Director of Public Prosecutions v Spell (a pseudonym)

[2019] VCC 1830

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM SPELL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	22 October 2019
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	DPP v Spell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1830

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr. R. Hammill	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Tyler Tipping & Woods

HIS HONOUR:

1Adam Spell[1] you have pleaded guilty to two charges of rape.  That crime carries a maximum penalty of 25 years imprisonment.  You are now 32 years of age.  You pleaded guilty at a later time, but you still must get the utilitarian benefit of that plea of guilty.  Insofar as remorse is concerned, that is, I think very problematic.  There are references of your behalf which assert that there is remorse but your conference with the psychiatrist would tend to indicate pretty clearly that there is none – you still seem to be in denial.

[1] This is a pseudonym.

2You have no prior convictions as such and that obviously stands very much in your favour.  The circumstances of it were that there has now been a significant delay since the matter was first reported.  Part of that delay has been due to the fact that you were a running what is colloquially known as a sexsomnia defence.  That defence became totally untenable immediately prior to the trial, for reasons I do not need to go into at this stage, but you still seem to be maintaining that when you are talking to Dr Cunningham.  He said you had little insight and I have to admit that that is very much the case.  I do however, take into account the fact that you have now been sentenced some three years or so after the offending had occurred.

3The circumstances of the offending are that you are now as I said 32 years of age.  The first complainant was a Ms Reckner[2] and she was 22 years of age at the time of the offending.  The second is a Penelope Harlow,[3] who was a cousin, as I understand it, of your then partner Sarah Harlow.[4]  Between 1 January 2015 and 31 June 2015, Ms Reckner went to two nightclubs in Sale, with you and your then partner.  After leaving, you returned to your house in Sale and stayed the night. You all slept in the main bedroom, with your partner sleeping in the middle of the bed between the two of you. 

[2] This is a pseudonym,

[3] This is a pseudonym.

[4] This is a pseudonym.

4Approximately a month later she was again at your house with her daughter and your partner decided to go out.  Ms Reckner remained at the house watching TV with you.  While watching TV, you asked her if she would like to have sex with you, to which she said no.  She said that she did not think your partner would like that.  You then asked her if she wanted to watch a movie on the television in the main bedroom.  She agreed to do this, as she expected Sarah, that is your partner, to arrive back home shortly and sent her a text asking when she would be home.  There was no response.  Reckner lay on the bed fully clothed.  Shortly after the movie started she fell asleep.  She awoke to find her pants down below her bottom and your penis in her vagina.  While she was realising or coming to terms with what was happening, you ejaculated in her vagina. 

5That gives rise to Charge 1 of rape.  When you did this, she pulled her pants up and left the bed telling you she was going to sleep on the couch.  She was annoyed and worried about what you had just done as at no time did she give you permission to have sexual intercourse with her.  It was quite clear from the Crown opening that in fact, you had asked her, despite you denying this later whether she would have sex with you and you got a quite clear, 'No.'

6The sex was clearly in that situation, as in the other, a gross breach of trust.  It was unprotected sex on an unwilling and unknowing partner.  The risk of course obviously of pregnancy or sexually transmitted diseases is always present in such a situation.  This is a serious example in my view, of rape.  About a week later, Ms Reckner invited your partner to her house and told her what had happened.  Your partner then sent a text to you, you responded that you loved her and would not do anything like that to her.  When she then confronted you about what the first complainant, that is Ms Reckner, had told her, you eventually told her that you tried to have sex with her and your ex-partner said, 'you tried to blame your actions on a sleeping condition' but did not elaborate.  Ms Reckner never returned to the house and did not report the incident as she did not want to upset your partner.

7On 25 February 2017, the second complainant that is, Ms Harlow, met up with a work colleague in Sale, went and drank at a hotel for a while and shortly after 12 am, she and the workmate left in the company of friends and went to a nightclub.  There they saw you and your partner and spoke with each of you.  The workmate decided to leave the nightclub at approximately 2 am, but Ms Harlow remained with your partner and you until approximate 3 am.  During that time more drinks were had.  There was then a bit of to-ing and fro-ing in regard to the children, but when the complainant and your partner returned home with the children they were put to bed and everyone decided to watch a movie called, 'Bad Mums' in the main bedroom.

8Your partner leant the complainant some pyjama pants and a singlet to put on.  She got out of her own clothing, was still wearing her own bra and knickers but put on the borrowed clothing.  Between 4 and 4.30 am she went to the main bedroom she got in the right-hand side of the bed, your partner was in the middle and you were on the left-hand side of the bed.  At approximately 5.30 am, your partner fell asleep and it would seem that the complainant fell asleep a short time later.  She awoke and your partner was no longer there.  Instead you were sitting up beside her with your hand under her knickers and one or two fingers inside her vagina.  That caused her to immediately sit up.  When she did this, you took your hand away, lay back down and as the complainant said, 'Pretended to go back to sleep.'  That is Charge 2 of rape.

9There is no distinguishing between forms of rape but it seems to me that the first one is a more serious example of rape because of the unprotected nature of it and the culmination of it.  In any event, the second complainant left the bedroom immediately and called a cab and various conversations of complaints took place after that, which I do not think I need to go into.  You again claimed that you must have done it while you were asleep.  When interviewed, you did not call it lies or anything like that, which I suppose is to your credit, but you maintained that in fact you had this sleep walking problem and that is what this was all about it.  As it turns out in the end, that came to nothing and I sentence on the basis that you were fully conscious of what you were doing with these two women, took advantage of them and have shown no, effectively other than your plea of guilty, remorse since.

10There is a victim impact statement in regard to Ms Harlow, who describes the affect that this has had upon her.  I am not going to go into all the detail of that. Clearly it is a very distressing and disturbing incident for her and would have seemed to have had ongoing psychological effects.  The offending has to be regarded as serious, it calls for the application of general and specific deterrence, though as your counsel points out gaol for you, I think, any length of time would be a specific deterrent.  And there must be appropriate acknowledgement of denunciation and there must be an appropriate punishment.  A very significant gaol sentence is the only option open in these circumstances and that is what I will be doing. 

11In terms of working out the length of that sentence, I look at the matters personal to you and a discussion with counsel about comparable cases and I do not know that they are going to – would be of much assistance in this situation.  And I have looked at the sentencing statistics in regard to the crime, rape.  Tendered on your behalf were references, which I have already referred to and take those into account of you otherwise being of good character.

12There is also a report of Dr Cunningham, a report from the Latrobe Regional Health and report from the Angliss Medical Centre and I take all those into account as well.  The submissions were tendered and provided on your behalf by your counsel in a succinct form.  The circumstances are that, as I said, you are now 32 and you actually do not have prior convictions, despite the allegation having earlier been withdrawn by your partner and I take no note of that in these circumstances.

13You were brought up in the country and your father was a violent man. You were abused.  You have a family with brothers and sisters, with whom you have very little contact.  You have now been on remand for some 16 days and as I understand it, they have not visited you.  You do have a current partner, whose reference I have obviously read and she has visited you in gaol.  Up until the time of your incarceration, your four year old son who you had with the previous partner, had been in your custody at various occasions, in the form of access and I understand that that is something you wish to pursue upon your ultimate release and hopefully that is motivation to you to get through the significant sentence that must be imposed.

14You do have a good work record and I take that into account.  You got to about Year 11 in school and had various jobs and are clearly a reasonably good provider.  I accept from the material before me, I will be quoting this in a moment, that you do have a history of depression and there is also – there is evidence, according to Dr Cunningham, of a 'Underlying neurodevelopmental disorder.'  I accept from what your counsel tells me, that you have been previously prescribed anti-depressants.  You have on occasions, had counselling in regard to that, with  Intrepidy in Sale and I take those matters into account.  It is not put that the principles of Verdins are enlivened in this situation, but it is clear that the depressive aspects of it, will be something that will cause you difficulty in gaol, but not – and is clearly something I take into account.  It is not something that cannot be treated.

15I then turn to the report of Dr Cunningham.  He goes through your family history.  I do not see there is a lot of point in me doing that now.  He confirms that you do have the son, Hendricks[5], who is aged four and you were seeing him every second weekend or so.  You do have earlier children from a former relationship, but you have not seen them now for quite some period of time.  You said to Mr Cunningham that your relationship with the former partner ended because she was sick of your condition, which is said to be by you, 'Sexsomnia.'  I have read her statement as I have made clear and it is certainly not what she says, but in any event, the absence of real remorse is not an aggravating feature, it just simply means that you cannot call into account something that you would otherwise have been able to rely fairly heavily on.  Your IQ is 85, which is within a normal range and he confirms the depression and the neurodevelopmental disorder.

[5] A pseudonym.

16Dr Cunningham says that you are very frightened of being in gaol and that is understandable.  He goes through some of your family history and describes how you have long term issues with feelings of abandonment and rejection, that you told Mr Cunningham that you had not considered or attempted suicide for some 18 months or so.  You said that the last attempt occurred in the context of a relationship breakdown.  At the time he spoke to you, you were not on medication and you were not receiving counselling and that you were not – he said, engaged with treatment for mental health in the community. I accept from your counsel that that is not the case and indeed over the years, certainly in more recent years you have. He said, 'Mr Spell presented with a limited insight into the effect of his behaviour on the victims.  He was largely consumed by his distress at being incarcerated.  In my opinion, this was a reflection of his immaturity, rather than a psychopathic mindset.  He maintained that he suffered from sexsomnia.  He stated that he would never intentionally assault a female.  He stated that he had been raised to respect females.'

17I have already given my views on that and my finding is that that condition whilst it exists, is not applicable to you.  He then goes later on to say that – how you see yourself as having been rejected or abandoned, he said, 'He presented as largely naïve and immature, this is consistent with the presence of an underlying neurodevelopmental disorder.  His psychological and emotional maturity is not commensurate with his age peers.  He has struggled to find direction and maintains stability in the community.  He has largely attempted to escape from problems through drug use and denial.  He has struggled to come to terms with the seriousness of his actions, with respect of the consequences of the victims.  In my opinion, this is a reflection of his immaturity.  As I have indicated Verdins is not enlivened here, except perhaps in that one limited way.

18That is the situation which you find yourself.  You do have a partner who so far has been supportive of you.  You do have references from other people.  You have worked, there is no reason why you should not work when you get out.  Rehabilitation is entirely a matter for you.  In the sentence that I impose I am almost certain that the authorities will require you to undergo a sex offenders program and hopefully that will assist in forms of rehabilitation.  If that program is effective, then the risk of you re-offending should be low, but that will be a matter for others to judge at another time.

19I take into account aspects of totality.  Clearly there has to be an appropriate sentences for each of the two victims and it is not a situation where I have even considered a total accumulation but there will be significant accumulation because of the fact there are two victims and the sentence must reflect the fact that there are two and the seriousness of it all.  From taking all those matters into account, in what is, as counsel fairly described is a fairly odd situation, your sentence is follows:

20On Charge 1, six years.  Charge 2, four years.  I direct that one and a half years of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1.  That gives a total effective sentence of seven and a half years.  In these circumstances, because of your age, your immaturity and the lack of prior convictions, I am prepared to give you an opportunity for parole at a much earlier time that would otherwise be the case.  Accordingly, I would let you just serve the minimum term of four years before becoming eligible for parole.  I direct that 16 days be reckoned as having been served under this sentence.  Just so you clearly understand what the benefits of your pleading guilty were, despite the absence of true remorse, but for your plea of guilty, I would have sentenced you be imprisoned for a period of 11 years with a minimum term of eight.

21There is no other orders I need to make?

22MR HAMMILL:  No Your Honour.

23HIS HONOUR:  No all right.  No other orders Mr Goodfellow?

24MR GOODFELLOW:  No Your Honour.

25HIS HONOUR:  No, all right, you can take him now thank you.  I have done that in a fairly truncated form gentlemen, make sure those exhibits stay on the court file, so everybody knows what I've read.

26MR HAMMILL:  Yes Your Honour.

27MR GOODFELLOW:  As Your Honour pleases.

28HIS HONOUR:  Thanks for that.  Yes, 11.30, Monday.

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