although I have not heard any material put on behalf of your father, the sentence which I impose upon you should not be taken as any indication that I would consider a similar sentence appropriate if I were sentencing your father, following a plea of guilty, for the kidnapping offence.
24 On one charge of kidnapping, you are convicted and sentenced to be imprisoned for a period of six months. I direct that the whole of this sentence be suspended for a period of 12 months.
25 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your plea of guilty, the sentence imposed would have been two years’ imprisonment with a non-parole period of one year.
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