Director of Public Prosecutions v Reid
[2015] VCC 1304
•9 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00335
Indictment No. E13665730
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RUSSELL JAMES REID |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2015 | |
DATE OF SENTENCE: | 9 September 2015 | |
CASE MAY BE CITED AS: | DPP v Reid | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1304 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Dipietrantonio | Office of Public Prosecutions |
| For the Offender | Ms J. Kennedy |
HER HONOUR:
1 Russell Reid, you have pleaded guilty to one charge of indecent assault (Charge 1), one charge of aggravated burglary (Charge 2), one charge of indecent act with or in the presence of a child under 16 (Charge 3) and one charge of rape (Charge 4). The maximum penalty for charges of indecent assault and indecent act with or in the presence of a child under 16 is ten years’ imprisonment. The maximum penalty for aggravated burglary and rape is 25 years’ imprisonment.
2 The circumstances of your offending are set out in the Agreed Amended Summary of Prosecution Opening which was tendered as Exhibit A. The offences were all committed over a two-day period in November 2014.
3
At about 11.30 am on 4 November 2014, you went to a shopping complex. CCTV cameras captured many of your movements during the day. You were seen to be spending a lengthy period of time loitering around toilet areas. Shortly after half past four, you went into some female toilets. About
10 minutes later, the victim, whom I will call M, went into the women’s toilets with her two very young daughters. After she and her older daughter had used the toilet, M went to the basins to wash her and the children’s hands. While M was at the basin, you grabbed her from behind and pulled her in tight to your chest. She struggled. You placed your left hand over her mouth to stop her from screaming. You placed your right arm over her right shoulder and forced your hand down inside her shirt and bra and grabbed her breast. She continued to struggle.
4
M’s two daughters saw the assault and became hysterical and shouted at you to stop. M screamed at her older daughter to get her husband, D, who was waiting outside the toilets. You removed your hand from M’s breast and tried to pull her pants down. You could not do that and you again put your hand in her bra and grabbed her breasts. M was fearful that you were going to kill her. She turned around to face you. You still had your hand over her mouth to prevent her screaming. She says that she tried to kick you, but missed. At this point, M’s daughters tried to assist. The struggle continued and you and M fell to the floor, with M landing on her back with you on top of her.
M managed to pull your hands away from her mouth and again told her older daughter to get D. You put your hand back over her mouth and pushed her chin back so her head was pinned to the floor. You got up on one knee and put your weight on M and tried to pull her pants down. You could not do that so you put your hand down her pants and inside her underwear and placed your hand over her vagina. M managed to pull your hand out. You released her, picked up your thongs and walked out.
5 M’s younger daughter, aged two, was crying and choking. During this episode, this child was injured, receiving a lump on her head, bruises on her right foot and a bleeding nose. She did run for help. D saw his older daughter running out of the toilets, “yelling out that some boy was fighting with mum in the toilets”. D ran to the area outside the toilets. The older child identified you as you were walking out. D confronted you and grabbed you, but then saw his wife and other child and let go of you. You ran away and left the shopping centre.
6 As a result of the incident, M suffered a small abrasion over the bridge of her nose. Your touching of her on her breasts and placing your hand over her vagina is the subject matter of Charge 1 of indecent assault.
7
Charges 2 and 3 of aggravated burglary and indecent act in the presence of a child under 16 arise from an incident which occurred on the morning of
5 November 2014. At approximately 7.30 am that morning, you drove past the home of a woman I will call L. You parked behind L’s vehicle. You then walked across the road towards L’s home. A short time later, L’s husband left the house in his car. In addition to witnesses’ accounts your movements were picked up on CCTV cameras at the house. You walked back to the house, through the front gates and down the side of the house. You climbed over a side gate and walked along the side of the house to try to gain entry through a side door. You climbed back over the side gate and entered the house through the open front door. You stopped at the foot of the staircase. L was packing the schoolbags for her three children a short distance from the front door. L did not see you.
8 You then walked out and towards the side of the house. L went and got her car and drove it into the driveway. Whilst you were outside, L’s six year old daughter walked out of the house. You told her to “come over here”. She saw you hiding next to the side gate and she backed away. You motioned for her to go towards you, talking to her and asking her to look at something. You pulled down the front of your pants, exposing your penis and holding it in front of her. The child became frightened and walked away. You called for her to return, but she returned to the house and sat down on the stairs and began to cry. She then described what had happened to her babysitter.
9 L was getting out of her car and saw you coming from the front garden bed area of her home. She approached you and asked if you were all right. At this point, L set off the house alarm. You asked what it was and L told you that it was her house alarm. You walked out the front gate, across the road and went back towards your van. L went inside and her daughter said that a man had showed her his “doodle”. L went outside and could not locate you. Later, L took her children to school. While driving, she saw you walking along a street and took photographs of you and your van. She saw you get into the van and drive off erratically. L drove to a police station to report the matter.
10 Charge 2 of aggravated burglary is put on the basis that you entered the premises with intent to assault. Charge 3 of indecent act in the presence of a child under 13 relates to the exposure of your penis to the six year old child.
11 A short time later, at about 8.30 am, the victim in respect of Charge 4 of rape, whom I will call J, was walking to work on a walking track along the Yarra River. She was alone and walking with her head phones on. There were a number of people in the general area on the walking track and at nearby cafés. J was halfway between a café and boatsheds, which are used for rowing boats, when she was approached from behind by you. You grabbed her in a bear hug from behind. You pushed her with a lot of force to the ground, pinning her arms and hands down. She struggled and you pushed her towards the side of the trail and you both fell down an embankment, landing on the pathway at the bottom.
12 You then lay on top of her, forcing her face-first into the ground. She was screaming and yelling. You placed your hand over her mouth and told her not to scream or you would kill her. She was pleading with you and struggling with you. You pulled down her pants and underwear and forced your right hand into the front of her pants and underwear and penetrated her vagina with your fingers. This penetration is the subject matter of Charge 4 of rape.
13 J continued to struggle with you and tried to get your hand out of her pants. At one point, you had your arm around her neck. J was scared. She thought you would break her neck. J managed to break free and you ran away. J ran to the café and told staff what had occurred. As a result of the attack, J suffered tenderness in her upper chest and in the middle of her back, a small inflamed abrasion on the inside of her left thigh and redness to her genital area.
14 Shortly after 6 pm the same day, police saw your van in Maribyrnong. You were arrested shortly after when you returned to your van. You were cautioned and made a number of comments which are set out in the Prosecution Summary. You were interviewed with an independent third person present. In general in the interview, you denied the alleged offending. You did admit being at the shopping centre and jogging around the Yarra that morning. In respect of Charge 4, you said that it was a failed attempt at a kiss and that you did not try to rape the woman.
15 Victim Impact Statements from M, M’s husband D, L, L’s daughter and J were tendered. Each of the victims of your offending describes the immediate and ongoing effect on each of them of what you did in those two days. In varying degrees, your offending has had a very negative impact on each of them. They were all frightened and all continue to have difficulties related to fear and anxiety. It is to be hoped that with support and time each of them will gradually be able to put these offences behind them. They will, I expect, never forget them.
16
A number of documents were tendered on your behalf, including a report from Dr Adam Deacon, consultant forensic psychiatrist, who assessed you on
13 February 2015 and 23 May 2015, together with a supplementary report from Dr Deacon dated 20 July 2015. A report was also tendered from Dr Aaron Cunningham, forensic psychologist, dated 7 April 2015.
Dr Cunningham assessed you on 18 December 2014. The psychiatric and psychological reports were tendered as Exhibit 3.
17 In sentencing you, I have taken into account your personal circumstances, which were outlined in the reports and by your counsel in sentencing submissions. You are now 23 years old. You had a loving and normal childhood. Your childhood was marked by the passing away of your mother when you were 11 or 12. You left school after completing Year 11 and, very sadly, your father passed away the next year when you were 18. You took over the family glazing business at that time. You were close to your grandparents and your grandfather passed away in 2013. You remain close to your siblings and to your grandmother. You worked in the glazing business and in other jobs until about July 2014.
18
You had been using cannabis from the age of 16 and methamphetamine from around the age of 17. Your crystal methamphetamine or “ice” use increased over the three-month period prior to your arrest. You told Dr Deacon that you felt anxious whilst using methamphetamine and had developed paranoid ideas in the six-month period prior to your arrest. It is of relevance that on
3 November 2014, police had received complaints about a male approaching females in Parkville. Police spoke to you and described you as being quite erratic and that your behaviour was quite strange. The police clearly thought that you may have been using some form of drugs on that day. Police received further complaints later that night about a man making rude comments to women. A male was seen leaving the area in a white van, consistent with a vehicle that you had been driving.
19 Dr Cunningham says that when he saw you on 18 December 2014, you were psychotic. He was not able to say whether your psychosis was substance-induced or not. Dr Cunningham says that you had no insight into the delusory nature of various thoughts that you were having.
20 In describing what you recalled of your offending to Dr Deacon, you made some comments about people looking ghost-like, feelings of being followed and hearing voices. Dr Deacon reports that Melbourne Assessment Prison medical staff detected your mental health problems. He says:
“His mental state was characterised by rapid speech, over-familiarity, elevated mood, thought disorder, paranoid ideation and auditory hallucinations.”
21 Dr Deacon said these qualities were particularly evident at the time of the first assessment on 13 February 2014, but that your mental state had considerably improved by the second assessment on 23 May 2015, consistent with the benefits of prescribed anti-psychotic medication. Dr Deacon says that a formal diagnosis is not confirmed, but that you are likely to have either Bipolar Affective Disorder or Schizoaffective Disorder. It is his opinion that your mental illness appears to be independent of illicit drugs, although the combination of those circumstances “most likely contributed to the precipitation and perpetuation of psychotic/manic symptoms”. He says the fact that your mental illness continued for many months following your imprisonment suggests an enduring mental illness rather than a clearly identified drug-induced psychosis.
22 Dr Deacon is of the opinion that your mental illness was active during the period of offending. Dr Deacon addresses various bizarre aspects of your offending and says that it is likely that you were experiencing “a disturbance in mental state combined with an elevation of libido and an unhealthy preoccupation with sex”. Dr Deacon refers to you being troubled by prior sexual contact with prostitutes and rejections from females. Dr Deacon says that the account that you gave to the police contained inconsistencies and that it was unclear “if aspects of this inconsistency reflect his mental disorder and/or a conscious or wilful attempt to minimise his culpability”.
23 It is Dr Deacon’s opinion that your mental state at the time of the offending was marked by mixed features of a psychotic and manic illness process. It is his opinion that your capacity to exercise reasonable judgment and make calm and rational decisions was “clearly compromised”. He suggests that your moral culpability could be reduced, but that your prompt understanding that you committed unlawful acts immediately following offences suggests that you did understand that your conduct was wrong. It is Dr Deacon’s opinion that you will require indefinite psychiatric treatment.
24 In his supplementary report, Dr Deacon says that you have not had a thorough risk assessment in respect to repeated sex offending but that you have responded very well to anti-psychotic medication. He says that if you remain abstinent from illicit drugs and continue to comply with recommended psychiatric treatment, “It can be anticipated that his prognosis will be very good”. He suggests that the risk of you reoffending will be very low if you abstain from drugs and comply with psychiatric treatment.
25 Your counsel, in sentencing submissions, conceded that these offences were serious offences and serious examples of those offences with significant impact on the victims. Your counsel conceded that the only appropriate sentence would be a sentence of imprisonment. In mitigation of sentence, your counsel relied on a number of factors, including:
(a)your plea of guilty;
(b)your remorse;
(c)your excellent prospects of rehabilitation;
(d)the application of Verdins principles;
(e)your youth; and
(f)that you would be in protective custody.
Your counsel also submitted that there should be a high degree of concurrency in sentences between the charges in application of the principles of totality and proportionality. Your counsel addressed current sentencing standards and tendered relevant Sentencing Snapshots as Exhibit 6. Your counsel also submitted that a longer than otherwise parole period be set to allow you to return to the community in the context of supervision, in particular in relation to your mental health and drug issues.
26 The prosecutor, in sentencing submissions, accepted that there should be some degree of concurrency between sentences, but submitted that it should be borne in mind that there were three sets of offending with a number of victims. The prosecutor submitted that in relation to your time in custody, it appeared that you were responding well to medication and that you had been able to do various courses and classes despite being in protection.
27 The prosecutor submitted that while your youth and prospects of rehabilitation were important matters, the seriousness of the offending meant that sentencing objectives such as just punishment and general deterrence should have at least equal importance. The prosecutor submitted that specific deterrence and general deterrence might be moderated in an application of Verdins principles, but not eliminated, and that denunciation would still be a significant factor. The prosecutor also argued that community protection remained a paramount consideration given the nature of your offending.
28 If you are sentenced to a term of imprisonment in respect of Charges 1 and 3, then you will be sentenced as a serious sexual offender in respect of Charge 4. That brings into operation s.6D and s.6E of the Sentencing Act 1991. The prosecution is not seeking a disproportionate sentence for the purposes of community protection.
29 Russell Reid, this is clearly very serious offending. Your offending escalated over a period of time. The initial assault on M must have been extremely frightening for her. It was in front of her two small children and occurred in a confined space in female toilets. Despite the presence and agitation of her children, you went ahead and with significant physical force indecently assaulted her. The only motive that can be perceived for this was for your sexual gratification. It appears that you had been waiting for someone to enter the toilets so it was, in that sense, planned. I regard this as a serious example of indecent assault, given the circumstances and the way in which you touched M.
30 The next morning, in a somewhat bizarre episode, you went into L’s house with the intention, as it appears, of engaging in some form of sexual activity in respect of someone in the house. You exposed yourself to a child and tried to get her to come back to you. You engaged in this outside the child’s home where she was entitled to feel safe. Again, this must have been a very disturbing and frightening situation for the child and her family, who now have to live with the consequences of that. I accept the prosecutor’s characterisation of these offences as low to mid-range in respect of the aggravated burglary and in the closer to mid-range in terms of the indecent act.
31 The rape covered in Charge 4 is the most serious of these offences. This occurred in a public place early in the morning. You continued to persist in your attack, despite the victim’s pleas and struggles. You engaged in penetration against her will. Again, the motive was apparently sexual gratification. This took place in a public place in daylight hours. The attack must have been painful and utterly terrifying for the victim.
32 Your offending caused fear and trauma to the victims. It also causes fear in the community. This type of offending is the type of offending that outrages the community and makes women and other vulnerable people feel very unsafe in public places or even in their homes.
33 You are entitled to a significant discount for your plea of guilty. That plea has saved the trauma and expense of a trial. Your plea was indicated at an early stage and the committal was not contested. I accept that your plea is also an indication of your remorse. You have written a letter to the court and to the victims. You say you wish to apologise to the victims and that you are deeply remorseful. You have expressed your remorse to family members and others and I accept that you are now genuinely remorseful.
34 There are a number of other matters which operate in mitigation of sentence, but none of those factors remove the need for a sentence which denounces your behaviour and imposes just punishment for what you have done. General deterrence, specific deterrence and community protection remain significant factors in sentencing you, despite the matters which I will come to in moderation of sentence. As conceded by your counsel, a sentence of imprisonment is the only appropriate sentence in order to reflect the seriousness of your offending and the application of appropriate sentencing principles, even where the application of those principles is moderated.
35 I have taken into account in moderation of sentence your youth. You are a youthful offender and your rehabilitation must be given significant weight in the sentence to be imposed. Given the seriousness of your offending, as I have said, the question of rehabilitation reduces the impact of other sentencing principles, but does not take away from them entirely. I consider that your prospects for rehabilitation are reasonably good. That, of course, is provided that you continue with remaining abstinent from illegal drugs and continue treatment for your mental health issues. It is too early to tell whether you will be able to do that once you are released into the community.
36 It is relevant that the large number of references that have been provided from family and others, including your general practitioner, describe you as having, over a long period of time, been a helpful, cooperative and hardworking person. It appears that your behaviour started to change after the death of your father. The references describe these offences as being out of character for you, and I accept that. You are remorseful. That suggests that your underlying character is one where you do not, in normal circumstances, engage in any form of violence, including sexual violence. Your sister in her reference says that your demeanour has changed since being in custody and away from illegal drugs. Those matters support my conclusions as to your prospects for rehabilitation.
37 It is not possible to say at this stage to what extent your mental health problems will resolve if you are abstinent from illegal drugs. On the basis of Dr Deacon’s reports, I accept for the purposes of sentencing you that you were suffering from an underlying mental health condition at the time of this offending, which reduced your capacity for sound judgment. You had been using methamphetamine for a number of years prior to this incident and I am satisfied that your use of illegal drugs contributed to and escalated your mental health problems. In sentencing you, I accept that your judgment was impaired but it is clear from your behaviour and what you said to others that you had an appreciation that what you were doing was wrong and that you were, to a certain extent, able to plan and carry out your activities. In that situation, I consider that there is a reduction in your moral culpability to a degree only and the sentence will be moderated to reflect that.
38 I consider that specific deterrence should be moderated as a sentencing element because of your mental illness and also because of your youth. I consider specific deterrence still has some role to play, as it must be impressed upon you that if you do not comply with your treatment program and remain abstinent from illegal drugs and reoffend, then you will be severely punished. I consider that some moderation in general deterrence should be applied in application of Verdins principles and because of your youth. General deterrence remains a sentencing consideration and others in the community must understand that if they have mental health problems, then they should seek treatment. The combination of mental illness and illegal drugs is one that causes considerable harm in the community, particularly when it contributes to sexual violence.
39 I have taken into account in mitigation that you are a youthful offender who is being sentenced to his first term of imprisonment. I have also taken into account that you will be serving your sentence in protection. I have taken into account your youth and reasonably good prospects for rehabilitation in setting the non-parole period.
40 In arriving at the degrees of concurrency and cumulation in sentence, I have taken into account the principles of totality and proportionality and the need to avoid a crushing sentence. I have also taken into account that there were three separate incidents with a number of different victims involved. I accept that the offending in Charges 2 and 3 was close together in time and interconnected.
41 You will be sentenced to a term of imprisonment in respect of Charges 1 and 3, which means that you fall to be sentenced as a serious sexual offender in respect of Charge 4. I do not intend to impose a disproportionate sentence for the purposes of community protection as I consider that community protection has been taken into account sufficiently in the sentence that I am imposing. In sentencing you in respect of Charge 4, I have taken the requirement that that sentence be served cumulatively, unless otherwise ordered, into account, but consider that it would not be appropriate to order total cumulation in view of the principles of totality and proportionality and your youth.
42 Your plea of guilty to Charge 3 of indecent act in the presence of a child means that it is mandatory that you be registered under the Sex Offenders Registration Act 2004. Under the provisions of that legislation, you are deemed to be sentenced on two Class 2 offences and one Class 1 offence, which means that you will be subject to reporting obligations of that legislation for life.
43 Charge 1, indecent assault, you are convicted and sentenced to two years' imprisonment.
Charge 2, aggravated burglary, you are convicted and sentenced to two years’ imprisonment.
Charge 3, indecent act with or in the presence of a child under 16, you are convicted and sentenced to 12 months’ imprisonment.
Charge 4, rape, you are convicted and sentenced to a term of imprisonment of five years.
44 The sentence on Charge 4 is the base sentence. One year of the sentence on Charge 1, six months of the sentence on Charge 2 and six months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 4. The total effective sentence is seven years’ imprisonment.
45 I declare that you are required to serve four years and six months of that sentence before being eligible for release on parole.
46 I declare that you have served 308 days of this sentence by way of pre-sentence detention.
47 It is to be noted in the records of the court that your sentence in respect of Charge 4 is as a serious sexual offender.
48 But for your plea of guilty, I would have sentenced you to a term of imprisonment of nine years with a non‑parole period of seven years.
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