Director of Public Prosecutions v Reimann

[2019] VCC 26

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-00956

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARRY REIMANN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	25 January 2019
DATE OF SENTENCE:	25 January 2019
CASE MAY BE CITED AS:	DPP v Reimann
MEDIUM NEUTRAL CITATION:	[2019] VCC 26

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown
For the Accused	Mr G. Barns

HIS HONOUR:

1Garry Reimann, in 2016, you were living in special accommodation boarding facility in Buninyong.  You were there because you suffer from schizophrenia.  One of the other residents was the victim who also suffers from schizophrenia and is intellectually disabled.

2The facility in which both of you were staying allows as much independence to the residents as it can.  So it was at around the evening of 1 November 2016, you invited the victim to your room.  You had been drinking earlier on.  The summary of the prosecution opening outlines what happened thereafter.

3The victim came into your room wearing pyjama pants and a T-shirt.  You asked her to sit down and she did.  You were talking.  You then started to touch the victim's stomach and her breast over her clothing.  You lifted up her T-shirt and kissed her nipples.  She told you to stop but you did not.  She again told you to get off her but you continued.

4You then told her to lie on the bed and she did.  You pulled her pyjama pants down and removed an incontinence pad.  She told you not to touch her repeatedly.  She said for you to stop but you laid on top of her.  She told you to get off.  You then inserted your penis into her vagina.  She told you to stop but you kept going.  Ultimately you ejaculated.

5There was exchanges thereafter but she had a shower in your room, put her clothes back on and stayed for another hour or so watching television but ultimately she left, showering again in her own room.  She felt embarrassed and ashamed blaming herself for what had gone on and she felt she could not tell anyone.

6The next day the staff of the facility noticed that the victim was not herself being flat and quiet.  Then another resident told the staff that you had had sex with the victim.  The manager and her assistant spoke to the victim, who after reassurance that she would not be in any trouble, told the management of her ordeal.  The same two managers spoke then to you.  You made some admissions.  The police were called.

7You were asked to leave the facility and were arrested in the streets of Ballarat and interviewed on 8 November 2016.  You admitted having sex but asserted that it was consensual.  You were granted bail.

8Thereafter, your case was, in my view, not well-managed by your then local Ballarat solicitors.  Fortunately, following some pre-trial argument in March 2018, you secured different lawyers and the matter moved quickly to resolution and you pleaded guilty on 22 August 2018.

9Your plea was heard on 30 November 2018 and adjourned to today for sentence.  Your counsel, Mr Barns, submitted that delay was a mitigatory factor in this case and I agree.  This matter could and should have been resolved earlier.  None of the delay was your fault or the prosecution's nor the court's, in my view, but you have been on remand since you were arraigned and pleaded guilty, now for a total of 156 days.  It seems you are well-settled in the prison and speak of enjoying work and forming some new friendships.

10To return to the crime itself, it is obvious.  All rapes are grave crimes.  Your offending had a particularly serious aspect to it in that it involved the sexual violation of a particularly vulnerable woman, someone who you knew.  It was an element of trust that when she came to your room, she was entitled to trust that you would be respectful.

11I will speak of the other principle sentencing purposes shortly but is plain at any point and certainly at this point that there is no other just and appropriate sentence but one involving a term of imprisonment for some years.

12As to your personal circumstances, you are now 53 and you grew up in the Ballarat area.  It seems your father drank too much and was consequentially violent to your mother.  You, however, got on well with your father until you commenced using drugs.  Your parents separated about 20 years ago.

13You went to school locally and after school you worked from time to time in a variety of unskilled and semi-skilled jobs.  You have not had work for over ten years.  You have not had any long-term relationships and are socially isolated.

14The most significant and harshest aspect of your personal history is that you have lived with serious mental illness for all your adult life.  You have lived most of your life in various regional supported residential accommodation in Victoria and for a time in Western Australia.

15Your finances are a disability support pension and they are controlled by State trustees.  You have been in contact with mental health services in Victoria and in Western Australia as well for at least 25 years or more.  This has involved in-patient and out-patient treatment.  You are medicated with antipsychotic medication and have been on regimes of depo injections to ensure compliance.

16You reported some drug use in your teenage years but abstinence since.  It seems you have a longstanding problem with excessive use of alcohol.  You have been before the courts, that is the Magistrates' Courts, before but not for some time and never at this level of seriousness.  There were many appearances in the Magistrates' Court from 1986 to 1990.  Then you went to Western Australia and were before the lower courts in that State reasonably regularly, 1990 to 2002.

17Thereafter, you were before the Magistrates' Court again in Ballarat in 2003 and were imprisoned at that point for five months.

18Thereafter apart from one matter in 2007 and four appearances in 2008 which resulted in relatively minor penalties, you have not been in trouble since that time until this crime.

19Your previous offences involved dishonesty, driving, public disorder and some violence but no sexual offending.  You were assessed by the respective forensic psychiatrist, Dr Pangurangi.  His report was dated 9 November 2017 and was very helpful.

20As noted already, you have lived with mental illness for many years.  It is necessary to understand the nature and severity of your mental illness so as to properly determine whether the weight to be attributed to any of the relevant sentencing purposes ought be moderated by reason of your mental or as it is known to the law, your impaired mental functioning.

21Thus, I must refer to aspects of Dr Pangurangi's report including aspects of what you said to him in the interview he conducted.  I do mindful of not unnecessarily embarrassing you by reference to what were bizarre statements.  It is a requirement that the evidence of any impaired mental functioning is rigorously analysed if it is to legitimately mitigate what is serious offending.

22In your interview on 8 September 2017, you told Dr Pangurangi that you had, "Confidential information to tell and you had to be careful who you disclose this information to as it impacted upon 'chances of staying alive'".  You spoke to him of, who you say is, a famous uncle with his aeronautical inventions and his work for NASA.  This topic was obsessively spoken of by you in your interview with the police and - and this is not held against you but in moderate outbursts, in the court from time to time.

23You went on with Dr Pangurangi to speak of other relatives saying that your great great grandmother had married Mary, Queen of Scots, and that you hailed from a royal family.  You described these as your roots but you did not feel you needed to be treated as royalty but you spoke of giving your life to work for the queen and have been given the name Luke Skywalker.  You had planned to talk to the late Princess Diana inviting her to where you were in Broome and giving her advice.  You felt you had something in common with her.  "She was not supposed to die", you said.

24You then spoke to Dr Pangurangi about your own grandiose identity, that is a Hollywood movie, The Prince of Bel-Air, was based on your life.  You said TV presenters in Australia had spoken about all this and that your life had in fact been a movie.  You said that there were songs with your name in it and you had other abilities, such as seeing the future and that you were Kakadu.

25You expressed disappointment to Dr Pangurangi saying,

"I was the good guy who the world was creeping up to.  Now, I am the bad guy."

26Dr Pangurangi thought this referred to your current charges and you described giving your life away for the country, living as a decoy and this is what you got in return, referring to the current charges.

27Dr Pangurangi's view was that given your accounts, your presentation in the interview, your long involvement with the mental health services in Victoria and Western Australia including hospitalisations, your treatment with antipsychotic medications both oral and at times depo, that the proper primary diagnosis was paranoid schizophrenia.  He considered a differential diagnosis of schizoaffective disorder.

28The precise diagnostic label is not so important for my purposes but it is clear that both illnesses are well-known as mental disorders that cause impaired mental functioning.  Dr Pangurangi's view was that your illness was treatment resistant though it seems that clozapine known and described by Dr Pangurangi as the gold standard antipsychotic in these sorts of circumstances had yet to be tried.

29Of note is that you told Dr Pangurangi that you had not taken your oral medication in the two weeks before the offending.  Dr Pangurangi said the following with regard to your impaired mental functioning and its impact upon your offending.  He says,

"From the information available to me, I would consider that a combination of his underlying attitudes [that is antisocial attitudes that have seen you commit crimes in the past] your chronically unwell mental state, your non-adherence to prescribed medication and the use of alcohol would have contributed to the alleged offending."

30He goes on,

"He described having a 'urge' to have sex prior to the alleged incident.  However, there is limited evidence to indicate a direct causal relationship between his mental illness and the alleged offences.  There was also no evidence to indicate that his mental state at the time would have impacted on his ability to understand the wrongfulness of his actions."

31But as identified by our Court of Appeal in the well-known case of Verdins, an impaired mental functioning need not necessarily diminish an offender's capacity to understand the wrongfulness of his criminal actions for there to be some mitigation.  The principles in Verdins extend to an impaired mental functioning diminishing an offender's capacity to exercise appropriate judgment, reason calmly and apply sound consequential thinking.

32In my view, your enduring and significant disordered thinking combined with the exacerbating absence of your proper medication at the time leads me to be satisfied to the relevant standard that there is sufficient causal connection between your impaired mental functioning, that is your lack of calm judgment as to the sexual circumstances at the time, and your impulsivity in acting as you did and I consider you did not think through the consequences because of your impaired mental functioning.

33Thus, I consider your moral culpability is lowered and thus the weight in the matter of denunciation is to be moderated in this case.

34I also consider that the nature and severity and enduring aspect of your impaired mental functioning at the time and subsequent to the offending in particular at this point of sentence is such that you are not an appropriate vehicle for general deterrence, that is a message to others.  You are different.  This important sentencing purpose of general deterrence is not eliminated but it is significantly moderated given the nature and severity of your mental illness.

35Likewise, specific deterrence is properly and appropriately moderated.  You do not have any past sexual offending nor many for violence and those are over a decade ago.  Your disordered thinking makes the specific message of deterrence to you likely not to be appreciated in any event.

36Though you have spoken of your engagement with others in the prison, I consider your simple, naïve interactions and your bizarre thoughts make you particularly vulnerable in the wide, brutal prison population.  Your impaired mental functioning will make prison more onerous than it would have been had you not been suffering from your impaired mental functioning and thus the penalty will be appropriately and properly mitigated for that reason as well.

37Your plea of guilty is important and relieve the vulnerable complainant of being challenged at trial or indeed at committal.  I have spoken enough about the delay in resolution.  I consider this plea to be a valuable one that came quickly once you were well-represented.

38If you receive good psychiatric treatment and the most effective antipsychotic medication while in prison, you may well see some inroads into your to-date treatment resisted schizophrenia.  However, in terms of the future, you are likely to have to continue to live with the burden of serious mental illness for the rest of your life.

39It is hoped you can resettle in supported accommodation upon your release but in general terms with respect to criminal conduct, your prospects of rehabilitation are guarded and linked to treatment and settlement of your mental health.  That itself of course is linked to your compliance with antipsychotic medication.  It is hoped that there is depo medication provided to you into the future.

40Doing the best I can in this matter in imposing a sentence that does take into account those mitigatory matters that arise because of your serious mental illness, I impose the following penalty for the crime of rape.

41You are sentenced to be imprisoned for four years and I fix a minimum non-parole period in this case perhaps unusually of two years.

42You have already served 156 days of the sentence I have just imposed.  This figure having been reckoned, I now declare it part of the sentence that I have just imposed.  I will ensure the declaration is entered in the records of the courts so that prison authorities are left with no doubt that you have already served 156 days of the sentence that I have just imposed.

43Had you pleaded not guilty to these offences and being found guilty of them, I would have imposed a sentence of six years and six months with four years and six months.

44I make orders for disposal of items as requested by the Crown in their application.

45Further, I intend to make an order that you provide a forensic sample.  I do on the basis of the seriousness of the offending and that the granting of the order is in the public interest.  To some extent, your prior convictions also play a role that would not of themselves have warranted the making of the forensic procedure order.

46What all that means is that at some point, Mr Reimann, the authorities will request a scraping from your mouth so that they can get your DNA and keep it on a database.  That is all that is about.  Just DNA on a database.

47OFFENDER:  I thought the police did that when they arrested me anyway.

48HIS HONOUR:  Yes.  Yes.  The next step is that if you do not cooperate with it, I am sure you will, then they can use reasonable force to enable the procedure to be conducted.  Is there any further matters?

49MR BROWN:  Nothing, Your Honour.

50MR BARNS:  Nothing, Your Honour.

51HIS HONOUR:  All right.  Just bear with me to sign some documents.  I thank counsel for their assistance in this matter and the solicitors who became engaged at a later point.

52MR BROWN:  I will pass that on.  I appreciate it, Your Honour.  Thank you.

53HIS HONOUR:  Thank you.  And Mr Reimann, Mr Barns will come and see you downstairs but if you would not mind going with the ‑ ‑ ‑

54OFFENDER:  No worries, Your Honour.  I'm sorry for my behaviour.

55HIS HONOUR:  Not at all.

56MR BARNS:  Thank you, Your Honour.

57HIS HONOUR:  Thank you.  Stand down.

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