Director of Public Prosecutions v Rawlins
[2016] VCC 1101
•3 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MANFRED RAWLINS[1] |
[1] A pseudonym
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February, 28 July 2016 | |
DATE OF SENTENCE: | 3 August 2016 | |
CASE MAY BE CITED AS: | DPP v Rawlins | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1101 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Bhai | OPP |
| For the Accused | Ms A. Beech | Stary Norton Halphen |
HER HONOUR:
1 At the outset I advised that the accused name is a pseudonym in these reasons. I remind those listening to these remarks as read out that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2].
[2] Section 4 Judicial Proceedings Reports Act
2 Manfred Rawlins, you have pleaded guilty to two charges of incest. In the circumstances of your offending, the maximum sentence is five years' imprisonment on each charge.
3 I sentence you on the basis of the Prosecution Opening[3] which was an agreed statement of facts read out in court, and not on the basis of the accounts you gave to Dr Patel from Forensicare and the Community Corrections assessor.
[3] Exhibit A
4 In summary, you offended against your mother by sexually penetrating her on three occasions between June and December, 2014. Charge 1 was an occasion when you put your penis in her anus. Charge 2 is representative of two occasions when you put your penis in her vagina. The first occasion of penetration of her vagina in Charge 2 occurred during the same sexual activity in which Charge 1 occurred, when you "switched positions," as you told police in your interview[4].
[4] Record of Interview A238 ff
5 It is necessary to outline your family history in order to make some assessment of how such crimes could have been committed by you.
6 You are the youngest of five children. You were diagnosed with leukaemia at age 12 months and were placed in to foster care until the age of 7 because your family was unable to care for you. Your father was an abusive alcoholic and on your return to live with the family, you saw him being physically and verbally abusive to your mother and siblings, as well as experiencing that abuse yourself. He died when you were aged 10 and from then until age 16, you, your mother and siblings lived with your grandmother, who became your primary care giver. At 16, you moved to live with your sister. It was put to me by your counsel, that your relationship with your mother was therefore not an orthodox one, or indeed a lifelong one, given your separation for six of the first 7 years of your life, and others being your primary care giver for the majority of your childhood. I will return to this aspect later.
7 Your mother has a cognitive impairment, although I have no information as to the level of her intellectual functioning. Your three brothers are also intellectually impaired; the most severely impaired lives with and is cared for by your sister, who is or was, a disability support worker, and another lives independently with his partner, who is also intellectually impaired. Your mother lives with this brother and his partner.
8 Your oldest brother sexually abused your sister during her childhood, and you were a witness to this. Another brother was sexually abused by a friend of your oldest brother. You were also aware that nothing was done by your parents to report the abuse committed on your siblings. You have no contact with your oldest brother, apparently because of what he did to your sister.
9 You had no problems at school, and like your sister, did not seem to have an intellectual impairment. However, at the age of 16, you fell off a roof and suffered a significant brain injury. Since then you have had problems with recall of your childhood and with reading and spelling.
10 For this court case, your intellectual functioning was tested and Ms Carla Lechner, who provided a report[5], assessed you as having average intelligence, but having difficulty with expressing yourself. She considered this to be consistent with an acquired brain injury and your own report of difficulties with language, and said that although you appeared to be intellectually impaired, you are not. She also expressed the opinion that you are emotionally and socially immature with little insight into your emotional world, or capacity to reflect on the impact of your behaviour on others as well as on yourself.
[5] Exhibit 2
11 At the time of the offending in 2014, you were aged 42 and your mother was aged 77 years. You began living with your brother, his partner and your mother after the end of an intimate relationship you had been in. Your mother had a professional carer, she used a walking aid, and it is conceded that at the time of your offending against her, she was elderly and vulnerable.
12 You were apparently drinking alcohol in large quantities following the end of your relationship, although you told police that you were not, "drunk, drunk" [6]when you committed the offences against your mother. Two previous relationships you had had broken down, and it was put by your counsel that you were lonely and your childhood experiences left you not able to deal properly with the emotions you were feeling. It was submitted that it was in that context that you committed these offences. When speaking to police you said you knew it was wrong, because you are related.
[6] Record of Interview A247
13 When your mother complained to her carer about what you had done, police were notified, you were arrested and interviewed, and then moved out of the home. You now live in a boarding house and have no contact with your mother, the brother that she is living with, or your other siblings. Although an Intervention Order taken out after your crimes were discovered has since expired, you voluntarily remain out of contact with your family.
14 I did not receive a statement from your mother or any family members as to the impact of your crimes on her or them. However, it is clear from the way your mother told the carer about the crimes, that she was affected by your offending, and no doubt suffered considerably.
15 Any crime of incest is serious. However, in your case, the category of incest, being a child offending against their parent, is considered by Parliament as the least serious of this type of offence. Having a maximum penalty of five years' imprisonment compared to a maximum penalty of 25 years' imprisonment for a parent offending against their child.
16 I have to decide where your crimes fit in the category applicable to you. Counsel have not been able to find any similar cases of offending by a child against their parent. Your counsel attempted to assist me by referring to some cases of incest in the category of parent offending against adult child, and submitted that some assistance was to be gained from them where it was said there was some similarities with your case.[7]
[7] See Ryder, WN, R v W, Smith v WA in Exhibit 2 – Folder of Defence materials
17 Despite this effort, I am not really assisted by these cases; the main reason for that is, whatever the similarities, in my view the differences are too great. For example, the maximum penalties differ in each case from each other and from your case, from life imprisonment to a maximum of 3 years' imprisonment, and the relationship is different in your case from all the others.
18 I find that the features that make your offending serious are the facts that your mother was elderly and vulnerable; that she was in a powerless situation and because of her disabilities, unable to rebuff you; that there was a breach of trust involved in abusing an elderly vulnerable person who is your parent; that you had sex with your mother on a subsequent occasion, even though you told police you felt ashamed after the first; that the two occasions occurred over a period of six months; and, despite your early relationship with your mother being disrupted when you were a baby and young child and you having other primary care givers. I am satisfied there was nevertheless, a longstanding, known relationship of mother and son at least from the age of 7 years.
19 Having said that, I accept that your case is not at the most serious end of the category, but it is certainly not at the lowest end.
20 I now consider the factors personal to you which I must take in to account. The first of these is the fact that you pleaded guilty, and did so at the earliest opportunity. I find that this shows that by then you accepted some responsibility for your offending, and demonstrated a level of remorse for the impact of what you did on your mother. Your plea of guilty has not only saved the community the time and cost of a trial, but it has saved your mother from the ordeal of giving evidence, although not from having to tell what happened to her during the investigation. Saving your mother from the need to be cross examined is a significant utilitarian benefit. As a result of your plea of guilty the sentence I will impose is less than would have been imposed, had you been found guilty by a jury after a trial.
21 Next, you have no relevant criminal record. You received low fines for four charges of breaching a Family Violence Intervention Order taken out by your former partner, which I am told involved verbal and not physical abuse. While it means you are not to be sentenced as a person with no criminal record, I find that offending is of little relevance to the offending you are being sentenced for today.
22 Next, your other background details in summary are that you have maintained a stable full time work history, mostly as a cleaner; you have used alcohol to excess over many years, with weekend binge drinking; apart from your acquired brain injury, you currently suffer pain from a hernia which was operated on in December last year, and which has made you unfit for work. Further, you have had three long term relationships with adult women and had children with two of them. You have no contact with your children. You have resumed non-intimate contact with the woman in the relationship which ended shortly before the offending, but she is not aware of what charges you face. You have been on a waiting list for public housing since December, 2014, and I am told that if you are imprisoned today, you will lose that position on the list.
23 Next, I accept that your childhood was a deprived and dysfunctional one that did not help you to set firm moral boundaries, and it was still affecting the way you conducted yourself as an adult, such that it provides some explanation for your offending[8] and for your high consumption of alcohol. On that point, I note that you told Ms Lechner that all members of the family - you, your mother, your brother and his partner - were said to be drinking on one of the occasions that sexual activity took place. However your dysfunctional background does not mean that you did not know that your conduct was wrong.
[8] See Terrick, Bugmy in Exhibit 2 – Folder of Defence materials as referred to in the Defence Outline of submissions
24 Because it is such unusual offending, with no real explanation put forward I order that you be assessed by a psychiatrist at Forensicare.
25 Dr Gunvant Patel of provided a report[9] after his assessment. He found no evidence to support the presence of a paraphilic condition, and was of the opinion that there did not appear to be any evidence of high level of sexual arousal driving your behaviour. To him it appeared that your capacity to maintain an appropriate boundary around sexual contact was diminished by being psychologically needy and disinhibited by alcohol and that this [diminished capacity] was likely to have been reinforced by your ‘childhood conditioning’.
[9] Dated 23 March 2016
26 Dr Patel noted that despite your childhood experiences, you had engaged in a number of satisfactory long term appropriate relationships. He assessed your risk of re-offending as likely to be low. While he did not believe that you would readily fit in to group based sex offender programs, for the same reasons as I earlier expressed about the nature of your offending, he still considered further assessment and possible management to be appropriate and best conducted on an individual basis.
27 Dr Patel also addressed the potential impact on you of a term of imprisonment being imposed today. He considered that would cause you significant distress and may result in a period of depression requiring ongoing support and medication. He also recommended other steps which could be taken to address the potential risk of ‘inappropriate interpersonal contact’.
28 In my view, there is very little risk of you committing similar crimes, and no risk that you will reoffend against your mother as there is no contact. However, according to Dr Patel your insight into your offending is limited, and you struggle to understand why you offended against your mother in such a way. And what role alcohol intoxication played. So while I am satisfied that your chances of rehabilitation are quite good, I consider that you must undertake some treatment designed to increase your insight and decrease your alcohol consumption.
29 An important principle in my sentencing of you is the need to express the abhorrence and denunciation of society for sexual crimes committed against a vulnerable person, and especially when that person is an elderly parent. It is not a common offence, but that does not mean that my sentencing of you has no role to play in deterring other adults from committing incest against vulnerable parents; this is known as general deterrence. Because it is not known why you committed the offences, I am of the view that it is necessary for my sentence to also deter you from reoffending. Although I have found that your risk of re-offending is low.
30 Your counsel submitted that your dysfunctional background would operate to moderate these principles of deterrence[10]. However, while I take that background into account, I do not consider it is an appropriate case for any significant moderation of these principles. Your moral culpability remains high. The recent case of Dagliesh[11] while dealing with the case of incest of parent offending against underage children with a maximum of 25 years' imprisonment, is in my view nevertheless a helpful guide to sentencing in cases of incest generally. It confirms the importance of deterrence, and of the vindication of the community's social values. Consequently, the moderation of these principles of deterrence because of your deprived and dysfunctional background will be modest. There is one final matter before I turn to the sentence. An application has been made by the prosecution for an intimate forensic sample to be taken from you and you have consented to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
[10] See Terrick, Bugmy in Exhibit 2 – Folder of Defence materials as referred to in the Defence Outline of submissions
[11]DPP vDagliesh [2016] VSCA 148 at [124], [129]
31 Turning to the sentence, the prosecution submitted that there must be a term of imprisonment imposed because of the need for the sentence to reflect the objective seriousness of your offending, denunciation of your crimes, and general deterrence, albeit with some moderation being conceded. It was also conceded that the report of Dr Patel provides some information that a term of imprisonment would have a significant adverse effect on your mental health and that this mitigates your punishment.
32 Your counsel submitted that I should not impose a sentence of imprisonment because of the many significant mitigating features; your low risk of reoffending; your prospects of responding to treatment; and the need to consider the impact of imprisonment on you and the community, as compared to imposing a community correction order.
33 You were assessed and found suitable for a community correction order. As I said on the day of the plea, having you assessed did not mean that I had already decided what the appropriate sentence would be.
34 I have decided that I have no alternative to imposing a term of imprisonment on Charge 2. That is because of its representative nature, and the fact that the second occasion of sexual penetration in that charge was a repeat offence committed sometime after the other two acts of penetration which were committed on the one occasion. I have taken into account that you will be going into custody for the first time at the age of 43, with the vulnerability of your presentation due to your acquired brain injury, and the evidence of Dr Patel as to the possible impact on your mental health. The order that I sign will note this. I consider that the purposes for which sentence must be imposed on that charge and in particular, denunciation of repeat offending of an objectively serious nature within this category of incest cannot be achieved by a Community Correct Order even with strict conditions.
35 With respect to Charge 1, I have decided that I do have an alternative to imprisonment, and my intention is that you undergo a community correction order on that charge. My intention is that order will commence immediately on your release from prison. I will make the formal orders shortly, but I propose to sentence you to six months' imprisonment, followed by a two year community Correction Order with certain conditions.
36 You are convicted and sentenced as follows:
37 On Charge 2 - incest - six months' imprisonment.
38 On Charge 1 - incest - you are convicted and if you agree, you will be released on a community correction order for two years, to commence on your release from the sentence imposed on Charge 2. That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Community Corrections; must notify Community Corrections of any change of address or employment; must not leave Victoria without the permission of Community Corrections; and must comply with any direction given by Community Corrections to ensure compliance.
39 I will also Order that you comply with other conditions during that 2 years; you must perform 50 hours of unpaid community work, which may need to be low impact; you must be under the supervision of the Community Corrections' office; you must attend for drug and alcohol treatment and assessment and mental health assessment and treatment as directed by the Community Corrections' office and you must undertake and complete a sex offenders program as directed by Community Corrections. I recommend in the strongest possible terms to Corrections Victoria that the program be an individual one, as put forward by Dr Patel in the Forensicare report. You must also undertake and complete any other program as directed, such as the Problem Behaviour program at Forensicare.
40 If your circumstances change after you commence the community correction order, you may apply to the court for the order to be varied or cancelled. If you do not comply with the condition of the Order, you will be re-sentenced on charge 1. Do you agree to be bound by the order?
41 You will now be asked by my Associate to sign a document to show that you agree to abide by the conditions of the community corrections order. Your lawyer will assist you with these forms.
42 For completeness, I indicate that I considered the other conditions that were discussed with counsel, such as duration of the order, judicial monitoring, non-contact, alcohol restriction and exclusion conditions, noting that this discussion was in the context of punitive conditions to be imposed on a community correction order where a sentence of imprisonment was not to be imposed. I have considered the punitive aspects of the community correction order for charge 1. Combined with the obvious punitive aspect of imprisonment on charge 2, and I have decided that this combined sentence with the conditions I have outlined appropriately reflects the seriousness of your offending, as well as meeting all other sentencing objectives.
43 I have signed the order for the forensic sample.
44 Finally, I announce that if you had not pleaded guilty to these offences, but been found guilty after a trial, the sentence I would have imposed on all charges would have been a term of imprisonment of three years, with a minimum of 12 months
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HER HONOUR: So do you understand the conditions of the Order?
OFFENDER: Yes I do.
HER HONOUR: Do you agree to be bound by that Order?
OFFENDER: Yes.
HER HONOUR: Thank you, well, just take a seat again please Mr Rawlins. Could I just check with counsel as to the most appropriate Community Corrections Centre. It's a bit of an unknown because it will be after his release from custody and he will not be, necessarily returning to the same boarding house.
MS BEECH: No that's correct Your Honour. At the moment, if it were relevant to today, it would be whatever the closest Community Corrections office is to Footscray, so I suppose, Sunshine.
HER HONOUR: Would be Sunshine, that's what I thought?
MS BEECH: Yes.
HER HONOUR: And then the Community Corrections people will be obviously looking at all of that, ready for his receipt after release.
MS BEECH: Yes, that's probably the best option for now.
HER HONOUR: Yes all right. So I'll have that Order prepared with Sunshine as the office to commence after the release from custody. My understanding had been that the drug and alcohol assessment and treatment was one condition. But it has come out separately so I will delete the drug assessment and treatment because there is no suggestion of drug use or abuse. So it will simply be alcohol assessment and treatment. Yes thank you, so you will now be asked to sign a document to show that you agree to be bound by the conditions of the Community Corrections Order on your release from prison. So Ms Beech perhaps you might accompany my associate to assist your client with any questions he may have.
MS BEECH: Thank you.
HER HONOUR: All right, so I have signed that Order as well and we will have a copy provided to you Ms Beech, I think that might be the best after I leave the Bench.
MS BEECH: As Your Honour pleases.
HER HONOUR: Well I thank counsel for their assistance in this unusual case. And yes, Mr Rawlins may now be removed. Thank you we will stand down until 10.30.
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