Director of Public Prosecutions v Roulston

[2018] VCC 1484

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00903

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON ROULSTON

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2018
DATE OF SENTENCE:	13 September 2018
CASE MAY BE CITED AS:	DPP v Roulston
MEDIUM NEUTRAL CITATION:	[2018] VCC 1484

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Pillai	Office of Public Prosecutions
For the Accused	Mr T. Sawyer	Aughtersons Lawyers

HER HONOUR: 

1Jason Paul Roulston, you have pleaded guilty to one charge of rape.  The maximum penalty for that offence is 25 years' imprisonment. 

2The circumstances of your offending are set out in a prosecution opening which was tendered upon your plea.  You were, at the relevant time, aged 37 and the victim was aged 28. 

3You met each other for the first time at a New Year's Eve party hosted by a mutual friend.  The victim had previously arranged to stay the night at her friend's premises after the party and you had made a similar arrangement, along with your son who was also in attendance. 

4During the New Year's Eve party, adults and children were getting in and out of a blow-up pool in the backyard.  At some stage before midnight, you and the victim were in the pool for about 15 or 20 minutes and you were talking about your children.  You were explaining that you were having a difficult time with your ex-wife, due to mental health issues.  At one stage you and the victim were observed kissing in the pool, although the victim does not agree this occurred.  At midnight the victim hugged everyone at the party, including you. 

5Arrangement had been made for the victim to sleep in the host son's bedroom and for her to have the room to herself.  You and another male, along with your son, were sleeping in the lounge room.  Just after midnight the victim changed into her pyjamas, got into bed and fell asleep.  At some time during the night, you knocked on the bedroom door, waking her.  You asked if you could sleep on the top bunk, because the other male was snoring.  She told you she did not mind and you climbed up on to the top bunk.

6Sometime later you asked the victim if she was awake.  You told her you could not sleep and asked if you could come down and talk.  She agreed.  She told you to bring your pillow, which you did.  You laid down next to the victim and you both talked.  The door was still open.  After about five minutes, you asked the victim if you could kiss her and she agreed and you kissed her for about five minutes. 

7At some stage you put your hand on one of her breasts, over the top of her pyjama shirt and the victim tried to remove your hand.  You tried to put your hand between her legs and you kept saying, "It's okay". The victim describes herself at this time as not wanting anything to happen and wanting to let you down gently.  She told you she was tired and just wanted to go to sleep.  You lifted her top and kissed down her stomach.  You then asked her if you could close the bedroom door because it was partially open and the victim said, "No, nothing's going to happen".  She laughed.

8You still had your hand underneath her pyjama shirt.  She moved your hand and she said, "You are just working yourself up".  She rolled away, facing away from you.  You had your arm resting on her stomach and you said, "I'm sorry", or "It's okay".  The victim then fell asleep with you next to her in the bed. 

9The conduct which founds the charge involves the victim waking, feeling your fingers in her vagina.  She noted that it was morning, as the room was lighter.  She still had her back to you and your right hand was on what she describes as her "bum".  She said she felt two or three fingers in her vagina and that you were rubbing your finger or fingers and that they were going in and out.  She said her vagina was wet. 

10She described herself "in shock" and says that she froze for a few seconds before quickly moving her body away towards the wall, causing your hand to move away from her vagina.  She then said, "What are you doing?" and you replied, "Sorry if I upset you". You then got up and walked out of the bedroom. 

11The victim exited the house as quickly as possible. She left in her pyjamas without saying goodbye to anyone. On the way home she sent a Facebook message to a friend, complaining in relation to your conduct. She then contacted professional help due to feelings of self-harm, before attending the Casey Emergency Department and speaking to a triage nurse, who referred her to SECASA.

12At 8 am on New Year's Day, you sent a Facebook message to the victim, saying that you hoped you did not upset her and that you would like to catch up but you could understand if she did not want to.  The victim replied, "I woke up to you touching me in my sleep", to which you replied, "Was very wrong of me, I'm sorry.  I thought you were awake.  I was very horny". The victim said, "You knew I wasn't awake. You knew I'd said no. I thought you needed to talk, I was worried about you." You replied sometime later, "It was not acceptable what
I did, please forgive me." The victim then said, "Here's a tip for you. Usually it's best to give it a go when they are awake and give consent", to which you replied, "You're right.  I understand I'm in the wrong" with a "sad" emoji.

13Later, on 1 January, you contacted the host of the party, telling him that you did something stupid last night and that you were really hating yourself for it.  On
3 January, you replied to a Facebook message from the victim, saying that you would hate to imagine how she feels, that you would never forgive yourself and that you would be getting help.  You were arrested and interviewed by police and you denied the conduct which found the charge. 

14A victim impact statement was made and read aloud in this court by the prosecutor.  What is clear is that your offending rippled through the victim's life and affected her capacity to work, socialise and spend time with her daughter.  She has engaged in significant therapy and help, including 32 hours with a psychologist, four with a psychiatrist, counselling sessions with CASA, a weeklong stay in Dandenong Hospital and numerous visits to her general practitioner, sessions of hypnotherapy and meetings with a social worker, together with the matters associated with the legal process.  She says she will not allow this offending to define her or control her.  It is to her credit that she has managed, in the two years subsequent to this offending, to become a nurse, continue her studies to advance her career, raise her daughter and commence a new relationship.  She has bought a house and she is now fully employed. 

15Whilst any offence of this nature is serious as is demonstrated by the maximum penalty imposed by Parliament, this was, I accept, opportunistic offending. It was not planned or predatory, there was no violence, threats or force, it was of short duration, there were no associated risks of pregnancy or sexually transmitted disease. This is not an offence at the upper end of the range for offences of this type and I am sentencing you on that basis. 

16You have no prior convictions or appearances.  You fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  You are now aged 39, you have nothing outstanding and you are entitled, at this time, to call to your aid your prior good conduct. 

17I take into account your plea of guilty, which, while entered late, has nevertheless saved the community the time and expense of a trial and importantly saved the victim in this matter from giving evidence again in relation to your offending.  I am prepared to act on the basis that your plea should be used as some evidence of remorse, albeit that the remorse was demonstrated at a fairly late stage of proceedings, in circumstances where you denied offending upon interview and maintained your plea of not guilty until the date of the trial.

18As I have said, you are now 39, having been born on 31 August 1978.  You are the oldest child of a sibship of three.  Your father is a now retired carpenter and your mother a Division 1 nurse.  You were initially raised in Hughesdale until you were about five, at which time the family moved to Noble Park.  You attended Silverton primary school, where you completed Grade 6, before continuing into secondary school until partway through Year 11.  At that time it appears there were discussions between your parents and the school and it was determined that you would leave school and enter the workforce.

19You initially completed a one year motor mechanic's certificate before commencing an auto-electrician apprenticeship, which you did not complete.  You worked in auto dismantling for three years, as a builder's labourer for three years, two years of which you completed as an apprentice in carpentry.  From 2000, you were employed by Jayco Caravans for three years.  Following that you worked in pool construction as a labourer for three years.  You have been in your current employment with Boral as a plant operator since 2006. 

20In 2008 you commenced residing with your now ex-partner.  You married in 2010.  Your son was born in 2011.  You separated in 2013 and divorced in 2017.

21Between 2013 and 2017, your son was in your primary care.  There are now final orders in the Federal Court, dated 14 December 2016, giving you and your son’s mother equal shared parental responsibility for the child. 

22As regards living and spending time with and communication arrangements, you have care of your son approximately 70 per cent of the time, with detailed arrangements in relation to his mother having care approximately
30 per cent of the time.  Exhibit 2 is a copy of the Federal circuit court orders, dated 14 December 2016.  Those orders will need to be urgently re-visited, given the orders I will make this day, to ensure that your son’s needs are being met. 

23Your son was diagnosed in 2014 as having a global developmental delay in all areas.  He has required speech pathology and occupational therapy.  He has seen Dr Amin, consultant paediatrician, on a number of occasions between 2014 and 2016. 

24A bundle of reports from Dr Amin were tendered upon your plea.  In his most recent report, dated April 2016, Dr Amin says he is not able to answer the question as to definite diagnosis for your son, apart from the fact that he has global developmental delay and some problems with language.  Dr Amin notes that he does not appear to have ADHD, but there is a degree of anxiety.  He recommended cognitive assessment.

25Your son is currently in Grade 1 and has the assistance of an aid in the classroom.  He plays sport on the weekends, but I will return to the issue of your son and his needs in a moment.

26You are now in a relationship with a new partner. A testimonial from her is Exhibit 7. It is clear that she has high regard for you as a parent and she is supportive of you, as is demonstrated by her attendance at court upon your plea. Your parents also clearly remain supportive of you.  Both of them attended court upon your plea and upon sentencing this day. They are equally supportive of your son. A testimonial from them is Exhibit 6. 

27I have received a report dated 8 March 2018 from Mr Ian Joblin, a forensic psychologist.  You saw Mr Joblin for the purposes of assessment and report on 1 and 7 March of this year.  Mr Joblin says that on the two occasions he saw you, you indicated considerable remorse and contrition, indicating considerable disappointment as regards your behaviour.  You told him it was very wrong of you.  Mr Joblin did not identify any factual matter which caused or contributed to your offending and it is not suggested that the principles in Verdins have application in this case. 

28It was put upon your plea that your incarceration would cause hardship within the meaning of the relevant authorities, in that your son's needs could not be met if you were incarcerated, due to incapacity on the part of your ex-wife and her parents.  I adjourned this plea to allow further material to be provided in support of this submission.  More specifically, in relation to the nature of your son's special needs, the nature of your ex-wife's incapacity and any incapacity on the part of her parents to care for your son if you are incarcerated.

29Subsequent to the matter being adjourned, I have received further reports, evidence and submissions relevant to the issue of hardship.  The material in relation to your son confirms his ongoing difficulties and the need for him to have full-time integration aid in class due to his intellectual disability, which is noted as being mild.  But that is combined with numerous deficits in functioning.  He continues to require speech therapy and progress, it seems, is exceptionally slow. His paediatrician recommends further testing to rule out seizures and assessment in relation to ADHD.  What is clear to me, is that your son is a child with complex needs and issues. 

30As regards his mother, a report was made to DHHS in June of this year as regards her capacity to parent.  DHHS determined that the report was not substantiated, noting the role of the maternal grandmother and her willingness to provide ongoing support.  I heard evidence from your son's maternal grandmother, Wendy Castles.  She is actively involved in your son's care when he is with his mother.  She confirmed her own health difficulties with MS, but said she is able to provide for your son's needs as required, including driving him to school. It is clear that her daughter, your son's mother, has a number of medical and mental health issues and that she does not care for your son in the absence of her mother from the family home, for example, when her parents are on holidays. Ms Castles confirmed that her daughter has periods where she cannot care for your son and has had to return him to his father's care.  This has included periods of her being hospitalised.  Mrs Castles indicated a willingness to continue to support her daughter's care of your son and an acceptance of the reality that that may need to be on an ongoing basis you are incarcerated.

31I also heard from your son's paternal grandmother, who also indicated willingness to care for your son if you are incarcerated on a full-time or part-time basis. I am satisfied that your son's needs will be met by his mother and extended family, even in the absence of his father.  Further, there is no evidence that his father's absence will detrimentally affect him medically or scholastically.  Of course there will be the inevitable emotional sequelae that is experienced by children upon incarceration of a parent, or indeed their absence.

32I do accept, for the purposes of sentencing, that knowledge of leaving your son, given his special needs, in a less familiar care regime will increase the burden of imprisonment.

33As regards the issue of hardship, I am not satisfied that the evidence reaches the threshold for the application of the principle. There is no real risk to your son in his mother's care, given the support of Mrs Castles, and there is the further option of him residing with his paternal grandparents, with whom you both lived for some two years. Your son's education and medical needs will continue to be attended to, whatever the care arrangements may be.  I have been mindful that hardship is not a defined class of matters and that flexibility should be employed, but I am, nevertheless, not satisfied that the evidence and materials meet what is required and I am sentencing you on that basis. 

34In relation to your prospects of rehabilitation, it is of course notable that you come before the court without prior convictions and nothing subsequent.  I think you have excellent prospects of rehabilitation, providing you fully accept the wrongfulness of your conduct. 

35As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must take into account other relevant sentencing considerations.  General deterrence is of considerable importance in matters such as this.  I must seek to deter not only you, but others who may engage in like conduct.  The court and the community cannot and will not tolerate offending which seriously damages the lives of victims, as is demonstrated by the victim impact statement in this case.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  Specific deterrence can, I think, be given less weight as a result of your history and subsequent conduct.

36Your counsel submits that a community correction order is within range.  The Crown submit that while a term of imprisonment is the only disposition open, it could be combined with a community correction order. 

37Would you stand please. 

38In the circumstances, I have no option but to impose a term of imprisonment.  You are convicted and sentenced to be imprisoned for 12 months and thereafter placed on an 18 month community correction order, with conditions that you participate in programs to reduce re-offending as directed by the Regional Manager. 

39I direct to be entered into the records of the court that but for you plea of guilty, I would have imposed a sentence of four years, with a minimum of two years and ten months. 

40Counsel, is there anything that needs to be corrected or anything further?

41MS PILLAI:  No, Your Honour.

42HER HONOUR:  Thank you.

43MR SAWYER:  No, Your Honour.

44HER HONOUR:  Thank you.  Can I just confirm, there were no ancillary orders?  Ms Pillai?  There are no ancillary orders sought? 

45MS PILLAI:  No, Your Honour. 

46HER HONOUR:  Very well.  Thank you.  Take Mr Roulston downstairs please. 

47I thank counsel for their assistance.  Adjourn the court. 

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