Director of Public Prosecutions v Rootsey

[2017] VCC 1250

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-00532

DIRECTOR OF PUBLIC PROSECUTIONS

v

COLIN MICHAEL ROOTSEY

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2017
DATE OF SENTENCE:	30 August 2017
CASE MAY BE CITED AS:	DPP v ROOTSEY
MEDIUM NEUTRAL CITATION:	[2017] VCC 1250

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW                  
Catchwords:   Sentence - Rape

Sentence:  Total Effective Sentence of 2 years’ and 6 months’ imprisonment with a minimum term to be served of 16 months’ before being eligible for parole.
Section 6AAA declaration 5 years’ imprisonment with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Dr Nanette Rogers SC	Office of Public Prosecutions
For the Accused	Mr A Malik	Victoria Legal Aid

HIS HONOUR:

1       Colin Michael Rootsey you have pleaded guilty to one count of rape which carries with it a maximum period of imprisonment of 10 years.

2       The offending the subject of the charge to which have pleaded guilty occurred on 21 May 1988. At that time you were 16 years old.

3       The Circumstances of your offending are set out in the summary the prosecution opening upon the plea and are not an issue. For that reason I will only summarise them briefly.

4       Your victim was unknown to you.

5        At approximately 12:55 AM on the morning of 21 May 1988 as your victim was walking along the street in Glenroy you approached her and asked for the time.

6       After she responded and walked on:

·     You grabbed your victim from behind

·     You dragged her into a secluded area by the side of the road told her that you had a knife and forced her to lie on her back.

7       Although your victim pleaded with you to let her go telling you that you she had to get home to see her young daughter, you again threatened her with a knife and told her to take off her jeans. When your victim informed that she was having her period you told her that you did not care, pulled the tampon out of her  vagina  and penetrated her vagina with your penis. Throughout the process of your penetration your victim was  crying.

8       Following the rape as you walked with your victim along Sydney road whilst exerting some control over your victim, when you observed some pedestrians approaching, you again threatened your victim by telling her you had a knife. As those pedestrians  neared you, your victim pulled away from you and ran towards them, which in turn caused you to flee.

9       Although your offending was reported by your victim without any delay, the charge to which you have pleaded guilty was not laid until June 2016.

10      That charge came about as the result of your DNA being matched with a DNA analysis taken from the tampon which your victim had been wearing on the evening of the rape.

11      In this instance your victim was a vulnerable defenceless woman who was abducted against her will as she was walking along the public footpath.

12      Your offending involved you overpowering your victim, degrading her by removing her tampon and forcefully penetrating her against her will in the course of which you repeatedly threatened her by telling her you had a knife. Your penetration was unprotected and carried with it the risk of transmission of sexually transmitted disease. You held your victim against her will during the offending and for a short period of time following it.

13      I am satisfied that your offending represents a serious example of a crime which is in itself extremely serious.

14      At the time of this offence you were 16 and had no prior convictions.

15      Had you been charged with the offence at the time it was committed you would have been dealt with in the Children’s Court where you would have faced a maximum penalty of some two years detention in a youth detention centre.

16      Whilst I give due weight to that fact, you have now lost that entitlement and there is no issue that  you are to be sentenced as an adult offender.

17      Your personal history is as follows:

·     you were born on 2 September 1971;

·     when you were 11 your father died of a heart attack;

·     at the age of 15 you were the victim of a sexual assault by a schoolteacher;

·     following this incident and at relatively young age you commenced abusing alcohol and illicit substances;

·     in 1991 you were involved in a police raid during which a friend was shot and killed and you were assaulted sustaining a fractured jaw injury.

18      For the purpose of your plea you have been assessed by Dr Dion Gee a forensic psychologist. In a report dated 24 May 2017 Dr Gee said that:

(i)    Your formative development was compromised by an incident of sexual abuse at the hands of your boarding school teacher when you were 15 which resulted in you leaving school and commencing the abuse of alcohol and illicit substances.

(ii)  Your development was further derailed in December 1991 when you are involved in a police raid on your home during which a friend was shot and killed by police and you were assaulted.

This event is described by Dr Gee as further destabilising your life to the extent that your substance abuse and dependence spiralled, using his words “into escalating patterns of resistive, aberrant and violent behaviour”.

19      You reported to Mr Gee that you had not worked for many years by reason of the combination of mental and physical health issues. You told Mr Gee that in 1997 you had entered into an enduring relationship which produced two children aged 16 and 18, your partner also having two older children from a previous relationship. Notwithstanding the continuation of that relationship, which you described to Mr Gee as imposing some stability in your life, you have over the years continued to abuse  various substances.

20      Since your offending you have accumulated numerous convictions the most relevant of which being a conviction in February 1990 on two counts of rape.

21      In addition you have convictions which you have admitted in respect of serious offending such as threatening to inflict serious injury, burglary and armed robbery.

22      Most recently you have served a period of imprisonment of one year and one month with respect a number of charges including burglary; criminal damage; contravening a Family Violence Order and numerous driving offences.

23      You were released on parole with respect to that offending in December 2016 and that parole expired in March this year.

24      In his report Mr Gee described you as currently presenting with an active mood disorder a moderate - major depressive disorder and alcohol use disorder.

25       Mr Gee expressed the opinion that:

(i)    you met the criteria for a diagnosis of an enduring post-traumatic stress disorder emerging from the experiences of your late adolescence.

(ii)   you present with a moderate, tending towards low moderate, risk of sexual reoffending in the future; and

(iii)  you would be assisted by an opportunity to access appropriate support and psychological services which would in turn avert the possibility of future aberrant behaviour and assist your rehabilitation;

(iv)   subject to the implementation those sorts of measures, the prospect of your rehabilitation was  fair to good.

26      Mr Gee said that any sentence involving a term of imprisonment would weigh more heavily upon you than that of a person presenting with normal mental health and would expose you to an increase risk of further deterioration in your mental health.

27      Although I am required to sentence you as an adult in this instance I do so giving appropriate weight to the fact that when you offended you were only 16 years old and that you no doubt presented with both the lack of maturity and insight which a has been recognised by the courts as being associated with offenders in that age group.

28      I also accept the position that your offending occurred at a time which your behaviour was being influenced by the trauma which you had experienced earlier in your life and your abuse of various substances

29      Whilst there is no evidence which allows me to in any way quantify the effect which each of these factors had upon the reason your offending, nevertheless their presence is relevant in that it operates to diminish to some extent the culpability associated with your offending.

30      You are currently 45 years of age you live with your partner and mother to your two children. She has described you as a good father who has always been involved closely in the lives of your children particularly at the current time in which your daughter requires support is the result of a crime committed against her.

31      Your partner commented upon your criminal history saying “his last period of incarceration seems to have a positive effect on him. He did promise us he had seen the error of his ways and would strive to make positive changes. He seems to have done this so far and we will continue to support him”.

32      You are described by a long-term friend is being a positive person, a committed father and someone upon whom she has felt she could rely on over the years.

33      You are currently unemployed and in receipt of a disability support pension.

34       In a report dated 8 July 2017 your general practitioner described you as presenting with a number of conditions including::

·     Depression;

·      Obesity;

·      Asthma;

·     Narcotic Addiction;

·      Hypertension;

·     Hepatitis C;

·      Back pain; and

·      Sleep Apnoea.

35      There is no issue that I am to sentence you on the basis that you have no prior convictions and that the only relevance of your subsequent offending is the part that it plays with respect to the prospects of your rehabilitation.

36      It is clear that in sentencing you I must have regard to current sentencing practices. It is not in issue however that in imposing a sentence which is just in all circumstances I should also consider the sentencing practices as at the date of your offending to ensure that you are accorded equal justice given the very  substantial lapse of time which has occurred since your offending.

37      Whilst I have been provided with statistics as to the sentencing regime at the time of your offending, I am not satisfied that those statistics provide me with any real guidance in this instance given that the statistics contain no clear detail as to specific sentences which have been imposed or why those sentences were fixed as they were.

38      It is clear however that the maximum sentence with respect to this charge has increased from that applicable in the present case at the time of the offending namely 10 years, to the current sentence for offences of this nature namely 25 years.

39      In the course of your plea I was urged to consider implementation of a Community Corrections Order. It was put on your behalf that such an order should be imposed in the absence of the imposition of any sentence of immediate imprisonment.

40      The position of the prosecution was that, given the serious nature of the offending involved in this instance, whilst an appropriately structured Community Corrections Order may fall within the appropriate sentencing range it would not do so unless such an order was combined with an immediate period of imprisonment.

41      You have been the subject of an extended pre-sentence assessment to consider your suitability for the imposition of a community corrections order.

42      In the course of that  assessment you were considered suitable for a community corrections order and it  was noted:

·      that you had been the subject of 18 community-based dispositions in the past all of which were succession successfully completed;

·     that you tended to minimise your role in the offending leaving out the more troublesome details outlined in the police summary;

·     that given the range of issues with which you presented should a community to corrections order be imposed a high level of intervention would be required a high level of intervention ;

·     you were described as presenting with a high risk of further offending in a general manner;

·     you required specialised assessment to determine your risk of committing further sexual offending.

43      In my opinion other than your good history of complying with community based dispositions, the serious nature of your offending when considered in the context of the balance of the above findings provide any support for Community Corrections Order being appropriate in this instance.

44      In sentencing you I do so giving appropriate weight to:

·     the evidence relevant to your current situation both as to your position as a 45-year-old family man who has obligations both his partner and to his children;

·     the evidence as to your mental state: and

·     your prospects for rehabilitation.

45      Given your history and pattern of offending over the years since the commission of the current offence, I am satisfied that I should approach your prospect of rehabilitation with considerable caution notwithstanding the evidence of Dr Gee as to this issue.

46      In fixing your sentence I am satisfied that your age at the time of your offending and your history of being a victim of sexual offending operate so as to reduce your moral culpability and also to reduce the influence which the concept of general deterrence should be accorded in fixing your sentence.

47      That having been said in my view the need to make a statement which condemns this type of offending and deters other would-be offenders still have a  role to play in the sentence which I am to impose.

48      I am also satisfied that the fact that you have pleaded guilty in this instance and the timing of your plea warrants an appropriate discount being made in the sentence which would otherwise have been imposed.

49       Notwithstanding your subsequent conviction in 1990 in respect of two counts of rape one count of vaginal rape and one count of oral rape upon the same victim, I am given the absence of any further offending of this type by you in the intervening period that the concept of the need to deter you from this type of offending specifically should not be accorded significant weight.

50      I have been urged in this instance that the imposition of an appropriately structured community corrections order would satisfy the sentencing requirements given:

(iii)  The period which has elapsed since the time of your offending;

(iv) the nature of  your offending; and

(v)  the totality of your personal circumstances, both of the time of your offending and now.

51      I have given anxious consideration as to whether such an order should be imposed in this instance.

52      I am satisfied that the seriousness of this offence is such that it demands the imposition of an immediate prison sentence and that given the comments made in your assessment report to which I referred, the imposition of a Community Corrections Order  in combination with a sentence of imprisonment falls outside the range of appropriate sentencing options in this case.  

53      In fixing  your sentence I give due weight to all the matters set out by Dr Gee in his report and in particular his statement the service of a period of imprisonment would weigh more heavily upon you than it would upon a person in normal health.

54      In all circumstances I am satisfied in this instance that I should impose a sentence which involves an immediate period of imprisonment  in respect of which the head sentence is 2 years and 6 months.

55      Taking into account all the matters to which I have referred but in addition the fact that I am satisfied that your rehabilitation in this instance would be assisted by your release from custody being associated with a significant period of supervision within the community, I fix the minimum period for which you are to serve before being eligible for parole for 16 months.

56      But for your plea of guilty in this instance I would have imposed the head sentence of 5 years with a minimum period to serve of 3 years.

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