Director of Public Prosecutions v Schmidt
[2022] VCC 1429
•1 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-01662
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JERMAINE SCHMIDT |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2022 Trial 15 August 2022 Plea | |
DATE OF SENTENCE: | 1 September 2022 | |
CASE MAY BE CITED AS: | DPP v Schmidt | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1429 | |
REASONS FOR SENTENCE
Subject : Rape and Sexual Assault
Sentence : 5 years imprisonment with a non parole period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. D'Arcy | |
| For the Accused | Mr D. Langton |
HIS HONOUR:
1Jermaine Schmidt, after a trial lasting two days you have been convicted of one charge of sexual assault (Charge 1) and, one charge of rape (Charge 2).
2The maximum penalty for the offence of sexual assault is imprisonment for
10 years and the maximum penalty for rape is imprisonment for 25 years. Rape is a standard sentencing offence. The standard sentence for the offence of rape is 10 year's imprisonment. That means ss5A, 5B and 11A of the Sentencing Act 1991 have application here, as well as s5 and all other relevant and applicable sentencing principles.3In sentencing you for the standard sentencing offence of rape, I must take the standard sentence of 10 years' imprisonment into account as one of many factors relevant to the sentencing of you.
4The standard sentence of 10 years' imprisonment for the offence of rape is but one guide post for the court to have regard to. The standard sentence is the sentence for the offence taking into account only the objective factors affecting the relative seriousness of the offence. The objective factors affecting the relative seriousness of the offence must be decided without reference to factors personal to you, such as your lack of prior convictions and your state of mental health. They must be decided wholly be reference to the nature of the offending. The standard sentence of 10 years' imprisonment is the sentence to be imposed for a middle range offence of rape.
5Section 11A(4) of the Sentencing Act provides that in fixing a non-parole period for a standard sentencing offence I must fix a non-parole period equivalent to at least 60 per cent of the head sentence unless it is in the interest of justice not to do so.
6Although you cannot be penalised for having pleaded not guilty to each charge, at the same time you cannot expect to receive a reduction in sentence which would normally follow had you pleaded guilty to the charges.
7The following facts must be assumed to have been accepted by the jury. In my judgment they were clearly made out by the evidence most of which was only formally contested.
8At the time of the offending you were a soldier with the rank of private in the Australian Army. You were 21 years of age. You were attending at the army base at Puckapunyal, near Seymour, for the purpose of receiving training in the use of weapons. You were billeted in one of the accommodation blocks at the army base.
9The complainant was also a member of the Australian Army. She held the same rank as you, and she was also attending the same course of training as you at Puckapunyal. She 18 years of age. You and the complainant had known each other only as soldiers having been introduced to each other a few weeks before the offending that led to the charges. The only links you had to the complainant were that you were both soldiers undertaking the same training course. That's all.
10On 30 June, 2020 the complainant finished her duties in the late afternoon. She got changed into civilian clothes and travelled by car with some other male soldiers into Seymour where the group attended a hotel for some drinks and dinner. You were not in that group of people.
11The complainant gave evidence she and the group she was with returned to the army base at Puckapunyal around 8.00 to 8.30 pm. They then went to another bar located at the army base known as 'the Boozer', where they continued to socialise whilst drinking. You were also at the Boozer with others.
12The complainant gave evidence that after a while she left the Boozer because she was tired. She went to her room located in Block 6 accommodation block where she showered and changed into her short pyjamas and went to bed and fell asleep.
13The complainant gave evidence she was awoken by a knock on the door. She answered the knock to find you, and another soldier Aaron Cheel. You and Cheel asked the complainant for cigarettes. She told you both she did not have any cigarettes, she closed the door, and went back to sleep. Up until that point you had not known where the complainant was accommodated.
14There is an army regulation that requires all soldiers at the base to sleep in their assigned accommodation or 'lines'. Your lines were located in another block some distance away from the complainant's lines in Block 6.
15Having returned to her sleeping, the complainant gave evidence she was again awoken by you as you tapped her leg to wake her up. You had let yourself into her room uninvited, and the complainant did not expect you to be in her room and you had never been there before.
16You kept asking the complainant to let you stay which was against army regulations. The complainant at first refused, but you persisted, and she relented because she was very tired.
17In the complainant's room there was a single bed. The complainant allowed you to stay with you lying on the bed, not under the bed covering. The complainant was under the bed covers against the adjacent wall. The complainant said she went back to sleep, sleeping with her back to you.
18The complainant gave evidence she was awoken by you putting your hands under and, up her shirt and, running your fingers down her leg and touching her breasts under her clothing, Charge 1. She had clearly not consented to your touching and nor had she led you on in any way.
19The complainant gave evidence she asked you to stop which you did after apologising. The complainant went back to sleep. She gave evidence that she was again awoken by you whilst you were digitally penetrating her vagina. The complainant told you to stop which you did, and you apologised to her. Again, the complainant had clearly not consented to digitally penetrating her vagina and nor had she led you on in any way. Indeed a short time earlier in the events of
Charge 1 she had made her position quite clear. She was not interested in engaging in sexual acts with you at that time. I think you were drunk and failed to properly appreciate or understand the complainant's rejection of your sexual advances.20The complainant gave evidence she then waited for you to fall asleep and then she got up and went to the bathroom. She gave evidence she remained in the bathroom because she did not want to go back to her room whilst you remained there.
21The complainant gave evidence she went back to her room expecting that you might have already left, but you were still there. She said you acted as if nothing had happened. You asked her how to get out of her accommodation block without being seen.
22At 7.19 in the morning you sent an SMS text to the complainant. Exhibit B. You apologised 'about last night/this morning'. You said you did not remember 'staying there'. You said you had woken up very confused. You said there was no excuse for staying the night because you were drunk. You said you were sorry for having stayed. You said you were 'super sorry'. You apologised in strong language and concluded 'I'm sorry. It won't happen again'.
23At 9.37 you again sent an SMS to the complainant. Exhibit C. You said 'Are you okay, or did you need to cool off'.
24In the days that followed, the complainant told a number of witnesses what you had done to her. Complaint evidence was given in the trial by Lachlan Jones, Samzum Langham, Aaron Cheel and Georgia Roberts which showed that the complainant was consistent in her complaint about what you had done to her.
25About five days later, the complainant reported what you had done to her to Warrant Officer John McLachlan who reported the complaint to the Military Police who then involved the Victoria Police.
26You were formally interviewed by investigating police at Seymour Police Station on 14 July 2020. By that time you had taken legal advice and you exercised your legal right not to answer relevant questions. By agreement, the record of interview was not put into evidence.
27At trial you exercised your right to remain silent and you did not give evidence. Evidence was led by your counsel as to your good character. Up until the jury verdicts, you had no prior convictions, and evidence was led from
Clarissa Whitehead that you are a person of good character.28This was an extremely strong prosecution case. That was especially so because the jury was left without an alternative version of events from you. The only issues for the jury to decide were the first element in each charge. That is, has the prosecution proved beyond reasonable doubt you sexually assaulted the complainant in the way alleged? And, has the prosecution proved beyond reasonable doubt you sexually penetrated the complainant in the way alleged? The other elements in each charge were not in contention. The only evidence which the jury had from you were your three SMS messages to the complainant referred to in which you apologised to the complainant.
29All sexual offending of this kind is serious. This case is no different. As is your right, you put the prosecution to its proof, with the only element of each offence in contention being element one as I have set out above.
30Although you put the prosecution to its proof in relation to element one of each charge as you were entitled to do, it was a very short trial confined to those two issues. But the trial required the complainant to give evidence and thereby reliving this whole ordeal. She was an impressive witness and she made a number of appropriate concessions in her evidence.
31This offending probably occurred because you were drunk. The SMS exchange that went into evidence demonstrates this to have been the case. It would appear that as soon as the next morning you had very little recollection of what you had done, but you at least had the decency at that early time to apologise to the complainant who was clearly very upset with what you had done, evidenced by her complaint to other soldiers who gave evidence.
32Although you ran a trial, it was confined as I have said to the first element. You did not give evidence, presumably because you were drunk and had little or no recollection of what you had done to the complainant who had accommodated you, at your drunken insistence, but had made it clear there was to be no sexual or physical acts between the two of you.
33Whilst all offences against women of this kind are serious, there are factors here which in my judgment ameliorate the severity or seriousness of your offending. None of your actions in offending were threatening. After the offending in Charge 1, the complainant told you to stop which you did before committing the rape in Charge 2. When she told you to stop, you did so each time. But at the end of the day, you were affected by alcohol and would not take 'No' for an answer. You had your way with the complainant in each charge whilst she was asleep.
34The complainant was not physically harmed by you. There was no violence nor threats of violence often seen as features of such crimes. The offending was of short duration and you had at least had the decency to immediately apologise, and again later did so with your SMS messages. There was a single act of penetration whilst the complainant was asleep. There was no risk of pregnancy or of sexually transmitted disease. You acted alone and there was no weapon used. Although you ran a trial on each charge, which is your right, the trial was confined to the first element of each charge.
35I think you are remorseful for what you did as evidenced by your SMS messaging to the complainant soon after you offended.
36Your counsel on the plea accepted that both charges that you have been found guilty of are serious. She accepted that the complainant is likely to have suffered mental and emotional harm. She submitted that your offending was limited in duration in each offence and viewed objectively each offence does not fall towards the higher end of seriousness.
37I generally accept those submissions. In my judgment, whilst your moral culpability for this offending is high, your offending falls towards the lower end of the range of seriousness for this kind of offending. Because of the relevant objective factors relating to your offending which I have endeavoured to set out above, I will not be imposing the standard sentence of 10 years' imprisonment on Charge 2. Your actions constituting the commission of the two charges were separated by a period in time during which the complainant went back to sleep. The circumstances giving rise to the rape charge occurred after the complainant had told you not to touch her sexually. In my judgment, there is a need for some cumulation of the sentence on Charge 1 upon the sentence I will impose on Charge 2.
38Whilst not physically harmed by you during the commission of these offences, the complainant has continued to suffer mentally because of what you did to her. I admitted into evidence on the plea a victim impact statement from the complainant in which she sets out how she has been affected mentally, socially and financially. She regularly thinks about what you did to her describing how she has changed from being a socially outgoing person to someone who now feels sad, angry, upset, scared, lonely, worried, anxious, depressed and stressed on a daily basis.
39She is now unable to be alone with males. In order to cope she was forced to change her career path into a role that was predominantly female dominant. This has affected her financially. What you did to her has affected her relationship with her partner.
40It is the court's experience that victims of rape almost always suffer from impacts of this kind and such impact can be long lasting.
41Your counsel on the plea, Ms Joosten filed with the court a helpful outline of her submissions in writing which I marked as Exhibit 1.
42You are now 23 years of age. A youthful offender. You have a younger brother. You were born in Darwin. Your father was a police officer. Your parents separated when you were aged 15. You were remanded in custody immediately after the jury's verdict and you have served 91 days by way of pre-sentence detention on remand. You have no prior convictions and this is your first time in custody.
43I was told and accept that you attended many different primary schools because of your father's occupation which saw the family having to relocate regularly. You were diagnosed with learning difficulties in Year 10. In 2016 you completed the Year 12 Victorian Certificate of Applied Learning (VCAL). As a student you had a number of part time jobs.
44In 2014 the family moved to Melbourne after your father joined the Australian Defence Force. Shortly after this time your parents separated due to ongoing family violence perpetrated by your father against your mother and you. You remained living with your mother. As a child aged between nine and 16 I was told and accept you were subjected to violent physical assaults from your father who was an alcoholic with mental health problems. I accept that all of this is evidenced by the documentation put into evidence.
45In 2020 when aged 19 you completed Year 10 maths to be eligible to apply to join the Australian Defence Force. After initial training you were sent to Puckapunyal for training in air defence. That is when the offending occurred. You remained on the base for two weeks after the allegations surfaced and you were then suspended for three months with reduced pay. In September 2020 you were posted to a base in Adelaide until February 2021 where you were again suspended. You had planned to pursue a career as a paramedic in the army but this plan has now been lost.
46In April 2021 you went to live with your mother and her partner in Victoria. From July 2021 and whilst awaiting trial, you were employed as a project manager for an electrical engineering firm.
47When you were aged 16 in 2014 you were assessed by Dr John Bench, a psychologist, because you were suffering severe anxiety in context with learning difficulties at school. I received his reports as Exhibit 2. You were then diagnosed as suffering mild bilateral neurosensory loss, symptoms of ADHD and anxiety related issues.
48I also received a psychological report from Gina Cidoni who assessed you on the 11th and 12 July 2022. Her report Exhibit 3 is dated 12 July 2022. She opined you suffer from generalised anxiety disorder and Post Traumatic Stress Disorder. Ms Cidoni thought that at the time of her assessment you were experiencing symptoms of distress, depressed mood and anxiety including difficulty sleeping, outbursts and anger attacks, hypervigilance, an exaggerated startle response or a numb and detached disposition.
49Ms Cidoni thought your trauma and distress is focussed on family violence you witnessed as a child by your father towards your mother. Ms Cidoni opined your symptoms cause you to experience high distress, anxiety and disturbing thoughts and to react to situations in unhelpful ways. She thought your risk of re-offending in this way is low without formal intervention and, given you offended whilst intoxicated, your risk of re-offending is considered to be even lower if you abstain from alcohol.
50In passing sentence I must take into account you are a youthful offender with no prior convictions. As a child you experienced violence repeatedly and this causes you to now suffer from anxiety and Post Traumatic Stress Disorder. You are experiencing custody for the first time in the midst of the COVID-19 pandemic which has made imprisonment far more burdensome than it would normally be.
51I accept Ms Joosten's submissions that due to limited treatment available to you for your mental health in a custodial setting there is a risk that your mental health will deteriorate whilst in custody and your time in custody will be more burdensome. I accept limbs 5 and 6 of Verdins principles are enlivened in arriving at an overall appropriate sentence of you.
52I received into evidence a number of references tendered on your behalf.
Russell Smith is the father of your partner Hayley. He knows of these charges and he speaks highly of you as a person who treats everyone with respect. He trusts you with his daughter. This reference is also supported by Hayley’s mother
Patricia Myers who also made a very good reference for you. Your younger brother Kaelan prepared a reference in which he speaks of how much help you have been to him throughout his life.53Your partner Hayley Smith speaks highly of you as a person who has treated her with complete respect and as a person who is always there to help others. You told her of these charges before you commenced your relationship with her which is ongoing. A friend Kaitlyn Sutherland speaks highly of you as a friend of long standing who is kind hearted, gentle and caring. Your cousin Jamal Fuller also speaks highly of you as a person.
54I received a reference from your grandparents who both love and fully support you. I also received references from close family and friends including Bailey Goulimis, Maneesha Fuller, and your mother Jodie. What comes through is that you are loved and respected by all who know you and you have always been there to help others. I accept this offending is most uncharacteristic. A moment of drunken madness resulting in serious offending on your part for which you will likely suffer for some time. But I accept that you have good support from family and friends.
55With that support, and from the fact you appear to have been frank with everyone as to the trouble you find yourself in, and the fact you have no prior convictions for anything, I think your prospects for rehabilitation are good. Your relative youth is an important issue in sentencing you.
56But this is serious offending and it is conceded that I must impose a term of imprisonment and fix a non-parole period. In sentencing for crimes of this kind I must have regard to deterrence, here especially general deterrence, denunciation and just punishment. I must take into account as one factor that the crime of rape carries a standard sentence of 10 years' imprisonment. And as I have said I must have regard to your prospects for rehabilitation and how best to bring it about. In passing sentence I have had full regard to all of these factors.
57On Charge 1, sexual assault, you are convicted and sentenced to a term of imprisonment of one (1) year.
58On Charge 2, rape, you are convicted and sentenced to a term of imprisonment of four and a half years.
59I direct that six (6) months of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 2 making a total effective sentence of five years' imprisonment.
60I direct you serve a minimum term of three years' imprisonment before being eligible for release on parole.
61I declare there has been 92 days pre-sentence detention of the sentences passed this day and direct that 92 days be reckoned as having been already served of the sentences passed this day and be entered into the records of the court and deducted administratively.
62HIS HONOUR: Are there any other ancillary orders required?
63MR D'ARCY: No, Your Honour.
64HIS HONOUR: Very well. Adjourn the court.
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