Director of Public Prosecutions v Swift (a pseudonym)
[2022] VCC 2269
•12 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SWIFT (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE HOLDING | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2021 | |
DATE OF SENTENCE: | 12 December 2022 | |
CASE MAY BE CITED AS: | DPP v Swift (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2269 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – one charge – rape – criminal record – video recording – vulnerable victim – relationship – abusive – family violence – young offender – rehabilitation – immature – standard sentence – parole period – serious offending – rehabilitation – psychological report.
Legislation Cited: Crimes Act1958 (Vic) - Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins & Ors [2007] VSCA 102 - Lawrence (a pseudonym) v The Queen [2021] VSCA 291 - Clarke v R [2022] VSCA 89.
Sentence: Convicted and sentenced to be imprisoned for a period of three years. With a minimum period to be served before being eligible for parole of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr C. Hooper | Ann Valos Criminal Law |
HIS HONOUR:
1James Swift,[1] you pleaded guilty before me on 21 November 2022 to one charge of rape, contrary to s 38 of the Crimes Act1958 (Vic). That offence carries a maximum penalty of 25 years imprisonment.
[1] This name is a pseudonym.
2Your offending is set out in detail in the summary of prosecution opening.[2] However, I will briefly set out the circumstances of your offending in these reasons.
[2] Exhibit A on the Plea.
Circumstances of the offending.
3You and the complainant, who I will refer to as KJ,[3] commenced a relationship around October 2020. Shortly afterwards, you moved into KJ home. You lived together for about five or six months and you then moved out.
[3] This name is a pseudonym.
4Your relationship then became 'on and off' and remained in this state until August 2021. Throughout your relationship, KJ described some of your conduct as disrespectful and violent towards her. On 24 February 2021, a final family violence intervention order was issued by the Werribee Magistrates' Court listing KJ and her son as the affected family members and you as the respondent. Despite this, your relationship continued and the same problems continued to occur.
5The prosecution placed before me messages exchanged between you and KJ. In some of those messages you stated such things as 'I will end you.' 'You little dog and you little rat and you little treacherous thing'.
6On 1 July 2021, you and KJ had a verbal argument that resulted in you calling her names and leading to pushing and shoving between you. You blocked KJ from leaving the bedroom and she told you not to be 'a goose'. A struggle ensued and KJ sustained a chipped tooth and a bruise to the thigh. I note that you were not charged in relation to that conduct or these messages and the sentence I pass today does not punish you in any way for that conduct. The description of your conduct was placed before me by agreement between the parties to place your offending, the subject matter of the charge, in the context of the relationship you had with KJ.
7On an occasion between 28 and 31 July 2021, KJ went to your house and you and KJ watched television in the rear shed and ordered a pizza. After eating the pizza, KJ felt sick and vomited multiple times and took a Panadol tablet. You went into the house to get a blanket but did not return for some time. KJ called you and told you not to come back. KJ fell asleep on the couch. KJ awoke after some time and looked through her mobile phone. She noticed a video file. KJ played the video and observed footage of herself asleep and naked from the waist down. The video showed you masturbating yourself and inserting your semi erect penis into KJ’s mouth twice. The video is one minute and 35 seconds long and depicts the following.
(a) You reaching down and groping the vicinity of KJ's genitals and buttocks.
(b) You inserting your penis into KJ’s mouth.
(c) You taking hold of KJ's chin to change the position of her head.
(d) You again inserting your penis into KJ's mouth and attempting to thrust it in and out.
(e) You moaning and your face clearly shown before the recording is stopped and KJ asleep and quietly snoring.
8This conduct constitutes the charge of rape. Later analysis of the video showed that it was created months earlier on 26 April 2021. When KJ confronted you about what she had just viewed on her phone, you responded by saying, 'I thought you'd be all right with that.' KJ said, 'Not in any shape or form have I ever said that is ever okay.' You shrugged the matter off and acted as though you found it funny. KJ yelled at you, collected her belongings and left.
9In the days that followed, KJ told her housemate, then her father, and then her mother what had happened. She then contacted Triple 0 to report the incident. You and KJ remained in SMS contact between 30 July and 10 August 2021. The tone of the contact between the two of you varied between affectionate and abusive. You were arrested on 13 August 2021 and were deemed unfit for interview. You were charged and remanded in custody. You have been in custody since this date. Since that time, you have been offered the opportunity of being interviewed by police relating to the offence, but have declined that opportunity as is your right.
Victim Impact
10A victim impact statement by KJ was tendered during your plea hearing. I have read that statement carefully. It is clear that the commission of this offence has had a significant impact upon the psychological wellbeing of KJ. She states:
'My mental health has been greatly impacted with experiencing feelings of anger, betrayal, being used and fear. My self-confidence is gone and I am always second guessing myself. I feel like the accused broke me emotionally and I am not the same person as I was before.'
11It is not in dispute that part of the victim impact statement relates to some of your conduct that is not the subject of the rape charge and I cannot take those matters into account.
Person circumstances
12I now turn to your personal circumstances.
13Your counsel, Mr Hooper tendered during your plea written submissions and a lengthy psychological report from Mr Michael Crewdson. These documents detail your background. You were aged 24 at the time of your offending and are now aged 26. You were born in Carlton and are the youngest of five siblings. Your father was a truck driver. He did not take much time off work and has a history of drinking heavily. He recently had two strokes.
14Your mother is a civil marriage celebrant. You described her as loving and caring. She was reportedly a victim of a violent and abusive first marriage. Your father apparently worked very long hours, but Mr Crewdson describes your family relationships as 'generally positive and close'. He states that your family were generally close and positive influences on you. You attended a primary school in Kalara. You described to Mr Crewdson behaviour consistent with an untreated form of Attention Deficit Hyperactivity Disorder (ADHD). You struggled with school work. You attended Sunbury College but your secondary schooling came to an end halfway through Year 11 when a drug pipe was found among your possessions.
15You then found a job as an apprentice plumber but after six months lost that job and your driving licence and your life deteriorated.
16You have worked for some time as a seasonal fruit picker and have done some work for your sister in her restaurant. You have managed to complete two short courses at TAFE in information technology and you still have some interest in that field.
17Mr Crewdson described you as having a substance abuse history, commencing from when you were aged 12 and 13. There was early 'peer related uses of cannabis' which increased during your adolescence and which you reported was used as a form of 'stress relief'. You began to use methamphetamine at the age of 15 and according to what you told Mr Crewdson this reached a point of dependence. You also used GHB (gamma hydroxybutyrate) when you were aged 18 and your use of this drug increased greatly in your 20s.
18
Mr Crewdson is of the view that you seem to have, 'been maladaptively
self-medicating'. If you over indulged with GHB, you would then use methylamphetamine to rouse yourself.
19You have a criminal history that is unfortunate for someone your age. It mainly consists of serious driving offences. It clearly indicates someone who's had little regard for the road rules and the rule of law. In 2017 and 2018, you were convicted of a number of charges of driving in a manner or speed that was dangerous and placed on community correction orders.
20In 2019, you contravened the correction orders by committing further charges of driving in a manner dangerous, as well as failing to stop after an accident, reckless conduct endangering serious injury, failing to obey police directions, criminal damage and a host of other motor traffic and drug offences.
21You received a gaol sentence of 18 months' imprisonment with a period of eight months to serve before being eligible for parole. I note that it is recorded on your criminal history that at that time you received that sentence, the court stated that there was custody management issues noting 'psychiatric illness vulnerable due to age and anxiety and depression'.
Evidence of psychological and mental health issues
22Mr Crewdson spent over four hours assessing you and conferred with you on a number of occasions. He was provided with the prosecution opening, your criminal history, the statement of KJ, and the text messages between you and KJ, that he described as 'extremely informative'. He stated that, 'The diagnostic formulation in the case of this young man and his bizarre behaviour is extremely complex’.
23I have read his report carefully and note that many of his opinions as to your diagnosis and the connection between your mental health issues and the offending are qualified with a degree of uncertainty. In addition to conducting a number of diagnostic tests he used a Personality Assessment Inventory (PAI) that has been shown to have considerable credibility and which assesses psychopathological syndromes and provides information relevant for clinical diagnoses, treatment planning, and screening for psycho pathology.
24Based upon your PIA scores, Mr Crewdson listed as ‘diagnostic possibilities’
(a) other or unknown substance use disorder, severe;
(b) anti-social personality disorder;
(c) persistent depressive disorder (Dysthymia); and
(d) borderline personality disorder.
25Mr Crewdson stated that you described a personality style with numerous anti-social character features. Part of his report states:
'He is likely to be egocentric with little regard for others or the opinions of society around him. In his desire to satisfy his own impulses, he may take advantage of others and has little sense of loyalty, even to those who are close to him, although he may describe feelings of guilt over past transgressions, he likely feels little or more of any lasting nature. He would be expected to place little importance on his social role responsibilities. His behaviour is also likely to be reckless. He can be expected to entertain risks that are potentially dangerous to himself and those around him'.
26He regarded the 86 screenshots of the text messages between you and KJ as raising the issue of borderline personality disorder. In relation to the specific offending and under the heading, 'judgement' Mr Crewdson stated,
'He has no difficulty in knowing "right from wrong" and was able to discuss issues of consent sensibly. He did not seek to minimise the seriousness of his actions but he'd given no consideration to the propriety let alone the legality of his behaviour. Without denying his responsibility it appeared that the actions had been initiated as something of a joke, notwithstanding poor taste and lack of considerations for his partner, for issues of consent.'
27Under the heading 'diagnostic possibilities' Mr Crewdson went on to state,
'On the history and in the psychological findings, it is likely that this man would have had an impaired ability when compared with others to make rational decisions about his own behaviour. That is not to say that there is mental impairment where issues of culpability are nullified, it becomes though a question of degree’.
28Under the heading of 'conclusion Mr Crewdson's', Mr Crewdson was also specifically asked by your lawyers to address the following question relating to your psychological condition. 'Does the condition make him disinhibited or affect my client's ability to understand the wrongfulness of his actions, to think clearly and make calm and reason[sic] decisions and appropriate judgements or to control his emotions or faculties?' Mr Crewdson answered, 'Yes, they can. The combination is a problem. Substance abuse is a compounding issue.'
29
I note in that regard you told Mr Crewdson that both you and KJ had been using drugs at the time and that all offences had been affected this way. Further
Mr Crewdson stated:
'He denies any malice, or subversive intent in respect of the rape. He has had sufficient time to contemplate the seriousness of his actions and to realise that his idea of a joke was grossly inappropriate. He does not give any indications of risk as a future sexual offender. He has some understanding of the factors involved and regrets them. Insight will not be sufficient though and he will need appropriate therapy with a closely monitored supportive discipline when he is eventually released to the general community.'
30On the positive side, early in the report Mr Crewdson stated:
'Mr Swift appears to have substantial interest in making changes in his life and he appears motivated for treatment. His responses indicated acknowledgement of important problems, a perception of a need for help in dealing with these problems, and a positive attitude towards his responsibility in pursuing treatment. At the Metropolitan Remand Centre he has worked in the machine shop and acquired considerable welding skills. He knows how to arc weld and use the more advanced MIG welder and removal to the TIG system and to oxy acetylene. Much of the practical work has been in the building of cattle crushes. His work is coordinated through the Box Hill College of TAFE and will eventually produce Certificate III qualifications in Applied Engineering. This will increase his potential to be able to find effective employment, when he is eventually returned to the community. It is a protective factor.'
31
In addition to the report of Mr Crewdson, tendered on the plea was an assessment report from a Forensic Alcohol and Drug Clinician, Jayne Glover, dated
18 June 2021. The report appears to have been part of the court integrated services program CISP, conducted in the Magistrates' Court and indicates you were arrested on other charges on 14 May 21, released on remand on the following day and commenced the CISP program on 18 May 2021.
32The report is generally consistent with the findings of Mr Crewdson regarding your problematic drug use and the need for alcohol and drug counselling. It indicates that a 'psychological distress scale' was administered that returned a scale consistent with a diagnosis of mild depressive and/or anxiety disorder. It indicated that you had attended upon your GP for a mental health care plan, a referral had been made. and you were awaiting further appointment.
Submissions of the parties
33I turn to submissions of the parties.
34Your counsel Mr Hooper, in addition to the material referred to above, also tendered at your plea hearing the following material:
(a) A letter from Ryan Burns who is the Contract Operations Manager for a company called spiral logistics. The letter confirms that you have an opportunity to commence a probationary period of employment with appropriate training in the operation of motor vehicles.
(b) Certificates of completion of programs you have undertaken in custody such as a drug treatment program, a family law program, a 'Mapping a way forward' program, 'Six hour ice affects' program and a 'Respectful relationships' program. And statements of results from the Box Hill Institute relating to first Aid, kitchen operations and arc welding (as part of Certificate II in an engineering course); and
(c) A letter from a psychologist from the Cranach company attesting to your 'positive engagement' in completing the drug programs referred to above as well as 17 individual counselling sessions. She described you as 'Motivated and determined to change his substance abuse and offending behaviour'
35Mr Hooper placed considerable reliance upon your youth and immaturity. He urged me not to view this as simply a gratuitous exercise in coercive sexual power. He acknowledges that the offending was abhorrent and serious and conceded that a gaol sentence was the only appropriate disposition. However, he relied upon the fact that there was no attempt by you to hide your offending and urged me to consider it as an ill-considered impulsive offence in the context of a person with a drug problem. He relied upon Mr Crewdson's characterisation of your offending as a distasteful joke.
36In his written submissions, Mr Hooper submitted that your mental health condition and your emotional immaturity meant that at the time of your offending you had 'diminished capacity to appreciate the significance of your actions’. Further, your reduced capacity to make reasoned judgements at the time of the offending engaged principle 1 in the well-known case of Verdins[4] and should reduce the weight to be given to general deterrence.
[4] R v Verdins & Ors [2007] VSCA 102.
37You also relied upon your early plea of guilty and the delay in the matter being heard. He detailed the difficulties you have experienced in custody as a result of restrictions imposed by the pandemic. He referred to your efforts around the time of the offending to seek drug and alcohol counselling and your efforts in custody to undertake programs conducive to your rehabilitation. He indicated that when you are released you will be supported by your mother and father with whom you intend to live.
38Further he acknowledged that there is a standard sentence for rape, however submitted that in the circumstances of your case there is a need to approach your sentence in the conventional manner.
39The prosecutor, Ms Holmes, conceded that your plea of guilty was early and that the fact that it was offered during the pandemic was significant. There is no issue that your period of imprisonment in the more restrictive conditions should result in amelioration of your sentence. Your plea has also relieved the considerable backlog of cases in this court and this mitigatory aspect must also be taken into account in your favour.
40The prosecutor submitted that the psychological material did not go so far as to engaged principle 1 of Verdins, as it was expressed in terms of possibilities and simply did not establish a sufficient realistic connection between your mental health conditions and the offending. Ms Holmes did however, concede that your youth and immaturity were important considerations and despite the absence of sufficient evidence to engage principle 1 of Verdins. There was evidence that indicated you did not appreciate the seriousness of your offending. The fact that you took this video of your offending on KJ's phone and left it there for her to come across inadvertently indicates just how cavalier you were regarding your grossly inappropriate and serious criminal conduct.
41On the other hand, Ms Holmes pointed out that the fact that you recorded this offending is an aggravating feature. It meant the offending was recorded with the possibility of the recording being misused and in the sense retraumatising the victim. It was acknowledged however, that there was no evidence that you ever intended the footage to be distributed or that you had retained it in your possession.
42Although the history of tumultuous and volatile relationship is detailed in the opening, Ms Holmes conceded it would be wrong in the circumstances of your case to treat the fact that you were subject to an intervention order as an aggravating feature of your offending. It is clear from the text messages between you and KJ that KJ willingly encouraged contact between you and her even after she discovered the video. Ms Holmes advanced the proposition that the content of the messages between you and KJ placed the nature of your relationship into context. It was clear that to some extent you were both contributing to a dysfunctional relationship that was unfortunately frequently abusive.
Conclusion
43Mr Swift, the offence of rape is very serious. The maximum penalty for the offence is 25 years' imprisonment. There is no dispute between the prosecution and your counsel that your offending can only result in a sentence of imprisonment with a head sentence and period that you must serve before being eligible for parole. Rape is also by virtue, of s 5A(1)(b) of the Sentencing Act 1991 (Vic), a standard sentence offence. The standard sentence of 10 years' imprisonment is the sentence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness. It is thus a factor like the maximum sentence to be taken into account in the application of the intuitive synthesis approach to sentencing.
44Importantly, it is not intended to be a 'starting point' and does not permit some sort of 'two-stage process of sentencing'. It is important to recognise that each case must be assessed according to the individual circumstances pertaining to that particular case.
45Assessing the objective gravity of your offending in this case is not a straightforward task. As stated recently in our Court of Appeal, by virtue of s 38(1) of the Crimes Act 1958 (Vic) ‘there is but one offence of rape which may be committed in a variety of ways. As the cases demonstrate the crime of rape covers a very wide spectrum of different activities carried out in a wide variety of circumstances of differing degrees of objective gravity, hence a sentence that is clearly just and proportionate in one instance of rape will be manifestly excessive or indeed manifestly inadequate in another’.[5]
[5] Lawrence (a pseudonym) v The Queen [2021] VSCA 291 [21]; cited with approval in Clarke vR [2022] VSCA 89.
46There is clearly an aspect of your offence that is particularly serious. You took advantage of KJ when she was vulnerable. She was asleep and not able in any way to express her attitude or consent to your conduct. The offence of rape is unfortunately often committed in circumstances where a complainant is in a vulnerable state sometimes through intoxication or for other reasons. It is important that courts send a clear message that people in such vulnerable states deserve care and respect rather than being viewed as somehow presenting an opportunity to engage with them sexually.
47Your conduct towards KJ was nothing short of disgraceful. You treated her as if she was no more than an object. It is understandable that she feels humiliated, angry, and betrayed. In assessing the objective gravity of your offending, I have accepted your counsel's submission that there are aspects of your offending that are consistent with your immaturity and lack of appreciation of the seriousness of your conduct.
48The prosecutor conceded that leaving this footage on KJ's phone in total disregard of whether KJ would view it was consistent with your lack of appreciation of the seriousness of your conduct. You were 24 at the time of your offending, I accept that your youth is an important matter in mitigation. Your rehabilitation is an important component of the sentence that I impose. Your efforts in custody and the assessment by Mr Crewdson satisfies me that you have taken responsibility for your conduct, and have reflected and come to appreciate the seriousness of your offending.
49I accept that you are remorseful and have not tried to deflect the blame for your offending. It is hoped that your plea of guilty and acceptance of responsibility will to some extent validate the feelings of KJ as to the gravity of your conduct and assist her to move on with her life. I accept the prosecution's submission that Mr Crewdson's report does not provide an evidentiary basis for engaging principle 1 of Verdins.
50Mr Hooper appeared to effectively concede this point during the plea hearing, nevertheless, there was no real dispute between the parties that your offending had features of immaturity. Although you were 24 at the time of the offending, I accept that you were an immature 24 year old and your youth is important and a relevant factor in assessing[sic] your level of moral culpability. The prosecutor in my view, fairly conceded that there were aspects of your background and personality that in conjunction with the circumstances of the offending indicated you did not fully appreciate the consequences and seriousness of your offending.
51In the case of Azzopardi,[6] His Honour Justice Redlich with Coghlan and Macaulay agreeing stated, that there are a number of considerations which underly the general primacy of an offender's youth as a sentencing consideration. He referred to the possibility of one such factor as follows:
'Young offenders being immature are therefore more prone to ill-considered or rash decisions. They may lack the degree of insight, judgement and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.'
[6] Aazzopardi v R (2011) 35 VR 43.
52I do regard those observations as apposite to the circumstances of your offending and the assessment of your moral culpability. I do not entirely accept that your offending was some sort of joke. You groaned during the offending and it seems odd to me, if it was meant as a joke, that you made no mention of your conduct to anyone in the months after you offended. When I raised these points with your counsel he conceded that he was not submitting that you got no sexual gratification from your conduct.
53Some aspects of the offence of rape that can have a bearing on the assessment of objective gravity of the offence are not present in this case. The penetration did not create the risk of pregnancy and was of limited duration. There was no violence employed beyond what was necessary to effect the act of penetration.
54The filming of the act was an aggravating feature but I accept that there was no evidence of an intention to distribute the footage and indeed in appears it was not kept in your possession or control. No comparable cases were placed before me, by either the prosecutor or defence counsel. This no doubt reflects the wide variety of circumstances in which the offence of rape can be committed. The unusual features of your offending and the fact that sentences before the standard sentencing regime was introduced, are not relevant in determining an appropriate 'yardstick' for consideration.
55While I have found it difficult to assess your precise motivation for committing this offence, I have determined that the variety of individual circumstances pertaining to your offending means that a sentence very much below the standard sentence for rape is appropriate. Although I have some reservations concerning Mr Crewdson's assessment of you, I take account of the fact that you have no prior convictions for sexual offences. I have formed a view that you are making a real effort to combat your drug problems and make choices intended to promote your rehabilitation.
56I regard your prospects of rehabilitation at least in terms of futural sexual offending as reasonable. I accept your counsel's submission that there are good reasons for you to have a longer than normal period on parole to monitor your transition back into the community. It is clear that your prospects of successfully rehabilitating will only succeed if you get on top of your habit of treating your feelings of inadequacy by resorting to illicit drug use.
57The purposes of sentencing require that a just sentence be imposed, having regard to all the circumstances pertaining to your case. Your offending must be denounced and the sentence must deter others from taking advantage of vulnerable people by engaging in sexual activity with them. To some extent your remorse, plea of guilty, and my finding as to your prospects of rehabilitation have lessened the weight to be attached to specific deterrence and community protection. However, there is still an aspect of the sentence that needs to specifically punish you for your offending. The sentence must also take account of the need to foster your rehabilitation. You are still a young man.
58Taking all relevant matters into account, including all the material placed before me on your plea, and the submissions of the parties and trying as best I can to balance the competing sentencing considerations I have determined that the following sentence should be imposed.
59Mr Swift, on the charge of rape, you are convicted and sentenced to be imprisoned for a period of three years. I order that you serve a minimum period before being eligible for parole of 20 months. I appreciate that s 11A(4)(c) of the Sentencing Act 1991 (Vic) requires that I fix a non-parole period of at least 60 per cent of the head sentence, unless I consider that it is in the interest of justice not to do so.
60The non-parole period I have fixed is only just under 60 per cent of the head sentence. Nevertheless, I am satisfied that it is in the interest of justice to fix this non-parole period as your rehabilitation will in my view be more likely to be successful with an extended period of supervision.
61Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 486 days that you have been in custody be reckoned as time already served under the sentence passed today and I directed that this be entered into the records of the court.
62Pursuant to s 6AAA of the Sentencing Act1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to four years imprisonment with a non-parole period of two years and eight months to serve.
63Mr Swift, your counsel will explain the details of the sentence to you and please try your best to continue on the past that you're trying to undertake in gaol. You've got a long life ahead of you and if you don't get off the drugs and get yourself together you're just going to come back and spend more time in gaol. Thank you very much. We'll adjourn the court.
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