Director of Public Prosecutions v Sullivan

[2024] VCC 977

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-00898

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICK SULLIVAN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February & 20 June 2024
DATE OF SENTENCE:	24 June 2024
CASE MAY BE CITED AS:	DPP v Sullivan
MEDIUM NEUTRAL CITATION:	[2024] VCC 977

REASONS FOR SENTENCE
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Subject:Plea - sentencing

Catchwords:          Rape

Legislation Cited: 

Cases Cited:

Sentence:5 years and 6 months' imprisonment, non-parole period 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Office of Public Prosecutions
For the Accused	Ms E. Byrt	Stephen Peterson Lawyers

HIS HONOUR:

1Nick Sullivan, you have pleaded guilty to one offence of rape which occurred on 28 February 2021. 

2The maximum punishment for that offence is imprisonment for 25 years.

3You have no prior convictions.  The prosecution tendered and relied upon a summary of prosecution opening for plea dated 6 October 2023.  That was read to the court.

4The document notes that at the time of the offending you were just 21 years of age by a few days.  Your victim was about six months younger than you.  The two of you apparently had met through the Tinder dating app and had had a relationship of some five or six weeks prior to your offending conduct.  The offence occurred after you and your victim had engaged in penile/vaginal sexual intercourse in what is generally known as the missionary position.  Following that you flipped your victim over onto her hands and knees and began penetrating her vaginally from behind.

5You got up off the bed, dragged your victim towards the edge of the bed and continued to have penile/vaginal intercourse with her.  You then began rubbing her anus with your fingers.  She had on a previous occasion or occasions made it to known to you that she did not welcome that kind of attention.  She said, 'No', straight away and told you to stop.  You did not stop.  You removed your penis from your victim's vagina and inserted it to her anus.  She yelled, 'Stop', on several occasions but you continued.  She continued to say, 'No' and you continued to anally penetrate her.  She tried to move away.  You grabbed her by the back of the neck, forced her head into the mattress and held her down whilst you continued to anally penetrate her. 

6You became rougher and thrusted harder into your victim's anus for a few minutes before you stopped.  You removed your penis from her anus and left the bedroom.  You left her in bed crying with pain.  She got up and went to the toilet to clean herself.  She noticed there was bleeding from her anus.  She went back into the bedroom, took her mobile phone and at that stage you observed that she was crying.  You followed her out of the bedroom.  She went back into the toilet and attempted to lock the door.  She took two pictures of the blood on the toilet paper that she had used to clean her anal area.

7You eventually forced your way into the toilet where you observed the soiled toilet paper.  You then began crying, repetitively saying sorry to your victim.  She gathered up her belongings and left your house.  On her way home she called her mother saying of your conduct, 'He just wouldn't stop.'  She spoke to a friend and told her mother what had occurred.  On 9 March she attended the Sale police station and provided a statement detailing what had occurred along with the two photographs she had taken of the bloodied toilet paper that she had used to clean herself after your offending conduct. 

8You were arrested on 31 July 2021 and made no comment in response to the allegation.

9I note that your victim has provided a victim impact statement.  It was read to the court.  It speaks of the event and the psychological consequences of your conduct.  Medical reports suggest that she suffers from post-traumatic stress.

10Turning to matters personal to you.  Your counsel provided me with an outline of submissions dated 11 February 2024, along with a number of reports and letters from medical practitioners and others concerning your medical history over a number of years.  The first of those reports was from Carla Lechner, psychologist, dated 29 December 2023.  This matter came before me last year and the plea hearing was postponed to allow your legal advisers to obtain on your behalf a report from a neuropsychologist.  Such a report was obtained and it is dated 31 May 2024, following an assessment on 28 May 2024. 

11You failed to cooperate adequately with the neuropsychologist and the neuropsychological report adds little if anything that is useful to this sentencing hearing because of your failure to complete a number of the tests that were necessary for the neuropsychologist to make an assessment of you.  Your neuropsychologist does speak of your foot disorder, which appears to be getting worse and indicates that the prognosis is that you will not be able to walk by the time you are 30. 

12The report of Carla Lechner is useful in that she picks up a number of the diagnoses from previous medical reports.  They detail many attendances with consultant paediatrician Dr Nabil Ameen which go back to 2014, a cognitive report from psychologist Chris Wilson dated 10 July 2009, paediatric assessments and consultation documents from Dr Charlie Hamilton going back to 2007 through to April 2013, a letter from Alyssa Mann with a speech pathology assessment summary dated 21 July 2006, and a mental health care plan which was provided by Dr Raheel Rabbani dated 20 September 2023.

13That material collectively supports the fact that you had what seems to be an early birth and some consequential issues, physical and psychiatric or psychological, which have resulted in you having a mild intellectual disability.  You had a diagnosis of ADHD early in life and received treatment for that, which you are not continuing.  You reported having a diagnosis of autism spectrum disorder, although there does not seem to be any formal documentary support for that beyond Ms Lechner's assessment that you exhibit some signs of that condition.  Various other references are made to anxiety, social anxiety and anxiety about your current predicament, along with distress and a moderate degree of depression arising from the prospects of a gaol sentence.

14You were bullied at school because of your mental deficits.  You attended a special school.  In more recent years you have been working, having obtained a qualification as a painter and decorator.  It seems you are quite capable of holding down a job.  That provides encouragement for your prospects of rehabilitation.

15You were just 21 when this offending occurred.  An offence of rape is a very serious offence, as the maximum term of imprisonment of 25 years makes clear.  In addition, I am required by the Sentencing Act to impose a term of imprisonment upon you and to have regard to the standard sentence for the offence of rape, which is imprisonment for 10 years.  I am required to identify reasons for deviating from that standard sentence.  I propose to do so.

16Firstly, you pleaded guilty to the offence and you have expressed remorse to Ms Lechner.  I note that as the prosecution summary points out, you made an immediate apology when you realised the effect of your conduct upon your victim.  You showed distress and broke down in tears.  You were just 21.  You are 24 now.  You are still a young person and you have got a lot of life ahead of you.  You have no prior convictions.

17I am satisfied that, because of your mental impairments and your intellectual disability, there should be some reduction in the sentence on the basis that your moral culpability is reduced somewhat.  It is unfortunate that in your discussions with Ms Lechner you appeared to be seeking to minimise your offending.  The offending is very serious but it seemed at least to Ms Lechner that you were not fully appreciating the seriousness of your conduct.  However, I detect generally that there is a realisation on your part of the seriousness of the offending and there is genuine shame that you engaged in that conduct.

18It is submitted on your behalf that I should also reduce the importance of general deterrence by reason of your conditions.  I are inclined to accept that submission, although general deterrence still plays a very significant part in the sentencing process with an offence such as this.  It does not seem to me that there should be a very significant reduction in this particular case.  Your apparent lack of appreciation of the seriousness of your conduct also warrants some weight to be given to the principle of individual or specific deterrence.  However, Ms Lechner regards your risk of re-offending as low-moderate and I accept that that is the case. 

19Your mental impairments and intellectual disability will undoubtedly make the burden of imprisonment greater.  That is a significant factor.  You are a young person and I have no doubt at all from reading these reports that you will find the burden of imprisonment very heavy and that you are vulnerable in the prison system.  That is also a significant factor in my judgment.  There is an ongoing risk that your mental health will deteriorate significantly whilst you are serving your sentence and that too is an important sentencing consideration.  I have moderated the sentence for those reasons.  Also you have issues with your feet which no doubt will get worse whilst you are serving your sentence and that too needs to be considered in assessing the burden on you of serving a term of imprisonment.

20I think it is unlikely that you will offend again.  Your prospects of rehabilitation seem to be good.  You have support.  You have the capacity to work and it is important that, given your young age, I should give considerable weight to those factors to promote your rehabilitation and thereby to protect the general public by ensuring as far as possible that you do not offend again, particularly in the way that you have done on this occasion.  Doing the best I can to assess and to balance those various sentencing considerations I sentence you as follows.

21For the charge of rape, you are convicted and sentenced to imprisonment for five years and six months. 

22I fix a non-parole period of three years. 

23I declare four days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed. 

24But for your plea of guilty I would have sentenced you to imprisonment for eight years with a non-parole period of five years. 

25I think there were some custody management issues.  They will be added to the order that I have just made.

26MS BYRT:  Thank you, Your Honour.

27HIS HONOUR:  Is there any other matter that I need deal with?

28COUNSEL:  No, Your Honour.

29HIS HONOUR:  .  I thank both counsel for their assistance.

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