Director of Public Prosecutions v Platt

[2019] VCC 603

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01087

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN PLATT

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2019
CASE MAY BE CITED AS:	DPP v Platt
MEDIUM NEUTRAL CITATION:	[2019] VCC 603

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. Stougiannos	OPP
For the Accused	Ms H. Anderson	Leanne Warren & Associates

HIS HONOUR: 

1In February of this year 2019, a jury convicted you of two charges of rape, offences which took place between November and December 2012 on two occasions against a complainant whom I shall refer to as 'S' for privacy and anonymity reasons. 

2The circumstances of the offending and subsequent trial can be briefly summarised as follows.  You met ‘S’ when she was 17.  By the time of the trial, she was 26.  You were initially merely acquaintances but by three years thereafter in 2012, the relationship had changed.  By September 2012, it was at least a sexual relationship although not characterised by usual mutual private and public shows of affection as a couple. 

3Your relationship was founded on sexual intimacy, the smoking of marijuana in its natural and synthetic form and in watching videos and playing video games for days on end. 

4The complainant gave evidence of the sexual intimacy involved, some perhaps unusual practices which were consensual although it was disputed as to who initiated it or promoted such practices.  It was agreed that one involved the use of a knife on the back of the complainant; the second concerned some measure of erotic strangulation on your part which neither had relevance to the case beyond what she asserted and that you specifically denied without prompting on your record of interview the assertion by the complainant that these were your predilections, asserting as to the knife that it was hers and her idea and which included the fantasy of her to be penetrated while asleep.  A fantasy or desire which she denied having ever expressed or to have had and which you did not assert in your record of interview but did assert in your evidence-in-chief. 

5On the occasion in question, you had just returned from South Australia where you had gone to be tested for the paternity of a child and you informed ‘S’ that you had sex with the woman concerned upon your visit.  She was upset by your candour and on that day in the afternoon, she told you that she did not want to have sex with you because she had, what she described to you as, an infection in her vagina. 

6Your response was to say that it would be all right and you proceeded to take off her pants.  She pushed you away and repeatedly said no to you, and told you that she did not want to do anything sexual.  You would not take no for an answer and you performed oral sex on her, penetrating her vagina with your tongue. 

7At night, she went to bed while you stayed up with her brother playing video games.  She fell asleep and in the early hours of the morning she woke to find you having sex with her, penetrating her vagina with your penis.  You had pulled down her pyjamas pants and underwear.  She had not asked, agreed or consented to this sexual intercourse. 

8The complainant was cross-examined both at committal and extensively at trial.  In my view, she was a forthright and impressive witness.  You gave evidence at trial and denied both instances of sexual penetration, asserting, however, that she had told you that she had a fantasy where you would come into her room and have intercourse with her while asleep, 'although that has never happened' you asserted.

9Rape carries a maximum penalty of 25 years.  By that maximum, the legislators have indicated the gravity of the offence.  There is within the circumstances of such an offence clearly a wide spectrum of offending.  In circumstances like the ones which pertain to these offences, there may be some elimination by other evidence.  One witness, Ms Hatcher gave evidence of the complaint, that ‘S’ was scared of you, that you were controlling and you would not let her wear certain clothes. Ms Hatcher also admitted a sexual relationship with you. 

10More contextual material relevant to the circumstances and to you will become apparent.  What was clear to me from the evidence of the complainant consistent with the everyday experience of the court in the matters like these is that the experience of rape is inevitably humiliating and a deeply traumatising invasion and damaging unwanted intrusion into physical and emotional integrity with profound impact upon the victim of an ongoing nature; usually, where committed for sexual gratification of the offender as here, accompanied by disregard for feelings and integrity of the victim, with the inevitable aspects of aggression, imposition of greater force, rendering such acts acts of violence and dominion over the body and will of the victim. 

11As much is reflected in the victim impact statement of ‘S’ who wrote to the court about this.  In 2012, she lost her father, as she gave in sworn evidence, her family life and life generally fell apart as a consequence of this loss.  It spiralled into empty endeavours, drug use and lack of care for herself.  It was in this extremely vulnerable state that she was abused by you 'at a time that I needed support, this time of grief was taken and used against me in a horrible way.  I lost my dad and then you took' - addressing you directly - 'what I thought was the only thing I had control over - my body.'

12She remains fearful, lacking in trust in personal relationships.  She is hypervigilant and feels shame.  She has horrible memories which will stay with her and that false but recurring feeling that she deserved the treatment you meted out to her.  I take her victim impact statement into account. 

13I take your personal circumstances into account.  Your antecedents are particularly relevant and I will come to these in a moment.  You were born in Delacombe.  Your parents separated when you were 18 after some turbulent years. 

14Your father is 70 years old.  Until being charged with criminal offences in 2015 and 2016, you had little contact with him for a number of years.  It was the need for an address for bail that necessitated renewed contact.  Your mother is 50.  Upon your parents' separation, you lived with her and some siblings in Ballarat. She remarried and is often traveling away. 

15Your father had five children from a previous relationship but you have little contact with any of them.  You are the eldest of four, from the relationship between your mother and father. You do not have any contact with your oldest sister and there are two other younger siblings. 

16You attended secondary school in Ballarat, leaving at the end of Year 12.  You have had a number of jobs in the takeaway food industry.  Your attendance records at that point was bad.  You were bored at school and you did not enjoy it. 

17You told Mr Michael King, a clinical psychologist, whose April 2011 report about you was produced to the court, that you had become obsessed with girls and that working would produce money and with it the ability to impress them.  This report was prepared for your first appearance in court in April 2011 when you were charged and convicted of burglary and theft, placed on a community based order for 12 months. 

18You had no credible explanation for the downward trajectory of your life, said Dr King, apart from this desire.  You told him that when you were focused on them, on building a 'realistic future for yourself'.  You spoke to him of a military career and of your interests and study in automotive things.  There was at that time no underlying mental illness although Dr King emphasised your well above average intellect and ability which went unnoticed at school.  Dr King wrote that in his view you were 'a young man who would make the most of any opportunity to re-establish a positive educational and career path'.  He was sadly mistaken.

19In May of 2012, your community breach order was contravening by failure to comply.  The order was varied and extended.  That order too was breached by you and a suspended sentence imposed upon a cancellation of that order in 2013. 

20In order to understand the next two relevant priors, one must look at the chronology which was tendered by the Crown.  In June 2017, you were convicted and fined $1000 by His Honour Judge Montgomery of this court for two charges of assault.  That was as a result of a jury verdict.  The jury had failed to reach a verdict on rape counts on that indictment and these matters went for a retrial.  His Honour comments in his brief reasons for sentence that 'This was a very strange relationship between you and the complainant.'

21I return to your personal circumstances briefly.  At age 15, you had begun working in a takeaway food business in Ballarat and you developed a serious drinking problem.  But when questioned by Dr Joblin, a very experienced forensic psychologist in relation to the outstanding offences in 2017, you told him alcohol had no bearing on your offending.  You told him you had experimented with cannabis when aged 10 and by age 15, you used regularly.  By age 19, you used daily but stopped by 2014.  You reported LSD usage in 2012. 

22You, however, again told him psychedelic drugs were not a factor in the offending.  You used ice and left home to pursue this drug use in effect but by mid-2013 you stopped so that by the time you lived with ‘H’, the victim of the rape allegation, you were drug free. 

23Mr Joblin's report is dated 26 January 2018.  By that time, the retrial had concluded and in late November 2017 you had been found guilty by a jury of two counts of rape.  On 22 February 2018, His Honour Judge McInerney of this court sentenced you to a total effective sentence of eight years with a non-parole period of six and a half years. 

24By that time, the charges pertaining to ‘S’ had been instituted in August of 2015.  The committal had been conducted in July 2016 and the trial had been adjourned but was not able to be reached.  From May 2017's circuit, then November 2017's circuit and further directions hearing in 2018 in effect adjourned the trial in relation to the three matters pending, pending a Court of Appeal determination in the victim ‘H’ matters which concluded only in November 2018.  This trial then proceeded in February 2019.

25The conviction and matters covering the victim ‘H’ rapes are not therefore prior matters by way of the conviction nor by way of the commission which took place between January 2015 and July 2015, immediately preceding the statements of ‘S’, the victim in this case, in July 2015.  However, they are very relevant and were properly referred to during your plea.

26His Honour Judge McInerney's sentence bears some detailed attention.  I summarise from His Honour's sentence.  The victim ‘H’ was in a relationship with you.  The guilty verdicts related to three different incidents.  Not long after the relationship had begun in December 2014, there was an argument at home with Ms Hatcher, the witness in this trial whom I mentioned before.  You and ‘H’ went into a bedroom where you punched her in the mouth.  She suffered a split lip with her teeth going through the side of her cheek. 

27The second incident took place her parents' home.  While ‘H’ was asleep, you checked her phone and found communication with another person - a woman.  This enraged you, at which you declared, 'Right, we're fucking now.'  You placed a pillow over her head.  She was crying.  She asked you to stop.  You then penetrated and ejaculated after about ten minutes. 

28The third incident took place after four days during which you had detained her against her will.  You were not charged with any offence in relation to that but at the end of that period, you allowed her to attend a party.  When ‘H’ returned home, you became jealous and again enraged by her attire.  You lit her top with a lighter while she was wearing it.  ‘H’ was crying and asked you to stop.  Fortunately, no injury was occasioned.  You then ripped her stockings and underwear off and raped her. 

29His Honour's comments in his sentence that the relationship had 'a strong sexual element' in which you and ‘H’ appear to act consensually out various sexual preferences and fetishes.  However, given the verdicts, the incident related above were clearly not consensual.  He says at paragraph 10,

'As to why [you] treated ‘H’ like this, there is on its face no explanation.  [You] have no relevant criminal priors for this type of activity.  However, such actions are clearly there of a very possessive, jealous, dominating male.'

30I should say those are 'clearly those of a very possessive, jealous, dominating male'.  His Honour then refers to the Family Violence Royal Commission.  His Honour accepts the prosecutor's submission that your actions demonstrate a person who was exercising dominance in a relationship through violence and sexual possession.  His Honour then quotes from the Court of Appeal decisions in Short [2006] VSCA 120 and in Turner [2018] VSCA 24.

31His Honour then accepted the victim impact statement of ‘H’ and the deep impact upon her of your offending.  He found Dr King's report not particularly relevant or helpful and he referred to Mr Joblin's report in an endeavour to gain some understanding of the motive for your offending.

32Mr Joblin in his report provides some assessment of you.  He notes your 'alternative orientation described as "gothic" which involved particular dress and use of LSD'.  He noted you were virtually obsessed with video and computer games.  Mr Joblin noted that what you had put to the jury on oath in that trial was the version of events in denial of the allegations and that consequently remorse was absent.  However, Mr Joblin pointed out that you believed you had a good relationship with ‘H’. 

33These aspects appear congruent to your approach in this trial which concerned ‘S’.  You reported to Mr Joblin 'a fairly lengthy history of sexual relations with various females', a matter of some pride for you. 

34But Mr Joblin found you have no diagnosable psychosexual abnormality or disorder.   He opines at paragraph 12 that 'your attitude and behaviour associated with the charges were basically contextual, that is related to the environment and what was happening with you at the time'. 

35Mr Joblin at paragraph 14 says 'Mr Platt has some bizarre fantasies and preoccupations in this instance, consistent with his gothic orientation and use of LSD.  At one point, he developed odd beliefs and magical thinking.  His interaction with others, particularly young females, has been characterised by inappropriate sexually seductive and provocative behaviour.  He acknowledged that much of the sexual activity he had was marked by fantasies and the experience of a degree of erotic excitement and the expression of physical aggression.' 

36His Honour in his sentence repeats Mr Joblin's opinion and adopts it.  That is, that these rapes were 'contextual'.  He shares that opinion.  His Honour goes on at paragraphs 21 and 23 thus.

'There is no indication that apart from this relationship there is anything dangerous about Mr Platt to the wider community.  That is they related to the particular environment of his relationship and what was happening within that particular relationship.'

37His Honour went on,

'There is no doubt these crimes were contextual.  There is no evidence of Mr Platt being involved in any form of sexual abuse to anyone else at any other time in his life.'

38He continued,

'Mr Platt should be seen by the court as a youthful person at age 26 and given the circumstances and limited prior matters in his life, being in particular unassociated with sexual matters, he is a person that the court must consider as of high importance his rehabilitation.  I accept that,'

39Said His Honour.

40He then took into account the issues you were overcoming at the time, that is dislocation, couch sharing and estrangement from the family and also your mother's support and that of others.  His Honour again at paragraph 32 repeats that he 'takes Mr Platt's criminality to be situational' and concludes you have good prospects of rehabilitation after serving a term of reclusion.  He then proceeded to impose a sentence of eight years with a non-parole period of five years.

41His Honour at paragraph 10 seems to have, having accepted that 'there was no explanation for your offending', at the same time accepted that these offences were 'committed out of possessiveness, jealousy and domination through violence and sexual possession'. 

42I confess with the greatest of respect to His Honour that I do not have a clear understanding of what the submissions made to His Honour or His Honour's acceptance of the concept of 'contextual offending'.  It seems to me to be a description supposedly related to 'the particular environment of the relationship' or otherwise described as 'criminality that is situational'.  How this is a mitigatory factor is also unclear to me. 

43I should emphasise that I do not intend by these remarks to be either critical of His Honour or to pose judgment on his reasoning.  I mention them at length because it was submitted to me on your behalf upon your plea that I should take a similar approach to His Honour so as to make the same findings.

44It was firstly said that the offending was part of a self-destructive pattern of behaviour by you of self-absorbed sex and drugs out of which you had managed to extricate yourself before the trials which twice came before the court and which culminated in His Honour's sentence.  

45It was said that according to Mr Joblin's reports, that highlights your good prospects of rehabilitation given your lack of a psychological sexual disorder and your level of intellect.  I do not accept these exhortations and these submissions. 

46The so called self-destructive bad choices made by you were admittedly made by a young adult male but they were destructive and violated the integrity of another person, not just yourself.  They are not offences in my view which fall at the lower end of the scale of seriousness as was submitted to me, but at a point more advanced and seriousness than that point. 

47In my view, neither the nature of the relationship, its duration and its full context in this case create a 'situational' or 'contextual' framework within which the criminality is made lesser or better. 

48It was said the circumstances did not reveal 'an underlying ambition or predilection to commit those type of offences' because they were the first in time or were part of a relationship in which drug taking and unusual sexual practices were the norm.  I am not persuaded by this submission either.

49I am to be clearly understood to be sentencing you only for these offences, not for the propensity or predilection, though it would not be unreasonable to conclude that one is likely to exist.  Rather, to properly address your culpability and the gravity of the offence which is neither situational nor contextual.  Neither of those explanations nor the lack of a demonstrable psychosexual disorder can be accepted given that neither Mr Joblin or His Honour Judge McInerney knew of these current matters. 

50It is plain that if His Honour had known of these matters he would not have made the statements upon which he appears to have based his sentence nor would Mr Joblin have expressed his opinion as he did based specifically on a lack of relevant priors as to your prospects or existence of a psychosexual disorder.

51What is clear is that both in the earlier case as in this case you have a totally unrealistic and self-centred assessment of your relationship and that your conduct in each case extended to rape and aggression for which you can express no remorse but some measure of regret for the misunderstanding on behalf of the victims.

52It was said that these rapes were not stranger rapes and true relationship rapes which frequently involved fights and forced non-consensual activity but were closely related in time, requiring a significant deal of concurrency.  Those lack of aggravating features are clearly to be acknowledged as correct but not for that should the degree of concurrency be necessarily - be overwhelming.  In my view, the proper assessment is that this was an example of contumacious and obstinate offending for purposes of sexual gratification in total disregard of the victim. 

53I accept your subsequent offending is more serious and this escalation in offending does not augur well for your rehabilitation and your prospects in my view should be viewed as guarded.  You appear to not have understood or have little insight into your conduct.  Your letter written to the court is singular in the focus it places upon your plight during the period of bail which you equate to 'a kind of torture'.  And you refer to persevering in your journey to bettering yourself as an essential working prisoner.

54Despite a period of enforced introspection, you assert that it is only recently that you have gained a fresh perspective that you are 'a naturally large person'.  The need to be more conscious of your presence and that it was only at your trial that you gained an idea that the victim felt the way she did as opposed to your fond memories and how sad it is to now 'have to recall those things in a different light when you are pursuing avenues to paint your horizons brighter'. 

55I am unimpressed by this, a view properly supported by the calibre of evidence you gave on oath at the trial.  You are to be sentenced as a serious sexual offender and in my view, there should be some consequent cumulation between your current sentence and this earlier similar offending and within the counts contained on the indictment in recognition of the discrete and separate offences committed. 

56In sentencing you, I have had regard to s.6D of the Sentencing Act and its provisions relating to community protection.  It will be entered into the court record that you are a serious sexual offender.

57The prosecution does not submit for a disproportionate sentence and I do not intend to impose one.  The sentence will bring into relevance the sex offender registration provisions.  No previous orders were made to this effect.  Such registration is discretionary in nature according to the legislation and it applies to you.  It was opposed on your behalf. 

58I have looked at the provisions and have concluded that you should be the subject of such registration. Although it is the case that as was pointed out in the plea, s.5 of the Sex Offenders Registration Act 2004, the charges in this indictment are 'the same incident' for the purposes of this Act in that the offences were committed within a single period of 24 hours and were committed against the same person. This does not alter the power to order registration for these offences once they are brought together for the earlier convictions of those offences of rape committed as an adult, making you a serious sexual offender under s.8(3) with both charges therefore Class 3 offences.

59The court under s.11(3) may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons or the community. 

60Under sub-s.4, it is unnecessary for me to be able to identify a risk to particular people or a particular class of people.  Having considered all the matters in the evidence in the trial pertaining to this offending as well on the subsequent matters, I am so persuaded beyond reasonable doubt that the detailed matters involved in the commission of the offences here and thereafter all bespeak of this general risk for the community and to intimate partners. 

61Having been found guilty of two or more Class 1 offences, you are registrable and must comply with the reporting obligation imposed by Part III of the Act for the remainder of your life.  Please stand.

62On Charge 1, you are convicted and sentenced to three years' imprisonment.

63On Charge 2, you are convicted and sentenced to three years' imprisonment. 

64I order that one and a half years on Count 1 be cumulative on Count 2.

65Given that you are undergoing sentence, I will set a new total effective sentence and non-parole period with reference to the sentence of His Honour Judge McInerney of 22 February 2018.  I order that two years be cumulative on the sentence currently being served, making a total effective term of ten years from February 22 2018. 

66I set a new non-parole period of six and a half years. 

67I declare that you have served 457 days excluding today by way of detention before this sentence which should be administratively deducted as having been served and I will note that in the records of the court.

68Are there any ancillary orders that I need to make?

69MR STOUGIANNOS:  Can I just confirm, Your Honour, the PSD.  There is no PSD for these offences.

70HIS HONOUR:  Yes I understand. But I have only noted that by reference to the sentence that Mr Platt has already served.

71MR STOUGIANNOS:  Yes.  Thank you. 

72HIS HONOUR:  Yes.  Thank you. Ms Anderson, is the sentence clear in terms of the calculation?

73MS ANDERSON:  It is.  Yes, Your Honour.

74HIS HONOUR:  Yes, thank you. 

75MS ANDERSON:  And I will go downstairs and explain it to Mr Platt as well.

76HIS HONOUR:  Yes, certainly.  I have some other matters to proceed with.  I will remain on the Bench.  Thank you both for your assistance.  You can be excused.

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