Director of Public Prosecutions v Nott
[2018] VCC 814
•4 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01368
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CEEJAY NOEL NOTT aka CEEJAY SUTTON |
---
JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2018 | |
DATE OF SENTENCE: | 4 June 2018 | |
CASE MAY BE CITED AS: | DPP v Nott | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 814 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law - Sexual Offences
Catchwords: Rape – Common Law Assault – Failing to comply with reporting obligations
Legislation Cited:
Cases Cited: Shrestha v R [2017] VSCA 364
Sentence: TES: 7years’ 2months with a minimum of 4years 10months to be served
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten for the plea Ms S. Jankovic for sentence | OPP |
| For the Accused | Ms N. Kaddeche | Victoria Legal Aid |
HER HONOUR:
1 Ceejay Nott[1], you have pleaded guilty to a charge of rape, an offence with a maximum sentence of 25 years’ imprisonment; a charge of common assault, an offence with a maximum sentence of 5 years’ imprisonment; and a charge of failing to comply with reporting obligations under the Sex Offenders Registration Act, an offence also with a maximum sentence of 5 years’ imprisonment.
[1] The prisoner has a preference to be called by this name – see report of Dr Zimmerman 28 September 2014 (part of Exhibit 3)
2 You also agreed to this court hearing a summary offence of failing to comply with reporting obligations under the Sex Offenders Registration Act, and pleaded guilty to that offence. That has a maximum penalty of 2 years’ imprisonment.
3 At the outset, I advise that I am using pseudonyms for the names of your victims in these reasons. I remind those listening to these remarks, that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for using pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
4 I sentence you on the basis of the prosecution opening,[3] which is an agreed summary. I will briefly outline your offending.
[3] Exhibit A
5 You have a criminal record, and for one of your previous offences, you were put on the Sex Offenders Register, and have to do what is required under that for the rest of your life. Your obligations included reporting to the police the details of any car you own, the address where you live, the names of children you have contact with, and details of any job you have.
6 In November 2016, you got a car. You were supposed to tell the police about that within 7 days. You did ring your compliance manager about it, but 8 days after you should have. You were asked a number of times to provide registration transfer papers, but you never did. Failing to report the details about the car within seven days is the subject of the summary charge.
7 You told police that you were homeless and sleeping under the King Street bridge in the city, and after you got the car, you told them you were sleeping in the car near Crown Casino. The police checked to see if you were sleeping there on two nights in January and February 2017, but did not find you there. It turned out that you were living with your former partner, DT[4], at her home in Sunbury. This is the first part of charge 1 - failing to report where you were actually living between 30 December 2016 and 16 March 2017.
[4] As this person was a victim in previous sexual offending, I have adopted the same pseudonym as used by the sentencing judge – Exhibit 4.
8 DT had two children living with her; one is the son you had together, the other is not. This is the next part of charge 1 - failing to report that you had contact with these children.
9 On 30 December 2016, you began working with a removalist and had casual work until early March 2017. Getting a job is good news, but not telling the police about it is bad news. This is the last part of charge 1 - failing to report that you got a job.
10 Your most serious offence happened on 13 March 2017. You attacked a young international student who was a stranger to you, who had been in Australia for only 8 months. In the afternoon, LK[5] was walking home and heard your footsteps approaching her from behind in the street. You grabbed her, covered her mouth and pulled her to the ground. You squeezed her breast. You will not be sentenced for the act of squeezing her breast, as it is not part of the charge for which I am sentencing you, but I treat it as background for what then happened.
[5] A pseudonym
11 LK was struggling with you, but you managed to get your hands inside her underwear and you raped her by putting your fingers into her vagina and moving them in and out for about five seconds. That is charge 2.
12 You then suddenly left, with LK shouting that she was calling the police. You said nothing to her at any time. LK did call 000 and report your serious assault on her. She was later examined by a doctor and found to have a number of minor injuries to her hand, knees and thigh, which were caused by you forcing her to the ground. I will come back to the impact of your crime on her in a moment.
13 About 5 hours later, in the same suburb, you attacked another young international student, NT[6]. She was walking home at about 9.30pm. As with your previous victim, you followed her, but NT was unaware that you were behind her as she approached her front door. As before, she was a stranger to you. As with your previous victim, you grabbed NT from behind and put a hand over her mouth and pulled her to the ground on her hand and knee, this time pulling her hair in the process. As with your previous victim, NT was struggling with you, but NT actually bit your hand covering her mouth. You punched her in the back, shoulder and head, apparently without much force and tried to push her further down.
[6] A pseudonym
14 A neighbour of NT heard footsteps and a scream and looked out from his balcony to see NT on her back on the ground with her knees to her chest with you grabbing her and trying to force her legs from her chest. The neighbour yelled, you stopped briefly, and then continued your assault. That is charge 3. Eventually, you stopped altogether. As with your previous victim, you said nothing during the assault, but this time, you said something in an angry tone as you left her.
15 The prosecution have, in my view very generously, conceded that you are not to be sentenced on the basis that this second attack was sexual, and so you are only charged with common assault. I will sentence you on the basis of this concession.
16 NT had her glasses, phone and a hair tie dislodged during your assault. She gathered these up and after the neighbour spoke to her, she went inside, contacted her family, and eventually police arrived. She was later examined by a doctor and found to have a number of minor injuries to her hand, knees and arm which were caused by you forcing her to the ground.
17 After these two assaults, police checked CCTV footage and saw you in both locations. DNA taken from both women also connected you to the crimes. When investigating these crimes, the police found out about you not reporting the things I referred to earlier, under your sex offender reporting obligations.
18 LK and NT provided victim impact statements about how your crimes affected them. Both have been severely impacted by your offending against them.
19 LK has nightmares, is scared of shadows of someone behind her, and has had disagreements with her boyfriend about him coming to live in Australia to make her feel safer. She now catches Uber rather than taking public transport because of her fear, and she dropped out of her university classes held late in the day in winter because she was afraid of going home in the dark, and this, plus the other impacts on her, led her to fail some subjects. As a result, she has had to extend her visa because her course will take longer and this has cost her more money. She gets angry and finds it hard to talk to others and finds counselling very hard too.
20 Your other victim, NT, has flashbacks and feels isolated. She no longer feels safe in the apartment where you attacked her at her front door, and has had disagreements with her family about selling it. It seems she has stayed with her brother and sister but there is no room for her there, and she thinks they are angry with her and not supportive. NT feels she has lost her independence and is more vulnerable than before. Like LK, NT failed two subjects at university, with lower results after your attack because of the impact on her. Because of this, she also has to stay in Australia longer to complete her studies and family and friends back home are asking why. She does not want to tell them. She now finds it hard to make friends, does not want to socialise and feels very different inside to how she felt before your attack.
21 While your sexual attack on LK is the most serious of your offences, the impact on both LK and NT is severe. You have made their lives much more difficult and through no fault of theirs, they are having to re-organise how they live and what they do, as well as feeling the trauma of what you did to them. Unfortunately, neither of them seem to be receiving the support they should be from family members. I take the impact on them very much into account in the sentences I impose today. Through the prosecution, I suggest to LK that she persists with the counselling and finds someone she is comfortable talking to. NT should also consider counselling. I do wish them both well for the future.
22 I find that your offending against each woman is a serious example of the particular type of offence, because each was a stranger, was attacked by you on the street and suffered from the force used by you over and above that involved in the offence in each instance. Also because you did not comply fully with your reporting obligations, it is likely police were not able to check on your movements and whereabouts as they might have, if they had the proper information from you. This might have prevented the attacks from happening.
23 Your criminal record is relevant to the sentences I impose today. You are on the Sex Offenders Register because you were convicted of sexual offences in 2014 against your then partner DT and against a young woman you did not know. Your barrister submitted that the charge of sexual penetration against your former partner, DT, should not be taken into account in the circumstances in which that occurred, as set out in the prosecution opening, and in the remarks made by the sentencing judge[7] for that case in 2014.
[7] Exhibit 4
24 I accept that your previous sexual penetration offence is a different situation to the charge of rape I am dealing with, but I consider it, together with the indecent act charge committed against a different young woman who was a stranger to you, and your prior convictions for assault, causing injury and failing to comply with other reporting obligations are highly relevant to today’s sentence, because in my view those offences show that you have a problem with understanding that sexual activity is not something you do whenever you feel like it with whoever happens to be around, whether or not they know you, or are consenting to sexual activity; and you also have a problem with complying with court orders.
25 However, there are a number of other things I must take into account in deciding the appropriate sentence.
26 The first of these is that fact that you have pleaded guilty and told the court early that you would do that. Also, because of your early plea of guilty, you have saved your victims from having to give evidence, which is a very important factor in sexual offences cases. As a result, the sentences I impose today will be less than I would have imposed if you had pleaded not guilty and been found guilty after a trial.
27 The police questioned you for a long time and you admitted that you had disobeyed some of your reporting obligations, and that at the time you were smoking a lot of marijuana, but you lied to them about being involved in the offending against the young women, even though you saw yourself on the CCTV footage and agreed it was you. Your plea of guilty to the court shows that you now accept responsibility for your offending against the two young women and to that extent, shows some limited remorse.
28 I say ‘limited’, because although you told Dr Zimmerman, the psychiatrist who assessed you for this case and the 2014 court case, that you regretted your offending, and were unable to understand why you committed the offences, you also said you are unable to remember the offences. I agree with Dr Zimmerman when she says your inability to recall the offences precludes any demonstration of remorse.[8] What that means is that it is hard for the court to find you are sorry for something you say you cannot remember doing.
[8] Exhibit 3, second report dated 22 February 2018
29 The most important factor for me to take into account is your background, and the expert opinion which suggests that this affects the way you act. You have just turned 29, but your life so far has not provided you with family support or friends. I accept that you had a dysfunctional childhood, with no contact with your father since your parents separated when you were about 4, with your mother re-partnering and you suffering physical abuse and deprivation from your step-father from which you felt your mother did not protect you. You had no relationship with your brothers and sisters, and still have none; you were bullied at school; and ultimately you felt abandoned by your mother when she placed you in foster care when you were 12, supposedly to protect you from your step-father, but to you that was seen as her choosing her partner over you, her son.
30 You remained in foster care until 18 when the State of Victoria no longer had responsibility for you, and you were devastated by being told you were then ‘on your own’. You had no close relationships with any of the foster families and so at 18, you were on your own and still had no support from your own family.
31 You began using marijuana and alcohol from your mid-teens as a way to calm your distress, resulting from all of these factors. You have harmed yourself and you have made attempts to kill yourself. You told the police that you smoked 8 - 9 cones of marijuana on the day you attacked the two international students and you told Dr Zimmerman that you had about 7 cones, but also used ice on that day.
32 You have had at least three intimate relationships: one with DT, the victim of one of your violent and one of your sexual offences for which you were sentenced in 2014, and as I said before, you have a son together. You had another son with another woman, but that relationship has not continued. You were in another relationship until DHHS told your partner about your criminal history, which led to you and she having an argument and you violently assaulted her, ending that relationship.
33 DT is really the only support you have, but even that is limited. She arranged for you to live at her house at the end of 2017, and it was through her that you got the contact which gave you the removals work. As I said earlier, unfortunately because her children were also living there and you failed to report this, and your job, to the police, that is part of the offending for which I am sentencing you today.
34 Going back to the expert opinion, in 2014, Dr Zimmerman formed the opinion that your background with its significant abuse, frequent dislocations and lack of any stability or nurturing relationships, has impacted on you in many ways. She thought you had features of what is called Borderline Personality Disorder[9].
[9]Exhibit 3, first report dated 28 September 2014
35 I make the observation that it seems that through the crimes committed against all of your victims, society is now paying for the neglect and abuse perpetrated by others on you as a child, and the failure of anyone to protect or nurture you. The whole community has a responsibility to protect children from harm, and to protect future possible victims from harm caused by abused children when they become adults.
36 Returning to Dr Zimmerman, in 2018 she assessed you again and confirmed that the pattern of persisting dysfunctional inner experience and behaviours is reflected in the construct of your personality and stated that she believed you suffer from what she called a Cluster B personality disorder, presenting with features of both Borderline and Antisocial Personality Disorder.[10]
[10] Exhibit 3, second report dated 22 February 2018
37 After Dr Zimmerman’s 2014 report, and on her suggestion, a clinical neuropsychologist examined you. Ms Lofthouse in her report,[11] stated that in her opinion you have a number of intellectual deficits which are likely to affect your capacity to think ‘on the spot’ or process more than one thing at a time, and that these deficits, she said, are often noted where there is an acquired brain injury, which she thought could be related to your drug and alcohol use. She said you have a mildly reduced capacity for problem solving and a longterm pattern of behavioural deregulation which, together with your substance abuse, are likely to have contributed to your criminal offending.
[11] Exhibit 2
38 Although I accept that your background is relevant in consideration of your circumstances, it is hard to discover exactly what led to you committing the offences against the young international students. You gave different accounts as to using or not using ‘'ice' on the day you assaulted the young women; you said you were overwhelmed about hearing of your brother’s death a year earlier, although you have no contact or relationship with your family; you gave police false accounts of your movements that day even though you identified yourself on the CCTV footage; and as to the charges of failing to report certain things as a registered sex offender, you gave unsatisfactory answers to why you had not reported, and said that you felt overwhelmed by the reporting conditions.
39 However, I do accept that your intellectual deficits and personality are to be taken into account when considering your answers given in a very long interview with police.
40
The next matter I take into account is your previous experience of prison, and the likelihood that your risk of self-harm and suicide will increase, because of your intellectual deficits and personality, as described by Dr Zimmerman[12].
I accept that being in prison weighs more heavily on you and there is a risk of your prison sentence having a significant adverse effect on your mental health. I endorse Dr Zimmerman’s remark that it is imperative that you be closely monitored by the mental health services in whichever prison you are in.
[12] Exhibit 3, second report dated 22 February 2018
41 Looking at your criminal offending as a whole, you have now committed sexual offences against three women and committed violent offences against two women and others. You have said that you do not know why you committed these offences and you want to get professional help so you can avoid doing any of it again. That is important, but until you get that help, I find that you are at a high risk of re-offending in similar ways.
42 Dr Zimmerman makes some very helpful recommendations. She states in her second report[13] that you have high needs in three areas: first, you require urgent engagement in a sex offender program, best delivered individually; second, you do need drug and alcohol counselling even though you think you do not; and third, because of her opinion that you have significant personality issues, you require work with a psychologist trained in something called Dialectical Behaviour Therapy. I agree with all of her recommendations and wholly endorse them. In my view, working on your needs in these three areas would reduce your risk of re-offending, and help to protect other people in the community from you.
[13] ibid
43 Since the last hearing in court, your lawyers have made some enquiries about the availability of the special type of therapy I just referred to. I have been given a letter from Justice Health dated 20 April 2018[14] which says that such therapy is available at certain prisons through the Mobile Forensic Mental Health Service, if a prisoner is assessed as being suitable. Again, it is my strongest recommendation that a referral be made for your assessment, and that, if you are suitable, you be placed in a prison which has this mobile service.
[14] Exhibit 5
44 You have had court orders in the past, such as a community corrections order, which you have not used to work out why you do these crimes. But you have not been required to do a sex offender program in a court order, and the things we know about the impact of your childhood on you and your ability to learn to make changes in your life, have never been as fully explored as they have been now.
45 If you are given the opportunity to find out why you do the things you do, and if you are provided with support designed to suit your special needs, then I think there is a chance for you to rehabilitate. That means, have a better life and not commit crimes. Without trained people helping you to change and without you doing your best to change, then you will probably spend your life going in and out of prison. That is not good for society and certainly not good for you.
46 Apart from those matters personal to you, to which I have referred, I must also take into account general deterrence. That means that my sentence must try to put off other men from committing offences like yours. Further, because there is a risk of you committing more offences, my sentence must also try to make you think before you commit an offence in the future. That is called specific deterrence.
47
Your barrister told me that you know that you will get a prison sentence today, but she submitted that you should receive a ‘shorter than normal’ non-parole period and a lengthy parole period to provide support for your rehabilitation in the community. She also submitted that the rape you committed was not at the upper mid-level range of seriousness, and submitted that because your offending against the two young women happened on the same day, because the assault in charge 3 was not sexual, and because, she submitted, the sex offender reporting charges are at a lower level of seriousness, all of the sentences should have some concurrency, that means, overlap to some degree. She also referred me to the treatment options recommended by
Dr Zimmerman, to which I have already referred.
48 The prosecutor on the plea agreed that your previous experience in prison should be taken into account in considering the potential effect of today’s sentence on your mental health. He submitted that both the rape charge and the assault charge involved violence over and above that involved in the mere act in each offence; that the rape you committed was an offence at the upper mid-level of seriousness, and the assault was a serious example of that type of offence. He submitted that you should not get a shorter than normal non-parole period because of the serious nature of your offences, your criminal history, the need to protect the community from you, and the need for specific and general deterrence.
49 I am of the view that the rape offence (charge 2) is a serious example of a digital penetration. It has most of the features of the offence committed in the case counsel referred me to.[15] Although there is no evidence that your attack on LK was pre-meditated, and the attack was not late at night in a secluded place, most of the other features of that case are very similar to yours and there are additional features in your offending contributing to its seriousness. These are: your victim was a stranger to you; you followed her for some considerable distance; you attacked the victim from behind when she was alone in a street running off a main street; your rape involved associated personal and sexual violence; you persisted in digitally penetrating her in the face of her determined resistance and she suffered some minor injuries.
[15]Shrestha v R [2017] VSCA 364
50 In my view it is not useful to try to characterise an offence further, for example, as being in the upper or lower level of the middle of a range. The maximum sentence is 25 years’ imprisonment. Sentences for rape involving digital penetration have been too low[16]. The sentence in the case I just referred to was considered lenient[17]. On the other hand, you get the benefit of pleading guilty, which that offender did not have available to him.
[16] Ibid
[17] Ibid
51 Turning to the assault charge (charge 3), I am of the view that is a serious example of that type of offence. Your victim was a stranger to you; you followed her from the train station for some considerable distance; you attacked the victim from behind when she was alone and unaware of your presence; your assault involved sustained personal violence; you persisted in assaulting her in the face of her violent and determined resistance, and despite a witness to your crime calling out to you; and she suffered some minor injuries.
52 As for the other offences, I accept that your sex offender reporting offences are less serious than other reporting offences might be, but as I said at the beginning, because you did not comply with your reporting obligations, it is likely police were not able to check on your movements and whereabouts as they might have, if they had the proper information from you. This might have prevented the attacks happening.
53 Protecting the community is the purpose of reporting obligations for registered sex offenders. The scheme of registering sex offenders cannot operate to protect the community without sex offenders complying with it in full and so charges of failing to comply are always serious.
54 Because of the deficits in your psychological and intellectual functioning, as well as the impact of a prison sentence on your mental health, I have decided to set a non-parole period lower than I would otherwise have set. This will give you the chance, if given parole, to work on your issues with support while in the community. If your rehabilitation is successful, this will protect the community in future.
55 Stand up please, Mr Nott.
56 You are convicted and sentenced as follows:
57 On charge 1 - failing to comply with reporting obligations under the Sex Offenders Registration Act - 12 months’ imprisonment.
58 On charge 2 – rape – 6 years’ imprisonment.
59 On charge 3 - common assault - 18 months’ imprisonment.
60 On the summary charge of failing to comply with reporting obligations under the Sex Offenders Registration Act, one month’s imprisonment.
61 The sentence on charge 2 of six years is the base sentence. I direct that 10 months of the sentence imposed on charge 3, and 4 months of the sentence imposed on charge 1 be served cumulatively on the sentence imposed on charge 2 and on each other. The sentence on the summary charge is concurrent with all other charges. That makes a total effective sentence of seven years', two months’ imprisonment.
62 I direct that you serve 4 years, 10 months before becoming eligible for parole.
63 I declare that you have served 445 days in pre-sentence detention not including today. These will be deducted administratively from your sentence. So those days you have already served, come off the sentence I have just imposed.
64 Yes, just take a seat again for the moment, Mr Nott.
65 For completeness, while I recognise the placement of prisoners and access to treatment for prisoners is a matter for Corrections Victoria, I make the following recommendations in the strongest possible terms: That Corrections Victoria facilitate
· Close monitoring of your mental health;
· A referral to Forensicare for your assessment for suitability for Dialectical Behaviour Therapy;
· If you are found suitable, your placement in a prison which has access to the Mobile Forensic Mental Health Service for this, or other suitable therapy;
· Engagement by you in a sex offender program, delivered individually; and
· Engagement by you in drug and alcohol counselling.
66 Finally, I advise that if you had not pleaded guilty, but were found guilty after a trial, the total sentence I would have imposed is 11 years, with a minimum sentence of eight years.
67 Yes, there are no other orders required?
68 COUNSEL: No, Your Honour.
69 HER HONOUR: Thank you. Yes, thank you, Mr Nott may be removed. And, Ms Kaddeche, will you be going down to see him?
70 MS KADDECHE: I will, Your Honour.
71 HER HONOUR: Yes, so Ms Kaddeche will see you downstairs.
72 I have just realised something I forgot to say right at the beginning, which was to apologise for the length of time it has taken me to get to this sentence, so please pass that on to Mr Nott.
73 MS KADDECHE: I will, Your Honour.
74 HER HONOUR: But it did enable us to get that further information, that is one thing.
75 MS KADDECHE: And I will probably fall on the sword. It was probably our fault as well. There were some delay obtaining the material from Forensicare, so - well not from Forensicare, but from Corrections.
76 HER HONOUR: Yes, all right.
77 MS KADDECHE: So Your Honour shouldn't take full responsibility.
78 HER HONOUR: All right, thank you, but I take some.
79 Thank you, we will adjourn until 9.30 tomorrow.
- - -