Director of Public Prosecutions v Rawlinson
[2013] VCC 913
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL DIVISION
CR-12-01037
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIE-ANNE RAWLINSON |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne (Sentence) | |
DATE OF HEARING: | 6 June 2013 | |
DATE OF SENTENCE: | 7 June 2013 | |
CASE MAY BE CITED AS: | DPP v Rawlinson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 913 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law - Sentencing - Convicted at Trial of Aggravated Burglary - Intentionally Causing Injury and Theft of Mobile Phone
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K. Doyle | OPP |
| For the Accused | Ms J. Clark | Haines & Polites |
HIS HONOUR:
1 Julie-Anne Rawlinson, after a short trial on the Horsham Circuit you have been found guilty of one count of aggravated burglary that occurred on 11 February 2011 at Unit 11, 15 Begg Street, Horsham, wherein you entered that unit with intent to assault when a person was present, contrary to s.77(1) of the Crimes Act.
2 You have also been found guilty by a jury of one count of intentionally causing injury to the complainant, Ms Martin, and one count of theft of a mobile phone, also belonged to Ms Martin. The maximum penalty of the latter two offences is 10 years' imprisonment.
3 I am required to sentence you, in accordance with the jury verdict. You gave evidence at the trial wherein you denied that you had entered the unit as a trespasser and maintained that the complainant had been about to attack you and you grabbed her and pinned her to the wall, effectively, in self-defence. You also denied taking her mobile phone, the subject of Count 3.
4 By its verdict, the jury must be taken to have rejected your account and preferred the account of the complainant, supported, as it was, by Ms Cooper, who accompanied you from the hotel to the unit.
5 The events that evening commenced at a hotel in Horsham. You were there with Ms Cooper and she stated that you and she had both had about four mixed drinks each. At some stage in the evening, you were joined by two other people, Ashley, a female, and Luke. They were in a relationship.
6 At one stage, the issue came up that a person who was living with them and was not paying rent and that they wanted to get him out. It was getting on towards midnight.
7 Ms Cooper said that the group left the hotel and were going to the unit and "we were going to go and be his eviction notice". It was you who, according to Ms Cooper, had made that statement. I find that you volunteered to deliver that message when the group arrived at the unit.
8 There was conflict in the evidence as to whether you were, in fact, delivering some other message as well. I find that the jury accepted the evidence of the complainant, Ms Martin, that when you and Ms Cooper arrived at the unit with the other members of the group staying on the road, you knocked on the door and she opened the inside wooden door.
9 At that point, you asked for the complainant. You then, according to her evidence at 26 of the transcript, said that they were freeloading off Luke, Wallace and Ashley Day. This is reference to Shaun and Dylan Harris. She replied, "I don't talk to Luke anymore", and at that point you also made an allegation that she had somehow or other peed on Dylan Lewis' goods and saying that you peed in his bag when you were packing his bag up.
10 At this point, the complainant gave evidence that she asked you to leave and if you did not, she was going to call the police. She then went next door from the lounge room to her bedroom and retrieved her brand new Apple iPhone. She returned to the lounge room and was sitting on a chair in direct view to you through the screen door.
11 She was about to ring Triple 0 and, at that point, you then, on her version, which I find the jury has accepted, entered in the room and were right in front of her. You came towards her and started strangling her, you knocked her off the chair on her back and the chair fell over with your hands still around the complainant's neck.
12 When asked how she was physically, she said, "I was scared, scared for my daughter", who was a very young child in the next bedroom, "And worried about what was going to happen to her if something happened to me". At that point, she said she could not breathe and you were calling her a dirty slut. She smelled alcohol on your breath.
13 She kicked you, you got off and you then grabbed her phone and went outside. Shortly later, you then came back inside, again, grabbed her around the throat and pinned her up towards the wall.
14 Your friend, Ms Cooper, pulled her away from you and then the two of you left. As you left, you also said to her that if she did not start raising her daughter properly instead of letting other people look after her, she was going to take her and raise her the way she should be.
15 Ms Cooper gave evidence that as the two of you left, there was reference to the mobile phone and you said that your son would be able to unlock the phone so that you could utilise it. The phone has never been recovered.
Assessing the seriousness of the offences.
16 Aggravated burglary carries a 25 year maximum sentence. It can be committed in a wide variety of circumstances. Here, the complainant in this matter was a young-ish girl with a young child in the bedroom. There were other people present in the unit, asleep on the couch. It was in the early hours of the morning.
17 This offending was not spontaneous, in that you were at that unit in the early hours of the morning and had come to deliver a message on behalf of others. I accept that the intent to enter as a trespasser and to assault the complainant was only formed when you were outside the unit and had been told, in no uncertain terms, to leave and you refused to leave.
18 It was also clear from the various comments that the complainant said you made to her during the incident, that you were, effectively, ordering her around. It was when the complainant told you that she intended to call the police, that you swung open the door and immediately proceeded to assault her. She was much younger than you.
19 You entered the unit a second time after you had grabbed her phone and proceeded to threaten her, call her a slut and grab her around the neck again.
20 The overall circumstances of this aggravated burglary, taking into account the time of night, the age difference between you and the complainant and her having a young baby present and the fact that you effected two entries into the property and proceeded to assault and abuse her puts this above the bottom of the range of offending for this type of offending.
21 You have also been found guilty of intentionally causing injury. The complainant gave evidence that she was crying and she called an ambulance. The doctor said that she had superficial injuries on her neck from where she was, he said, presumably been choked. He said there were quite obvious marks around the neck and shoulder area. He said it was a relatively large region. She also had a bruised elbow and pain in her head and the doctor also said there were evidence of scratch marks.
22 Ms Cooper said that when the complainant was on the ground, she was trying to scream, but it was muffled, like she was having a bit of trouble breathing and Ms Cooper thought you were going to make her pass out.
23 When you grabbed the complainant a second time, Ms Cooper had to grab your arms to stop you choking her. Overall, even though there were no permanent injury, this was a violent assault on the complainant that had put her in hospital, having to go to the hospital for a couple of hours.
24 The third offence was the theft of the phone. There was unchallenged evidence from Ms Cooper, as I said, that as you were leaving, you mentioned to her that you would be able to unlock that phone when you got back to Melbourne.
25 The complainant in this matter has filed a victim impact statement, which I must take into account. She indicates that she said that she was strangled by you. She said her throat was blocked and she could not breathe and she went to the Wimmera Base Hospital and was, she said, put on oxygen for two or three hours.
26 Your counsel said there was no medical evidence to that effect. I do not accept that submission. It is not clear. The complainant claims she was given oxygen, the doctor said he did not actually administer it, but that does not mean that there was not some assistance provided to the complainant at the hospital that the doctor would not have known about.
27 In any event, I find that given that she was complaining of choking, it is very likely they would have checked her breathing.
28 The complainant also said in the victim impact statement her phone was stolen and not returned to her and she had to keep paying it because it was on a contract. The Crown have sought an $800 compensation order against you in her favour for the phone, and I have made that order.
29 The complainant also said, "I'm afraid to live in a house by myself since this happened. I was threatened on the day of the break-in by the accused and her friend, and when I'm up the street I'm afraid of running into the accused and of what she may say or do."
30 So this has obviously had an impact on the complainant, which must be taken into account in the sentencing process.
Prior convictions.
31
You have admitted your prior convictions. You were born in 1970. They commence in 1992 when you were placed on a without conviction bond and fined $200 for an assault in the Dromana Magistrates' Court on
22 October 1996, cultivating cannabis, possessing cannabis and use cannabis, an aggregate fine of $200 without conviction; 1996, again, criminal damage, without conviction, adjourned for 12 months.
32
The next convictions on your criminal record are two driving whilst disqualified, where on appeal on 7 July 2010 at the Melbourne County Court you were placed on a one month suspended sentence for a period of
12 months. That sentence was breached by this offending, which is, as the Crown said, an aggravating factor.
33 Overall, though, your criminal convictions, apart from being on a suspended sentence when this offence occurred, your criminal convictions are not relevant to the sentencing process here.
Personal circumstances.
34 They are set out in a written submission by Ms Clark, which I will place on the file and incorporate by reference, and also in the report of Mr Joblin, psychologist, which he prepared, dated 30 November 2011.
35 You are now aged 42 and you were aged 40 when these offences occurred. You are the second of five children, with an older sister and two younger sisters and a younger brother. Your parents separated at 14 and you lived with your mother thereafter and had little to do with your father until very recently. You have limited contact with your other siblings except for a sister living on the Peninsula.
36 You left home at age 18 and left school during Year 12 and got a job at Safeway and subsequently did two years of a chef apprenticeship. You have worked as a chef and in cafes.
37 At age 19, in 1989, you met your husband, Mr Rawlinson, and your first son was born in 1994 and a second born in 1997. Your first son had congenital eye problems which required multiple surgery. Both your sons have been in Court to support you and they are both now in the workforce. You have been, as I say, yourself a chef in the workforce.
38
In October 2011, after this offending, you were able to obtain a job as a chef at the Sorrento Golf Club. You were in that job for apparently about
12 months, and in late 2012 unfortunately suffered a motor bike accident wherein you suffered an injury to your thumb, which has prevented you working since that time. It necessitated surgery and requires continuing physiotherapy.
39 A central feature of your plea was that you have been the subject of domestic violence at the hands of your ex-husband, leading to multiple intervention orders and ultimately a separation which occurred in 2007. You have had a number of attendances at emergency departments of hospitals in your area as a result of his domestic violence.
40 The details of the effect of his domestic violence are set out in Mr Joblin's report. At times, in order to placate him, you were using drugs, although generally you have no significant history of drug use, and similarly, no difficulties with alcohol.
41 Mr Joblin has assessed your domestic violence as having a significant impact on your psychological state. I incorporate by reference the first and the second last paragraphs on p.6 of his report.
42 The final paragraphs says, "Ms Rawlinson has developed a low threshold of tolerance and when a catalyst has occurred she has demonstrated that. In my opinion, that provided the basis for the offences for which she is before this court." He then indicates, "Having outlined the above, it is necessary to indicate that Ms Rawlinson needs professional attention."
43 Your counsel relied on the opinion of Mr Joblin that the relationship of the prior family violence by Mr Rawlinson was significant, and he said there is no doubt that that remains a strong impact on your psychological state from the history of abuse you describe to her.
44
Your counsel submitted that there should be a reduction in your moral culpability on the basis of Mr Joblin's report. I do not accept there is a necessary link between your moral culpability for this offending and
Mr Joblin's assessment that you have been the subject of domestic abuse. I am just not satisfied it is there. I do accept, however, that your psychological condition is relevant to the sentencing process. Obviously you are psychologically fragile. That is evidenced by the fact that you are on medication for anxiety and depression and you had an admission to the Frankston Hospital on 15 September 2011 for an attempted suicide. You are also, as I have indicated, currently under treatment for your thumb injury.
45 Mr Joblin opined as at November 2011, that appropriate psychological support should be provided to you, and he also said that it will not be available in the prison system. I do not accept that it will not be available to you, and I will direct that my remarks be provided to the authorities, and I will also direct their attention to the need for you to continue physiotherapy on your thumb.
46 Your counsel submitted that a sentence of imprisonment will have an impact on you in that you will not be able to assist your children getting to work. I accept that that will occur and that will make prison more burdensome on you than another person without such family responsibilities.
47
I must assess your prospects of rehabilitation. You do not have the benefit of insight and victim empathy that would be evidenced by a plea of guilty. Notwithstanding this, given your age and the lack of relevant prior convictions, I regard your prospects of rehabilitation as good. That is provided that you avail yourself of appropriate psychological counselling and support that
Mr Joblin has recommended that you engage in. He recommended
18 months ago that you engage in a Mental Health Plan, but for some reason that has not occurred to date.
48 Your counsel strongly submitted that you should be released on a Community Corrections Order or on a suspended sentence. I have taken into account all her submissions. She submitted that either of those dispositions would meet the sentencing requirements here.
49
The Crown, however, noted that this was serious offending and there is a
25 year maximum penalty and the Court of Appeal in a recent case of Hogarth [2012] VSCA 302 has emphasised the seriousness of the offending. The Crown said that this offending called for a sentencing range of three to four years head sentence with a two to three year minimum sentence.
50 Returning to the circumstances in which you went to Horsham, you said in the record of interview that you went to Horsham to escape the domestic violence and that you had something of a breakdown at that time. There is no medical evidence to that effect.
51 In terms of your moral culpability, I said I do not accept the submission by Mr Joblin that your prior domestic violence results in a reduction in your moral culpability. You were drinking that night and the complainant said you smelt of alcohol. I accept, however, that you do not have a history of violence. In addition, there was no provocation in this case by the complainant, yet you barged into her house. While your impulsivity may provide an explanation for your offending, I do not accept that it reduces your moral culpability.
Purposes of sentencing.
52 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
53 I regard the Crown range in this matter as too high. While this offending was at the lower end of the range of offending for aggravated burglary, the sentence of the Court must condemn your conduct and vindicate the right of the complainant not to have her unit invaded by you in the dead of night and for her not to be assaulted by you when she sought to call the police. In addition to that, you just took her phone off her.
54 The seriousness of aggravated burglary as an offence and the particular species of confrontational burglary was emphasised in the case of Hogarth. I do not find that this is necessarily a confrontational burglary, but as I said earlier, the fact was you went around there to deliver a message to the complainant, and while the intention to enter the premises as a trespasser and assault her was reached just before you went in. The fact was you had been drinking that night, went around there and this happened.
55 In this case specific deterrence is a relevant consideration given your impulsive nature. I am prepared to sensibly moderate general deterrence on the basis of your psychological state that is a consequence of your past domestic violence. However, general deterrence must remain a significant consideration in this type of offending.
56 Overall, weighing all the submissions by your counsel and applying considerations of parsimony, your conduct does call for a sentence of imprisonment to be immediately served. Your psychological state is such that a longer than usual period of parole eligibility is appropriate to allow you to have the proper counselling and to promote your return to the workforce and to allow you to continue to support your two teenage sons.
57 In sentencing you, I have also taken into account in your favour that there has been some delay in this matter, and despite later court appearances that are not strictly prior convictions, I take into account your submission, and accept your submission that since you returned to the Mornington Peninsula after Horsham, you have achieved stability such that the self-control mechanisms that were lapsed in this event that night are in a position to be resumed.
The sentence of the court is as follows:
58 On the count of aggravated burglary, you are sentenced to 14 months' imprisonment. On the count of intentionally cause injury, you are sentenced to four months' imprisonment. On the count of theft, you are sentenced to two months' imprisonment.
59 I direct that two months of the sentence on the second count and one month of the sentence on the theft count be served cumulatively on each other and on the sentence on the aggravated burglary, making a total effective sentence of 17 months.
60 I direct that you serve a minimum term of eight months before you are eligible for parole.
61 I have made the compensation order to Ms Martin.
62 Having regard to the seriousness of the offences, I have also regarded it as appropriate to order that you provide a forensic sample, which is a mouth swab, and the authorities have the right to use reasonable force to obtain that sample. Are there any other matters, Mr Doyle?
63 MR DOYLE: No, Your Honour.
64 HIS HONOUR: Any other matters, Ms Clark?
65 MS CLARK: No, if Your Honour pleases.
66 HIS HONOUR: Yes, I thank counsel for their assistance in this trial and on the plea.
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