Director of Public Prosecutions v Theodore (a pseudonym)
[2023] VCC 2087
•14 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN THEODORE (A PSEUDONYM) |
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JUDGE: | His Honour Judge Wraight | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2023 | |
DATE OF SENTENCE: | 14 November 2023 | |
CASE MAY BE CITED AS: | DPP v Theodore (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2087 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Rape – Possess a drug of dependence – Victim asleep – Involved mental health presentation – Youthful offender – Delay – Verdins – Prior criminal history – Very good prospects of rehabilitation – Specific deterrence – Standard sentence.
Legislation Cited: Crimes Act 1958, Drugs, Poisons and Controlled Substances Act 1981, Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases Cited:Lawrence (a pseudonym) v The Queen [2021] VSCA 291, Jurj v The Queen [2016] VSCA 57, R v Verdins [2007] VSCA 62.
Sentence: Imprisonment for a period of 4 years with a non parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McHenry | Office of Public Prosecutions |
| For the Accused | Mr M. Sturges | Nelson Brown Legal |
HIS HONOUR:
Introduction
1Lachlan Theodore[1] you have pleaded guilty to:
(a) one charge of rape contrary to s 38(1) of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (charge 1); and
(b) two charges of possess a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which in this instance carries a maximum penalty of 1 year imprisonment on charge 2 and 5 penalty units on Charge 3.
[1] A pseudonym.
2You have also admitted your Criminal Record.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4You were born in February 1997. You were 22 years of age at the time of this offending and you resided at a property in Wantirna South with your parents, Miriam[2] and Rudy Theodore[3].
[2] A pseudonym.
[3] A pseudonym.
5The victim, Sally Cooper[4], was born in December 2001. She was 17 years of age at the time of the offending. You had been friends with the victim for many years and knew her since she was six years of age.
[4] A pseudonym.
6In November 2019, the victim and her father Derek Cooper[5] had been invited to your family home for your parent’s twenty fifth wedding anniversary party. The party was held in the shed located on the property. The victim and her father arrived at your family home with other family members at approximately 5:00 pm.
[5] A pseudonym.
7When they arrived, there were approximately 15 to 20 people at the party. People were consuming alcohol and playing pool. You supplied the victim with at least five cans of Canadian Club and Dry.
8During the evening the victim smoked Cannabis outside the shed.
9The victim’s father left the party with his wife at around 9:30 pm to take their three year old son home. He told the victim that he would return to the party at around 11:30 pm.
10The victim smoked more Cannabis and about 15 minutes later she began to feel unwell. She then attended the house through the rear door and entered the toilet. The victim began vomiting into the toilet bowl. Your mother checked the victim and moved her to your bedroom. You obtained a bucket from the laundry and gave it to the victim in case she vomited in your bedroom.
11Everyone left the victim in your bed and returned to the party.
12At approximately 11:30 pm the victim’s father received a telephone call from your mother informing him that the victim was unwell, passing out and that she was lying down in your bed. Her father decided not to collect the victim and to leave her at your house for the night.
13Your mother checked on the victim throughout the night. She observed that she was asleep under the doona with a T-Shirt and her underwear on. She saw the victim walking from your bedroom to the toilet a few times throughout the night with just her underwear and a shirt on. At around 12:00 am to 12:30 am, the party concluded and guests left the premises. Your family went to bed around this time and you were observed heading to your bedroom.
14The victim vomited into the bucket a few times, throughout the night.
15At some stage through the night, she woke up and needed to go to the toilet. It was dark and she walked over to the door to find that the door handle was missing. Noticing that you were starting to stir with the noise that she was making, she woke you up so that you could open the door. You then turned on the light and retrieved the door handle from the television cabinet. You re-attached the door handle and opened the door. The victim left the room to go to the toilet. Although she felt ‘a little bit weird’ about being in your bed, she returned there and went to sleep.
16The victim’s next memory is waking up in the morning with your penis inside her vagina without her consent. She felt extreme pressure and burning in her vagina with you on top of her. She woke with her head hitting the metal frame of the bed head. Her pants and underwear were missing. You were saying things like, "do you like it?" and "does that feel good?". She replied, "no" as she didn't want to have sex with you.
17The victim became concerned that you were not wearing a condom as she didn't want to get pregnant or contract a sexually transmitted infection.
18She asked you if were wearing a condom. You replied, "No, I'll go get one". At this stage you had been thrusting your penis inside the victim’s vagina for about one minute. You withdrew your penis from her vagina and went to your drawer to retrieve a condom.
19After you had obtained a condom and put it on, you went to get back on top of the victim. She was pushing against you saying, "I really don't want to do this" repeatedly. When you observed that the victim was panicking and beginning to look like she would cry, you stopped what you were doing and got up.
20The victim asked you where her clothes were. You retrieved her underwear and pants from the bedding area. She got dressed under the covers. You told the victim, "You can't tell anyone, because it's gonna start dramas."
21She asked you if her father had returned and you replied that he hadn't. She then asked if both of you could watch a movie. You got off the bed, retrieved the door handle from the television cabinet and re-attached it to open the door. You retrieved your mother's laptop and played the movie ‘Fifty Shades of Grey’. You commenced watching the movie together.
22The victim’s father arrived at the premises towards the end of the movie. He attempted to open the door, but because the door handle was not attached, the door would not open. You retrieved the door handle and opened the door. The victim then returned home with her father.
23The victim was at home talking with her father the next day when she started to receive Facebook Messenger messages from you. You apologised to her and asked her to keep quiet about what had happened. You stated, "Yo what happen this morning stays between us please I'm so sorry." You asked her "Do you hate me?". You tried to call the victim on the telephone numerous times afterwards.
24On 14 December 2019, the victim exchanged text message conversations with you, confronting you of raping her. You began threatening her, telling her that you would tell her father about her drug use.
25On the same day, the victim contacted her father. She was hysterical and crying. She told her father that you had raped her on the morning after their friend's anniversary party and she had messages from you. She sent a copy of your message exchanges to her father, and to your parents.
26Her father contacted your parents and later attended the house in Wantirna South to confront you. You denied having sex with the victim.
27On 17 December 2019 the victim conducted a recorded telephone conversation where she spoke to you. She asked you to apologise for what you did to her. You stated that she hadn't lost you as a friend and that you were sorry for what you did to her. You asked the victim how she felt about it now that she was 17 years old. When the victim asked why you did it to her, you replied that you didn't know and were "pretty cooked" at the time.
28On 20 December 2019 at 7:48 am, investigators from Knox SOCIT executed a search warrant at the Wantirna South property. At this time, you were present in your bedroom. You were arrested by Senior Constable Hopton.
29During the search of the premises the following items were seized:
(a) a Optus mobile phone with charger;
(b) various bedding items;
(c) a plastic ziplock bag containing white crystals (Charge 2 – Possess a drug of dependence); and
(d) a plastic ziplock bag containing cannabis seeds (Charge 3 – Possess a drug of dependence).
30You were taken to the Knox Police Station on 20 December 2019 for interview. You provided varying accounts of what happened on the morning of 24 November 2019.
31You stated that you slept in the lounge room on a black leather couch, that the door to the room was open all night and that you slept there all night. You also stated that you watched ‘Fifty Shades of Grey’ in the lounge room with the victim the next morning.
32You stated that a male known as Rhys[6] was the one who wanted to have sex with the victim. You also stated that Rhys and victim were in your bedroom the night before the anniversary. You knocked on the door for them to open up to which Rhys replied, "Hang on". You kept wriggling the door handle and Rhys didn't answer. You had to run to the kitchen and get a knife to open the door. Upon opening the door you observed Rhys putting his pants back on. The victim was on the bed with her pants and underwear off. You told them to cover themselves, to get dressed and get out.
[6] A pseudonym.
33You stated that this all happened between the victim and Rhys and that the victim stated that she would turn it on you. You said that the victim stated that she was going to make up a false statement of what Rhys did to her but blamed you and that it was because the victim was jealous that you had been with her friend.
34You also stated that you never touched or slept with the victim, slept in the same bed or been in the same room alone with her, and that women get away with a lot of things only because they know how to lie.
35During the interview, you stated that the pipe was the victims and that you had taken it from her at a hotel on an earlier occasion. You initially stated that the methylamphetamine was the victims, but later admitted it was yours and that you had snorted it. You stated that it was in your bag with your pipe and scoop.
36You stated that you had the seeds since 2017 or 2018 and that you got them from a friend a long time ago. You also later stated that the seeds were not yours.
Nature and gravity of the offending
37The crime of rape is, by its nature, a serious offence which is reflected in the maximum penalty of 25 years imprisonment. However, the objective gravity of the offending depends on the individual circumstances of the case.[7]
[7] Lawrence (a pseudonym) v The Queen [2021] VSCA 291, [24].
38Mr Sturges, who appeared on your behalf, while acknowledging the significant impact your offending has had on the victim, highlighted the objective factors to be taken into account with reference to the matters outlined in Jurj v The Queen[8].
[8] [2016] VSCA 57, [80].
39Mr Sturges submitted that the offending lacked some features of aggravation in that you acted alone, that the incident was of short duration and that the victim was not physically injured. On the other hand, features that elevate the seriousness of your offending are that you did not wear a condom exposing the victim to the risk of pregnancy or disease, that the victim was vulnerable because of her age and that she was asleep in your bed when you penetrated her.
40In my view the seriousness of your offending must also take into account that the victim, who was a long term family friend, when feeling unwell was offered your bedroom and bed in order to sleep. In those circumstances she was entitled to feel safe. Rather you took advantage of the victim’s vulnerability, by committing an act of rape while the victim was asleep. Taking all these matters into account, in my view this is a relatively serious example of rape in circumstances where the victim was asleep.
Victim Impact Statement
41A victim impact statement was prepared by the victim and tendered on the plea. In her statement, the victim describes how your offending has left her scared to leave the house and unable to have a fulfilling social life due to anxiety. She is also now distrustful of males and unable to sleep properly due to nightmares.
42In her statement, the victim described how your offending has made her feel violated and betrayed. Your offending has had an impact on her schooling, her ability to maintain employment, her sleep and her ability to take care of herself. She now struggles to form trusting relationships, experiences difficulty regulating her emotions and has engaged in self-harm and suicide attempts which have led to periods in psychiatric wards. She has since been diagnosed with Borderline Personality Disorder and anxiety.
43I have taken the content of the victim impact statement into account.
Personal circumstances
44You are now 26 years old. You grew up in the outer eastern suburbs of Melbourne with your parents and siblings in a loving family household. You are the middle child of three children.
45You attended three primary schools and a number of secondary schools, including schools which cater to students with mild intellectual disabilities. You had an interest in mechanics but were refused entry into a TAFE course. After leaving school, you have worked as a roof tiler, a pool tiler and have sporadically assisted in your father’s building business. You have not had meaningful employment since 2021.
46When you were 16, you experienced short periods of homelessness before returning to the family home.
47You are currently in a long term stable relationship. You were living with your partner and her 10 year old son for a period of time, however you have moved back into your parents’ home in the period leading up to the plea. Following the plea hearing you have discovered that your partner is pregnant causing you some anxiety as you will be unable to support your partner while in custody.
48You have been diagnosed with autism, Attention Deficit Hyperactivity Disorder, anxiety, Tourette’s Syndrome and Obsessive Compulsive Disorder. Your IQ and language comprehension were assessed to be in the extremely low range which are consistent with a language disorder combined with attentional deficits. You have experienced suicidal ideation and are currently prescribed Lovan, an anti-depressant. You have engaged with a psychologist through a mental health care plan. In mid-2022, you received an NDIS package.
49A report prepared by Jane Lofthouse, clinical neuropsychologist dated 29 September 2023 was tendered on the plea. Ms Lofthouse assessed previous medical and psychological material, conducted psychometric testing and provided her clinical opinion. Ms Lofthouse is of the view that your intelligence fell in the borderline range, that your literacy skills were below average and similar to a 10 year old and that your working memory and processing speed places you in the borderline range. While Ms Lofthouse was of the view that your scores are not consistent with an intellectual disability, you are nonetheless a man of borderline/below average intellectual functioning. Ms Lofthouse notes:
Mr [Theodore’s] scores across these tests are consistent with him having significant executive dysfunction marked by a pattern of ridged and concrete problem solving. Such impairment may place Mr [Theodore’s] at risk of impulsive and poorly reasoned problem solving coupled with a restricted ability for controlled and considered behaviour.
50In relation to the impact of your conditions at the time of the offending Ms Lofthouse states:
It would appear that taken together with Mr [Theodore’s] pre-existing intellectual impairment and the psychological issues coupled with alcohol and possible drug intoxication are major factors impinging on his ability to control his behaviour and engaging calm and reasoned thinking on 24 November 2019.
All the above factors would have been further accentuated in the presence of Mr [Theodore’s] likely sexual arousal and been contributing factors but they cannot fully account for the behaviour that led to his current charges.
51Reports were tendered from Sarah Eckstein, Speech Pathologist, and Sasheeka Costa, Psychologist. These two reports were prepared in relation to your NDIS package for the purposes of ongoing assessment and support. I have read and taken in to account these reports noting that Ms Costa’s clinical conclusions largely accord with those of Ms Lofthouse.
52Four character references were tendered on the plea. Your parents, Miriam and Rudy Theodore, describe you as a happy individual who has overcome adversity. They detailed how you experienced difficulties as a very young infant including delayed milestones. They explained how your academic difficulties and bullying throughout your schooling led to anti-social behaviours. In 2015 you were involved in a car accident that killed one of your friends and left you trapped for some time. They explained how you encountered bullying following this event with your peers suggesting that you it should have been you that died and not your friend. Your parents have struggled to navigate your disabilities and obtain appropriate supports however are of the view that the NDIS supports together with drug and alcohol services have made a difference.
53References were provided from your NDIS support worker, and NDIS Behavioural Support Practitioner. Both speak of your vulnerabilities and both have provided you support in preparing for your time in custody. They each speak of your positive progress and engagement with the services provided through the scheme.
54A long term family friend provided a letter where she notes the positive change she has seen in you as you have begun to engage with the supports through the NDIS and is firmly of the view that you will continue to make better life choices.
Sentencing considerations
55Mr Sturges highlighted a number of matters in mitigation. First and foremost is your plea of guilty. You conducted a contested committal which included cross examination of the complainant, however the matter resolved in this court before trial. Your plea has saved court time and expense thereby facilitating the course of justice and has saved the complainant from further involvement in the criminal process.
56Your relative youth remains an applicable sentencing consideration. While there has been a significant delay in bringing the matter to a conclusion, which I will address separately. You were 22 at the time of the offending and are now 26. Further, given your intellectual deficits, you also function at a level lower than your same age peers. As such in my view rehabilitation should be given some weight in the sentencing calculus.
57Turning to delay, the offending occurred on 24 November 2019 and you were interviewed on 20 December 2019, however charges were not layed until 22 October 2021, some two years later. A committal hearing did not occur until September 2022 and ultimately you were arraigned in this court on 7 June 2023. The delay between offending and charge is unexplained other than as a result of delays caused by the pandemic. Either way, that delay is not attributable to you. Delay in relation to younger offenders is significant and it was submitted that this delay should be taken into account as it has added anxiety and stress for you as you awaited the conclusion of the matter. Further the delay should be taken into account as you have taken positive steps towards your rehabilitation as evidenced in the reports tendered. I accept those submissions.
58It was submitted that the evidence enlivens Verdins principles 1, 3, 4, 5, and 6. Mr McHenry who appeared on behalf of the Director of Public Prosecutions submitted that the materials do not support Verdins principle 1. I agree. While I accept that you have intellectual deficits, as noted above, it is clear on the materials that your alcohol consumption, possible drug use and your likely sexual arousal were contributing factors to your conduct. As such it is very difficult to make a realistic or causal connection between your offending and your mental condition. I accept however that based on the psychological materials, Verdins principles 3, 4, 5, and 6 have application.
59Turning to your prospects of rehabilitation, it is apparent from your parent’s letter that you have significant family support. Your parents will continue to offer you their home and assist you in continuing to engage with your NDIS supports that have now been in place for over a year. You are engaging well with your various support workers each of whom speak positively in relation to your prospects. You are in a stable relationship and while you are unable to support your partner through her pregnancy causing you some anxiety in custody, you will have further responsibilities upon your release. You have some prior criminal history for serious but unrelated offending dealt with in 2018. In my view if you can reengage with your current level of support upon your release, your prospects of rehabilitation can be assessed as very good.
60Subject to some moderation as a result of the application of Verdins, general deterrence remains a prominent sentencing consideration. A message must continue to be conveyed that serious offending of this nature where the victim was young, vulnerable and asleep when you penetrated her, must be deterred. As to specific deterrence, it was submitted that as a result of your limited history and good prospects of rehabilitation little weight should be placed on specific deterrence. I accept that submission and together with some moderation as a result of the application of Verdins, specific deterrence, while still relevant, carries less weight in the circumstances.
61In addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act 1991 (‘Sentencing Act’), I must also take into account that Charge 1 is a standard sentence offence. The standard sentence for rape, is 10 years imprisonment.
62Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty, the standard sentence and the serious nature of your offending, in this instance I have formed the view that the sentence I will impose on Charge 1 falls below the prescribed standard sentence.
Sentence
63Mr Theodore, would you please stand.
64Lachlan Theodore, on Charge 1, rape, you are convicted and sentenced to 4 years imprisonment. I direct that you serve 2 years before becoming eligible for parole.
65On Charge 2 and 3, possession of a drug of dependence, you are convicted and fined $500 on each charge.
66Pursuant to s 18 of the Sentencing Act, I declare that 14 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
67Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 5 years and 6 months with a non-parole period of 3 years and 9 months.
68Pursuant to the Sex Offenders Registration Act 2004, you will be a registered offender with a requirement that you report for a period of 15 years.
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