Director of Public Prosecutions v Richards

[2016] VCC 113

Pages 1 - 8   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-01334

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND LINTON RICHARDS

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2016] VCC 113

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Offender	Mr G. Casement

HIS HONOUR:

1Raymond Linton Richards, you have been found guilty by a jury a fortnight ago of one charge of common assault and one charge of rape.  Those crimes carry maximum penalties of five years and 25 years.  You are now, as I understand it, 32 years of age.

2You ran a trial and accordingly do not get the benefit of a plea of guilty, which in these circumstances can often be a very significant mitigating factor.  I do not hold the running of the trial against you obviously, and as I indicated to your counsel, I thought he conducted the trial economically and with proper respect for the complainant.

3Nevertheless the fact remains that you do not have that benefit either of effectively remorse in the legal sense as we look at it, or the utilitarian benefit.  You have a long criminal history involving periods of incarceration.  You have nothing in that history that could be described as a sexual offence.  However you have numerous convictions for threats, violence and dishonesty.

4I also note as I look at that criminal history that there are matters from the Children's Court which would appear to me to be stale and accordingly I take no notice of them at all in this sentencing process.

5At the time of the offending you were 30 years of age.  The complainant, who I will refer to as "JC", has a cognitive impairment, namely autism, with an associated intellectual disability.  I have no doubt you were aware of that.  You, yourself, have been determined to have an intellectual disability as well as an acquired brain injury and other emotional and mental difficulties.

6On 9 November 2014 you were initially drinking and had been at your stepfather's place and then a neighbour's place, that is neighbour to the complainant.  This offending all took place in Rosetti Court in Sale.  You appeared intoxicated to the neighbour.  In your own record of interview you said that you had drunk something in the order of half a bottle of port, but that was a walk in the park for you.

7You went to the complainant's house shortly after 7 pm and knocked on the door.  When she answered you said that you had come to say goodbye because you were moving to Western Australia for work.  You also told her, I accept, that you had spoken to her partner, Lee Hamilton, and he had said it was all right for you to be there.

8When interviewed by the police you said you had telephoned her before going to the house.  I reject that.  It is clear from the record of interview and what took place in the trial that from an earlier occasion in the week at a hotel you knew that the partner of the complainant would not be at home and in all probability she would be there by herself.

9You claimed in the record of interview that you had a prior sexual relationship with her and I also do not accept that. No doubt that the jury did not accept these matters either, even though they acquitted you of one charge.

10I do however in all the circumstances find that you did not actually go the premises with the intention of sexually assaulting the complainant.  In my view the probabilities are that you knowing that her partner was not home and you having plied her with compliments previously may have had the view that she would actually consent to having sex with you.

11In any event, when you arrived at the premises the complainant sent a text message to Mr Hamilton, that is her partner, saying that "Hornsey's here", which is you.  She let you in because she said she was worried you would be angry if she did not.  There was then a game on a Wii playing bowling, and while I accept that while that game you were telling her that she was a beautiful girl and that you wished she was with you rather than with
Mr Hamilton.

12After a time Mr Hamilton rang.  She spoke to him and a conversation took place.  You, in your interview, said that you were unaware of any such conversation, and again I do not think that is true at all.  Mr Hamilton told her that if you came into the house that she should ring the police.  She effectively said that you were not there by not answering at all.

13She said that you were near her making gestures while she was on the phone to Mr Hamilton and I accept her evidence on that point.  She said she was scared of what you might do.  In any event, timeframes and the like where two people have significant intellectual problems are of little relevance.  What did happen though, I accept, was that you asked her to find a white T shirt that you had left there.

14She went into the bedroom to look for it.  It was in a pile of clothes or on a pink chair.  You followed her in.  As she started to look through the clothes you grabbed her round the neck from behind and held her forcefully.  She started to scream.  You put your hand over her mouth so she could not breathe.  You were acquitted of the charge of threat to kill.  That may be because the jury were not satisfied that you were reckless as to the fear that actual threat being carried out or that you intended to believe it would be carried out.

15In any event, I suspect you must have said something because I accept her evidence that she then said, "Yes, I'll do it."  In that situation, after the physical violence, she took off her cardigan and her pants and underpants.  You took off her T shirt and you took your own clothes off.  She said that she took the clothes off effectively because you told her to.

16You then grabbed her by the wrists and put her onto the bed and you said, "I'm not going to hurt you," and lay her down on the bed.  You kissed her.  You said, "Would you like to play?" while touching your penis and she said, "No."  In the end you inserted your penis into her vagina without her consent.

17You had sex with her for about three minutes it would seem, with no protection.  I accept that she did not consent and the jury obviously accepted that you were aware of that.  There was cross-examination during the course of the trial about her having made comment to you whilst you were having sex with her, and also her having hugged and kissed you back.

18In her simple way she said that was because she was afraid she would annoy you.  I can fully understand a girl with her limitations just feeling overwhelmed and submitting to what was occurring.  In any event, after ejaculation, according to you, you stopped, you said that were sorry and that you felt bad about what you had done.  You said you were going to go and get dressed.  You did, and as you left you said, "I'm going to miss you, and please don't tell anyone, don't tell the police."

19From that is a supposed indication of remorse though the trial was not conducted in that way, but also shows clearly that you were fully aware that what you had done was wrong and were fully aware that the police were not to become involved or you would be in trouble.  That is important because it goes in my view to the moral culpability referred to in the principles in Verdins.

20In any event, a very short time after you left the premises she rang 000.  That tape was played to the jury and she is patently distressed, patently frightened and clearly somebody who has just been violated.  That 000 tape, in my view, in front of a jury was virtually unanswerable.

21I have indicated that when you were interviewed by police you denied it, you said that sex had taken place, but it was consensual and that you had done it before.  It is a very unconvincing record of interview and clearly the jury rejected the bulk of it on the basis of having accepted her evidence beyond reasonable doubt.

22The two victim impact statements have been provided, one by JC and one by her mother.  She said, and I say this having watched her give evidence in a simple and at times I think overborne, in her own, mind way, "The crime has made me feel - I felt very afraid, very scared.  I felt like the world is a dangerous place even in my own home.  I can't be sure that I will be safe."

23She went on later to say, "Then I got very angry.  This made it hard to be around people because they didn't understand, and I don't think people do unless it happened to them.  This makes me feel very alone sometimes."

24Her mother, bearing in mind the disabilities of her daughter, said in her victim impact statement, "This crime has had a huge impact on my emotional wellbeing.  As a mother of a daughter with special needs, knowing that my daughter is vulnerable and easily overpowered, I felt such grief and sadness that she has been hurt and been frighted.  The trauma of having to sit while my daughter made her statement and hear her tell what happened to her was almost unbearable.  Being devastated by the emotional impact of the crime on her and being powerless to protect her from it is also unbearably traumatic."

25That is the effect that your offending has had, although bearing in mind your disabilities I do not suspect that your sense of emotional awareness of others would have necessarily made you conscious that that would be the ultimate result of it all, but that is the effect that it has had on those two people.

26I think the offending is indeed serious.  It is a young, vulnerable woman who has been raped in her own home by a person who on the face of it at least purported to be a friend of the family, for want of a better word.  In the normal course of events of course the application of general and specific deterrence, as well as denunciation and appropriate punishment, a significant gaol term is inevitable, and in my view, having run a trial, that the concept involved in Boulton insufficient for these purposes.

27Tendered on your behalf were some letters, a justice plan, and an accompanying document, a neuropsychological report.  I firstly take into account that you have apparently prior to this endeavoured to assist police in a way, and I will give you some benefit for that.

28Realistically you have been a serious alcoholic since around about the age of seven or eight or nine and you were using - inhaling intoxicants at around about the same age.  You have done that for most of your life and you now have an alcohol related acquired brain injury.  I accept that whilst you were a child in 1992 you were diagnosed as having an intellectual disability and I have the certificate to that effect.

29I accept that you also suffer from severe anxiety and depression and that there are symptoms consistent, at least, with a post-traumatic stress disorder.  Those matters obviously have a place in so far as Verdins is concerned.  I think that your moral culpability is not to be reduced because you clearly knew this was wrong and clearly tried to lie your way out of it afterwards.

30However I think as a matter of policy, if nothing else, matters of general and specific deterrence should be moderated to a degree.  I do not think that these conditions will make it any harder for you in gaol.  It seems to me that you are no stranger to a gaol and it probably does not cause you all that difficulty.

31You have indicated to your counsel, to your credit, that you want to be sent to Fulham so that you can do educational courses.  I do not think in this situation I need to really go through your history in great detail.  There is a number of documents that were provided on that behalf.  I think it is sufficient to say that you and your twin were the youngest in a family, that you had a very, very difficult childhood, that you were clearly abused.

32That resulted in DHS taking you away at an early age and you became a ward of the state.  As I indicated you have had an alcoholic history since you were about seven, inhalants since you were around about the same age, and the matters of anxiety and depression and PTSD, as I reported before.

33You have on occasion been admitted to psychiatric facilities.  At the time this took place you were working with mental health people in Sale and you clearly have difficulties with anger, agitation and the like.  Your powers of certainly communication would appear to be limited and those reports speak for themselves.

34You had the often disastrous experience of going to many different schools and having very little nurturing in your youth.  I have taken all those matters into account as best I can.  I am comforted to a certain extent by the fact that you do not have any prior convictions specifically for sexual offending.  You clearly have anger problems, and as I have indicated, the amount of times that you have been convicted of threatening people, either with death or serious injury, is heading towards double figures.

35The prospects of your rehabilitation are therefore problematic.  The risk of you re-offending, bearing in mind your past history, has to be high, though I would hope very much not high in so far as this type of offending has occurred.  At least it may be fortunate for you that a jury acquitted you of threat to kill, but be that as it may.

36Taking all those matters into account and looking at the gravity of the offending, and being very conscious of the difficulties that you have suffered through your life, it is serious and on the charge of common assault you are sentenced to be imprisoned for a period of six months, and on the charge of rape, four years and six months.

37I set a minimum term of three years before you become eligible for parole.  The six months is to be concurrent with the four years, six months sentence.  That means an effective head sentence of four years and six months with a minimum term of three years, and PSD of 15 days.  There is no other orders I have to make?

38MR CASEMENT:  No, Your Honour.

39HIS HONOUR:  Thank you, gentlemen.

40MR CASEMENT:  If Mr Richards could remain for a moment, Your Honour, and I'll speak to him.

41HIS HONOUR:  You want to talk to him?

42MR CASEMENT:  Yes, I'll talk to him now before.

43HIS HONOUR:  Yes.  I'll just let him explain what has happened, fellows.  That is all right.

‑ ‑ ‑