Director of Public Prosecutions v Stafford
[2017] VCC 717
•7 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02175
Indictment No. F13067286.1
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| V | |
CARL JUSTIN STAFFORD (aka Carl Justin HOFFMAN, Carl Jason HOFFMAN, Karl STAFFORD, Con KARAGIORGORIS) | |
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JUDGE: | HIS HONOUR JUDGE BROOKES |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29, 31 March and 3 April 2017 |
DATE OF SENTENCE: | 7 June 2017 |
CASE MAY BE CITED AS: | DPP v Stafford |
MEDIUM NEUTRAL CITATION: | [2017] VCC 717 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – aggravated burglary - person present – rape (3 charges) – plea of guilty
Legislation Cited: Crimes Act 1958, s77(1); Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014), s38(1); Crimes Amendment (Mental Impairment and Unfitness to be Tried Act) 1997, s9, s10(1)(d)(i)); Sentencing Act 1991, s6B, s18(4); Sex Offenders Registration Act 2004, s34(1)(d)
Cases cited:Director of Public Prosecutions v Maynard [2009] VSCA 129; DPP v Brown [2004] VSCA 133; R v Hyland [2008] VSCA 220; Wright v R [2015] VSCA 333; R v Verdins & Ors (2007) 16 VR 269
Sentence: Total effective sentence of ten years’ imprisonment with a non-parole period of seven years. Section 6AAA declaration: Thirteen years’ imprisonment with a non-parole period of nine years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Pirrie | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Kilduff | Melasecca Kelly & Zayler |
HIS HONOUR:
1 Carl Justin Stafford, you have pleaded guilty to one charge of aggravated burglary and three charges of rape.
Circumstances of offending
2 A prosecution opening was tendered on the plea. It is an agreed summary.
3 Your offending conduct can be summarised as follows:
4 On 31 August 2015, at about 2.00 am, you gained entry to the bedroom of a home in St Kilda West in the State of Victoria where a 53 year-old woman was alone in her bed. You had entered her home with the intention to steal. (Charge 1 – Aggravated Burglary, contrary to s77(1) of the Crimes Act 1958).
5 Upon awakening, the complainant was aware of a presence in the home and yelled out “hello”. You rushed into the complainant’s bedroom, you lay on top of the complainant and placed your hand over her mouth and told her to be quiet. She found it difficult to breathe. She was unable to understand what you were saying, as you were mumbling. She tried to break free and, in the ensuing struggle, the doona fell away.
6 Thereafter, you used one hand to hold the complainant down, and with your other hand, you inserted your fingers into her vagina. The complainant describes that she was “frozen” and “in shock”. (Charge 2 – Rape, Representative Charge, contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014).
7 Thereafter, you got up off the bed and closed the blinds. You said to the complainant:
“Do you know your neighbours because they’re going to see you having sex in your room?”
8 You then walked out of the bedroom and picked up a white Toshiba laptop computer belonging to the complainant.
9 You came back into the room and removed your pants and underpants and lay on the bed on top of the doona. You asked the complainant to enter her password into the computer. She was nervous and “completely flustered” and made errors, but ultimately the correct password was registered. As the computer lit up, the complainant was able to see your face.
10 You then grabbed the complainant by the back of the neck and pushed her head down towards your penis. You said to her “suck me off”. The complainant was upset and “almost hyperventilating”, but she sucked your penis for a short time. (Charge 3 – Rape, contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014).
11 The complainant then said to you:
“I really need water and I need to go to the toilet.”
12 The complainant got up and walked towards the ensuite adjacent to her bedroom. You asked her if she had any neckties, to which she replied in the negative.
13 The complainant sat on the toilet and placed a towel around her body. You walked up to her and held your penis in front of her face and pushed it towards her face. The complainant said “No. No. No,” and refused to suck your penis. This is an uncharged act.
14 The complainant then told you that she needed to defecate, and you left the ensuite and went downstairs. As she emerged from the bathroom, the complainant said: “Are you still there?” You replied “I know you live by yourself. I’ve been watching you.” You also mumbled other sexual innuendos, the substance of which could not be understood.
15 Thereafter, you said to the complainant “I am going to fuck you in the arse”. You instructed the complainant to lean over a daybed and you “rammed” your fingers into her vagina. (Charge 2 – Representative Charge).
16 The complainant asked you to stop because it was hurting. You said: “You’re dry” and then inserted your penis into her vagina from behind. (Charge 4 – Rape – Representative Charge), contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
17 Thereafter, you had difficulty maintaining an erection and you slapped the complainant’s buttocks and then reinserted your fingers into her vagina. (Charge 2 – Rape – Representative Charge, contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014).
18 You said to the complainant “You’re having more fun than I’m having”. The complainant started sobbing.
19 Thereafter, you reinserted your penis into the complainant’s vagina (Charge 4 – Rape, Representative Charge, contrary to s38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014).
20 Once again, you could not maintain your erection and withdrew your penis. You sat on the couch and told the complainant to “suck me off”. This is an uncharged act. The complainant said “no” and begged you to let her have some water.
21 Thereafter, the complainant went into the main bathroom and drank some water from the tap. She wrapped a towel around her body and then “took the opportunity” to run down the stairs and out of the house into Canterbury Road.
22 Thereupon, the complainant hailed a taxi and asked the driver to call the police as she had just been raped. This occurred at 2.44 am.
23 The police had arrived just as you were emerging from the house and you were identified by the complainant.
24 When approached by the police, you had in your possession the complainant’s mobile telephone. (Charge 1 – aggravated burglary, in part).
25 Forensic testing demonstrated that:
(i) you were a contributor to a mixed DNA profile obtained from a low vaginal swab taken from the complainant;
(ii) the complainant was a contributor to a mixed DNA profile obtained from swabs taken from your left hand;
(iii) the complainant was a contributor to a mixed DNA profile obtained from swabs taken from your right hand;
(iv) the complainant was a contributor to a mixed DNA profile obtained from swabs taken from the head of your penis;
(v) the complainant was a contributor to a mixed DNA profile obtained from swabs taken from the shaft of your penis.
26 In your record of interview:
(i) you denied breaking into the complainant’s house on 31 August 2015;
(ii) you denied raping the complainant;
(iii) you denied stealing the complainant’s mobile telephone;
(iv) you stated that the complainant’s identification of you was “a mistake obviously”;
(v) you admitted that you had smoked Ice earlier in the night.
Victim Impact Statement
27 In her Victim Impact Statement dated 3 April 2017, the complainant stated that prior to these events, coming home at the end of a day’s work was “bliss”. Now, she has lost all sense of security, and that continues until this day. She felt that her home was no longer safe and it was a place of terror and extreme distress. She found she was so traumatised, she could not make any decisions and could not sleep. When she did sleep, she had nightmares with sights of your angry face sneering at her. She would get up every few hours to check that the door was secure even though she knew the house was locked. For the first four months after these events, she slept in the powder room curled up on the floor as there was no room to stretch. It took her a year to attempt to sleep in her old room. For a long time she lost her ability to work full time and found that she was unable to talk about the traumatic events. She felt that she lost her self-esteem and, particularly as you had initially pleaded not guilty, she felt that you were implying she was a liar, which made her feel that “the wound [was] open and a source of fear for 19 months of [my] life”.
Psychological assessment
28 Forensic psychiatrist, Dr Fiona Best, reported to the court on 28 February 2017 following examinations conducted on 6 October 2016, 19 October 2016 and 13 February 2017. The assessment was conducted pursuant to s.9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 as it related to the question of fitness of you to stand trial and also pursuant to s.10(1)(d)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that you undergo an examination by Forensicare and a subsequent report to be prepared.
29 In assessing fitness, Dr Best considered that you had a sufficiently settled mental state to take part in court proceedings. You were able to volunteer appropriate responses regarding fitness, understood the purpose of court, the nature of the charges, the role of the judge, the defence and the prosecution, as well as the effect of evidence. She considered that in your current state of mind you would be able to follow the course of the trial and sensibly indicated that you would ask your lawyer if you had some uncertainties on the day. She was therefore of the opinion that you were fit to stand trial.
30 For the purposes of the report, Dr Best had a number of sources of information available. These included the following:
(i) A psychiatric report addressed to his Honour Judge Davey by Dr Lester Walton, consultant psychiatrist, dated 22 January 2003;
(ii) Psychologist’s report dated 26 August 2002;
(iii) Video record of interview dated 31 August 2015;
(iv) Scanned Justice Health medical and psychiatric file records from 2001 to the current time.
31 At interview on 13 February 2017, Dr Best conducted a mental state examination. Although you could not remember the type of medication you were taking, she reported there was no evidence of any thought disorder and you denied any delusional content and denied any auditory hallucinations. Further, you denied any suicidality and denied any homicidal thoughts or thoughts to harm others and denied having any anger problems. She commented that your hygiene appeared adequate and you were clean shaven and attentive to the interview process. She reported you maintained good eye contact for much of the assessment and there was no evidence of any restlessness and you were able to tolerate the lengthy interview and maintain concentration throughout.
32 As to your past psychiatric history, Dr Best noted that the Justice Health medical records indicated that you had a long history of schizophrenia, paranoid subtype, which first emerged in 2001 and has required treatment since that time. Since that time, you have been treated with a number of medications including a variety of benzodiazepine medications. You have also been on a methadone program during periods of incarceration. Your file also indicated that you had experienced “blackouts” whilst incarcerated and although these were initially thought to be due to a diagnosis of epilepsy, they were found to be more likely due to withdrawal symptoms secondary to sudden abstinence from illicit substances as a consequence of incarceration. Your file also makes reference to difficulties with Borderline Personality Disorder and Bipolar Affective Disorder as possible alternative explanations for your agitated presentation in the past.
33 At present, you are under the care of Psychiatric Services at the Melbourne Remand Centre and are currently taking Aripiprazole, 25 milligrams daily, which is an anti-psychotic medication. Dr Best considers that this medication regime appears to have had a significant improvement in your mental state when compared to her previous assessments in late 2016. You are also currently on a methadone program.
34 Your past medical history also includes the possibility of an Acquired Brain Injury due to a fall in 2014 when you fell three storeys when amphetamine affected and during an alleged break-in. There is also some suggestion that you are Hepatitis C positive.
35 Your drug and alcohol history was such that you reported you had “tried everything”. This included alcohol, cannabis, amphetamines and heroin. Referral information indicated that you had attended a variety of courses on drug education and attempted drug rehabilitation at Moreland Hall but did not complete the program. You have taken part in methadone programs in the past.
36 As to the current offences, you told Dr Best the following:
“I don’t know what happened. The last thing I remember was waking up in a house, there was no problem, we didn’t have any arguments, I didn’t force myself on her, I’ve been set up. I only just met her out the front of her house, she was with a bloke and they were drinking, we started talking, we had a conversation and then this happened. I’ve never been charged with anything like this before, it’s not my sort of thing.”
37 You reported that whilst you had been using illicit drugs on the day of the alleged offence, you had also been drinking alcohol much earlier in the day.
38 It was Dr Best’s opinion that your diagnosis was one of a long history of schizophrenia, paranoid subtype, for which you have received treatment during periods of incarceration and in the community. Since her first meeting with you in October 2016, you have received daily treatment for your schizophrenia, such that your psychotic symptoms appear to have settled sufficiently to allow an assessment to take place.
Personal circumstances
39 As related to Dr Best, your past history indicates a troubled childhood. You were raised by a single mother and migrated to Australia from New Zealand with her when you were three years old. Your mother worked as a sex worker and also ran a gay escort agency. Some of the medical referral documents indicate that you were sexually abused by your mother’s work colleagues. Further, it appears that you were significantly troubled in school, as you were moved from school to school repeatedly. It is also recorded that you were in contact with psychiatric services when you were thirteen years old because of behavioural problems. It would also appear that your mother had mental health difficulties, alcohol and illicit drug use difficulties and possible schizophrenia.
Nature of offending and gravity
40 Your offending is objectively most serious. It includes the following features:
· On 31 August 2015, there was sustained offending of the complainant, in that you digitally, orally and by means of inserting your penis into her vagina, raped the complainant in her home at night after breaking into her unit.
· Despite being interviewed by police in respect of these incidents, and being confronted with the forensic evidence, you advanced the defence that the sexual encounters were consensual and that the complainant was a liar, thus exacerbating her distress until you finally pleaded guilty on 3 April of this year.
· The offending was accompanied by a degree of taunting of the complainant by stating: “Do you know your neighbours because they’re going to see you having sex in your room?” and stating to her: “I know you live by yourself. I’ve been watching you”, and on another occasion, having inserted your penis into her vagina, you said to the complainant: “You’re having more fun than I’m having”, prompting the complainant to commence sobbing.
· The offences were committed in the context of a home invasion of a vulnerable, single woman in circumstances where she was entitled to feel safe.
· The length of the offending occurred over some 40 minutes, in which time the victim was humiliated and degraded.
· You steadfastly ignored her pleas for you to stop.
· You were not wearing a condom.
41 In my view, your rapes of the complainant are serious and disturbing examples of a serious offence.
42 You were born on 25 July 1974 and are presently aged 42 years. You have admitted a criminal record which covers 31 pages from 21 October 1991 until 19 August 2015. Although none of the offences concern sexual charges, there is a considerable array of burglary, obtaining property by deception, thefts from shops, thefts from motor vehicles, criminal damage, assaulting police, making threat to kill, intentionally causing injury, going equipped to steal and possessing drugs of dependence. In these circumstances, the principles of specific deterrence loom large, with respect to the aggravated burglary charge.
43 Your schizophrenia and drug abuse has been documented above.
44 At interview with Dr Best on 13 February 2017, you declined to accept responsibility for your actions or express any remorse. You continued to allege that the sexual encounters were consensual. I will accept however the accuracy of your statement to the effect: “I’ve never been charged with anything like this before, and it’s not my sort of thing. I’m not happy with being charged with this rape, it’s not something that I do.” Accordingly, I will accept that with respect to the aggravated burglary charge, it was your intention to steal from the premises and that, in all probability, your decision to commit the serious sexual offences could be described as opportunistic.
45 It is not in dispute that you have an established diagnosis of schizophrenia and that you have been significantly methamphetamine dependent for most of your adult life. You have also used heroin. Your use of anti-psychotic medication has been spasmodic and has probably contributed to a decline in your mental health; however, the circumstances contained in the prosecution summary suggest that your intentions on the night in question were far removed from any scenarios of consensual sexual interaction.
46 It is probable that you were mentally unwell at the time you offended, perhaps due to the ingestion of Ice earlier in the day.
47 However, as to whether your probable unstable mental condition should be assessed as reducing your moral culpability, this has not been advanced by your counsel and, in my view, properly so. He has expressly disavowed any Verdins’[1] principles. I am far from persuaded that your mental condition can be said to reduce your moral culpability in this situation.
[1]R v Verdins & Ors (2007) 16 VR 269
48 Even if I am wrong about your underlying mental illness lessening your moral culpability, in my view, other countervailing sentences considerations, including protection of the community, would prevail.
49 Your counsel does not dispute that you must be subject to a significant term of imprisonment and that your future prospects of rehabilitation depend upon significant treatment, including compliance with medication and avoidance of illicit drugs whilst serving your term of imprisonment. Although you have no history of committing similar sexual offences, in my view, you do present a future risk to the community should you be non-compliant with your medication and if you remain dependent on methamphetamines.
50 Although you did not enter a plea of guilty at the earliest opportunity and thus caused considerable extra grief to the complainant, I consider you are entitled to a degree of benefit due to the significant utilitarian benefits to the community and to the complainant by your eventual plea of guilty.
51 In sentencing you, I have taken the principle of totality into account. The application of that principle has necessarily moderated orders that might otherwise be made for cumulation.
52 For the purposes of Charge 4, you are a serious sexual offender as defined by s.6B of the Sentencing Act 1991. However, in the circumstances of this case, it was not contended that protection of the community requires a disproportionate sentence to be imposed for this offence.
53 In sentencing you, I regard just punishment, specific deterrence, general deterrence and protection of the community as significant considerations.
54 In particular, I have had regard to what our Court of Appeal said in Director of Public Prosecutions v Maynard [2009] VSCA 129 at paragraph [38], where it was said:
“The seriousness with which Parliament views the offence of rape is indicated by the fact that it has fixed a maximum penalty of 25 years’ imprisonment. The maximum provides a yardstick for the exercise of the discretion by the judge and is one of the factors that the sentencing judge is bound to take into account under s 5 (2) of the Sentencing Act. The seriousness of the offence of rape was considered in Director of Public Prosecutions v Avci where Maxwell P with whom Buchanan and Redlich JJA agreed said:
‘[26] In his submissions, the Director rightly emphasised the fact that Parliament has fixed a maximum penalty of 25 years’ imprisonment for rape. This is the highest maximum provided for by the Crimes Act. The fixing of such a high maximum reflects the community’s abhorrence of this crime. As noted earlier, the Full Court in 1994 expressed the view that, in the 14 years which had passed since an earlier decision in R v Vaitos (Vaitos), community concern about ‘the prevalence and seriousness of rape and like crimes’ had undoubtedly hardened, and there was a greater need for salutary sentences to punish those who committed such crimes. Difficult though it is to generalise about community attitudes, I have little doubt that community concern about rape and like crimes, and the need for salutary sentences to punish and to deter, are stronger than ever.
[27] This point was forcefully made in 2006 by Vincent JA (with whom Buchanan and Neave JJA agreed) in Director of Public Prosecutions v FHS:
‘The courts, when dealing with [rape] cases, must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion … [W]hen [these considerations] cannot be seen to be reflected in the responses of the courts, not only … does the individual victim justifiably feel betrayed and devalued, but the criminal justice system itself fails to achieve its objectives.’
55 Further to the discussion at your plea hearing on 3 April 2017 concerning ‘comparable’ or ‘yardstick’ cases to be provided by the prosecution, I have had regard to the following cases:
· DPP v Brown [2004] VSCA 133
· R v Hyland [2008] VSCA 220
· DPP v Maynard (ibid)
· Wright v R [2015] VSCA 333
56 In respect of Charge 1, being aggravated burglary, you are sentenced to a term of imprisonment of five (5) years.
57 In respect of Charge 2, a Representative Charge, being rape by intentionally sexually penetrating the complainant by introducing your fingers into her vagina without her consent, you are sentenced to a term of imprisonment of four (4) years.
58 In respect of Charge 3, being rape by intentionally sexually penetrating the complainant by introducing your penis into her mouth without her consent, you are sentenced to a term of imprisonment of four (4) years.
59 In respect of Charge 4, in that you raped the complainant by intentionally sexually penetrating the complainant by introducing your penis into her vagina without her consent, you are sentenced to a term of imprisonment of six (6) years and six (6) months.
60 The term of imprisonment imposed in respect of Charge 4 is the base sentence. I direct that eighteen (18) months’ cumulation be ordered in respect of Charge 1, twelve (12) months in respect of Charge 2, and twelve (12) months in respect of Charge 3.
61 The total effective sentence is a term of ten (10) years’ imprisonment. I direct that you serve seven (7) years of that sentence before being eligible to be considered for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than seven years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for deportation. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
62 Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have already served 646 days of the sentence, not including today, that I have just imposed upon you and this is to be noted in the records of the court.
63 Pursuant to s6F of the Sentencing Act 1991, I direct that the fact that you have been sentenced as a serious sexual offender in respect of Charge 4 be entered into the records of the court.
64 Your offending attracts the provisions of the Sex Offenders Registration Act 2004. Registration in respect of Charge 4 is mandatory.
65 Pursuant to s34(1)(d) of the Sex Offenders Registration Act 2004, you must continue to comply with the reporting obligations imposed by Part 3 of the Act for 15 years. You have an obligation to report to Victoria Police within seven (7) days of your release from jail. A document will be given to you explaining your obligations.
66 I will make disposal orders in the terms sought, which are not in dispute.
67 Pursuant to s6AAA of the Sentencing Act 1991, but for your pleas of guilty, you would have been sentenced to a term of imprisonment, a total effective sentence, of 13 years with a non-parole period of nine years.
68 I thank everybody in the court for the manner in which this case has been conducted.
69 Mr Kilduff, I will grant you an Appeal Costs Fund certificate for last Thursday.
70 MR KILDUFF: Thank you very much, Your Honour.
71 HIS HONOUR: Any further matters?
72 MR PIRRIE: Would Your Honour just bear with me.
73 HIS HONOUR: Yes. You may be seated, Mr Stafford.
74 MR PIRRIE: No, Your Honour, they are the matters.
75 HIS HONOUR: Yes, thank you. You may remove the prisoner.
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