Director of Public Prosecutions v Ryan

[2018] VCC 1312

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-18-00856

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW RYAN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Shepparton
DATE OF HEARING:	21 August 2018
DATE OF SENTENCE:	22 August 2018
CASE MAY BE CITED AS:	DPP v Ryan
MEDIUM NEUTRAL CITATION:	[2018] VCC 1312

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords: Sexual assault; relevant prior conviction occurring in very similar circumstances; possession of methylamphetamine; failure to comply with reporting obligations under Sex Offenders Registration Act; use drug of dependence (summary offence); early plea of guilty; reasonable evidence of remorse; specific deterrence; protection of the community.

Legislation Cited:                   Crimes Act 1958 (Vic), Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sex Offenders Registration Act 2004 (Vic)

Cases Cited:  R v Renzella [1997] 2 VR 88.

Sentence:Total effective sentence of 4 years and 7 months imprisonment. Non-parole period of 2 years and 7 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms J. Buxton	Victoria Legal Aid
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions

HIS HONOUR:

1Matthew Dean Ryan, you have pleaded guilty to one charge of sexual assault contrary to s.40 of the Crimes Act 1958 (Vic), one charge of possession of methylamphetamine contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), one charge of failing to comply with reporting obligations contrary to s.46(1A) of the Sex Offenders Registration Act 2004 (Vic) and you have also pleaded guilty to a related summary offence of using a drug of dependence namely methylamphetamine contract to s.75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum terms of imprisonment applicable to these offences is ten, five, five and one year respectively.

2Miss MacDougall who appeared on behalf of the Victorian Director of Public Prosecutions tendered a summary of prosecution opening on the plea which sets out in detail the circumstances of your offending. 

3The complainant in this matter was 22 years of age at the time of the offence and lived in Seymour with her parents.  Relevantly the summary of prosecution opening states that at about 6.10 pm on 5 January 2018 the complainant was walking from her home to the Seymour Aquatic Centre.  She was wearing gym gear and listening to music through headphones.  The complainant was not aware of anyone else being in the immediate vicinity as she walked along McIntyre Street to a water viaduct or underpass that runs between that street and Anzac Avenue.

4The complainant had just exited the viaduct when she felt a hand come from behind her to cover her mouth, blocking it so she could not speak. 
The complainant struggled against the person, later identified as you, but was dragged to the ground.  You covered the complainant's mouth with both of your hands but she managed to scream.  You then squeezed her nose and cupped her mouth with your hands so that she could not breathe.  Although the complainant initially thought someone was playing a joke on her, she soon realised that was not the case.  She was frightened and she thought that she would pass out.

5You were behind her as she lay on her left side on the ground.  She bit down hard on your hand prompting you to hit her on the back of the head and she screamed for help.  As you held her with one hand you touched her vagina on the outside of her shorts with your other hand for "a second".  You did not speak during the incident.  You fled the underpass in the direction from where you had come and the complainant was able to observe you sufficiently to provide a description to police.  The complainant immediately telephoned her father and told him that she had been attacked near the viaduct and he and her brother attended soon after.

6The complainant's father, in fact, ran from the family home which was about 200 metres from the underpass and as he ran he saw you walk briskly away.  He yelled out to you and when he caught up with you to confront you he asked you whether you had come from the viaduct.  You responded, "No" and although you would not initially give your name when asked you eventually replied that it was "Matt".  You denied assaulting anyone.  The complainant's father then met up with his daughter who was very distressed.  He saw she had red marks on her nose and blood in one of her nostrils. 

7On examination later that night a forensic medical officer noted the following injuries: red bruising to the nose tip, one two millimetre graze to the right side of the nose near the eye, a 20x20 linear shallow graze to the right cheek, a 20 millimetre linear shallow laceration to the left outer ear, a 2x3 centimetre red bruising seen through hair on the back of the scalp, a 10x6 centimetre irregularly grazed skin over the posterior left shoulder region and left elbow posterior 8x8 millimetre graze.  The pattern of injuries documented was consistent with the complainant's account and they are shown in the photographs that were provided on the plea by the prosecutor. 

8Whilst it was noted that there was no physical injury that was of a serious nature, the shock and fear your actions caused would be difficult to overstate. 
The complainant was crying so much that she had difficulty speaking to her father.  However, she was able to explain that she had been grabbed from behind and forced to the ground and that she had been dragged and had a hand placed over her mouth and that she had been punched. 

9The complainant's father and brother shortly afterwards attended a garden supply business on McIntyre Street and viewed some CCTV footage which showed the complainant walking toward the viaduct and then a man running in the same direction as her.  The man was seen running back in the direction from which he had originally came some short time afterwards.  Further enquiries confirmed that you were that man.

10Police attended your parent's house where you were then living on 6 January 2018 but you had not returned home.  On 10 January 2018 you were arrested in Chisholm Crescent, Seymour, and when searched, police located a mobile phone and a sunglasses case which contained a glass smoking pipe and a small zip lock bag containing a crystalline substance which you admitted was ice or methylamphetamine.  This was the basis for Charge 2.

11On being interviewed you provided the following answers relevant to this allegation:

·Question 37 you said you were a bit lost because you had been using drugs. 

·Question 40 you said that on the day you went for a walk to try to clear your heard. 

·Question 42 you said that everything kept going wrong and you went and sat at the school where you started to fall asleep and you think you may have passed or blacked out. 

·Question 44 you told police that you had lost a big gap of time.  Question 62 you asserted that you had never set out to hurt anybody, "like to even do that". 

·At Question 80 you said that you had left the school and was sort of oblivious to what was going on around you.  You said you walked through the viaduct but it was a "blur".  You did not know if that was due to the drugs or not wanting to remember or not wanting to say.  All you could really recall is running off. 

·At Question 90 you said that you had never set out to hurt anybody. 

·Question 125 you said that you guessed that you did not remember what happened. 

·Question 126 you said it did not matter whether the girl was hurt badly or not, it should never have happened. 

·At Question 132 you apologised to the complainant. 

·At Question 138 you said that you were disappointed and disgusted in yourself. 

·At Question 151 you said you went home thinking it was all some weird dream. 

·At Question 172 you said that you remembered heading towards the tunnel and then "a blur" and then a shape of another person. 

·At Question 174 you said it felt like a dream. 

·At Question 183 you said that you remembered something happening but could not say what it was. 

·At Question 199 you said you did not remember talking to anyone near the school. 

·At Question 290 you said that you were not 100 per cent sure but you supposed you had smoked ice at the school before the assault. 

·At Question 306 of your interview you told police that the complainant should not have to live with the memory of this incident.

12The answer to Question 290 that I have just referred to appears to provide the basis for your plea of guilty to the related summary offence of using methylamphetamine. 

13Following interview you were remanded in custody.  As a result of the commission of a prior sexual assault offence on 29 May 2014 you were, at that time, a registered sex offender and as such you were subject to various reporting obligations.  By failing to report that you were in possession of a mobile phone and by failing to report a Facebook username you breached those reporting obligations and those breaches constitute Charge 3.

Impact of offending

14I now want to turn to the impact this crime has had on the victim.  It is hardly surprising that the complainant was seriously affected by your attack upon her.  She provided a victim impact statement which was read to the court by the prosecutor.  She no longer feels safe walking on her own, even during the day.  She cannot contemplate walking through the underpass where this incident took place, even though it is close to her home.  You have left her feeling vulnerable, insecure and emotionally fragile.  Seven months on from the assault she continues to feel its ill effects and it is clear that the continuing harm that you caused to the complainant should be a significant factor to be taken into account in formulating your sentence.

Prior convictions

15You have prior convictions, many of which are explicable in the context of your addiction to methylamphetamine.  However, there is one prior offence of particular concern in this context. 

16On 29 May 2014 a 16 year old female school student walked through the same underpass in Seymour where this incident took place.  At the time the student was on her way to the shops at around about 4.00 pm.  She was still wearing her school uniform. Before entering the underpass she looked around and could not see anyone about.  As she walked through you ran up behind her and grabbed her around the neck and arms.  You told her to "shut up" and pushed her face first against a wall.  She tried to scream and bite your hand but was unable to open her mouth because of the tight grip that you had upon her. 

17After pushing the complainant's face against the wall you held her there forcing your elbow into her back while your hand held her head.  In that position she could feel, at that time, your erect penis against her bottom.  You moved your hand up the back of the complainant's school dress and grabbed hold of her underwear and attempted to pull it down.  She was able to stop this by leaning forward and downwards.  The complainant used her right hand to reach over her right shoulder and scratch you to the head and face area, forcing you to take a step back.  At that point she struggled free and ran up towards Victoria Street where she was able to seek help.

18On 17 April 2015, in the Magistrates’ Court, you pleaded guilty to one charge of assault with intent to rape.  That matter was dealt together with a contravention of community corrections order for drug offences from an earlier appearance in 2013.  You were sentenced to an aggregate term of imprisonment of two years and under the Sex Offenders Registration Act, you were required to report to Victoria Police for a period of eight years.  On appeal to this court on 20 August 2015 those orders were set aside and you were re-sentenced to a total effective sentence of 18 months imprisonment and, upon expiration of that sentence, to undertake a community corrections order of 18 months. 

19I was told that on your release you commenced a sex offender's treatment program and attended three sessions, but because of a relapse into drug use, did not persist with that treatment.  You spent some further time in custody for drug related offending and you were released from a four month period of imprisonment on 26 November 2017.

20You have been in custody since 10 January 2018 in relation to this matter.  However, you were dealt with in respect of a contravention of a community corrections order in the Magistrates' Court at Shepparton on 28 February 2018 for which you were sentenced to the maximum term of three months' imprisonment.  The pre-sentence detention which is directly referrable to this matter is therefore 135 days.  I should say, however, that the three months referrable to the sentence imposed on 28 February 2018, will be taken into account when formulating this sentence in the matter sanctioned by the decision of R v Renzella [1997] 2 VR 88.

Personal circumstances

21You were born on 21 December 1988 and are now 29 years of age.  You come from a supportive family that remains supportive of you despite your drug addiction and this offending.  Significantly, your mother travelled to Shepparton to attend court to show her support for you.  You were born and raised in Seymour.  Your mother worked as a cleaner, your father as a concreter and they, together, have provided a caring environment in which you were brought up. 

22You attended the local primary school and went to Year 8 at Seymour Tech at which time you were expelled.  It appears you struggled academically.  You did not engage and spent much of your school time truanting.  At 14 you commenced work with an uncle as a concreter and have continued in that work ever since.  At about the age of 24 you formed a relationship with the mother of your now four year old daughter.  The relationship lasted for about three and a half years but broke down when your daughter was just three months.  Up until about 12 months ago you had regular contact with your daughter but that became problematic when you were incarcerated. 

23You started using drugs, it would seem, such as ecstasy and amphetamines recreationally from about the age of 17 or 18.  But it was not until your early 20's that you commenced regularly using methylamphetamine and that, your drug use, spiralled out of control.  Your criminal history did not commence until you were about 24 or so.  There seems little doubt that methylamphetamine has really blighted your life over the last six or so years.  Whilst it may be that you were affected by methylamphetamine at the time of the commission of this offence that fact does not adequately explain why you engaged in this offending. 

24For the purposes of the plea I was provided with three psychological reports.  First, was a report from Dr Aaron Cunningham of 13 August 2015 which was prepared for your County Court appeal with respect to the offence of assault with intent to rape that occurred in May 2014.  Dr Cunningham did not diagnose you as suffering from any particular psychological disorder.  I found, it should be said, the report to be only of limited assistance.

25You stated to Dr Cunningham that you could not recall the offence and that you found it “hard to identify with the person who committed the offence".  Under the heading "Summary and Opinion" Dr Cunningham states:

"Mr Ryan presents with a stable background with no indication of abuse or trauma.  He has maintained stable accommodation with his parents.  He reported a three year relationship with Zoe that produced his 15 month old daughter.  He has maintained stable accommodation [sic] as a concreter. 

Mr Ryan began use of methylamphetamine at the age of 19.  He initially used the drug socially.  He use gradually increased until he was abusing the drug daily at the age of 23.  He was abusing methylamphetamine daily during the period of his offence.  He could not recall his offence behaviour.  He decided to cease use of methylamphetamine prior to being incarcerated.  He completed detox and spent one day in rehabilitation prior to being remanded.

Mr Ryan appears to have several current protective factors that may reduce his risk factors, stabilise him within the community and improve his psychological functioning.  Mr Ryan presents with a stable and supportive family.  He has insight into his need to cease use of methylamphetamine.  He has positive employment prospects and stable accommodation in the community".

26A further report was obtained from Dr Cunningham on 22 February 2018 which was used in respect of the contravention of community corrections order that was dealt with on 28 February 2018 in the Magistrates' Court.  Referring to your drug offending in 2017 Dr Cunningham said:

"In my opinion at the time of the assessment Mr Ryan did not meet the criteria for a mental illness.  Mr Ryan reported significant difficulty coping in the community.  He experienced several negative events with regard to the death of friends and not being able to see his daughter.  He became hopeless and attempted suicide.  In my opinion Mr Ryan experienced a depressive episode at this time.  He became reckless and hopeless and relapsed into significant drug abuse.  His drug abuse continues to be the main contributor to his offence behaviour". 

27There is no mention in this second report of Dr Cunningham's of this offending and it is therefore of limited assistance also. 

28A further report was provided by Mr Warren Simmonds of 30 July 2018 which was more specifically directed to this offending.  Mr Simmonds states as follows:

"Mr Ryan indicated that he has multiple prior convictions for obtaining property be deception, adding that his offending has always been drug related.  There is a prior history for an assault with intent to rape although Mr Ryan attempted to minimise the nature of this offence at the time of the assessment".

29Under the heading "Current Offences" Mr Simmonds goes on to say as follows:

"Mr Ryan indicated that he is pleading guilty to the current charges although he added that he has very little memory of what occurred.  He explained that he had only slept for five days in the past 38 days stating that he'd been using methamphetamine at the time.  He queries whether he was psychotic but did state that he felt his thought processes were scattered, almost certainly an accurate reflection of the disturbance of his thinking under the intoxication of methamphetamine.  When asked about his behaviour he indicated that it was 'not good' and it may have had a significant impact upon the victim in question".

30You again said that you did not have much memory as to what occurred at the time of the offending and Mr Simmonds formed the view that you have limited insight into your offending and tend to perceive drug use as the reason for your difficulties.  He goes on to say:

"While Mr Ryan has a history of offending related to his substance use it is unclear whether it was a factor in his previous sexual offence.  However it must be acknowledged that substance use does not fully explain the nature of this offence or his prior offences appear to have been undertaken to fund his substance abuse.

With regard to the matters currently before the court there was no clear evidence that Mr Ryan has any interest in pornography or that his offending behaviour arises out of sexual fantasies that involve the domination of women.  Certainly Mr Ryan appears to have had a very active sex life and has had many partners over the years with there no being reason to doubt his estimation, even if it is an exaggeration he indicated that he has had multiple partners over the years.  Of concern is the fact that this is Mr Ryan's second offence of a similar nature that occurred at almost the identical place where his first sexual offence occurred".

31Following on from that Mr Simmonds says:

"As with many individuals who are charged with this type of offences there may often be a degree of embarrassment about their behaviour and it is only following sentencing that one is able to obtain a better insight into the motivations of their offending.  On the question of the risk of further offending the Static-99 score places Mr Ryan in the moderate-high (because 62 and 88 percentile) risk category relative to other adult male sex offenders". 

32Mr Simmonds suggests that you would benefit from participating in a sex offender's treatment program.

Plea submissions

33Ms Buxton who appeared on your behalf relied on the fact that you had entered a plea of guilty to this matter at what is practically speaking the earliest possible opportunity.  She argued by reference to your answers in your record of interview, some of which I have referred to above, that you clearly express remorse for the harm you caused the victim and showed appropriate empathy.  Your plea of guilty supports that submission.

34I accept these submissions and in my view they operate to substantially reduce the sentence that would otherwise be imposed.  I also accept Mr Simmonds' view that it may well be that once this case is resolved it may be possible for you to gain some insight into your motivation for this offending.  It is difficult, in the light of this evidence however, to make any realistic assessment of your prospects for rehabilitation.  It is to be hoped that you do apply yourself to a sex offender's treatment program in the future.  As things stand however you were imprisoned for sexual assault in 2015 and in 2018 you have committed another sexual assault in what amounts to almost strikingly similar circumstances. 

35As I suggested to your counsel during the course of your plea you are not to be further punished for the earlier offence.  I must impose a sentence here which is proportionate to this offending.  However, the need for specific deterrence and protection of the community are sentencing objectives which do, in my view, acquire greater prominence because of that earlier offence.

36It was submitted on your behalf that a combination sentence might be imposed in these circumstances.  However, in my view that would not adequately address the purposes for which sentence must be imposed in your case.  Accordingly, you will be sentenced as follows. 

37Mr Ryan, would you mind standing if you would please.

38In respect of Charge 1 you will be sentenced to a term of imprisonment of four years and six months.

39In respect of Charge 2 you will be sentenced to a term of imprisonment of one month.

40In respect of Charge 3 you will be sentenced to a term of imprisonment of
14 days.

41In respect of Charge 4 you will be sentenced to a term of imprisonment of seven days.

42The sentence imposed on Charge 2 is to be served cumulatively upon the sentence imposed on Charge 1.  The sentences imposed on Charges 3 an 4 are to be served concurrently.  That will make a total effective sentence of four years and seven months and I will fix a non-parole period of two years and seven months.

43I will declare a period of 135 days as reckoned as already served and I will declare that but for your plea of guilty, pursuant to s.6AAA of the Sentencing Act, you would have been sentenced to a term of six years with a non-parole period of four years. 

44If you wouldn't mind taking a seat please, Mr Ryan, I need to deal with one other matter and that is this: that the prosecution in this case make application to have you registered under the Sex Offender's Registration Act for a period of 15 years. That order can only be made if, after taking into account all of the relevant circumstances, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons in the community. 

45Having regard to the nature of your offending in 2014, the fact that you served a term of imprisonment in respect of that matter, the fact that you did not complete a sex offender treatment program in respect of that matter, the fact that three and a half years later you offended in what amounts to strikingly similar circumstances and having regard to what I regard as the lack of any adequate insight into the motivation for your offending and the fact that many of these considerations will be relevant once you become eligible for release, I am satisfied beyond reasonable doubt that you do pose such a risk.  Accordingly I would order that you be registered under the Act for a period of 15 years.

46I should check with counsel, are there any matters arising in respect of the orders that I've announced?

47MS BUXTON:  Not from me, Your Honour.

48MS MACDOUGALL:  I don't believe so, Your Honour, no.

49HIS HONOUR:  Ms MacDougall, some notices have been prepared with respect to the Sex Offender's Registration Act.  I wonder if my associate could provide those to you now.  If you wouldn't mind checking them.

50MS MACDOUGALL:  Yes, Your Honour.

51HIS HONOUR:  Then they'll be provided to Ms Buxton and I'll ask her to have her client sign them.  If they're in order, Ms MacDougall then can be provided to Ms Buxton ‑ ‑ ‑ 

52MS MACDOUGALL:  Yes, Your Honour.

53HIS HONOUR:  ‑ ‑ ‑ for her to check.

54MS MACDOUGALL:  I've just finished reading them, Your Honour.

55HIS HONOUR:  That's all right.  Once that's done, Ms Buxton, you'll need to have your client sign them.  My associate will need to witness that signature.  I'll just explain something to your client.

56Mr Ryan, in a moment I will stand down and your barrister will be able to explain the effect of all of these orders to you.  However there is a document that you need to sign that your barrister will provide to you in a moment.  Once that is signed your barrister will see you, explain things and you will understand properly the nature of the sentences that have been imposed.  So just bear with us for a moment, please.  Thanks, Ms Buxton.  We'll adjourn the court please.

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