Director of Public Prosecutions v Owen

[2019] VCC 169

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01087

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUSSELL OWEN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2019
DATE OF SENTENCE:	20 February 2019
CASE MAY BE CITED AS:	DPP v Owen
MEDIUM NEUTRAL CITATION:	[2019] VCC 169

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  False imprisonment; Causing injury intentionally; Sexual assault; Common assault; Plea of guilty; Offending carried out on partner and friend; Prolonged offending; Cognitively impaired complainant; Denunciation; Deterrence.

Legislation Cited:                   Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic); Crimes Act 1958 (Vic).

Sentence:Total Effective Sentence – 5 years imprisonment. Non-parole period 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Borg	Office of Public Prosecutions
For the Accused	Mr J. Miller	Sullivan Braham

HIS HONOUR:

1Russell Owen, you have pleaded guilty to two charges of false imprisonment, two charges of causing injury intentionally, one charge of sexual assault and one charge of common assault. Those charges arise out of a number of incidents that occurred at your house in Heyfield between 24 and 26 December 2017.

2Ms Borg, who appeared on behalf of the prosecution, tendered a summary of prosecution opening which set out the details of your offending and provides the factual basis for the sentence to be imposed. That offending involved two victims, being your then girlfriend, who I will refer to as AB for the purposes of these sentencing remarks, and a male, who I will refer to as DC.

3AB was 32 years of age and met you around December 2016.  Shortly after that time she commenced an intimate relationship with you and she would regularly spend time at your house. It was accepted that at times you were verbally abusive towards AB, which would result in her periodically leaving your home.

4DC was a male friend of AB, who you came to suspect was having an affair with her.

5On Friday, 22 December 2017, AB spent some time having a meal and a drink with DC. At this time DC informed her that he was engaged and that he had written a poem to his fiancée which had been published in the local paper. AB informed DC that it was her birthday on Sunday, 24 December.

6On the evening of 23 December 2017 AB caught a bus to Heyfield and went to your home where she spent the night with you. The following day you spoke with AB about DC.  AB told you that she had received a text message from DC wishing her happy birthday. He also sent her a poem and asked her if she wanted to meet him for a drink. At this stage you appear to have suspected that DC and AB were intimately involved.  However, AB assured you that was not the case.  She told you DC was engaged and that he would not be unfaithful to his fiancée.

7You then asked AB to invite DC to your house. DC later drove to your home, after which you and he and AB drove to the local supermarket and purchased some alcohol. The three of you then dropped off DC’s car at his house and walked to your home and there, all three of you played pool. The fact that DC was bisexual was discussed.  At one point DC slapped AB on the bottom and you raised the topic of all three of you engaging in sexual activity together.  DC said that he was engaged and that he would remain faithful to his fiancée.

8Soon afterwards the poem DC had written and sent to AB was discussed. At this point you grabbed DC around the throat with both hands and started to strangle him. You pushed him towards the kitchen bench and he fell on the ground. You grabbed a knife and placed the blade underneath DC’s eye and against his forehead.  DC was able to grab the knife and throw it to the ground.  However, you then grabbed another knife and told DC to go into the bathroom. As he tried to stand you stomped on his back, causing him to fall back down. You made him crawl to the bathroom and continued to kick and punch him as he did. As you did this AB screamed at you to stop.

9Once he got to the bathroom you ordered him to get into the bathtub where you ripped off the shower curtain and used some blue coloured rope to tie his hands behind his back and also around his head. You then put the rope over the railing above the bath and you also placed a towel in his mouth so that he could not scream.

10You then demanded to know DC’s password for his phone, which he provided. You wrote the password on the bathroom wall and you also demanded his Facebook password, which you engraved on the bathroom wall.

11During this attack DC suffered a number of different injuries which were documented in the Summary of Prosecution Opening and depicted in the photographs tendered by Ms Borg. They included bilateral bruising to both eyes, sub-conjunctival haemorrhage to the outer aspect of the right eyeball, a fracture to the nose and bruising to the chest, abdomen and upper limbs.

12Those matters form the factual basis for charges 1 and 3.

13At the time DC was assaulted in the bathroom AB stood by the bathroom door. At some point you grabbed her and pushed her into the bathtub. Among other things, you kicked her to the vagina and hit her in the face with a broom handle. Once she was pushed into the bath tub she was prevented from leaving.

14Her injuries included tenderness and soreness to her head and neck, bruising to the right upper eyelid, extending to her entire right eye socket, a significant abrasion to the bridge of her nose, multiple bruises to her back, upper arms and thighs, together with intermittent abdominal cramping pain. Some of these injuries are also depicted in the photographs tendered by the prosecutor.

15Those matters form the factual basis for charges 2 and 4.

16Whilst in the bathtub you interrogated DC and AB about what they had done on 22 December 2017.  You forced them to remain in the bathtub for a number of hours. You turned on the water causing them to get wet. You prevented AB from using the toilet forcing her to urinate twice in the bathtub in the presence of DC.

17After hours of sitting in the bathtub you untied DC and removed the towel from his mouth. You then moved DC and AB to the bedroom. You gave DC some clothing to change into.  As he did so you mixed up a white liquid and injected yourself twice, using a syringe. You then permitted each of your victims to shower but required them to return to the bedroom. You then expressed an intention to have sex with them.

18You told DC to take out his penis. He complied for fear of being further assaulted.  You then licked his penis with your tongue a few times. You then told DC to make his penis erect and requested that he watch some pornography on his telephone.  DC tried to comply but in the circumstances was unable to get an erection.  DC did not consent to any of this activity. As it occurred, AB told you that you could not treat people like that.

19That conduct constitutes the factual basis for Charge 5.

20At one point you made DC leave the house to collect some cigarette butts near the hotel and while he did this you retained possession of his keys, mobile phone and wallet to ensure that he would return to the house.

21When he did return with the cigarette butts, which you intended to smoke, you gathered up the items that you had used in the offending, such as the towel and blue rope, and burnt them in a fire pit in the backyard. At that time you said to DC, “I’m getting rid of everything that resolved around this night”.

22At one stage you also required DC to withdraw $50 from his bank account at a nearby ATM.

23In a subsequent discussion you asked DC about his parents and he told you where they worked and their occupations. You then told DC that you knew where you could now find his parents and that you, or someone on your behalf, would go after them if he disclosed what had occurred. You told DC if he called the police he would be, “fucked”.

24Out of fear as to what might happen to his parents, DC told you that he would tell his parents that he got his injuries from falling on a barstool when drunk. Indeed, when released that is in fact what he initially told his family and friends to explain away his injuries.  However, on 27 December 2017 DC told his parents how he had really received those injuries. The matter was then reported to police on 28 December.

25After DC had left your home you started to yell at AB. You went into the bedroom wearing blue coloured kitchen gloves and holding a home-made Taser. You activated the Taser in the air which made a very loud noise and put the Taser near AB's throat.  She was, understandably, terrified.

26AB saw you again over 26 and 27 December 2017 and during that time you called her names and told her that if you go to gaol for what happened it would be her fault for, “fucking”, DC.

27When police attended your home on 28 December 2017 they found AB at the house and she reported to police what you had done. Later that afternoon police returned to your address where you were arrested after initially trying to run away.

Impact of Offending

28Turning to the impact of your offending on the victims, victim impact statements were provided by AB, by DC and DC’s mother and father.

29AB requested that her victim impact statement should not be read aloud in court. In general terms it is very clear that she has suffered enormously as a result of what you did to her. She has been constantly afflicted by flashbacks and nightmares as to what happened to her in your bathroom, where she says she thought she was going to die.  She has experienced a great deal of difficulty in re-establishing some normality back into her life.  In particular, her ten year old daughter has suffered greatly and she believes this experience has affected her capacity to properly parent her child. More than a year on from this event she continues to struggle emotionally with what you did to her.

30DC suffers from an intellectual disability. Ms Borg, on behalf of the prosecution, did not suggest that the offending was aggravated by reason of the fact DC had that disability. The prosecution did not allege that you were aware that DC was intellectually disabled. Nonetheless, it was submitted that his disability was particularly relevant in assessing the impact of your offending on him. I should say that I accept that submission.

31His statement, that is DC's statement, and that of his parents, confirm that he is a man who has strived to achieve a measure of independence in spite of his disability. The victim impact statements confirm that your crimes have undermined his confidence and that degree of independence he had managed to achieve. He is now much more withdrawn socially and constantly feels insecure and unsafe and it follows that what happened to DC constitutes a significant setback for him and it will no doubt take considerable time for him to re-establish the independence that he previously struggled to attain.

32It follows that the impact of your offending on the victims has been very significant, and that impact will be an important factor to be taken into account in the formulation of your sentence.

Personal Circumstances

33Turning to your personal circumstances, you were born on 8 January 1975. You were 42 at the time of the offending.  You are now 44 years of age.

34You were charged with these offences on 28 December 2017 and you have been in custody since that time. The matter proceeded to contested committal at Sale Magistrates Court on 22 May 2018. The matter was to proceed as a trial in this court with a Special Hearing to be held on 9 October 2018. However, the Special Hearing did not proceed, and on 12 October 2018 you pleaded guilty to this indictment.

35You were the fourth of five children and grew up in Heyfield. You still get on well with all your siblings and remain close to your mother. You were previously in a long-term relationship of eight years and there are two children of that relationship, now aged 22 and 19.

36You attended the local primary school in Heyfield. You then attended Sale Technical School but left at the end of Year 8. Unfortunately, you cannot read and write and you were often picked on because you were illiterate. Your father was a truck driver and a veteran of service in Vietnam. When he was home he would drink a great deal and family violence was common.

37After leaving school you worked in a variety of jobs such as in a timber mill, bricklaying, plastering and as a machine operator. In your mid-20s you lived in Western Australia whilst working in the mines. You last worked three years ago as a forklift operator.  However, you were involved in a work accident where you lost three of your fingers. In your recovery from that injury it appears that you relapsed into illicit drug use and you have struggled with that problem since.

38Over many years you have had a poly-substance abuse problem but the principal illicit drug you have abused has been ice or methamphetamine. You have now been using that drug for many years, injecting up to a gram a day before going into custody. Clearly, your drug problems have undermined your capacity to consistently work and your social wellbeing generally. Indeed, part of the circumstances of this offending involve intravenous drug use.

39In respect of the offending, you had been in a volatile relationship with AB. Your suspicions and paranoia about DC’s involvement with your girlfriend were likely exacerbated by the drug use. You told your assessing clinical psychologist, Ms Carla Lechner, that you accepted what the victims said occurred, and expressed some shame for what you put them through. You told her that you “…wish it never happened, wish I could apologise”.

40Mr Miller, who appeared on your behalf, submitted that whilst your plea of guilty to these charges was not entered at the earliest possible opportunity, it was nonetheless entered in circumstances which avoided the necessity of having a cognitively impaired complainant cross-examined. Moreover, the contested committal enabled the withdrawal of some serious charges so that you could plead guilty to an appropriate indictment.

41Accordingly, he submitted that your plea demonstrated an acceptance of responsibility for what you did and a willingness to facilitate the course of justice. It was also consistent with remorse, as were the comments that you made to Ms Lechner.

42Ms Lechner’s psychological assessment of you is set out in her report of
23 December 2018. The testing she conducted reveals your verbal intelligence to be in the low average range and confirms you are illiterate.

43She states at p.7 of her report:

"His early drug use has undermined his subsequent social, emotional and vocational development.  He also presents with symptoms of Major Depressive Disorder and features of PTSD, the latter arising from witnessing the suicide death of a prison inmate earlier this year.  Mr Owen presents as a, “moderate/high” risk of sexual reoffending on account of a range of psychosocial vulnerabilities.  He needs intensive treatment support both in custody and upon his release back into the community".

44At p.8 of her report Ms Lechner explains her findings with respect to your history of depression. She says:

"At interview Mr Owen impressed as capable of reflecting on the impact that his behaviour has on both himself and others but caught in a fairly egocentric view of the world in which he sees himself as the victim on account of his illiteracy.  Whilst able to identify some triggers to his negative emotions,
Mr Owen is inclined to respond to internal distress and environment stress with drug use and this aggravating his underlying depression and anxiety.  Mr Owen has a history of depression and has recently been commenced on antidepressant medication.  He fulfils the criteria of a diagnosis of Major Depressive Disorder with a score in the “extreme” range on the Beck Depression Inventory.  He is also reporting a “severe” level of anxiety, mostly relating to being in prison. 

In respect of these offences, Mr Owen reports that he was drug and alcohol affected at the time, this no doubt having an adverse impact on his judgment and decision-making and capacity for impulse inhibition.  There is also an element of him feeling humiliated and seeking to even the score.  Utilising the STATIC 99 and SVR-20, he currently presents as a “moderate/high” risk of sexual re-offending, mostly on account of a range of psychosocial vulnerabilities".

45Your prior convictions consist of drug and assault offences dealt with in the Magistrates Court. For the most part you have received community-based dispositions and suspended sentences for that offending and this is the first time that you will serve an actual term of imprisonment.  Significantly, there is a ten year gap between 2007 and 2017, during which you achieved a measure of stability which ended when you relapsed into further drug use.

46In prison you have tried to use your time productively by keeping busy and remaining abstinent from illicit drug use.  In my view, it is of some significance that on your plea you were supported by your mother, your sister and your
19 year old daughter. The support of your family is a matter which enhances your prospects for rehabilitation, but the critical factor appears to be whether or not you can remain abstinent once back in the community. Mr Miller conceded, appropriately in my view, that the only penalty reasonably open here was a term of imprisonment with a non-parole period.

47In her submissions on sentence, the prosecutor emphasised the aggravating features of your offending, in particular, its lengthy duration, the degrading nature of the offending and the fear your actions were likely to have generated in the mind of the victims over that sustained period of time. She also emphasised that one of your victims was your then girlfriend and that your actions therefore involved a component of family violence.

48Ms Borg referred to three particular assault prior convictions which were dealt with in 2001, 2002 and 2004 respectively. Those matters resulted in dispositions of an intensive correction order, a suspended sentence and a community-based order. This offending, it was submitted, marked an escalation in your violent offending.

49In those circumstances therefore, she submitted that there was a very real need to emphasise both specific and general deterrence and to clearly denounce the community’s disapproval of such cruel, degrading and humiliating treatment of the victims.

Findings

50Turning to my findings, it is significant that your plea of guilty avoided the need for a trial and that you accepted responsibility for your offending, thereby vindicating the complainants. In my view, the fact that you adopted that course substantially reduces the sentence that might otherwise have been imposed.

51I am also prepared to accept that you are remorseful and that with the support of your children and family, your prospects for rehabilitation are by no means hopeless, and that is so despite Ms Lechner’s assessment of you as constituting a moderate/high risk of sexual reoffending.

52As Mr Miller emphasised, this is the first time you have been required to serve an actual term of imprisonment and there is a reasonable prospect that you will learn from this experience. Much will depend on whether you can effectively deal with your drug problem when you ultimately return to the community.

53In the meantime, however, I must sentence you for what are very serious offences. I accept Ms Borg’s submissions as to the matters that aggravate your offending.  In particular, the degrading and humiliating manner in which you treated your victims and the fact that this was not some short lived outburst of anger. Rather, you put these people through a prolonged and traumatic ordeal which was calculated to hurt and to cow them, such that it continues to be felt by your victims to this day. When you sexually assaulted DC, AB told you that you cannot treat people like that.  Mr Owen, you must understand that she was right.  You cannot treat anyone in the way that you did.

54In my view, nothing less than the imposition of a term of imprisonment is required to deter you, and others, from engaging in such behaviour. That imprisonment must also serve to mark just how unacceptable to our community, your conduct was on this occasion.

55Mr Owen, would you mind standing, please.

56On Charge 1, being the charge of false imprisonment of DC, you will be convicted and sentenced to a term of imprisonment of two and a half years.

57On Charge 2, being false imprisonment of AB, you will be convicted and sentenced to a term of imprisonment of two and half years.

58On Charge 3, being intentionally cause injury to DC, you will be convicted and sentenced to a term of imprisonment of 12 months.

59On Charge 4, being intentionally cause injury to AB, you will be convicted and sentenced to a term of 12 months' imprisonment.

60On Charge 5, being sexual assault on DC, you will be convicted and sentenced to a term of imprisonment of 15 months.

61On Charge 6, being common assault on AB, you will be convicted and sentenced to a term of imprisonment of four months

62I will further order that nine months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, seven months of the sentence imposed on Charge 5, and two months of the sentence imposed on Charge 6, be served cumulatively upon the sentence imposed on Charge 1. That makes a Total Effective Sentence of imprisonment of five years.  I will fix a non-parole period of three years before you become eligible for parole.

63I will further, pursuant to s.18 of the Sentencing Act, declare that you have already served 419 days by way of pre-sentence detention and that I will cause that declaration to be noted in the records of the court.

64I will further declare, pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of six years and nine months with non-parole period of four years and nine months.

65You may be seated now, please, Mr Owen.

66Finally, application is made under s.11 of the Sex Offenders Registration Act 2004 for an order that you comply with the reporting obligations of that Act. I may make that order only if after taking into account any matter that I consider relevant I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community. The offence of sexual assault, contrary to s.40 of the Crimes Act 1958 (Vic) is deemed by Schedule 4 of the Act to be a Class 4 offence for the purposes of the Act. Section 11(1) confers a discretion to order that you comply with reporting obligations once you have been found guilty of a Class 4 offence.

67In evaluating the risk to sexual safety I must look at what the risk is likely to be upon your release back into the community. I am required to consider the magnitude and nature of the risk, the degree of likelihood of the risk eventuating and the gravity of any anticipated harm. I must balance those matters against the serious consequences that would flow to you, were you to be compelled to comply with the onerous reporting regime under the Act.

68Ms Borg, in support of the application, relies particularly on the assessment by the psychologist, Ms Lechner, that you pose a moderate/high risk of sexual recidivism. In my view, whilst the psychological test used by Ms Lechner has its utility, it should not be elevated to the point of being determinative of this application.

69You are now 44 years of age and started offending at around the age of 17. There has since been 16 court appearances, all in courts of summary jurisdiction, and none involving sexual offending until now. Throughout that history you have not shown a propensity to offend sexually. As I have noted above, the primary context in which you have offended is one of poly-drug abuse.

70The sexual component of your offending on this occasion, though repugnant, did not appear to be your primary motivation. I formed the view that your predominant motivation for this offending was likely to be animosity towards, and jealousy of, DC. Seen in its proper context, I tend to the view that the sexual assault committed on this occasion is more likely to be the product of opportunism, than indicative of a tendency to offend in that way. 

71Moreover, you have pleaded guilty, accepted responsibility, shown some remorse, you retain the support of your family and you will now serve your first actual term of imprisonment. In all of those circumstances, I  am not satisfied beyond reasonable doubt that at the point you become eligible for release you will pose a risk to the sexual safety of one or more persons, or of the community. Accordingly, I will refuse the application for registration under the Sex Offenders Registration Act.

72Counsel, could I check with both of your whether there are any matters that arise from those sentencing remarks.  Mr Miller?

73MR MILLER:  No, Your Honour.

74HIS HONOUR:  Ms Borg?

75MS BORG:  Not from those remarks.  I understand we have sought a disposal order.  We have realised we sent through a PDF document rather than a Word document.

76HIS HONOUR:  Yes.

77MS BORG:  Does Your Honour propose to make those disposal orders once the proper document is sent to your associate?

78HIS HONOUR:  Ms Borg, once the proper document is forwarded I will make the order.

79MS BORG:  Thank you, Your Honour.

80HIS HONOUR:  I will leave the Bench in a moment.  Mr Owen, you may remain there for a moment if the custodial officers feel that is appropriate, just to enable your family to say something to you.  That will only be for a moment.  All right.

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