Director of Public Prosecutions v Pitt
[2016] VCC 1628
•2 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01770
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY JAMES PITT |
JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2016 – 29 July; 1 August – 5 August; | |
DATE OF SENTENCE: | 2 November 2016 | |
CASE MAY BE CITED AS: | DPP v Pitt | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1628 | |
REASONS FOR SENTENCE
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Subject: Criminal Law; Rape; Aggravated Rape; Indecent Assault.
Catchwords: Application for disproportionate sentence; community protection.
Legislation Cited: Sentencing Act 1991; Crimes Act 1958.
Cases Cited: R v Connell [1996] 1 VR 436; Stalio v R [2012] VSCA 120; DPP v Clunie
[2016] VSCA 216; Mill v R (1988) 166 CLR 59; Veen No 2 v R (1988)
164 CLR 465.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. K. Judd QC Ms. F. Dalziel | OPP |
| For the Accused | Mr. C. Farrington | Leanne Warren and Assocs |
HIS HONOUR:
1 Anthony James Pitt, following a trial that occupied 14 sittings days in this Court, you were found guilty by the jury of the following offences –
(i)Indecent assault, contrary to s44(1) of the Crimes Act 1958. The maximum penalty for that offence is 5 years imprisonment;
(ii)Intentionally causing injury, contrary to s18 of the Crimes Act 1958. The maximum penalty for that offence is 7 years imprisonment;
(iii)Two charges of making a threat to kill, contrary to s20 of the Crimes Act 1958. The maximum penalty for that offence is 15 years imprisonment;
(iv)Rape, contrary to common law and s45 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment;
(v)Aggravated indecent assault, contrary to ss44(2) and 46 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment; and
(vi)Aggravated rape, contrary to common law and s46 of the Crimes Act 1958. The maximum penalty for that offence is 20 years imprisonment.
2 The convictions concern two incidents which I shall detail that occurred on 20 February 1987 in Mildura and 28 March 1988 in Frankston. At that time, you had a prior criminal history for offences of possession of a firearm, offensive behaviour, theft, unlawful possession and possession of cannabis. On 25 October 1977, you were convicted of robbery in New Zealand and deported to Australia.
3 When your offending occurred in Frankston on 28 March 1988, you were subject to appeal bail in relation to a charge of obscene exposure for which you had been sentenced to 2 months imprisonment. That sentence was varied on appeal on 2 May 1988 to a sentence of 2 months imprisonment suspended for 6 months.
4 You have a significant subsequent criminal history for offending in respect of extremely serious offences of sexual violence and sexually motivated violence. Those convictions are as follows –
5 On 26 August 1988 you were arrested and charged with a number of offences involving an alleged rape at gunpoint. You were on the suspended sentence imposed on you on 2 May 1988. Following a hearing at the Nhill Magistrates Court on 3 November 1988 where you were convicted of indecent assault and other offences, you appealed to the County Court and on 5 April 1989 you were convicted of a number of firearms offences and sentenced to a further term of imprisonment part of which was suspended. You were found not guilty of indecent assault. You were released from prison on 10 June 1989.
6 On 13 August 1989, you were arrested and charged with a number of offences in relation to you forcing a 17 year old girl into the boot of a car. On 15 May 1990 in the County Court at Horsham, you were sentenced to 18 months imprisonment with a non-parole period of 8 months in relation to one charge of false imprisonment and one charge of recklessly causing injury. You were found not guilty by direction in relation to one charge of abduction for the purposes of sexual penetration. The sentencing judge, His Honour Judge Barnett, concluded that you were obsessed with the victim and that obsession was in part sexually motivated. On 4 October 1990, you were released on parole and completed the sentence on 1 August 1991.
7 On 25 September 1991, you sexually penetrated a 15 year old girl who was babysitting for your family. On 13 March 1992 in the County Court at Horsham, after being found not guilty of rape and having pleaded guilty to a charge of sexual penetration of a child under the age of sixteen, you were sentenced, again by His Honour Judge Barnett, to 4 years imprisonment with a non-parole period of 3 years. You were released on parole on 18 July 1994 and the sentenced was completed on 20 October 1994.
8 The convictions that I have referred to thus far were recorded in the name of Leslie Norman Pitt. In approximately 1996, it would appear that you began to use the name Anthony James Pitt.
9 On 17 April 1996, you were convicted of breaching an intervention order and assault. You were placed on a suspended sentence. On 6 May 1997, you were again convicted of breaching an intervention order and assault. You were sentenced to a term of imprisonment and the suspended sentence was activated. You were released from prison on 18 August 1997.
10 On 22 July 1998, you were again convicted of breaching an intervention order, assault with a weapon and threat to kill. You were sentenced to 10 months imprisonment, partially suspended for 18 months. On 14 September 1998, you were released from prison subject to the suspended sentence.
11 On 27 November 1998, you unlawfully imprisoned and raped a 16 year old girl in a disused mine shaft in Ballarat. You raped the victim on five occasions. During her horrific ordeal, you restrained her with handcuffs, rope and ankle ties. She was imprisoned by you in the dark mine shaft for 19 hours before investigating police located both you and her. The seriousness of this offending cannot be overstated. On 16 December 1999, you were sentenced to 17 years imprisonment with a non-parole period of 15 years in relation to 2 representative counts of rape and one count of false imprisonment, again by His Honour Judge Barnett, in the County Court at Ballarat. That sentence was completed on 29 October 2015. Before you completed that sentence you were charged with the offences before this Court. You have been in custody since 28 November 1998.
12 It is clear that between the time that the offences before this Court were committed and 28 November 1998, when you were arrested in Ballarat, you committed a series of serious offences despite being sentenced to terms of imprisonment intended to deter and rehabilitate you. You continued to prey on defenceless young women in order to satisfy your violent and predatory sexual desires.
13 Before turning to the circumstances of your offending on the occasions before this Court, it should be recorded that you have been brought to justice by reason of the work of Victoria Police cold case investigators and the forensic scientists who work in conjunction with them. In 2013 exhibits obtained by investigators following your offending in February 1987 and March 1988 were examined by reference to a DNA sample collected from you which revealed your semen deposited on those exhibits. Following the further investigation you were charged with these offences in 2015. After almost 30 years, you were brought to justice for your crimes.
14 The offences that you were convicted of in this Court arise from the following circumstances -
15 On 20 February 1987, the fifteen year old victim of your offending was planning to meet her then boyfriend in Deakin Avenue, Mildura. At approximately 7pm as she was walking along that street, you ran up to her, grabbed her and forced her into bushes adjacent to a motel restaurant. You handled her vaginal area and then punched her in the face and put your hands around her throat. You then threatened to kill her and forced her against a wall and penetrated her vagina with your penis. In all probability you were not using a condom and you ejaculated into her vagina. You then left threatening to kill her again if she reported your crimes to the police.
16 On 28 March 1988, the seventeen year old victim of your offending was walking to a friend’s home in Heatherhill Road, Frankston at approximately 5.30 pm. After passing her, you approached her from behind and dragged her into a laneway. You threatened to kill her and punched her in the face, causing a fracture to her cheekbone and severe swelling. After forcing her face-down onto the ground, you penetrated her vagina with your finger and you then penetrated her vagina with your penis. In all probability you were not using a condom and ejaculated either into her vagina or the area of it. You then left the scene.
17 I have received in evidence a Victim Impact Statement of the victim of your offending in Mildura. Your offending has had a profoundly traumatic effect upon her and 29 years later she continues to suffer from the devastating consequences of your brutal crimes. You have exhibited no remorse whatsoever for your offending and the victim was required to address questions put to her during the trial that compounded the trauma that your offending has caused.
18 I have also received in evidence a Victim Impact Statement of the victim of your offending in Frankston. Your offending has also had a profoundly traumatic effect upon her and she, too, continues to suffer from the devastating consequences of your brutal crimes 28 years later. You have exhibited no remorse whatsoever for your offending and this victim was also required to address questions put to her during the trial that compounded the trauma that your offending has caused.
19 The victims of your offending are brave women who responded to the rigours of the trial process with great dignity and restraint.
20 The conduct of your defence and statements made by you to your mother and a witness in prison regarding your offending demonstrate the callous and brutal disregard you have for them. These statements also demonstrate your complete failure to engage with the reality of your sexually driven violence and who you are.
21 Your offending is plainly extremely serious. Each incident was opportunistic, brazen and accompanied by serious violence over and above the sexual violence you inflicted on your victims. You offended to satisfy your uncontrolled, predatory sexual urges.
22 In the course of these reasons, I will deal with a number of complex sentencing issues, but three principles can be stated simply enough. You must be punished for these crimes and your offending must be denounced in the strongest terms. Predatory behaviour such as yours has no place in a civilised society. Furthermore, the sentences that I impose must also state in unequivocal terms that offending of this nature will be met with the imposition of lengthy terms of imprisonment.
23 I now turn to your personal circumstances –
24 You were born on 17 March 1957 in Warracknabeal, Victoria and are now aged 59. You have 3 siblings with whom you have no contact. You were educated to Year 9 level and thereafter were employed in a range of occupations, including spray painting, labouring and shearing. You have been married and have 4 children with whom you also have no contact. Your elderly mother is alive and is in regular contact with you by telephone. Your childhood was one of disruption and disadvantage and your father committed suicide. I accept that this disruption and disadvantage and your father’s abuse of you contributed to the development of your dangerous and violent personality. You have a history of drug and alcohol abuse.
25 At the time of your offending in these instances, you had a limited criminal history. However, as I have set out, following the commission of these offences, you committed a series of sexual offences or sexually motivated offences, for which you received terms of imprisonment. It is in the context of your entire criminal history that I am required to assess the risk you pose to the community and how the community is to be protected from that risk.
26 You are to be sentenced as a serious sexual offender by operation of Part 2A of the Sentencing Act 1991 (the Act) in relation to Charges 1, 5, 9 and 11 on the Indictment. In the exceptional circumstances of this case, the prosecution submits that I should, by operation of s6D (b) of the Act, impose a sentence longer than that which is proportionate to the gravity of the offences considered in the light of their objective circumstances. It is submitted that you will remain a danger to the community beyond the period that the principle of proportionality would permit your detention. As stated by the Court of Appeal in R v Connell [1996] 1 VR 436 at 443 - 444 per Charles JA, it is also necessary for a sentencing judge to be satisfied, before imposing a disproportionate sentence, that the application of the principle of totality in arriving at an appropriate sentence, when the provisions of Part 2A of the Act are engaged, would result in the imposition of a sentence that does not adequately protect the community from the particular offender.
27 In arriving at an appropriate proportionate sentence in your case, I am also required to have regard to current sentencing practices and it is accepted that concerns the practices at the time of sentence, although I must also pay due regard to the maximum penalties for the offences applicable at the time of your offending. (See Stalio v R [2012] VSCA 120)
28 It must also be recognised that the offending before the Court concerns two separate victims on 2 separate occasions 13 months apart, and the sentences I impose must be appropriate and proportionate in respect of each individual offence when viewed in isolation. (See DPP v Clunie [2016] VSCA 216)
29 During the course of the plea hearing, the prosecution tendered, without objection, the following reports –
(i) A report of Dr Kevin Ong, forensic psychiatrist, dated 11 December 2015;
(ii) A report of Dr Michael Davis, forensic psychologist, dated 6 February 2016; and
(iii) A further report of Dr Michael Davis dated 21 September 2016 (which was prepared following your conviction for the offences before this Court)
30 Dr Ong concluded:
“There is evidence to suggest that Mr Pitt meets the criteria for a particular sub-set of those with an anti-social personality, namely psychopathic personality”.
Dr Ong concluded that this diagnosis is a barrier to treatment and risk reduction and you present:
“… a high risk of sexual reoffending in the future.”
31 Dr Ong further concluded that you had failed to make significant gains in custody in regard to addressing offence-specific needs and remain much the same in regard to offence attitudes as to when you entered prison. He observed that you continue to minimise, deny and justify your offending.
32 The report of Dr Davis dated 16 February 2016 is an extensive examination of your psychological history and offending profile. For the purpose of preparing the report, Dr Davis interviewed and tested you on 24 December 2015, 4 January 2016 and 8 January 2016 over a total period of 10 ½ hours. The contents of the report evidence the complete absence of any insight or remorse for your offending, which occurred subsequent to the offending before this Court.
33 Dr Davis concludes that you suffer from Anti‑Social Personality Disorder, Borderline Personality Disorder and Schizotypal Personality Disorder. Dr Davis referred to the previous treatment and counselling undertaken by you and it would appear that little, if any, positive progress has been made by you in response to this. Your statements made to him in 2015 and 2016 clearly confirm this conclusion. In this report compiled when you had been in prison for in excess of 17 years, Dr Davis concluded that you pose:
“… a high risk for sexual recidivism.”
34 The report of Dr Davis of 21 September 2016 was prepared after your conviction for the offences before this Court. In an interview with Dr Davis, you provided an account of your offending which was patently false. In this report, Dr Davis concluded that:
“Based on the configuration of risk factors and the information available to me, it is my opinion that Mr Pitt currently still poses a high risk for sexual reoffending.”
35 He further states:
“It is still admittedly difficult to provide an opinion regarding the most likely form of future sexual offending because Mr Pitt’s previous offences seem to have progressed in severity from non-contact to contact offending. Nevertheless based upon his previous offences and their trajectory, the most likely scenario will be a contact offence such as rape committed against an older adolescent female. However, this should not be considered the only scenario especially given the variety of previous offences and Mr Pitt’s severely disordered personality and polymorphously perverse sexual interests.”
36 In respect of your age, Dr Davis arrived at the following conclusion:
“It should be noted that Mr Pitt is currently 59 years old and a base rate for sexual recidivism declines with age. It becomes very low for offenders after the age of 60 years. Nevertheless recent research suggests that the protective effect of advancing age is not universal and may not be protective for older sexual offenders who have otherwise been actuarially identified as posing an elevated risk. Accordingly, it is unclear to what to degree, if any, Mr Pitt’s advancing age may be a protective factor in regard to his risk for sexual recidivism.”
37 Your counsel tendered in evidence a report of Dr Danny Sullivan, a consultant psychiatrist, dated 26 September 2016. In that report, Dr Sullivan reached the following conclusions:
“The appropriate diagnosis is of a mixed personality disorder. He shows evidence of antisocial (dissocial) traits, along with strong paranoid traits, borderline (emotionally unstable) traits, and schizotypal traits.”
38 Dr Sullivan further concluded:
“Mr Pitt will in the future be assessed as high risk due to the chronicity, diversity, and escalation of past offending, particularly that involving contact offending against strangers in public places. Until he is perceived as demonstrating some insight into his past offending and demonstrating some acceptance of responsibility for his behaviour, his risk is unlikely to be assessed as any lower.”
39 Dr Sullivan further concluded:
“The effect of ageing is generally to reduce reoffending risk, although it is not possible to be certain of this unless the person is so frail that contact offending becomes impossible. For the duration of any portion of a sentence served in the community, such as parole, he should be assessed for treatment with anti-libidinal medications to curtail his sexual drive.”
40 On the basis of this body of uncontested evidence, I am satisfied that you continue to pose a significant risk of reoffending and this risk will continue for the foreseeable future. You have shown no insight or remorse for your offending and you have not responded to any of the programs delivered to you in respect of that offending. A very substantial term of imprisonment has not in any way addressed the risk that you pose to the community. Specific deterrence has achieved little in your case.
41 Whilst it is true that aging may reduce the risk that you pose, I am not satisfied that is necessarily so in your case. In my opinion, as stated by Dr Sullivan, it is not possible to be certain that aging will reduce the risk of your reoffending until you are so frail that contact offending becomes impossible. I accept that you suffer from a range of physical ailments including hypertension and diabetes and that the burden of imprisonment upon you will increase with age. Your complex psychological profile is managed with medication prescribed for you in prison.
42 Your prospects of rehabilitation may properly be described as negligible. So much was accepted by your counsel who conceded during the course of the plea hearing that age was the only factor that would reduce the risk of you reoffending.
43 In arriving at an appropriate proportionate penalty in your case I am required to have regard to the principle of totality and in my opinion, the principles enunciated by the High Court in Mill v R (1988) 166 CLR 59 require me to have regard to the fact that I am now sentencing you to a term of imprisonment for offences committed in 1987 and 1988 and in the interim you have served in excess of 22 years in prison and have been in prison since 28 November 1998. But as I have said it is necessary for me to consider that despite this, you clearly remain an ongoing and high risk to the community of reoffending.
44 It is also not permissible for me to now impose a sentence for the offences before the Court which, in effect, is a further penalty for the offences for which you have already been sentenced ( See Veen v R No 2 (1988) 164 CLR 465).
45 It is clear, on the basis of the evidence before me and by operation of Part 2A of the Act in respect of the charges that I have identified, that the protection of the community is the principal purpose for which this sentence is to be imposed. In my opinion, you pose a grave, ongoing risk of recidivism in respect of serious sexual offending and the sentences I impose must be tailored to address that risk.
46 The offences that you committed were of the utmost gravity by reference to their objective circumstances. You detained young women in public places and subjected them to brutal acts of sexual violence and accompanying violence and I do not believe that it is necessary for me to impose a sentence which is longer than that which is proportionate to the gravity of your offending in order to protect the community from you. Furthermore, in my opinion, the principle of totality does not preclude me in the circumstances of this case from imposing a sentence that will protect the community from you.
47 I will impose a non-parole period in this case that will provide for the possibility that the risk that you pose to the community may reduce with age.
48 In the result, the sentence of the Court is as follows -
49 In relation to Charge 1, the charge of indecent assault, you are convicted and sentenced to 2 years imprisonment.
50 In relation to Charge 2, the charge of intentionally causing injury, you are convicted and sentenced to 18 months imprisonment.
51 In relation to Charge 4, the charge of making a threat to kill, you are convicted and sentenced to 18 months imprisonment.
52 In relation to Charge 5, the charge of rape, you are convicted and sentenced to 6 years imprisonment.
53 In relation to Charge 6, the charge of making a threat to kill, you are convicted and sentenced to 18 months imprisonment.
54 In relation to Charge 9, the charge of aggravated indecent assault, you are convicted and sentenced to 3 years imprisonment.
55 In relation to Charge 11, the charge of aggravated rape, you are convicted and sentenced to 9 years imprisonment.
56 The sentence imposed on Charge 11 is the base sentence. I order that 12 months of the sentence on Charge 1; six months of the sentence on Charge 2; three months of the sentence on Charge 4; four years of the sentence on Charge 5; three months of the sentence on Charge 6; and 18 months of the sentence on Charge 9, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 11.
57 This makes for a total effective term of imprisonment of 16 years and 6 months.
58 I direct that you serve 13 years imprisonment before becoming eligible for release on parole.
59 I declare that you have served 370 days by way of pre-sentence detention, not including today.
60 I will make the Orders sought in relation to the Sex Offenders Registration Act 2014 and information in that regard will be provided to you by my Associate.
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