Director of Public Prosecutions v Powers (a pseudonym)

[2020] VCC 1727

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYLEY POWERS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 October 2020
CASE MAY BE CITED AS:	DPP v Powers (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1727

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 J. Goetz	Office of Public Prosecutions
For the Accused	Mr R. Nathwani	Haines and Polites

HER HONOUR: 

1Hayley Powers[1], you have pleaded guilty before me to one charge of intentionally causing injury and one charge of rape.  The facts of this offending are most unusual and the background to this is that as of about late 2017 you were in the grip of a mental illness later diagnosed as schizophrenia.  At the time of this offending you are unemployed and living in a share house.  It appears to be accepted by all parties that although you were not frankly psychotic at the time of this offending, your psychiatric state was somewhat fragile and has been marked your first placement in a hospital psychiatric ward in 2015 by marked paranoia.

[1] A pseudonym.

2In any event, at the time of this offending, you were living in a share house.  You were 33 years old at this time.  You were sharing in a house in Craigieburn.  The victim in this matter is Susanna Markovic[2] who was 36 years old at the time and she was in company with a male friend Josh Alston[3] who was 46 who was unknown to you or other persons in the house and was a first-time visitor to the share house.  Other persons sharing the house were a woman Jess Moffatt[4] who had had a partner Simon Roland[5] who was 23 and would often stay with Jess Moffatt at the share house.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

3On the evening of 21 August 2018 at about 9 am, you returned to the share house and shortly after received and angry telephone call from someone that you had been visiting.  You then developed an irrational fear that someone had hidden drugs in your bedroom to set you up with police.  You started searching your bedroom to uncover the drugs.  As a result, the contents of your room were strewn across it and that included a quantity of cash.

4During that evening, you approached Susanna Markovic who was with Josh Alston in her bedroom and helped her to lift you up to a ceiling vent to search for drugs that you thought or feared might be hidden there.  After Susanna Markovic and Josh Alston had tried to do this, Ms Markovic accused you of stealing ice from her.  A big argument then developed between you and Ms Markovic during which you gave her $100 to, as you said to police, 'keep the peace and shut her up.'

5Following that, Ms Markovic went back to her bedroom with Mr Alston and they had an argument.  Jess Moffatt and her partner Simon Roland heard the argument and then Ms Moffatt went to your room to investigate and then went to Ms Markovic’s room and spoke with her and Josh Alston.  About that time, Mr Alston told both you and Jess Moffatt that he believed that Ms Markovic had stolen your mobile telephone and amount of cash believed to be about $400.  The whole group accused Ms Markovic of this theft. 

6Initially, she denied stealing it but then eventually returned your mobile phone according to you, by throwing it at you.  A heated argument then continued whilst you and Ms Moffatt searched through Ms Markovic’s belongings for the rest of the cash.  They also demanded that she pull down her upper clothing to prove that she was not hiding the money.  About this time, Ms Markovic tried to leave the house.  You grabbed hold of her and held her against a wall to stop her doing this but she broke free and fled through the front door.  She was followed by Ms Moffatt and you, you returning to the house but Ms Moffatt continuing and eventually it would seem persuading Ms Markovic to return to the house. 

7Whilst Ms Moffatt and Ms Markovic were away from the house, you searched Ms Markovic’s purse and found an identity card belonging to you and you believed that it was proof of Ms Markovic’s guilt in relation to the theft of the cash.  When the parties returned, the argument continued in Ms Markovic’s bedroom and at some time point, Ms Markovic tried to leave but was prevented from doing so.  She managed to get into a bathroom and closed the door but you and Ms Moffatt forced your way in.

8Ms Markovic made her way back to the bedroom.  You became increasingly frustrated and angry and under encouragement from Ms Moffatt, threw a vase and a side table at Ms Markovic and began wrestling with her and the two of you ended up falling into a wardrobe. 

9About this time, Ms Moffatt picked up a box cutter that she had found in Ms Markovic’s bedroom and you restrained Ms Markovic in a headlock and also grabbed her by the hair.  You told Ms Moffatt that you believed that your cash was hidden under Ms Markovic’s upper layers of clothing and Ms Markovic then used her free hands to pull off her outer top.  At this stage, you kneed her in the head, causing her to hit a wall.  Ms Moffatt then used a box cutter to cut off the remaining upper layers of her clothing, pulled off her pants and bicycle shorts and she was not wearing any underwear.

10You then said to Ms Moffatt that you thought the money must be hidden inside Ms Markovic’s vagina and Ms Moffatt told Ms Markovic she had one minute to produce the cash after which she would commence cutting her.  When Ms Markovic did not produce the cash, Jess Moffatt used the box cutter to inflict a number of incisions into her left leg and you helped by placing your knees and full body wight on her head to restrain her.  Your actions in assisting Jess Moffatt in this underlie Charge 1 on the indictment - intentionally causing injury. 

11After Ms Markovic refused to produce the cash after being cut, you said, 'Just give me the money,' and punched her in the stomach and at some point during the confrontation, cut a piece of her hair off.  Ms Markovic was screaming and pleading to be let up in order to retrieve the cash but you were scared she would try and escape and told Ms Moffatt to get the cash that you believed was hidden in her vagina.

12At this time Jess Moffatt put on a latex dishwashing glove.  She kicked Ms Markovic’s legs apart, warned her that if she kicked or moved she would cut her open, and penetrated her by inserting a gloved finger inside her vagina and searching internally for cash.  Clearly, she did this without Ms Markovic’s consent.  While this was going on, you were enquiring, 'Is it there?'  Ms Moffatt said there was something up there.  There were a number of comments made.  Ms Markovic cried and told Ms Moffatt to stop. 

13In any event, these actions in assisting Ms Moffatt in penetrating Ms Markovic’s vagina underlie Charge 2 on the indictment - rape.

14Eventually, Ms Moffatt removed her finger.  There were still questions about whether there was moneys hidden in Ms Markovic’s vagina.  She screamed and said she would undergo an ultrasound to prove it was not.  You then poured liquid from a drink over her. 

15Ultimately, you released hold of Ms Markovic.  You singed Ms Markovic’s hair as a method of warning off any possible assault in retaliation and to get a reaction apparently.  Eventually, Ms Markovic was told she could get up and have a shower.  Her room was cleaned and tidied.  And at some stage, you got rid of the glove by burning it in the kitchen sink.  Ms Moffatt washed the box cutter and told you to wash your hands to remove any traces of blood.  Moffatt told Ms Markovic to say nothing about the incident and to 'make sure you're out in the morning.'  Ms Markovic then fell asleep.

16At about 6.30 the next morning, you left the house and walked to Craigieburn Road and you borrowed a mobile telephone from a stranger and called police on 000.  You did this to request an ambulance for Ms Markovic and to report the matter to police.  You told police there had been an altercation between three people involving a box cutter and fists.  You then attended the Craigieburn police station at 7.20 to report your allegations of theft against Ms Markovic but in the course of that report disclosed details of your role in the assault on her and you were placed under arrest and interviewed.

17At about the same time, police attended the house.  Ms Moffatt was at the house.  Police went into a bedroom and saw Ms Markovic in bed with multiple lacerations to her leg.  She was taken by ambulance to hospital.  She then made detailed statements to police and on 22 August 2018, police attended the house and executed a search warrant where they seized a number of items and arrested Ms Moffatt.

18You were formally interviewed.  You made full and frank admissions as to your involvement in the incident.  Ms Markovic after medical examination was found to have multiple wounds to the right and left lower limbs, her thighs and legs. 

19The maximum penalty for the offence of intentionally causing injury is 10 years' imprisonment. The maximum penalty for rape is 25 years' imprisonment. Rape is also a standard sentencing offence pursuant to s.38(3) of the Crimes Act. The standard sentence for rape being 10 years.

20You were placed into custody on 22 August 2018. 

21I received a victim impact statement from Ms Markovic.  Unsurprisingly, it reveals an enormous amount of continuing emotional distress involving ongoing disturbing dreams.  She appears to have flashbacks.  She says that her depression worsened.  Her anxiety worsened.  She has developed an overeating disorder, has put on 25 kilos.  She feels unsafe in shared accommodation.  It is quite clear that the amount of violence that was perpetrated upon her including the injuries and the penetration of her vagina in the way I have described has led to an ongoing condition which in the experience of these courts is likely to be ongoing for some time.  I make the comment that it would clearly have been not just a humiliating but a terrifying ordeal for the victim in this matter.

22This matter proceeded by way of you entering a plea of guilty at a very early opportunity.  Your co-accused has indicated that she will be pleading not guilty to the offence and the trial is yet to be heard.

23I now turn to your personal circumstances.  You are now 35 years of age.  You have very few prior convictions and you suffered an extremely difficult childhood.  You are one of two children.  Your parents separated when you were tiny.  You have only seen your father two or three times since. 

24You have described your mother as an angry and aggressive parent who often beat you and your sister.  She had many partners, two of whom sexually abused you when you were young.  You were placed under enormous stress both by your mother's abuse and by her failure to properly care for you.  You and your sister often went hungry.  An example of the distress that you suffered as a child was that you continued to bed-wet until you were 12. 

25Your mother had, as I said, a large number of violent partners, one of whom you described as being particularly violent, a heavy drinker, emotionally abusive, who locked you out of the house.

26You struggled at school until you were 16 when you were thrown out of home by your mother.  You went to a refuge for a month and this, it would appear, for the first time, it led you to discover that you had some intelligence and your abilities at school very much improved.  You never returned home because whilst in the refuge you met a man and formed a relationship with him for a few years.  You completed Year 11.  You then worked in hospitality. 

27When you were 19, you met your husband with whom you had a daughter.  The two of you were together for five years but your husband was violent.  You have a good work history and you supported your daughter after you and your husband separated. 

28However, you began drug use and in particular developed an addiction to ice.  Somehow, it seemed that you were able to continue working.  Your prior criminal history is not consistent with somebody who was using ice and hence unable to work.  You have only one prior criminal matter which dates back to 2003 when you were placed on a non-conviction bond and charges of handling stolen goods, obtaining property by deception and theft from a motor vehicle.

29As I have said, it would seem that over the years, ultimately as a result of your continuing drug use and having this addiction whilst caring for your daughter you started to develop mental health difficulties.  You became increasingly paranoid, it would seem, that your daughter would be kidnapped, and moved around a great deal.  You had a fear of burglars.  You have developed as I have said an ongoing paranoia which in my view was clearly demonstrated in the very distressing attack in which you launched and which you were part of against Ms Markovic.

30Ultimately, you started being hospitalised in psychiatric wards.  You were hospitalised on a fairly regular basis from about 2014.  Nevertheless, you held good employment, looked after your daughter but ultimately, your mental health became so precarious that that capacity to be employed and to look after yourself simply broke down.

31In about 2017, your mother made contact with you after a long period of estrangement.  This was not particularly successful.  It occurred at a time when your mental health in any event was not particularly good.  I have two reports - one from psychiatrist Dr Nina Zimmerman and one from Forensicare - which were prepared in the aftermath of an arson that you committed on your mother's home whilst you were completely psychotic.  At that time, according to these reports, you were operating under the basis that you were being told essentially by the devil to do what you were doing.  The matter was dealt with before me on the basis of an agreed mental impairment defence and you were placed on a non‑custodial supervision order. 

32However, after that offending, you were released on bail.  Up to that time, you had been holding managerial positions with a menswear company which had a number of retail outlets.  You lost that employment.  Your daughter eventually was placed with her father and you yourself became homeless.  You became unemployed and ended up in this share house in Craigieburn. 

33You had been placed, after the arson, on an Involuntary Treatment Order.  You were released from there.  You went back to work but soon were unable to maintain that employment and I accept that at the time of this offending, you were in a position of - as I have already said - failing mental health.  You lost your daughter.  The relationship with your mother again had irretrievably essentially broken down and you were living in a share house situation where it was quite clear that people were drug users and engaged in the sort of lifestyle that accompanies that sort of living circumstances.

34In any event, you were placed into custody on 22 August as I have said, and that started you on what I might call a comeback trail for you.  Your time in gaol served as a means of you detoxing.  You were placed on an appropriate medication regime for your psychiatric disorder.  You ultimately appeared before me on 20 April of this year.  By this stage, you had stabilised.  You had done very well in custody.  You had completed a number of programs.  You were on a proper psychiatric regime as I have said, and I released you on bail on that date in order for you to prove to the court that you could continue in a way that did not present a danger to the community.

35You have gone on to fulfil the hopes of this court that you could re-establish yourself in a responsible way, living in the community.  You continue to remain on a proper psychiatric regime via the local Area Mental Health Service pursuant to the conditions of the Non‑custodial Supervision Order.  You are properly medicated.  You are medicated by a depot injection.  You have not used drugs for a long time.  There have been random urine analysis conducted and that was done because out of the blue your daughter was returned to you.

36Once you were released, you applied for literally dozens of jobs and finally obtained employment with a marketing company.  You very much enjoy this work and, may I say that given the condition that you were in and the restrictive conditions arising from COVID, this is a remarkable achievement by you.

37You live in private rental accommodation with your daughter.  On her return to you, there was some involvement by the Department of Human Services.  That has now ceased.  You were subject to urine analysis, all of which proved to be negative for drugs.  You have in my view made a remarkable turnaround.

38As I have said, you are working full-time.  You have the full-time care of your daughter.  You are paying for yourself.  You are a functioning, responsible member of the community.  You have also made the link between your mental illness and your drug use.

39I regard your prospects of rehabilitation as extremely positive.  As I have said, notwithstanding, it appears that you have abused illicit drugs for years, you have always maintained employment and for many years cared for your daughter and you have returned to that way of living.  You appear to be dedicated to your daughter's well‑being and to your own well‑being which of course is inextricably tied to hers.

40This is a most unusual case.  Clearly, a sexual penetration occurred and that is because of the penetration of Ms Markovic’s vagina.  I am satisfied indeed that this was not done for any reasons of sexual gratification.  In my view, it was done in the context - and this is no comfort to Ms Markovic - but it was done in the context of a chaotic drug-ridden household.  It was, I am satisfied, uncharacteristic offending on your behalf. 

41The standard sentence applicable to rape is one which is based only on the objective factors of the case.  That is the other factors that a court must take into account play no part in this setting of a standard sentence.  I regard the circumstances of this offending as exceptionally rare. 

42I also note that your very frank admissions in your record of interview allowed the police or allowed the prosecution to mount this case against you.  Those admissions contained the giving of information which police might not otherwise have been able to use against you had you simply not provided them. The authorities make it clear that you are entitled to a significant discount for that cooperation.  And I am satisfied that you are remorseful for your offending.

43I am also satisfied that whilst you might not have been psychiatrically in a psychotic condition at the time of this offending, that there were aspects to your offending which indicate that there was some psychiatric instability.  I am referring particularly to the way you left the house very early in the morning the next day, rang police, reported the issue - those sorts of things.  And also, the extreme irrationality underlying the offending in the first place. 

44None of this is an excuse and as I have said, none of this is of any comfort to Ms Markovic.  But in my view, there was a particular set of circumstances surrounding this offending such that I should regard you: 

45firstly, as a person with significant psychiatric issues which have now resolved;

46secondly, a person who is making enormous strides towards a responsible, law-abiding life as I have said so that community protection and specific deterrence are not principles to which this court need have particular regard;

47thirdly, in my view, interruption of the progress you have made would not be either in your interests or in the interests of the community;

48fourthly, as I have said, I am satisfied of your remorse for this offending and I note the great cooperation you showed police;

49And finally, again as I have said, there were extraordinary circumstances surrounding this offending such that the normal adherence to general deterrence as a means of dissuading other people from sexually violating others does not have the same application in this case.

50In all the circumstances, I am satisfied because of the unique circumstances both personal and in relation to this offending that apply to you, that I should deal with you by way of a term of imprisonment in relation to the charge of rape which comprises the period of time you have already served.  That is 606 days which I declare has already been served by way of pre-sentence detention. 

51In relation to the charge of intentionally causing injury, I have had you assessed for a community corrections order and you have been found suitable.  The order is simply there to assist you as much as anything, Ms Powers.  It is an expression of the disapproval the court must have for this offending.  But it is also there to assist you.  It has been recommended that I impose special conditions of drug treatment and mental health treatment.  It was noted by the assessing officer that the mental health treatment will essentially be monitoring the mental health treatment you are already receiving pursuant to the non-custodial supervision order.  So you will not be required to add to the mental health treatment you are currently undergoing.

52Before I can place you on this order, Ms Powers, I must receive your consent and I need to outline the conditions of that order to you.  They are that you must report to the community corrections office within two working days at the making of this order.  That is by Friday of this week. 

53Whilst on the order which will last for a period of 12 months, you must not commit another offence punishable by imprisonment.  That does not mean you have to be imprisoned, it just means you have to commit an offence for which you theoretically could be gaoled, like stealing a small item from the supermarket.

54You must report any change of address or employment within 48 days of the making of that change.  Whilst on the order, you may not leave Victoria without the permission of the community corrections office.

55You must report to and receive visits from the community corrections office.  You must not report to the community corrections office under the influence of drugs or alcohol.  You must obey all lawful directions of the community corrections order.

56As a special condition, I am going to order drug treatment and rehabilitation for drug use and treatment and rehabilitation for mental health difficulties.  I am not going to order the program designed to reduce reoffending which is in fact a sex offenders program because in my view, this was not an offence carried out for sexual gratification.  And that is what that program is ordinarily designed to address and in the circumstances, I do not see it as necessary. 

57I am going to order judicial monitoring and all that means is, Ms Powers, that about once every few months I will receive a report from Corrections as to how you are going and you and I will have a brief meeting which is given the circumstances can probably now be held either by Webex in this way or by you attending the community corrections office.  All right?

58So what I might do is set the first - so we are now in October.  So we will look at February.  At 9.30, Monday 22 February 2021.  At 9.30.  All right?  You do not require any legal representation for that, Ms Powers.  It is just a meeting between you and I and Corrections to see how you are travelling.  All right?

59I am not going to order any work hours.  It is not possible in the current environment.  In my view, you sound as if you are working extremely hard in any event and for that reason - nor was this recommended by the assessment officer.

60In relation to the charge of intentionally cause - sorry, I do not have to make a s.6AAA declaration in relation to the intentionally causing injury charge because I am placing Ms Powers on a community corrections order. 

61But in relation to the charge of rape, I declare that had you not pleaded guilty, I would have sentenced you to a term of four years' imprisonment and order that you serve a minimum term of two and a half years.  All right?  Is there anything else that I need to attend to?

62MR GOETZ:  Yes, Your Honour.  I foreshadowed on the last occasion the disposal order in relation to items seized.

63HER HONOUR:  Yes.  Thanks Mr Goetz.  Yes, the disposal order is granted of course.  Thank you very much.

64MR GOETZ:  My instructor will forward that to Your Honour's associate for signing.

65HER HONOUR:  Thank you very much.

66MR GOETZ:  Thank you, Your Honour. 

67HER HONOUR:  Can I thank both counsel for their very - yes, sorry?  Is there a problem?

68MR NATHWANI:  Sorry, Your Honour.  Did Your Honour - it is my fault for probably missing it.  But you did not mention supervision as part of the CCO?  Is it Your Honour's intention that supervision ‑ ‑ ‑ 

69HER HONOUR:  No, it is not.  No, I do not.

70MR NATHWANI:  Thank you.  That is all.

71HER HONOUR:  That is a recommendation.  I am judicial monitoring instead. 

72MR NATHWANI:  Understood.

73HER HONOUR:  I just think that Ms Powers has got a daughter.  She is working full-time.  She has got her obligations under the supervision order.  I just do not want to have her having too many appointments in her life.  You know, she has got the mental health obligation.  She has got the drug treatment obligation.  She has of course primarily got the obligation to stay offence‑free.  But you know, she has a case manager and she has also got - and she also has the psychiatric appointments that - you know, she has got a lot.  And I do not ‑ ‑ ‑ 

74MR NATHWANI:  I do not disagree.  I just wanted to confirm that.  Thank you, Your Honour.  It is very helpful.

75HER HONOUR:  Thank you very much.  All right.  I think that is all that I need to attend to.  I was just saying I am very grateful to counsel, in the circumstances that surrounded this particular case, for their very full and helpful written submissions.  It was somewhat above and beyond and I am very grateful to both counsel.  Thank you very much.  All right.  We will now stand down until 10.30.  Thank you.

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