Director of Public Prosecutions v Poole (a pseudonym)

[2020] VCC 340

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZANE POOLE (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2020
DATE OF SENTENCE:	26 March 2020
CASE MAY BE CITED AS:	DPP v Poole (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 340

REASONS FOR SENTENCE
---

Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – Rape – Traumatic and deprived personal history – Alcohol abuse – Standard Sentencing Regime – Bugmy applied – Aboriginal offender – Stolen Generation experience – Personal circumstances inextricably linked to wider cultural context and history.
Legislation Cited: Crown Lands Alienation Act of 1861 (NSW).
Cases Cited: Akoka v The Queen [2017] VSCA 214; R v Gladue [1999] 1 SCR 688; Honeysett v R [2018] VSCA 214; Bugmy v R [2013] HCA 37; R v Fernando (1992) 76 A Crim R 58; Neal v R (1983) 139 CLR 305; DPP v Fuller-Cust (2002) 6 VR 496; DPP v Terrick (2009) 197 A Crim R 474; Douglas v R,  Albone v R (1995) 56 FCR 465; Munda v Western Australia [2013] HCA 38.
Sentence: Five years imprisonment with a non-parole period of three years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms G. McMaster	Office of Public Prosecutions
For the Offender	Mr L. Dean	Slades and Parsons Criminal Law

HIS HONOUR:  Zane Poole[1], you have pleaded guilty to one charge of rape which carries a maximum penalty of 25 years imprisonment.  Rape is a standard sentence offence and the standard sentence is 10 years imprisonment. 

[1] A pseudonym

Circumstances of Offending

1The circumstances of your offending are set out in the Summary of Prosecution Opening dated 15 January 2020, Exhibit A.  At the time of the offending you were 56 years old. You are now 58 years old. 

2At the time of the offending, you were the partner of the victim’s mother and had been in that relationship for several years.  You lived together in Wantirna South. You are also the uncle of the victim's partner and have been like a step-uncle to the victim.  Indirectly, you have known the victim since she was approximately nine years of age.  The victim was 38 years old at the time of the offending. 

3On 24 May 2019 you were visiting the victim's home in Bayswater North where you were watching rugby and Game of Thrones on TV with the victim and her partner.  You had been drinking alcohol and had consumed cannabis. 

4The victim's partner went to bed, leaving you and the victim in the lounge room.  At this time, the victim was on one couch and you were sitting on another couch.  The victim fell asleep on the couch and awoke to feeling someone kissing her inner thigh and vagina. 

5The victim initially thought it was her partner but saw that it was you.  She further noticed that her jeans and underwear had been pulled down, exposing her left leg.  You were licking between the lips of the victim's vagina and onto her clitoris (Charge 1- Rape).

6The victim said, 'what the fuck are you doing?' and kicked out at you with her right leg.  You did not say anything.  She pulled up her jeans and went upstairs to disclose to her partner what had happened.  She was crying and upset.  The victim's partner confronted you and told you to leave the premises, which you did via taxi. 

Police Interview

7The victim reported the matter to police on 28 May 2019.  When you were interviewed on 4 June 2019, you stated you were drunk and did not remember what happened that evening.  You also stated, 'I drunk a big heap of beer and I smoked some pot and then I don't remember anything else cause I woke up, I got up and left'. You made ‘no comment’ answers to the direct allegations of rape. 

8You told Mr Ball, forensic psychologist, that you had no recollection of the events surrounding your offending and that you were affected by 'over a carton of VB easy' at the time, to use your words.  Victoria Bitter (VB), of course, being a full-strength beer. 

9I accept that you were so affected by alcohol and cannabis at the time of your offending that your absence of recollection is genuine.  You told Mr Ball that you were shocked when told of the allegations and referred yourself for detoxification and rehabilitation services.  You told Mr Ball that you struggled to recognise yourself in the summary of offending, but you accepted the allegations in the police brief. 

10I accept that you are contrite and remorseful for the impact of your crime.

Victim Impact

11The complainant provided a victim impact statement, Exhibit B, which was not read out in open court, but I have read it, and have had regard to its contents. It outlines the effects your offending has had on your victim. 

12The offending occurred in the victim's home where she had the right to feel safe.  She had fallen asleep on the couch and awoke to you violating her, which would have been terrifying and a complete breach of trust, given your familial relationship with her mother and her partner.  She has experienced considerable anxiety and distress since.  The offending has damaged, perhaps irreparably, her relationship with her mother.  She's frightened, paranoid and reluctant to leave the house.  It has affected her employment, study plans, future prospects and wider family connections. The ongoing psychological harm to victims of sexual offences cannot be fully quantified but I am satisfied that the effects of this offending will continue into the future. 

Gravity of Offending

13Rape is a very serious offence carrying a maximum of 25 years imprisonment. 

14The law recognises that sexual offences are crimes of violence that cause appalling and often irreparable psychological and physical harm to the victims. 

15Rape is an intensely personal crime.  Your offence violated the bodily integrity and personal dignity of your victim by sexual intrusion while she was sleeping in her home, where she had a right to feel safe.  You removed her clothing. 

16The effects on a victim of rape are not just those that flow from the physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms. 

17As the Prosecution pointed out in their ‘Standard Sentencing Submissions’, dated 7 February 2020, in addition to the matters I have already referred to, the fact that you had been a trusted family member effectively, as well as the damage to the fabric of that family unit caused by the breakdown of the relationship between your victim and her mother, are matters to take into account in assessing the gravity of the offence. 

18I also accept the submission from your counsel that your offending was absent several circumstances of aggravation that are on occasions present in other cases of rape.  In all of the circumstances, your offending appears spontaneous, you desisted when your victim awoke and responded, and I accept that your heavy intoxication marred your degree of deliberation and the clarity of your judgment. 

19The Prosecution submitted that it was open to the court to conclude that the offence is below the middle range of seriousness for the offence of rape. 

Personal Circumstances

20Your counsel tendered a written ‘Outline of Defence Submissions’ on your behalf dated 5 February 2020, which is Exhibit 1 on your Plea, as well as making oral submissions setting out your traumatic and deprived personal history.

21I have also read and taken into consideration your detailed statement prepared for the purposes of a claim under the New South Wales Stolen Generation Reparation Scheme, which was Exhibit 2 on your Plea.  I accept the matters set out therein. 

22Your counsel also tendered a letter dated 8 May 2018, sent from Ms Elizabeth Knight, Director Information Access and Exchange from the Department of Family and Community Services in New South Wales, which was Exhibit 4 on your Plea. 

23Ms Knight recognises your statement and apologises for the pain and suffering experienced over the course of your lifetime and that you continue to experience today as a result of the abuse you suffered as a child and young person, and as a ward of the State.

24You are a proud Aboriginal man and identify as such.  You were taken from your mother's care when you were very young.  Initially, you were housed at a Red Cross home and then to Marella Mission in Kellyville when you were seven or eight years old.  During your time there you were taught nothing about your Aboriginality and were looked down upon because of your race. 

25You are the eldest of your father’s children and have 15 siblings and half-siblings in total.  At 14 years of age you became a ward of the State and were housed in boys' homes in Yasmar, Roylestone and Weroona Home, New South Wales, where you were subject to cruel physical punishments.

26From 15 years of age you were subjected to sexual abuse when being transported from Weroona to visit your family in Sydney.  As a result of your misbehaviour, which you attribute to the sexual abuse you endured, you were transferred to Mount Penang and Endeavour House, where the accommodation was inhumane and the violence prolific.  At 18 years of age you were reunited with your family but were unable to adjust, given the amount of time you had spent in institutions. 

27In 2018 you were issued a payment as a result of the Stolen Generation Reparation Scheme.  You have instructed your Counsel that you were poorly equipped to manage such a significant amount of money, and that your alcohol and cannabis use escalated heavily as a result of having access to such a sum. 

28More recently you have resided in Wantirna South with your partner and your youngest son.  Your partner is the mother of the victim in this matter, however, she has not sought to distance herself from you.  She has been supportive of you and she was the first person you told of the extent of the abuse you suffered, including sexual abuse in your formative years. 

29Between 17 October 2019 and 17 January this year, you successfully completed a residential rehabilitation program at Quin House. 

30Your counsel tendered a letter from Mr Mat Tibbenham, an Alcohol and Drug Key Worker from Vincent Care Victoria, who confirmed your admission and graduation from Quin House, a voluntary post-detox residential rehabilitation facility for men who have substance abuse issues. 

31The program at Quin House involved you attending compulsory groups with regards to relapse prevention, which discussed addiction and developed strategies to help support long-term, ongoing recovery, peer support, personal development, wellbeing, work therapy discussion groups, as well as access to Alcoholics Anonymous (AA), Narcotics Anonymous (NA) and other recovery and self-help support groups. 

32Mr Tibbenham's letter also confirmed your entrance into the post-rehabilitation program, which involves regular urine and drug screens, counselling and case management for up to six months whilst living in the community (Exhibit 3).   

33Your attendance at Quin House for three months is much to your credit, particularly given your age and history.  It is reflective of your contrition, your insight and your attempts to rehabilitate.  It demonstrates a level of rehabilitation whilst on bail in onerous circumstances. 

34Given the voluntary nature of the program, your self referral and your motivation to seek help for what has been a lifelong problem with addiction, I do not find the three month period at Quin House of itself to be a significant matter of mitigation in an R v Akoka sense.[2]  However, as I have noted, it has a mitigatory effect via these other considerations. 

[2]Akoka v The Queen [2017] VSCA 214.

35Your plea hearing was adjourned to allow your Counsel to obtain a progress report from Corrections Victoria and a psychological report from Mr David Ball. 

36The progress report for your Community Corrections Order became Exhibit 5 on your plea.  The report indicated you reported to Ringwood Community Correctional Services on nine occasions and participated openly with offence specific discussion, as well as demonstrating insight towards your risk of reoffending, particularly with respect to alcohol use. 

37You entered Windana for detoxification on 8 October 2019, and upon completion on 17 October 2019 were admitted to Quin House for rehabilitation.  As I have already mentioned, according to staff at Quin House you participated in their programs and provided consistent negative urinalysis screening as directed, as seen on the Discharge Summary from Windana and analysis, which was Exhibit 7 on your Plea. 

38Following the inpatient program, Vincent Care supported you into a residence owned by Union Housing.  You were required to maintain abstinence and continue providing urinalysis drug screens to maintain residence. 

39On 27 January 2020, Union Housing was advised that you had been intercepted being drunk in public and on 3 February 2020 your urinalysis result returned positive for cannabis, resulting in Vincent Care exiting you from their service.  You attributed this relapse to your past trauma as a victim of the Stolen Generation and I note that your relapse occurred around 26 January. 

40Prior to entering detox and rehabilitation, you engaged with Mr Michael Peyton in relation to a mental healthcare plan.  You attended his clinic on three occasions and were absent on two occasions.  Despite your positive compliance towards the treatment conditions of your Community Corrections Order, you have a contravention hearing listed at Ringwood Magistrates' Court on 28 April 2020 due to further offending.  Corrections Victoria, however, have indicated in their report that they will be recommending your Community Corrections Order be confirmed.

Psychological report from David Ball, (Exhibit 6) - ‘Gladue’ style report 

41The matter was adjourned from the first day of hearing for the purpose of obtaining a Gladue style report. 

42A Gladue style report refers to a Canadian case, R v Gladue,[3] and the associated Canadian criminal justice process aimed at providing some redress for the over-representation of indigenous Canadians in custody. 

[3]R v Gladue [1999] 1 SCR 688; See also - Thalia Anthony, Lorana Bartels, Anthony Hopkins, ‘Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice’ (2015) 39(3) Melbourne University Law Review 47, 47.

43For further background as to a Gladue report, the Victorian Court of Appeal considered the issue of Gladue style reports in the case of R v Honeysett at [62] to [66]. 

44In Honeysett,[4] the Court stated at [66];

'Moreover it is always open to an offender to put forward a Gladue style report for consideration by the judge in determining sentence'. 

[4]Honeysett v R [2018] VSCA 214

45That is what has happened in this case.  Your history and personal circumstances are such that a Gladue style report was an appropriate document to place before me for my consideration. 

46The report of psychologist Mr David Ball was provided to me.  Mr Ball is a very experienced and well recognised forensic psychologist in this State.  He is also a Kamilaroi man whose father and grandfather were Kamilaroi men from the Bogaree area in North Central New South Wales.  The report provided takes the form of what I would consider to be a standard forensic psychological report augmented by detailed history and research that falls within Gladue style considerations. 

47I found Mr Ball's report to be helpful, comprehensive and well referenced insofar as general historical matters are concerned.  Mr Ball's report assists in placing your personal circumstances in appropriate context.  You are a member of the Arakwal people of the Bundjalung Nation of Northern New South Wales and Southern Queensland.  European settlers were recorded on Arakwal country from around 1839.  Several massacres of Arakwal people have been recorded. 

48With the passage of the Crown Land's Alienation (Settlement) Act in 1861, the Arakwal were effectively dispossessed and their population diminished by disease, violence, hunger and sadness.  You were born on Arakwal country and were one of 15 siblings.  You yourself have nine children.  Sadly, your immediate family circumstances from infancy are a familiar one for many Aboriginal Australians and are a legacy of the history to which Mr Ball refers. 

49You were removed from your family at a very young age and are a member of the Stolen Generation.  Your mother had difficulties with alcohol dependency.  You were removed from her care at a very young age.  You have very little recollection of ever seeing her prior to seeking her out when you were 18.  She died in 1987. 

50You attempted to reconnect with your father when you were 17 but you told Mr Ball he 'wanted nothing to do with me'. 

51There are several important considerations that arise from the effects of your removal and subsequent experience in institutions.  One effect, the impact of which could easily be overlooked or underestimated, is your alienation from family and culture, and the loss of cultural identity and support. 

52You have been unable to form or sustain meaningful relationships with members of your family or your wider Aboriginal community.  Your first experience of institutional living was the Red Cross Boys' Home in Cronulla.  There were other indigenous children there, but you were taught nothing of your culture or heritage.  You experienced violence at the hands of staff whilst there. 

53When you were eight years old you were moved to Marella Mission.  All the children were indigenous.  You were not permitted to speak about your culture for fear of punishment. 

54Other survivor accounts from Marella Mission refer to the children being used for slave labour on the farm and that they were often hungry.  You were at Marella for a year before returning to the care of your grandmother for a short period, until she passed away.  You were left rudderless and by your account to Mr Ball, 'After this, I went right off the tracks offending'. 

55You were in the care of an aunty for a brief period, but again you were placed into institutions as she could not cope.  At Yasmar, you were subjected to cruel punishments.  Mr Ball refers to other survivor accounts from Yasmar of children being beaten with canes and fists by staff. 

56At 14 years old you left Yasmar.  You were made a ward of the State and moved to Royleston, described as a short-term depot for children. 

57As noted above you were subjected to cruelty and racism there.  From Royleston you were transferred to Weroona Home in 1976, where sadly again your lot, and the lot of those detained with you, was cruelty, racism and violence.  You were groomed and then sexually abused by a staff member of Weroona for several years. 

58You lashed out and misbehaved once you comprehended the abuse against you when aged about 17.  You were transferred to Mount Penang Training School for Boys and then Endeavour House. 

59As if your life's trajectory was not tragic enough, Mr Ball notes, with reference to the Child Abuse Royal Commission, as well as other sources, that Endeavour House was known as one of the harshest child welfare institutions in New South Wales and was attended by some of Australia's most infamous killers and criminals. 

60Your own reportage to Mr Ball puts your experience at Endeavour House into perspective.  You said 'After being in Endeavour House, being in Long Bay and Goulburn jails was nothing.  All the boys I met in boys' homes were in gaol too'.  You stated that you were haunted by the violence you witnessed and experienced at Endeavour House. 

61Mr Ball opined that you were institutionalised from a young age and that this had consequences for your ability to function in society.  Further, you lacked any parental role model and experienced gross abuse from the adults entrusted with your care by the State.  You experienced symptoms of post-traumatic stress disorder which is not surprising, given your exposure to significant trauma from a young age. 

Alcohol

62You started drinking alcohol when you were in children's homes.  You have also used a number of other illicit substances throughout your life.  Principally, alcohol and cannabis are problem substances for you, particularly in combination.  The consumption of alcohol and cannabis clearly had a disinhibiting effect in relation to the offence before me, as well as no doubt clouding your judgement and deliberation, to some extent.

63To a significant extent, you attribute your prior history to alcohol abuse.  'All my trouble in the past I've been drunk at the time', you said.  'I've wasted my life in boys' homes and jails.  I never knew anything different.’[5] 

[5]Report of David Ball, Exhibit 6, p.6.

64The link between childhood trauma and later alcohol and substance abuse is well established.  The law also recognises that the moral culpability attached to drug and alcohol abuse is less where habits are ingrained by exposure to the substance as a child.  See generally Bugmy, Fernando and a case I will refer to shortly, R v Douglas and R v Albone.[6] 

[6]Douglas and Albone v R (1995) 56 FCR 465

65Mr Ball also explores another important issue - your personal experiences and circumstances, insofar as they relate to, and are entwined with, the wider cultural experiences of Aboriginal people in this country due to the effects of invasion and colonisation.  He writes that you ‘identify as being a member of the Stolen Generations’, which is supported by your personal history.  He notes that your family history 'reflects intergenerational trauma associated with colonisation and he reports ‘substance abuse and unstable relationships among family members'.

66Mr Ball opines:

'Being removed from his family and his culture, he has been denied the sense of security and belonging to a community recognised as significant features in a child's development and socialisation.  He exhibits characteristics and pathologies well documented among members of the Stolen Generation'.[7]

[7]Report of David Ball, reference provided: (abc.net.au/2018-08-15/stolen-generations-study-impact of-intergenerational-trauma/10118132.

67Mr Ball makes reference to the research of Hions and Sankaran, that notes that children of survivors of Aboriginal missions, and other forms of colonial degradation and violence have been counted amongst those as suffering transgenerational trauma. 

Personality functioning

68Mr Ball writes:

'Mr Poole presents with a long history of drug and alcohol abuse and limited coping skills.  He grew up in unstable and dangerous family and institutional environments characterised by severe emotional, physical and sexual abuse and neglect, which resulted in an insecure attachment style and fear of abandonment.  As a result, he developed anxiety and episodes of lowered mood which he tried to self-medicate with drugs and, in recent years, severe alcohol abuse.  A lack of good role models for him to emulate led to poor moral and ethical values'.[8]

[8]Ball report p.8.

Diagnosis

69Mr Ball concludes that you meet the DSM 5 diagnostic criteria for severe alcohol and cannabis use disorders, and that the severity of your condition is as a result of institutionalisation and alienation from your culture.  He also concludes that you satisfy the criteria for post-traumatic stress disorder comorbid with episodes of severe anxiety and depression.  He concludes that you meet the criteria for an antisocial personality disorder, which is severe, and that it has its genesis in childhood trauma and being placed in violent and cruel institutions.

Bugmy principles, intergenerational trauma, relevance of cultural experience

70In an excellent Plea on your behalf, your counsel Mr Dean put forward a comprehensive argument that you are entitled to the full effect of the Bugmy principle.  The Prosecution conceded that there was a factual basis to raise the Bugmy principle to full effect.  The Prosecution did not take any issue with the factual matters raised in the Gladue style report of Mr Ball. 

71The relationship between your traumatic and dysfunctional upbringing, your post-traumatic stress disorder, your alcohol and drug abuse and your offending in the present case, is centrally relevant to a proper assessment of your subjective culpability for the offending in this case. 

72Your Counsel's argument was far reaching and embraced what I will describe as the full picture of the disadvantage that falls to be considered and applied in your case.  This submission was not limited to my consideration of a narrow focus on the instances of neglect, disadvantage and trauma that are readily observable in your history.  He invited me to consider the relevance of your personal circumstances in the context of historical Aboriginal disadvantage. 

73In Bugmy,[9] the High Court described the manner in which factors of disadvantage are relevant to an assessment of an offender's moral culpability in the following terms:

'The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way…

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding the person has a long history of offending… 

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision'.  

[9]Bugmy v R [2013] HCA 37 [40], [43] – [44].

74The court went on of course to temper the concept of ‘full weight’, with particular reference to individuals who have demonstrated an inability to control a violent response to frustration and the corresponding increase in the importance of protecting the community from that offender. 

75The circumstances of your offending and your history do not lead me to a conclusion that there is a stark need to protect the community from you in the future in relation to this type of offending, serious as it is.  Your offending occurred in the context of a longstanding alcohol and polysubstance abuse history.  Ordinarily intoxication is not a mitigating factor.  Indeed, in some circumstances it may aggravate the offender's culpability. However, where the abuse of alcohol and cannabis has its genesis in the kind of dysfunction which you were subjected to in your early years, it may be taken into account as a relevant mitigating factor, where it is relevant to the circumstances of the offending. 

76In R v Fernando,[10] Wood J stated:

'While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor.  This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects'.

[10]R v Fernando (1992) 76 A Crim R 58

77While you did not grow up in an Aboriginal community, for the reasons I have touched upon, and will expand upon below, your upbringing and early childhood development had a number of features referred to by Wood J. 

78Similar concepts have been referred to elsewhere, including in the recent decision of DPP v Heyfron [2019] VSCA 130 per Kaye J, at [56] to [59].

79In Douglas v R; Albone v R (1995) 56 FCR 465, which is an Australian Capital Territory (ACT) decision. The ACT Court of Appeal stated at 470:

'The age of an offender when he has become addicted and the degree of judgement open to them at that age is thus relevant in evaluating the extent to which they should be punished for consequential criminal conduct… It must be doubted whether the moral culpability of a child of eight or 11 who, because of an abused background or other compelling circumstances acquires a drug or alcohol addiction can be equated with that of an adult or much older juvenile who, for his or her self-gratification, chooses to experiment with illicit drugs and thus becomes addicted'.

80In your case you do not have a history of offending sexually whilst intoxicated.  You do have a history of violent offending, however. 

81Intoxication in your case is relevant to my overall assessment of the circumstances of offending in an explanatory sense, and one which bears upon your moral culpability, rather than as a stand-alone factor attracting mitigation. 

82Mr Dean has made a careful submission that embraces the concept that there is a relevant cultural context to your personal circumstances, including your Aboriginal heritage and the colonial experience with all its devastating consequences for First Nations peoples.  Central to such a submission is the concept of intergenerational trauma. 

83The notion of an offender's membership to an ethnic group being a factor in sentencing was addressed in Bugmy.  It was explored in earlier cases by the High Court in the case of Neal,[11] and by the Victoria Court of Appeal in DPP v Fuller-Cust,[12] and in DPP v Terrick.[13] 

[11]Neal v R (1983) 139 CLR 305.

[12]DPP v Fuller-Cust (2002) 6 VR 496.

[13]DPP v Terrick (2009) 197 A Crim R 474.

84In an October 2013 presentation and paper titled ‘The complexity of sentencing Koori offenders' delivered by Justice Stephen Kaye, the author explores what I will refer to as the broader cultural and historical context of your personal circumstances. Justice Kaye notes that there is a tension in sentencing where an assessment of the circumstances of the offending, and particularly the objective gravity of the offending, points in a different direction to the personal circumstances affecting an offender. 

85In his paper, he summaries some of the circumstances creating disadvantage, trauma and intergenerational trauma amongst indigenous communities.  He touches on the causes of the high level of socio-economic disadvantage, substance abuse and mental health issues in our indigenous communities.  He writes:

'It is now well accepted that, historically they stem from European settlement in this country, which has had an ongoing catastrophic impact on our indigenous people.  It disrupted the relationship of our indigenous people to their land and destroyed the traditional way of life for which they had developed and maintained cohesive communities.  The massacres, introduced diseases, cruelty and racial prejudice which followed devastated the indigenous population and obliterated much of their traditional learning.  It destroyed the cohesive fabric of their communities and the intricate kinship ties that were critical to their way of life... 

Legislation in each of the colonies, and later States, which established protection laws with almost absolute powers, entrenched the oppression of, and prejudice against, indigenous people, treating them as less than second class people in their own land…

It was not until 1967 that the Constitution was amended by referendum to enable Aboriginal persons and Torres Strait Islanders to be lawfully counted in the national census…

Forcible removal of Aboriginal children from their parents only ceased in the last four decades’.

86Justice Kaye also refers to the Royal Commission into Aboriginal Deaths in Custody in 1991 and the various Closing the Gap Reports and to the April 2013 Victorian Sentencing Advisory Council report entitled 'Comparing Sentencing Outcomes for Koori and non-Koori adult offenders in the Magistrates' Court of Victoria’.  He makes the observation that these reports demonstrate the direct causal connection between disadvantage in Aboriginal communities; and the disproportionately high number of indigenous persons in the criminal justice system. 

87He states at page 15 of his paper:

'Less apparent, yet just as important, is the intergenerational effect of indigenous disadvantage.  As the Sentencing Advisory Council report makes clear, it is now well accepted that the chronic disadvantage, which has affected our indigenous communities since European settlement, has embedded in them high rates of chronic substance abuse, family violence, and dysfunction, each of which are predisposing socio-economic causes of offending.  Each of those factors also have mediated a high level of mental illness which again plays a prominent role in antisocial behaviour and offending'.

88Justice Kaye goes on to write that;

‘during the last four or so decades the courts have, somewhat belatedly, recognised that in sentencing indigenous offenders it is relevant to take into account that that offender belongs to a particular ethnic group, and in particular to take into account the impact of socio-economic, historic and cultural circumstances, which affect that offender as a member of that group.’

89This observation was made by the learned author fully cognisant of the decision in Bugmy, which had been handed down earlier in the same year and which is referred to in his paper at page 27. 

90The observation in no way leads to a conclusion that Aboriginal people are to be dealt with as a matter of principle in a different way under the law to those from different ethnic groups.  Justice Kaye referred to the often quoted dissenting judgement of Brennan J in R v Neal;[14] 

'The same sentencing principles are to be applied of course in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.  But in imposing sentences courts are bound to take into account in accordance with those principles all material facts, including those facts which exist only by reason of the offender's membership of an ethnic or other group.  So much is essential to the even administration of criminal justice'.

[14]R v Neal (1982) 149 CLR 305

91Justice Kaye also referred to the judgement of Eames JA in DPP v Fuller-Cust;[15]

'[78] Sentencing principles are the same for all Victorians.  Race is not a basis for discrimination in the sentencing process.  Nothing I say in these reasons should be taken as suggesting that Aboriginal offenders should be sentenced more leniently than non-Aboriginal persons on account of their race.  The offences committed by the applicant and admitted by him are extremely serious - as I shall discuss.  That is not to say, however, that considerations and factors of race may not be taken into account on sentencing where they are relevant….

[79] To ignore matters personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not reoffend and, in turn, to ensure the long-term safety of the public.… 

[80] To have regard to the facts of the applicant’s Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender’s situation which might arise by virtue of the offender’s race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means the differences in their individual circumstances related to their race should be ignored.’

[15]DPP v Fuller-Cust (2002) VR 496

92In his paper, Justice Kaye also refers in passing to the Victorian decision of DPP v Terrick and other authorities.  In DPP v Terrick the Victorian Court of Appeal approved Eames JA's approach in Fuller-Cust.  Maxwell P, Ridley JA and Robson AJA set out eight propositions relevant to the sentencing of indigenous Australians, including the following:

‘Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction… The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge and will depend on: a) the nature and extent of disadvantage; and b) the nexus (if any) with the offending…

Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.

When applying sentencing principles which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that mitigating factors in the background of the offender or in the circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender.’

93In his paper, Justice Kaye heeds the cautionary note raised in Munda v Western Australia,[16] and followed up in Bugmy to the effect that mitigating factors must be given due weight but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  Aboriginal offending is not viewed systematically as less serious than offending by persons of other ethnicities. 

[16]Munda v Western Australia [2013] HCA 38

94To accept that Aboriginal offenders are in general less responsible for their actions than other persons will be to deny Aboriginal people a full measure of human dignity.  It is wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need or deserving of such protection and vindication as the criminal law can provide.

95In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.  In your case, Mr Poole, there is no issue as to the evidentiary basis for such a finding. 

96In his paper Justice Kaye draws some conclusions:

‘First where the offender is indigenous, the court must ensure that it is properly informed as to the background, upbringing, education, health, and current circumstances of the offender. It is most important that the court be provided with sufficient information upon which it may form an accurate assessment as to the connection, if any, between the offender’s Aboriginality and the offence.

Secondly it is important to bear in mind the admonition by the High Court in R v Bugmy and R v Munda, that, in order that the Aboriginality of the offender be taken into account as a relevant circumstance, there must be demonstrated to be an appropriate link between the offender’s background and his or her offending. Nevertheless, I would suggest that that enquiry must be informed by proper knowledge, and acknowledgement by the sentencing judge or magistrate, of the long-standing historical causes of dysfunction, alcohol and drug abuse, mental ill-health, and offending, among our Aboriginal citizens. There is a proven connection between the high rates of socio-economic disadvantage suffered by our indigenous peoples and the high rates of representation in the criminal justice system. An enquiry in an individual case as to the existence of the requisite link between the offender’s Aboriginality and the commission of the offence, must be informed by a proper knowledge of, and acknowledgement of, those factors. The information compiled in the reports to which I have referred -including the report of the Sentencing Advisory Council -is important relevant material to a proper determination of the question whether, in an individual case, there is a sufficient basis to establish a connection between the offender’s Aboriginality and the commission by that person of the particular offence’.

97It is worthy to note that at this point, Justice Kaye  also emphasises of course the need for community protection, as well as the importance of appropriate denunciation of the offending, and vindication of the victim - and I have certainly kept those concepts at the forefront of my consideration in my intuitive synthesis of the relevant factors in your case. 

98My reference to Justice Kaye's comments should not be misconstrued as me considering them as binding in any way.  I do however consider them to be consistent with the line of authority to which I have referred.

99Some care needs to be taken in not allowing an understanding of Aboriginal disadvantage generally and its relationship to the past, and to the present high rates of incarceration of Aboriginal people, for example, to distort the concept of individualised justice. 

100Insofar as individualised justice in sentencing requires an assessment of the personal circumstances of the offender, an appreciation of those circumstances necessarily embraces an understanding of the socio-economic context, cultural context, and in the case of an Aboriginal offender such as yourself, to whom the full effect of Bugmy principle applies, the historical context also. 

101The circumstances that have led you to this court are not confined to those immediate factors which occurred to you at different times in your life.  Parents, family members, friends, people you have grown up with and got to know through the various institutions you grew up in, have also been a product of systemic disadvantage and the colonial legacy.  They are part of your experience, as you are of theirs. 

102There are some in our community who may view the disadvantage you have experienced as confined to a generation or two - a matter fixed in time.  This would be illusory.  There is an unbroken line that can be drawn from your people's colonial experience in Northern New South Wales in the 1830s to the removal of you as a child to the Red Cross Boys' Home, and the institutional abuse that followed. 

103That time continuum is littered and marked with stories of prejudice; subjugation; institutional abuse and neglect; trauma and disadvantage; and it is relevant to you and your circumstances because you are a part of it. 

104Your experience belongs on that time continuum.  It sits within the history and context of Aboriginal disadvantage in this country and I give it its full mitigatory effect.

Plea of Guilty and Remorse

105You pleaded guilty at the earliest opportunity at the first Committal Mention and, as submitted by your Counsel, that plea has utilitarian value, as well as reflecting remorse.  Expediting the finalisation of this case spares the victim from giving evidence and being the subject of cross-examination. 

106I accept your Counsel's submission that you have been cooperative with the police investigation.  Although you did not admit to the offending, you did admit to being present and being heavily intoxicated and you are contrite and remorseful.

107The Prosecution filed Standard Sentencing Submissions dated 7 February 2020 (Exhibit C) and Defence Counsel included submissions with respect to the Standard Sentence in his Outline of Submissions (Exhibit 1).  Both Counsel made oral submissions in this regard also. 

108The maximum term of imprisonment for rape is 25 years and the standard sentence of imprisonment is ten years.  The period specified as the standard sentence for the offence is a sentence for which, taking into account only the objective factors affecting the relevant seriousness of that offence, is in the middle range of seriousness. 

109Defence Counsel submitted, and the Prosecution concedes, that this offence is below the middle range of seriousness for this offence.  The standard sentence is a guidepost.  I am not required to impose the standard sentence or treat the standard sentence as a starting point for the calculation of an appropriate sentence. 

110I take the standard sentence into account as one of the factors amongst those which I take into account in determining the appropriate sentence. 

111The sentence I have imposed is lower than the standard sentence, as the relevant matters I have had to take into account have led me to impose a sentence that is lower than the standard sentence. 

Response to charges - Rehabilitative steps whilst on bail

112Since being charged for this matter you have completed a three-month residential rehabilitation program at Quin House.  You have also engaged in a meaningful way with your Aboriginal culture and identity, and I regard this as a positive factor in your rehabilitation. 

113Your efforts whilst on bail, and while subject to a Community Corrections Order, have been generally positive. 

114You were arrested for being drunk in a public place on 27 January 2020.  Both Mr Ball and your Counsel, Mr Dean, point out the significance of this date, the day prior being 26 January, which is of cultural significance for you. 

115As your Counsel points out, in light of a history of dispossession, massacres and other matters referred to in the report of Mr Ball, as well as your status as a member of the Stolen Generation, it is not surprising that 26 January is a day of mourning for you rather than one of celebration. 

116It was submitted on your behalf that I should be optimistic about your prospects of rehabilitation, given that you have taken some significant steps towards rehabilitation.  These steps need to be assessed in light of where you have come from.  You have come from a long way back. 

In the view of Ms Stones from Corrections, you demonstrate insight towards your risks of reoffending, largely alcohol use.  Upon completion of a detox program at Windana, Ms Caroline Garrick noted that you demonstrated a conviction to change your life and that if you avail yourself of the supports offered, your chances for recovery are positive.

117Mr Ball remarked that you presented as applying yourself vigorously to your own rehabilitation and impressed him as having made gains during your time in rehabilitation.  As Mr Dean pointed out, there was a consistent tone of positivity in relation to those who you have engaged with since being charged with this matter.  I consider your relapse to be an isolated incident. 

118Overall, given your background, I find the positive steps you have made towards treating your severe alcohol and cannabis use disorders as significant. 

119Your prior criminal history is extensive.  For the most part it involves lower level, antisocial behavioural type offences, together with alcohol related offending.  There is a theme of significant and serious violent offending as well, however.  There are no sexual offences.  Your history is not surprising, given your institutionalisation, childhood trauma and experience. 

120Weighing the relevant factors in the intuitive synthesis process is not straightforward in a matter such as yours.  Rape is a heinous offence with devastating prolonged impact upon the victim.

121I must impose a sentence which gives appropriate weight to general deterrence.  I must also impose a sentence which adequately denounces your crime. 

122I take into account the very significant and ongoing impact upon the victim.  You must be appropriately punished for your crime.

123I sentence you as follows, Mr Poole.  You can remain seated, given you are appearing via video link.

124For the offence of rape, Charge 1 on the indictment, you are sentenced to be imprisoned for five years.  I set a non-parole period of three years imprisonment. 

125I declare that you have served 48 days as pre-sentence detention in relation to the matter. 

126Pursuant to s.6AAA, were it not for your plea of guilty, I would have imposed a sentence of seven years with a non-parole period of five years. 

127Are there any other orders I need to make? 

128COUNSEL:  No, Your Honour.

129HIS HONOUR:  Thank you both for your assistance. 

---