Director of Public Prosecutions v Richmond (a pseudonym)

[2017] VCC 57

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01959

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN RICHMOND (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	2 February 2017
CASE MAY BE CITED AS:	DPP v Richmond (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 57

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Moore and Mr P McKay	Office of Public Prosecutions
For the Accused	Mr B Newton

HIS HONOUR: 

1John Richmond[1], you have pleaded guilty to one charge of assault with intent to commit a sexual offence, that sexual offence being an oral rape.  You have also pleaded guilty to one charge of recklessly cause injury.  Those crimes carry maximum penalties of 15 years and five years respectively.

[1] A pseudonym.

2You are 27 years of age and are still therefore a relatively young man.  You pleaded guilty to a settled indictment and I give you the benefit of that.  There was some discussion with your counsel about the facilitation of that plea, but in any event I will give you credit for ultimately remorse and, of course, you must get the utilitarian benefit of that plea of guilty.

3You do have significant prior convictions but for this particular offending I accept that they were not assaults against a woman and in my view really show that you have some anger problems, and I take that no further.

4You do also have approximately 150 days of what can be described as Renzella time and I take that into account.  You have also spent a significant period of the time that you have been in custody, which is now some 292 days, in 22-hour lockdown and I take that into account.   You have been in custody since April of 2016.  You are not in protection, and during the course of that period of custody, of course, you have done a 150 day sentence for various forms of offending including drugs and a firearm, but again, that does not particularly concern me in this sentencing exercise.

5You were in a relationship with the complainant for some three years.  During that period of time you had a daughter who was born in 2012.  She had two other children from a previous relationship and they referred to you apparently as a father figure.  You and she separated in January of 2015 and you moved away.  You continued to have occasional agreed visitation and custody of the three children.

6Soon after the end of that relationship you formed a new relationship with the complainant's then friend.  Although you were in a relationship with that friend, you continued to engage in a casual affair-sexual relationship with the complainant between January and December of 2015.

7During this time you and she exchanged a number of explicit sexual photographs and call charge records and screenshots from her phone depicted what is described in the Crown opening as "a tumultuous range of messages" from you, verbally threatening her and sending photographs of your penis to her.  In the report of Dr Sullivan, which I will refer to later, a message was quoted which says, in August of 2015, some few months before, "I really want to punch the fuck out of you, choke you with my cock while punching you in the face as hard as I can.  I want to see tears running down that slutty face, then I want to load your mouth with cum.  I'm going to make you scrape all the cum off your face into your mouth".  That pretty much is what you did on the day we are talking about.

8What the nature of the relationship between the two of you was and the sexual aspects of it I am not buying into.  I advised your counsel if that was going to be put then I would want to see all of the messages that were sent.  In any event, it is accepted that the complainant on this day went into her bedroom expecting that sex would take place and there is no suggestion that she had the expectation that it would be non-consensual.

9On 16 December at 4 pm you attended her home.  You dropped the children back at the address that you had them with you during the day.  You then remained to construct a toy car, and that does not seem to be in dispute.  You and the complainant went into the complainant's bedroom and, as I said, she expected that you were going to have sex.

10She sat on the bed and you then stood in front of her, exposing your erect penis to her.  She then pushed you away and said to you, "It's been going on for 11 months.  Are you ever coming home?  What is this?  Why are you doing this?"  You replied, telling her that you and her had been through this ten thousand times before and simply demanding that she "just suck your dick".  She replied, "No, I’m not doing it, I'm not playing games any more.  Why don't you get your girlfriend to do it, why can't she do it, why do you have to come here and do it?"

11At that stage it was clear that she did not want to be involved in this.  You then pushed her by her chest down on to the bed, climbed on to her chest, holding her wrists down by her hands.  Medical examination later would appear to confirm that that is in fact what occurred.  She observed you attempt to insert your penis into her mouth.  You aimed it for her mouth, and as you were doing this she resisted by turning her face and mouth away.

12You pushed your penis into the right side of her face as she continued to turn her face away.  You then masturbated yourself with your hand, ejaculating semen on to the right-hand side of her face.  You then got off.  She wiped her face with her hand and then wiped semen on to your black-coloured T-shirt.  At that point a fight broke out and she pushed you and you fell on to the bedroom floor.  The children then came into the bedroom and observed what occurred after that.

13You retaliated, is the word that the Crown opening uses, by hitting the complainant in the face.  One of the children was heard to say, "Dad, stop hurting Mum".  When the complainant in the presence of the children said, "Stop, the girls are watching" you replied, "It's your fault, you want them to hate me".  She then kicked you in the neck to get you off and broke a necklace that apparently you were wearing.

14You then kicked and punched her in the face and left in your car.  She went into the bathroom and wiped her face with a red and white Chux wipe and took off the dress she was wearing.  Police later seized those items and they tested as I understand it, although it does not matter at this stage, positively for your DNA - semen, as I understand it.  That occurred at around about 4 o'clock or so.

15At 5.40 pm you sent her a text message, "You do anything to fuck my life and you will pay".  She supplied police with a copy of this message and you are lucky you  are not charged with attempt to pervert.  In any event, she contacted her mother who attended at the house and told her that you had belted her, told her you had hit her around the head and you tried to make her suck you and that you had come all over her face.

16As I said, she spoke to police, she was medically examined and the story was consistent.  Independently of that, the description she gives of putting semen on to your T-shirt was proved to be correct by DNA sampling.  When you were interviewed by police you denied ever having had any sexual contact with her since the separation some 11 months earlier and denied recently sending the complainant explicit messages.  Clearly, those matters were in the end result proved, but in any event, as your counsel has pointed out, you did plead guilty.  There is no victim impact statement before me.

17The crimes are obviously serious and call for the application of general and specific deterrence as well as denunciation and appropriate punishment.

18The crime of assault with intention to commit a sexual offence would cover a wide range of activity.  Clearly, it covers indecent assault, indecent act, all sorts of various forms of sexual assault.  The form here that clearly you intended was an oral rape.  I am not aware of the statistics in relation to this particular offence and there may indeed not be any, I do not know, but it seems to me that insofar as this offence is concerned, the situation of being so close - though I am very aware that you are not charged with attempted rape - and ejaculating over her face in those circumstances in my view makes it a very serious example of this particular type of offence and, as I say, an offence which can have a wide variety of examples.

19The assault took place, a vicious assault, in the presence of the children, who asked you to stop.  That aggravates it significantly in my view.  Another matter which I again raised with your counsel is that the complainant's daughter later disclosed to her mother, "that Mummy should suck  his dick".  Where that comes from I have no real idea.  I daresay that the dispute about you telling her to suck your dick was not done in whispers, but in any event it is most concerning that a child of that age had that knowledge. 

20The children saw you sitting on top of the complainant on the bed and hitting her.  There are no victim impact statements from them either, but children watching that sort of conduct are going to be damaged. 

21A significant gaol sentence is the only available option in this matter, and when I raised the question of a combination order, saying that I thought that the gaol component would be significantly lower than would be available, there was no demur from that point.

22I then look to matters personal to you in terms of determining the appropriate length of that sentence.  Tendered on your behalf were submissions and a report from Dr Danny Sullivan, a psychiatrist who is well known.  He goes through your background, and that can be done in very short compass.  I accept that you had a very disrupted background and that you were treated badly.  I accept that you are and have been over an extended period of your life disadvantaged, and I take that into account.

23You came under the care of DHS when you were around about 12, and foster parents.  Around about the age of 15 you came out of that care and were essentially for a period of time, about a year as I understand it, homeless.  You were eventually able to get accommodation in your own right and formed a relationship with a woman, with whom you had a couple of children.  People in your situation have to grow up very, very quickly and I am well aware of the dreadful consequences that sort of upbringing can have.  I take all those matters into account.

24I take into account that you have a number of children and that you have a child who prior to your incarceration you were, it would seem, the primary caregiver.  It was put to me by your counsel it is your intention to do courses and become a proper parent.  As I say, I indicated during the course of the plea this conduct and then blaming the woman that you are bashing for what is happening to her in front of the children is unfortunate to say the least.

25The report from Dr Sullivan as I said goes through those matters.  You went to Year 8 at school and had various jobs of a relatively menial nature and have obviously spent quite a long time on Centrelink.   You have at an earlier age been admitted to the Flynn Unit here in Latrobe Valley after self-harming and I accept that you had intermittent depression and other difficulties over the years.  You recall seeing a psychologist when you were a child but cannot remember what for.

26You have used drugs, and it is my view that has really got nothing to do with any of this.  As far as I can, I take those matters into account.  The prospects of your rehabilitation and the risk of your reoffending are realistically up to you.  I do take into account that this occurred in a situational manner and there is no evidence of any predatory conduct in relation to sexual activity.

27In the end, Dr Sullivan said, "There is no overt indication of a sexual disorder.  Whilst text messages and the current offence may suggest concerning attitudes of sexual entitlement and the conflation of sex with violence and degradation, these would not be sufficient to satisfy a diagnosis of sexual sadism or other paraphilia.  The behaviour in text messages communicate concerning attitudes towards women.  Even if taken as fantasy, they are not representative of intention, they are sadly minimising a sexual violence.  The context of his assault on his ex-partner constituted as family violence".

28The offending clearly was one of your perceived entitlement and the degradation of your victim and the sentence must reflect that.

29In any event, taking into account the submissions made by your counsel and the matters contained in his oral submissions and the report of Dr Sullivan, you are sentenced as follows.

30On Charge 1, four years.  On Charge 2, 12 months    I direct that three months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1.  That significant concurrence is because of the close proximity of the two offences.  That gives an effective head sentence of four years and three months.  I direct that you serve a minimum term of two years and ten months before becoming eligible for parole and I direct that 142 days be reckoned as having been served under this sentence.

31Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to six with a four.

32Are there any other orders I have to make, gentlemen?

33COUNSEL:  No.

34HIS HONOUR:  Yes, thank you, you can take him out.

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