Director of Public Prosecutions v Schwab
[2016] VCC 659
•19 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00438
CR-15-01877
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW JAMES SCHWAB |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2016 | |
DATE OF SENTENCE: | 19 May 2016 | |
CASE MAY BE CITED AS: | DPP v Schwab | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 659 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to one charge of rape and one charge of indecent assault with aggravating circumstances – numerous aggravating circumstances – one victim pregnant woman – one victim 2 year old boy – offender identified after DNA samples were analysed – offender committed other offences but at the time of this offending had only one prior conviction as an adult - offender experienced significant abuse as child and abused alcohol – complete rehabilitation a possibility – totality and deterrence taken into account.
Sentence: Total effective sentence of six years’ imprisonment. Required to comply with the reporting obligations under the Sex Offenders’ Registration Act for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Hennessey | OPP |
| For the Accused | Mr D. Hallowes | Stary Norton Halphen |
HER HONOUR:
1 Andrew Schwab, you have pleaded guilty to a charge of rape, and to a charge of indecent assault with aggravating circumstances. At the time of your offending in 1987, each of these offences had a maximum sentence of 10 years’ imprisonment.
2 I sentence you on the basis of the opening which was read out by the prosecutor.[1]
[1] Exhibit A
3 Briefly, your offending on the first charge involved the following: at about 9am on 13 January 1987, you entered the bedroom of a sleeping woman and woke her by jumping on her bed and throwing the doona over her head. You were not known to each other. This woman was Kate Smythe[2], then aged 21 years, who was 4 months pregnant[3], and whose husband had left for work just over an hour earlier. When you woke her, she called out, and you hit her twice, causing her mouth to bleed. When she said she could not breathe because of the doona you held over her face, you threatened to strangle her, and in fact began pressing on her throat. When she pulled your hand away, you hit her again. She then pleaded with you not to hurt her as she was pregnant, and chillingly, you said you knew. You penetrated her vagina with your fingers before raping her by inserting your penis into her vagina. It seems that you did not use a condom, and you ejaculated inside her.
[2] A pseudonym
[3] As stated in the Prosecution Opening; I note Ms Smythe in her Victim Impact Statement says she was three months pregnant.
4 There are features which make this frightening offence even more serious, viz:
· violating a woman in her own home;
· violating a woman who was pregnant;
· continuing your attack on her after becoming aware of her pregnancy;
· making the remark that you knew she was pregnant, which had the potential to make her think that perhaps you had been following her;
· committing violent acts on her, beyond the violence associated with the rape, and by those other acts causing her injuries; and
· the fact that no condom was used, leaving her open to the possibility of an infection.
5 Ms Smythe contacted her husband immediately after you left, and he contacted the police. Ms Smythe was later examined by a forensic doctor, who observed a fairly deep cut to her lip. Forensic samples were taken but no perpetrator was then identified. The samples were stored pending advancements in DNA technology.
6 The impact of your terrifying crime on Ms Smythe was immediate and long lasting. The prosecutor read out in court the impact statement she provided[4], and I take its contents very much into account in deciding the appropriate sentence. She was consumed with fear and anxiety for the health of her unborn child – her first – and her pregnancy turned into a time of worry instead of the joyful time it should have been. She felt humiliated and degraded and suffered nightmares and an extreme fear of going to sleep; these nightmares have diminished in number over the years, but not in intensity. Her fear was so great that despite her dreams of having a large family, she felt unable to go through with another pregnancy and three abortions followed. She deliberately made herself unattractive in order to ward off potential rapists, as she had no idea who had committed this dreadful crime on her and lived in fear of it happening again. It is most disappointing to learn that the people from whom she should have received the greatest support and concern for her wellbeing – her husband and his family – were unable to do this, and the relationships soured forever. Ultimately, she separated from her husband. Fortunately she has a supportive new partner, but the fact that the crime has been brought back into the light of day nearly 30 years later means she has had to tell her new partner, and her son, with whom she was pregnant at the time of your crime, what happened, and so felt humiliated and degraded all over again. Her nightmares have returned. She is now a woman of 50 years. You robbed her of the chance for the life she had planned, with the husband she had newly married and with her first pregnancy, with other children planned to follow.
[4] Exhibit C
7 No sentence I give you will restore to Ms Smythe her planned life or her original family or her unborn children. No words I say to her can do much to ease her suffering. I do hope however, that today’s sentence will produce some finality for her and allow her to pick up the threads again, together with the loving support from her partner and son.
8 Turning to your offending on the second charge, it involved the following: at about 1am on 14 February 1987, only 4 weeks after the first offence on this indictment was committed by you, you took a sleeping 2 year old boy from his bed, removed his lower clothing, assaulted him in indecent circumstances, inflicted violence on his face and head, and left him crying outside the flat from which you had taken him. He was not known to you. This boy is now a man of 32 years, Thanh Tran[5], who until police contacted him in 2014, had no idea of the crime committed against him. He still does not know all the details, as he was afraid to hear what might have happened to him, so I will be very general in my remarks, so that it is his choice whether he finds out more from the police.
[5] A pseudonym
9 Mr Tran had been put to bed by his father, but being a very hot night, both the windows and front door were open. His father checked on him at 11.30pm and he was asleep in bed. His father heard him crying at about 1am and found him outside near the letter box. He took him to a police station, and Mr Tran was later forensically examined. His injuries are detailed in the summary of prosecution opening[6] and I will not repeat them. The aggravating circumstances of the indecent assault arise from the infliction of serious personal violence on Mr Tran.
[6] Exhibit A
10 There are features which make this shocking offence even more serious, viz:
· Committing acts of violence and of indecency on a child of 2 years;
· Removing him from his bed and from the care of his father to commit the crime; and
· Committing the crime brazenly with adults awake watching movies in the next room.
11 Again, forensic samples were taken but no perpetrator was identified. The samples were stored pending advancements in DNA technology.
12 As I mentioned, Mr Tran has only recently learned of your abhorrent crime on him, but the impact is no less devastating for that. I have read the impact statement he provided[7], and take its contents very much into account in deciding the appropriate sentence. He did not want it read out in court, and so again, to respect his wishes, I will not repeat what was contained in it. It is clear that Mr Tran has suffered considerably since learning of your attack on him, and that it will take some time for him to come to terms with that knowledge.
[7] Exhibit C
13 To both Ms Smythe and Mr Tran, I say that they will be offered support and counselling referrals by the prosecution or police and may already have that information. It is in their best interests to take up the opportunity for professional assistance to cope with the dreadful impacts on them. I do wish them both well for the future.
14
In October 2013, the stored forensic samples were analysed and a
DNA profile was obtained for each and compared against your DNA profile. There is extremely strong support for the proposition that you were the contributor to a number of samples from each victim and scene.
15 Your DNA profile was on file because you have committed other offences, but I have not been told exactly when a sample was taken from you before the testing of the samples in this case. A sample was taken with your consent at the time you were interviewed about these crimes in 2014, but that was after the testing was performed.
16 The fact is that these two offences were committed when you were on a violent sexual rampage over almost two years, terrifying the communities in which you offended, and interrupted only by a period of imprisonment when you were finally apprehended for some of the offences. Ms Smythe was your first victim, and Mr Tran was your third. Between 13 January 1987 and 18 December 1988, you committed five other rapes including an aggravated rape, five other indecent assaults, including an aggravated indecent assault, one abduction and detention for the purpose of sexual penetration, one burglary, one offence of causing serious injury intentionally, and three offences of causing injury, involving seven other victims.
17 You were sentenced on 13 May 1988 for some of these offences, involving four victims committed on 23 January, 3 February (both dates involving victim 2), 5 March (victim 6) and 8 June 1987 (victim 8) and received a sentence of 5 years’ imprisonment with a minimum of 3 years’ imprisonment[8].
[8] Referred to in Exhibit F and Exhibit J
18 A little over a month after your release from that sentence, on 18 December 1988 you committed another crime of rape (victim 9), and were re-sentenced on appeal on 31 July 1989 to 8 years’ imprisonment with a minimum of 6 years.
19 Then on 25 March 1994, you were sentenced for the balance of the offences I referred to above, in respect of three victims, committed on 20 February (victims 4 and 5) and 20 March 1987 (victim 7), receiving a sentence of 8 years 6 months’ imprisonment to be served cumulatively on the 1989 sentence you were still undergoing, with a minimum of 4 years 6 months. Thus, you spent about 14 years in prison for the offending against seven victims.
20 At the time of the offences for which you are to be sentenced today, you were aged 24 years and had only one prior conviction in an adult court, for being unlawfully on the premises. The sentencing judge in 1994 considered that of no relevance; however, given that the majority of the attacks the circumstances of which I am aware[9] involved you entering the premises of your victims unlawfully, I find that conviction has some relevance.
[9]I have read the sentencing remarks of the 1989 and 1994 sentences – Exhibits F and G respectively – and heard the circumstances of the other offending from defence counsel on the plea.
21 However, your criminal history has developed in such a way that when it comes to sentencing you for the rape of Ms Smythe, you are to be sentenced as a person who had not committed a rape before; this is because although you have five convictions for rape recorded before today, these offences occurred after the offence was committed against Ms Smythe. When it comes to sentencing you for the aggravated indecent assault of Mr Tran, you had committed the same type of offence before that, which appears to have been committed against the second victim, and committed six other indecent assaults since. Although the aggravated indecent assault is not strictly a prior conviction, as it was not recorded until after the offence was committed against Mr Tran, it is still of relevance as showing that the offence against Mr Tran was a repeat offence.
22 It was submitted by your counsel that all of your offending occurred when you were affected by alcohol and cannabis, and that you were a heavy drinker in that period. You reported to Mr Patrick Newton, clinical and forensic psychologist[10] in 2016 that you drank around a bottle of spirits a day in the 1980’s, and also smoked substantial quantities of cannabis on a daily basis. I note that in the sentence of 1994, there was reference to there being some evidence that before the commission of the offences on 20 February 1987, you had consumed a quantity of alcohol and cannabis. There is no reference to such use for the other offences.
[10] Exhibit 2
23 It was put that you have no recollection of committing an offence against a 2 year old, and only a vague recollection of committing the type of offence committed against Ms Smythe around that period, but no specific memory of the crime against her. If you were abusing cannabis and alcohol to the extent you reported to Mr Newton, that may well account for you having no memory of these two crimes, but it seems unusual not to remember committing a crime involving personal violence against a very young child.
24 Some explanation for your offending may be found in your background. You are now aged 53 years. You are the youngest of six children. You were sexually abused by one brother from the age of 6, and he also physically and emotionally abused you. You were also sexually abused by another brother while you were still a child. These experiences left you confused; at first you did not understand the nature of the activity, then you complied out of fear, and later, with the second brother, it turned into something you described as ‘enjoyable’. This created a sexual dysfunction in you and a confused sexual identity. As an adult, you have engaged in the past in casual homosexual encounters. Your brothers also introduced you to heterosexual activities through violent pornography, and this background you say formed the basis of fantasies involving what Mr Newton described as “coercive sexual contact”[11] with women, which you acted out in your offending during the period 1987-1988.
[11] Exhibit 2
25 You were admitted to the care of the Department of Social Welfare as it was then known, for the years when you were aged 13-15. You struggled at school and reported receiving severe bullying. Your behaviour became unruly as a result, and you were asked to leave in Year 9. Following that, you worked in a number of unskilled positions until you were imprisoned in 1987. You married before that, and after your wife had a number of abortions, you had a son together shortly before you were imprisoned for the first time. You separated as a result of your incarceration, and you have no contact with your former wife or your son. You remained in custody until 2001, following the sentences I earlier described, and undertook a range of studies during your incarceration[12]. According to the sentencing remarks in 1994[13], it was during the early part of this imprisonment that you became a committed Christian. I note that Mr Newton reports that you converted to evangelical Christianity in 2012[14].
[12] Exhibit G
[13] ibid
[14] Exhibit 2
26 On your release on parole, you attended a psychologist for a year, although I was not told what treatment or counselling was involved. You did not return to cannabis use, but did resume drinking alcohol.
27 You were apparently intoxicated again when you committed another sexual offence in 2010. Clearly, you had not fully rehabilitated during the 14 years in custody, and 9 years in the community. As described to me by your counsel, I consider this was opportunistic offending which still had an element of you feeling entitled to treat women as sexual objects. You propositioned the girlfriend of a carpenter at your home, while the carpenter was on your roof, by playing a pornographic video, and putting your hands under her clothing and asking her for sex. The criminal history refers to the granting of an adjournment of the hearing of the resulting indecent assault charges in order for what was known as a VARE[15] tape to be seen by your lawyer. That means that the victim was either aged under 18 years or a cognitively impaired person, but I was not told which.
[15] Video and audio recording of evidence.
28 Ultimately, you received a sentence of imprisonment of 18 months wholly suspended on one charge, and a community correction order for 2 years on the other, with conditions including treatment for alcohol abuse, alcohol exclusion, and completion of a Sex Offenders Program. There is no information as to whether you had undertaken any such programs before or after your release from prison in 2001. You reported to Mr Newton that with the assistance obtained from this court order, you significantly reduced your drinking and now drink alcohol only once a week, typically consuming a couple of drinks. Mr Newton’s evaluation of you in 2016 was supplemented by his assessment of you in 2012. He formed the opinion that while in 2012 your sexual adjustment was problematic and continued to show the effects of your own sexual abuse, since you have participated in what was described by Mr Newton as extended sex-offender treatment, you have made some progress towards addressing these issues, with re-structuring of some of your cognitive distortions about women, improvement in your interpersonal skills, and development of a relapse prevention plan. However, he expressed the view that some issues of significance remain and you are still conflicted about your own sexuality. I will return to your prospects for rehabilitation later.
29 Following your release from prison in 2001, you studied at TAFE, receiving a Certificate IV in Hospitality. There you met your current wife, whom you married in 2003. She is fully aware of your criminal history, and the offences for which you will be sentenced today, and supported you in court. There are sexual intimacy difficulties in your marriage, which are referred to by Mr Newton, and you acknowledge that this has been difficult for you, but you have apparently come to terms with it with the help of the pastor of your church. You and your wife are very involved in your church. You clearly see a continuing future together, despite the term of imprisonment that you will now serve.
30 After completing your TAFE course, you worked as a pastry cook for about three years, then as a driver for about 5 years for one company, from where you were approached to work for another company as a driver. You worked there for just under three years, before resigning last year when you pleaded guilty to these offences.
31 I received references[16] from your wife, your wife’s sister, a co-worker, your employer, your pastor, and a letter from a psychologist, confirming the counselling you received for alcohol abuse following your community corrections order. All of these are testament to the person that presents to the court now, compared to the 24 year old violent sex offender who appeared in the 1980’s. This support, and the prospect of future employment, is vital to your rehabilitation.
[16] Exhibit 3
32 Mr Newton noted that you reported no history of psychiatric illness or mental disorder. There is a reference in the 1989 judgment in the Court of Appeal[17] to it being said that you suffered from a personality disorder that was a motivating factor in the commission of the offence before the court (victim 9), but no professional opinion was referred to, and there is no suggestion in any other material that you have such a disorder. Mr Newton assessed your risk of re-offending using the current assessment tools available, and formed the view that your recent progress shows marked reduction across most risk factors. He expressed the opinions that your general psychological adjustment is moderately good, there is limited recent evidence of mental disorder, and the indications are that your challenges, arising from your social difficulties and the ongoing effects of your own abuse, should be able to be managed well. He recommended further treatment to address these areas, and ultimately assessed your risk of sexual re-offending as moderate, likely to reduce further if you received specialist treatment.
[17] Exhibit F
33 I endorse these recommendations for the consideration of those who will be concerned with your rehabilitation while in custody and on parole. I accept your counsel’s description of your prospects as guarded, with a continuing risk to the community, given your history and ongoing issues, but I recognise that there is hope for your complete rehabilitation, because of the steps you have taken, your support from your wife and other people who are all law-abiding and aware of your history, and your potential for future stable employment.
34 There are some other matters in your favour that I must take into account. Your plea of guilty, although not at an early stage, has still avoided the need for the victims to give evidence (assuming Mr Tran would be required to give evidence which is by no means certain), and has saved the cost and time involved to the community in a trial being held. The committal was contested on the basis of the DNA evidence, with exploration of the possibility for contamination given that samples of your DNA from the other crimes were likely to be in storage at the same time, and bearing in mind that you have said you have no recollection of committing these two crimes. The matter was set down for trial until your own expert report on the DNA evidence was obtained. Although Ms Smythe in particular would have been expecting to be required to give evidence up until you pleaded guilty shortly after the final directions hearing 8 weeks before trial, I find that the plea of guilty nevertheless represents a degree of remorse. I also find that in your letter to the court[18] you have expressed remorse for these crimes, shown insight into the causes of your offending, as well as the impact of the crimes on your victims, and demonstrated empathy for them.
[18] Exhibit 4
35 Your counsel submitted that I should take into account the delay in this matter coming to sentence[19], given that you have taken the opportunity over the time that has passed to commence your rehabilitation.
[19] Exhibit 1 – Outline of Plea Submissions
36 In considering whether delay should be taken into account in your favour, I have had regard to the remarks of the Court of Appeal[20], where it was said, amongst other things that it is incumbent on the courts, however long ago the offences were committed, to express the denunciation of the community of such serious criminal behaviour through the sentences imposed on perpetrators, and to provide social rehabilitation, by recognition of the court of the real significance of what has occurred in the life of people affected by the crimes as a consequence of that crime, to facilitate their process of recovery.
[20]DPP v Toomey [2006] VSCA 90 at [17]-[24]
37 Taking all these matters into account, I have decided to allow in your favour some consideration of the time that has passed since the offence occurred, together with recognition of what you have done with that time, bearing in mind that you have committed a further sexual offence, and that there are still issues to be addressed by you.
38 You are to be sentenced as a serious sexual offender for these two charges, even though all but two of those other offences in your criminal history occurred afterwards. As a result, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed today. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. I do not intend to do that, because the prosecution have not asked for it, and because these offences took place more than 29 years ago, and occurred before most of the other sexual offences.
39 It is also necessary for the sentences I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender. I have decided to order some concurrency because of the factor of time that I have taken into account and also because of the need for the sentence I impose to be considered in combination with the sentences you have already served for similar, albeit extremely serious, offending during the one protracted course of conduct, so that the sentences combined reflect the totality of your offending.
40 I have kept in mind that the scope for applying the principle of totality is limited by the law relating to sentences imposed on serious sex offenders[21], but I have still considered the need for today’s sentence to reflect to an extent the totality of your offending: that is, an aggravated rape, five rapes involving levels of violence exceeding the violence associated with non-consensual penetration, two aggravated indecent assaults, an abduction and detention for sexual penetration, four indecent assaults[22] also involving violence, and four injury charges, including one of causing serious injury. I have also had regard to the fact that there was a lower maximum sentence in 1987 for each of the offences for which you are being sentenced today.
[21]HMcL v R (2000) 174 ALR 1 at [76]
[22] Excluding those for which no imprisonment was served following the sentence in 2012.
41 The prosecution submitted that the offending in charge 2, involving as it did an infant, was different in nature to your other sexual offending. Of course, the difference is obvious, but I consider that the offence still involves similar features to your other offending over that period (e.g. unlawful entry to a house, an attack on a sleeping victim, presence of others nearby, and the nature of the injuries which suggest pressure on the throat and hitting of the face.[23]) Therefore, I treat this as part of the pattern of serious conduct you engaged in.
[23] The child is also reported to have told his father “Someone hit me” when found outside on the ground.
42 I have also taken into account the importance of deterrence in this case. That means that by my sentence of you, I must try to deter other men from committing serious sexual offences. Further, my sentence must seek to deter you from re-offending, which as I have said, is a risk that still exists, despite your time in prison, and the courses you have undertaken.
43 Before I proceed to sentence, there is one further matter I need to deal with. Because of the sentence I am imposing today, you will continue as a registrable sex offender. Charge 1 is deemed to be a class one offence, and charge 2 is a class 2 offence. This means that you will be required within 7 days of your release from custody to report your personal details and continue a regime of annual reporting required by the Sex Offenders Registration Act and be subject to that Act for the rest of your life[24].
[24] Pursuant to section 34(1)(c)(ii)
44 My Associate will now give you a form telling you of your reporting obligations and she will ask you to sign where indicated to show you have received this form. Perhaps you, Mr Hallowes, might accompany my Associate to assist.
45 And just before I resume my sentencing remarks, has the pre-sentence detention been agreed?
46 MR HENNESSEY: Seventy-eight days, not including today.
47 HER HONOUR: Not including today?
48 MR HENNESSEY: Not including.
49 HER HONOUR: So that makes it 79 days including today.
50 MR HENNESSEY: Yes, Your Honour.
51 HER HONOUR: I think I will include today, seeing as it is this afternoon. Thank you.
52 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against a child. The prosecutor submitted that these two offences are at the severe end of the range, and that the attack in charge 2 is as serious as one can comprehend. Your counsel has conceded on your behalf that these offences are at the top of the range, that there is little to mitigate the actual offending, and that had you been sentenced at the same time, more time would have been served. I disagree with your counsel’s later submission that the addition of these charges would not have dramatically altered the head sentence or non-parole period that you would have received had all the offending in 1987-88 been dealt with at the same time.
53 Because of the objective gravity of your offences, and my view that the features which make your offences more serious outweigh the factors to be taken into account in your favour, including the time you have already served and the time that has passed, a sterner sentence is called for than might at first seem just for a first offence of this kind for charge 1, and the gross seriousness of the offence against a vulnerable infant in charge 2 must be recognised. However, the non-parole period I propose to set will be lower than it would have been back then, having regard to the time that has passed since the offending, and the steps that you have taken towards rehabilitation.
54 For completeness, I note that I received further written submissions[25] from both counsel regarding the case of Hall[26] which I referred to at the plea hearing. I accept the submissions put by each side that the case is not of great assistance and so have not relied on it in any way for my sentencing of you today. Stand up, please, Mr Schwab.
[25] Exhibit J and Exhibit 5
[26] (1994) 76 A Crim R 454
55 You are convicted and sentenced as follows:
56 Charge 1 – rape - 5 years’ imprisonment.
57 Charge 2 – aggravated indecent assault – 5 years 6 months’ imprisonment.
58 The sentence on charge 2 is the base sentence. I direct that 6 months of the sentence imposed on charge 1 be served cumulatively on the sentence imposed on charge 2. That makes a total effective sentence of 6 years’ imprisonment.
59 I direct that you serve a minimum of 3 years’ imprisonment before becoming eligible for parole.
60 I note that you have served 79 days including today in pre-sentence detention, and that these will be deducted administratively from your sentence.
61 I direct that it be entered onto the record that you have been sentenced as a serious sex offender on both charges.
62 If you had not pleaded guilty but had been found guilty of these two charges after a trial, the sentence I would have imposed on these two charges alone is 9 years’ imprisonment with a minimum of 7 years’ imprisonment.
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