Director of Public Prosecutions v Thompson
[2024] VCC 1706
•28 October 2024
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00973
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIRK FRANCIS THOMPSON |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July and 21 October 2024 | |
DATE OF SENTENCE: | 28 October 2024 | |
CASE MAY BE CITED AS: | DPP v Thompson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1706 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - sentence
Catchwords: Pleas of guilty – stalking – assault with intent to commit a sexual offence – recklessly causing injury – false imprisonment - theft – offending occurred in context of breakdown of intimate relationship – first-time offender – application of Verdins principles – general deterrence, denunciation and community protection.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:R. v. Verdins 16 VR 269; DPP v. O’Neill 47 VR 395
Sentence: Total effective sentence of four years, five months’ imprisonment with
a non-parole period of two years, six months’ fixed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D.R. Cordy | Office of Public Prosecutions Victoria |
| For the Accused | Mr M. Page (plea 22 July 2024) Mr J. Gullace S.C. (plea 21 October 2024) Ms L. Warren (sentence 28 October 2024) | Leanne Warren & Associates |
HER HONOUR:
1Dirk Thompson, you have pleaded guilty to the following offences:
(a) two charges of recklessly causing injury (Charges 1 and 7) contrary to s18 of the Crimes Act 1958 ('the Act'). The maximum penalty for this offence is five years’ imprisonment;
(b) two charges of false imprisonment (Charges 2 and 5) contrary to common law. The maximum penalty for this offence is 10 years’ imprisonment[1];
(c) one charge of damaging property (Charge 3) contrary to s197(1) of the Act, the maximum penalty for which is 10 years’ imprisonment;
(d) one charge of stalking (Charge 4) contrary to s21A of the Act, the maximum penalty for which is 10 years’ imprisonment;
(e) one charge of assault with intent to commit a sexual offence (Charge 6) contrary to s42(1) of the Act, the maximum penalty for which is 15 years’ imprisonment; and
(f) one charge of theft (Charge 8) contrary to s74(1) of the Act, the maximum penalty for which is 10 years’ imprisonment.
[1]Section 320 of the Crimes Act 1958
2You were born in March 1983 and were 38 to 39 years of age at the time of this offending. You have no prior criminal convictions.
Circumstances of offending.
3In order to place your offending in context it is necessary to outline the background to your relationship with the victim, your former long-term de facto partner, Becci Jewell.[2]
[2]A pseudonym
4When these reasons are published the name of the victim will be anonymised to prevent her identification.
5The two of you met through a dating app in 2014 and began living together after dating for approximately eight months. In 2019, the two of you purchased a block of land in Lockwood South and built a house on the block which became your home in 2020.
6From 2020 the two of you attempted to conceive a child. When you were unsuccessful you sought IVF treatment in January 2021. After three cycles of IVF, you were still unable to conceive. After this process Ms Jewell noticed you began drinking more alcohol, at times becoming angry and complaining that everything she did was wrong. The relationship deteriorated over this period, leading to the first incident of offending.
Incident on 19 March 2021
7On 19 March 2021 the two of you had an argument. The victim went into a spare bedroom at the back of the house to try to diffuse the argument, but you followed her. She tried to the leave the bedroom, but you blocked the doorway with your body, preventing her from leaving the room. The victim felt she could not leave the room and felt 'stuck' sitting on the bed while you called her a 'coward'. This is the commencement of Charge 2, a charge of false imprisonment.
8The victim asked you to move, but you refused. You continued calling the victim a coward. The victim attempted to walk through you, but you grabbed her by the arm and pushed her back into the room. The victim had bruises on her upper arm as a result which gives rise to Charge 1, recklessly causing injury.
9After approximately ten minutes you allowed the victim to leave the bedroom. The false imprisonment ended at this point. You then left the room and punched a hole in the laundry door, which is the subject of Charge 3, criminal damage. A few days later you attempted to patch up the hole.
10The victim had filmed the incident on her mobile phone as this was not the first time you had followed her to the spare bedroom and prevented her from leaving, so she was becoming increasingly worried about your behaviour.
11By December 2021 the two of you had decided to separate. The victim had agreed that you could sleep in a shed on the property in Lockwood South until you found somewhere to live. During that period the victim permitted you to have access to the house and bathroom when you needed to.
12In mid-2022 you found a job in Melbourne and secured a rental property in Essendon. The victim told you that you could continue to store your belongings in the shed while you lived in Essendon. You often returned to the Lockwood South address on weekends. At this time the relationship between you and the victim was amicable and the two of you continued to have sexual intercourse on occasions, even though you were no longer in a relationship.
13In mid-2022 you separated financially and the house was transferred into the victim’s name.
Stalking conduct between 1 June 2022 and 31 August 2022
14Charge 4, which is a charge of stalking, relates to your conduct between 1 June 2022 and 31 August 2022 where you would follow the victim, loiter inside and outside of her house and keep her under surveillance using a range of devices to do so.
Stalking incident on 6 July 2022
15In July 2022 the victim was dating a male who she met on a dating app. On 6 July 2022 the two of them were in bed at her house at 1.00 am. The male nudged the victim to wake her, telling her that someone was there. The victim woke to see you standing over the side of her bed watching them. As soon as you saw her wake you ran out of the house to leave in your car. The victim called after you, asking what you were doing there, to which you responded, 'I just wanted to see with my own eyes. I wanted proof'. After this incident you became more attentive to the victim, being nicer to her, including buying her gifts. You continued to stay in the shed at the property on weekends.
Stalking incident on 17 July 2022
16On 17 July 2022 the victim met another male at her home at 11.15 pm. The two had sexual intercourse on the couch in the loungeroom. Unknown to them you had entered the house and watched the victim having sexual intercourse through an inspection camera which could be adjusted to look around corners, for approximately two minutes. When the male left the house in his car he noticed a van with 'Construction Electrical Services' on the side panel following him.
17The male called the victim and told her you were following him in your van. The victim viewed CCTV footage from her property and saw your van pull up and take off after the male left. The victim took a screen shot and sent it to you and you admitted it was you.
Further stalking incident in July 2022
18Approximately one week later the victim was walking with the same male at a park near Kangaroo Flat when she noticed you circling the park in your van, following them. The male left the area and the victim confronted you. In response, you got down on your knees and begged her to come back to you. You told the victim that you had snuck into her house and hid under the bed in the spare room before filming her having sexual intercourse using the inspection camera. You then threatened to distribute the video among the victim’s work colleagues and friends.
19You told the victim you had considered killing yourself. The victim apologised to you and agreed to return with you to her house to discuss the issue over dinner. The victim tried to keep things normal as she was worried about your mental health.
False imprisonment – 29 July 2022
20The following week things seemed to return to normal and you went back to Melbourne for work. You returned for the weekend on 29 July 2022. The victim told you she no longer wanted you following her or looking at her phone. You became angry, demanding to know details of her involvement with other men, calling her a 'slut'.
21The victim got up and tried to walk away from you. In response you dragged her to the bed in her bedroom and sat on top of her, screaming at her to tell you the truth. You continued to pin her down and punched the bed beside her head, as you did so, preventing her from moving. This conduct is the subject of Charge 5, false imprisonment.
22To diffuse the situation the victim asked if you were hungry and if you wanted something to eat. You then got up to go to the kitchen. As soon as you did the victim grabbed her keys and ran through the back door to the garage. You chased her and threw a wooden cooking spoon at her, causing the handle to break. You grabbed the complainant, dragged her back inside and threw her on the bed, continuing to yell in her face. She ran to the toilet and shut the door behind her. You forced your way in, ripping the door off the hinges[3]. You threw the toilet door into the walk-in wardrobe. You then pinned the victim against the wall in the toilet, screaming in her face. The victim told you she was scared and that you were hurting her. You eventually let her go.
[3]An uncharged act.
Stalking incident on 16 August 2022
23Between 9 and 15 August 2022 the victim travelled interstate for a holiday.
24On 12 August 2022 you hired a white Toyota Hilux from Hertz Bendigo.
25On the afternoon of 16 August 2022, the victim drove to Kangaroo Flat to visit her parents. On her way she noticed a Hertz white utility following behind her vehicle. She deliberately took a wrong turn, and the utility did not follow her. She returned in the direction of her parents’ house and saw you in the driver’s seat of the Toyota Hilux parked on the side of the road. She had not told you where she was going before she left the house. The victim was afraid that you had installed a tracking device on her phone or in her car.
26When the victim returned home, she located CCTV footage of you arriving at her property and parking the Hertz utility in the driveway. However, you denied driving the car or being in Bendigo. The following day, 17 August 2022, you argued with the victim calling her a 'whore'. You again denied being in Bendigo, asking the victim to 'prove it'. When she attempted to retrieve the CCTV footage it had been deleted from the hard drive. Instead, she showed you a screenshot she had taken from the CCTV recording and you agreed that you could be seen on it, but again denied being in Bendigo stating that you were in Melbourne at the time.
Stalking incidents 17-21 August 2022
27On 20 August 2022 the warning light on the victim’s car came on, and concerned you may have tampered with her car, she left her car parked at her workplace. The victim then organised to borrow her sister’s car, a red Subaru, to drive to work the next day. Her sister’s car was parked out the front of her parents’ address. However, one the tyres on the Subaru had been tampered with and had low pressure. You accept you caused this to occur.
28CCTV footage from 17 August 2022 shows you drive past the address, run across the road and squat down near the rear driver’s side of the red Subaru. You can be seen pulling a tool out of your pocket and tampering with the wheel.
29When the victim returned to her car, which was still parked at her workplace, on 21 August 2022, one of her tyres was also damaged and completely flat. You had also tampered with her car.
Stalking incident on 19 August 2022
30On 18 August 2022 the victim had been staying with her parents. She had monitored the CCTV cameras at her house, and having noticed no movement, decided to return home, arriving at around 1.00 am on 19 August 2022.
31She was in the habit of checking every bedroom and found you hiding under the bed in a spare bedroom. When she questioned you about this you became aggressive. Neither of you slept that night. At around 6.00 am you asked for sex, stating 'You said you’d give me anal'. The victim told you she was exhausted.
32After going to a friend’s house and complaining to her about your conduct the victim returned home and spoke with you. She said that you had scared her, and she believed you may have killed her. You told her that if you were ever going to do this, it was on the night you saw her in bed with the other male.
Stalking incident on 26 & 27 August 2022
33On 21 August 2022 the victim told you that she no longer wanted to live in fear and said that things had to change. She was then under the impression that you were returning to Melbourne for the week.
34However, on 26 August 2022, the victim woke at 8.00 am and checked a camera she had installed in the kitchen and dining area. She noticed motion detected around 6.00 am that morning. When she viewed the footage, she could see you walk into her loungeroom, tip toe towards her bedroom and enter. At one point you took a photo of her desk. You could be seen crawling out of her bedroom ten minutes later. When the victim went to check the external cameras, the footage had been deleted.
35The victim also checked the 'Screentime' function on her iPhone. Although she had only used the phone to check the camera since being awake, the log indicated usage on her Instagram and Snapchat messenger accounts at approximately 6.00 am. You accept you caused this by going onto those accounts.
36The victim returned to stay with her parents. On 27 August 2022 she returned home to pack a bag and feed the pets. You were at the house. The victim told you she was going to stay elsewhere. You became aggressive and the victim left in her car. You continued to call her, insinuating you were going to end your life. The victim became concerned and called the police, requesting that they conduct a welfare check on you.
Assault with intent to commit sexual assault – 31 August 2022
37The victim remained at her parents' home and allowed you to stay at her property on weekends to clear out the remainder of your items.
38On 31 August 2022 she returned to the house as she had a locksmith booked for that day to change the locks to the property, which was due to be transferred to her name on 2 September 2022.
39The victim arrived at the property at approximately 8.00 am to work from home. You arrived shortly after. You knelt beside her work chair and tried to kiss her, to which she said, 'No'. You asked her to remove her glasses so you could see her face and eyes, before removing them, even though she asked you not to. You asked for 'one last fuck', and the victim said she did not want to. You responded, 'What about your arse? Do it. You will'. You then dragged the victim into the bedroom and threw her on the bed. You ripped your shirt open and held the victim down, trying to rip open her bra. The victim was trying to push you off and told you the locksmith was coming. You replied, 'I don’t care'. This conduct is the subject of Charge 6, assault with intent to commit a sexual offence.
40You removed your pants and began masturbating. The victim pleaded with you to stop and asked for a drink of water. You said you would get her a drink of water, but before doing so, asked her to get naked and put on her red lingerie.
41When the victim heard you in the kitchen she ran out of the house via the front door. She tried to run to the house across the street, but you chased her and caught her at the front fence. You were still naked. You grabbed the victim in a bear hug and began dragging her back towards the house. The victim was screaming for help and yelling at you to get off her. You put two fingers in her mouth, hooked them under her tongue behind her bottom teeth, to stop her. You dug deep causing cuts and abrasions to her mouth, which is the subject of Charge 7, recklessly causing injury.
42The victim bit your fingers. You managed to drag the victim towards the house as she continued to scream. A neighbour heard her and went to investigate. The neighbour saw you standing naked over the top of the victim, pushing her as she was crouched down with her back to the front of the house. She yelled at you stating, 'Dirk, Stop. You need to stop this'. You ignored this and continued to stand over the victim, holding her in a 'headlock' position. She again yelled at you to stop. You then let go of the victim.
43The victim ran across to the neighbour’s property. You told the neighbour, 'Don’t listen to her, it’s all lies'. The neighbour called Triple 0.
44You left the property in the hire car, taking the victim’s phone with you. This phone has not been located since, giving rise to Charge 8, the charge of theft.
Police investigation
45The police attended the property at 9.12 am on 31 August 2022 and seized items from the bedroom. They also photographed the victim’s injuries which included scratches to her right shoulder, abrasion inside her mouth and a scratch on her left foot.
46On 2 September 2022 the police executed a search warrant at your home and seized various electronic equipment, including cameras and a Foxtel box with a concealed camera inside it. The Foxtel box was subsequently examined and found to contain approximately 92 hours of stored footage from inside the victim’s address. The box had been situated on the TV unit in her loungeroom and recorded footage between 22 and 26 July 2022. Most of the footage captured the victim sitting alone on her couch. There was also a video of you and the victim having intercourse on the couch.
47You were interviewed by police on 31 August 2022, during which you denied the offending on 19 March, stating the victim assaulted you and you grabbed her arm in self-defence. You said you had not intended to damage the laundry door.
48In relation to the stalking conduct, you agreed you were suspicious about what she was 'up to' and admitted going into her bedroom on 6 July 2022 when she was in bed with another man. You admitted entering the house and watching the victim and another male have intercourse on the couch on 17 July 2022, after you 'received notification on your phone that there was activity at the address'. You denied threatening to distribute the recording you had taken of the two of them having intercourse. You told police you followed the male on his way home but denied puncturing his tyres.
49You denied pinning the victim down on the bed on 29 July and assaulting her in the toilet. You said you pulled the door off its hinges 'by accident'.
50You admitted hiding under the victim’s bed in the spare room on 19 August 2022, saying you did so 'Cause I'm a dickhead'.
51As to the offending on 31 August 2022, you said that after a discussion about whether you should sleep together 'one last time', you told police you began to have consensual sexual activity before the victim ran out of the house when you went to get her some water. You told police you thought it was a 'prime set up'.
Victim Impact
52In her victim impact statement Ms Jewell describes your offending as a three- month ordeal that will be 'forever ingrained' in her memory. She felt as if she was being monitored on a daily basis and no longer felt safe in her own home. She felt as if you were always watching her; that there was 'no escape'.
53Your act of threatening to reveal the intimate footage of her left her feeling 'totally powerless and petrified'. She says that the scars from the injury to her mouth are a constant reminder of the events of that day. Ms Jewell states that she now experiences nightmares and flashbacks, impacting on many aspects of her life, including her ability to work and her relationship with family and friends.
54Ms Jewell concludes her statement saying that she fears she will be looking over her shoulder for the rest of her life because of your conduct.
Nature and gravity of offending
55Without doubt, this was serious criminal offending that has had a profound impact on the victim.
56Your stalking conduct over a period of three months was appalling. You entered the victim’s room in the early hours of the morning to observe her in bed with another male. You used electronic surveillance devices to record her having sexual intercourse with another man. Your actions were predatory and a gross invasion of the victim’s right to privacy and dignity.
57After following the victim when she was out walking in July 2022, your behaviour became more erratic. After begging the victim to take you back you then made her aware that you had hidden under her bed before filming her having intercourse, using the extendable inspection camera. You then threatened to distribute it amongst her work colleagues and friends. In disclosing this behaviour to the victim, you can only have heightened her sense of vulnerability by making her aware of the extent of your stalking behaviour.
58As the victim discloses, your threat to distribute the video footage left her feeling powerless and understandably distressed.
59Your conduct necessitated the victim installing camera equipment to know when you may have covertly entered her house, which you did repeatedly, including in the early hours when she was asleep.
60Stalking involving repeated acts of following, tracking and keeping a person under surveillance following the breakdown of an intimate relationship, is a pernicious form of offending. By your conduct you intended to cause fear and apprehension in the mind of the victim over a sustained period. Your act of tampering with cars driven by her was inherently dangerous. Viewed overall, yours is a serious example of the offence of stalking that warrants clear denunciation by the court.
61It is an aggravating feature of much of your offending that it occurred in the home of the victim where she was entitled to feel safe. You falsely imprisoned her in her home on two occasions. The act of falsely imprisoning the victim on 29 July 2022, where you dragged her into the bedroom and pinned her down on the bed, punching the bed beside her head, is a serious example of this offence. It must have been a terrifying ordeal for the victim.
62You had adequate time to reflect on your conduct and desist, but you did not. To the contrary, your offending conduct intensified over time, culminating in the events on 31 August 2022. On that day the victim repeatedly made it clear that she did not want to engage in sexual activity with you. You ignored her, physically dragging her to the bedroom, assaulting her with the intention of committing a sexual assault. This is an inherently serious offence as is reflected in the maximum penalty of 15 years' imprisonment. Once the victim fled the house you attempted to drag her inside, recklessly causing her injury by hooking your fingers under her tongue. You only desisted when the neighbour yelled at you a second time to stop.
63You bear a high level of moral culpability for your offending, however, this is also informed by your personal circumstances, to which I now turn.
Personal circumstances
64You are now 41 years old.
65You were born in Essendon in 1983 and were four years old when your 22-year-old mother died from leukemia. Your father never remarried and now lives in a retirement village in Kangaroo Flat.
66As you were growing up your father worked in the aviation industry and then ran a business selling sporting equipment. From the time you were six you and your father lived with your paternal aunt and uncle, who assisted in raising you. You also lived with your paternal grandparents for a period due to your father’s work commitments, until you turned 18. You describe being raised in a loving and supportive extended family unit.
67You completed Year 11 at a high school in Castlemaine. You then completed an apprenticeship to become an electrician. In 2003, when you were between 20 and 21 years of age, you joined the army based in Townsville. You were involved in peace-keeping in East Timor and in the Middle East and undertook three tours of duty in Afghanistan where you were involved in armed combat. After nine years you progressed to the rank of Corporal.
68You applied to be honourably discharged and left the army in 2014 when you were approximately 29 years old. You received a certificate for Appreciation of Service from the army in September 2013[4].
[4]Forming part of Exhibit 4
69You remained in the army reserves until 2015.
70After leaving the army you returned to Castlemaine to work as an electrician. This involved subcontracting to companies that installed security and surveillance systems in various prisons. You were working as a freelance electrician at the time of your arrest.
71You have never been married and have no children. You had two earlier intimate relationships but found it difficult to maintain these relationships while you were in the army.
72You met Ms Jewell in 2015 and began dating. The relationship soon became more serious and she moved into your rental property in Castlemaine in mid-2015. You continued to live there until late 2020 while you built the property in Lockwood South. The stress associated with three unsuccessful IVF attempts led to the breakdown of that relationship. You separated but continued to have a sexual relationship at times. You report feeling confused by this.
73Your father, now aged 77, has been ill in recent years and prior to your remand you were caring and supporting him.
Matters in mitigation
74Having discussed the objective gravity of your offending, I turn now to the matters that were raised on your behalf in mitigation of your sentence.
Guilty plea and remorse
75First and foremost, you have pleaded guilty to these offences and in doing so have acknowledged responsibility for your offending. You entered your guilty plea on the second day scheduled for the trial in this matter. Although yours was not an early guilty plea, I have regard to the fact that the resolution involved the prosecution withdrawing more serious charges. There is also utility in your guilty plea in that it saved the court and the community the time and resources associated with a trial and significantly saved the victim the trauma likely to be experienced by reliving these matters when giving evidence. You are entitled to an appreciable sentencing discount for pleading guilty to these offences.
76The question of remorse is more complicated. When you were interviewed by police on 31 August 2022, you made admissions to much of your stalking conduct, but when you were asked about the events of that day you told police you believed you had been 'set up' by the victim. However, in character references provided on your behalf, family members report that since being remanded you have developed a better understanding of the impact of your behaviour. A reference provided by your aunt and uncle, Gary and Susan Thompson, dated 15 July 2024 states:
'He’s had many hours to contemplate his behaviours which have caused so much angst and pain for many people, firstly to [Becci], rippling out to his family, Army regimental mates and friends. He’s expressed to us the shame and remorse he is feeling about his behaviour.'
77You were assessed by Mr Jeffrey Cummins, forensic psychologist, for the purposes of these proceedings on 11 separate occasions. In his report dated 17 July 2024, Mr Cummins states that during these consultations you have apologised for your offending and have 'actively expressed guilt and remorse'. He says you fully accept that your relationship with Ms Jewell has ended.
78Based on this material, I am satisfied that with time to reflect you are genuinely remorseful for your conduct and I take this into account in moderating your sentence, in particular in reducing the need for the sentence to operate as a specific deterrent.
Good character
79Secondly, you are to be sentenced as a first-time offender at the age of 41. You are entitled to have your previous good character recognised in the sentence to be imposed.
80I have received and considered the many character references provided on the plea[5]. These references come from extended family and others who have known you for many years, including through your service in the army. They speak of you as a person who is a respectful, considerate and generous with your time. You have volunteered your time to assist the local community, including working alongside army veterans during bushfires and undertaking voluntary electrical work for the local RSL and others in need. You are said to pride yourself on your work ethic. Those who were in the army with you state that you were professional and dedicated to your service, taking it upon yourself to lead others with encouragement and empathy.
[5]Exhibit 3 – Bundle of character references: Gary and Susan Thompson 15/7/24; Lynette Purdy 15/7/24; Dean Purdy 16/7/24; Philip J. Purdy 15/7/24; Colin J. Rewell 15/7/24; James Rendell 15/7/24; Yvonne Welch 15/7/24; Neil Welch 15/7/24; John Raike undated; Shaun Hughes 16/7/24
81Uniformly, those who know you describe your offending as out of character. The prosecution did not challenge the content of any of these character references.
82You have spent much of your life as a law-abiding and hard-working member of the community. You have served as an infantry soldier in East Timor and as a section commander in Afghanistan. Since 2014 you have been in consistent employment as a qualified electrician and have contributed to the community in other voluntary capacity. Your offending is at odds with the character traits you have long demonstrated to those who have known you longest. I have taken your previous good character into account in further moderation of your sentence.
Mental Health
83Mr Cummins diagnosed you with a complex PTSD as a result of your experiences in combat, particularly in Afghanistan. In his supplementary report dated 17 October 2024, Mr Cummins states that you report witnessing close colleagues being killed and others taking their own lives due to the pressure of that conflict. In Mr Cummins’ opinion your complex PTSD is 'now relatively mild'. Mr Cummins considers that you had some 'risk factors of relevance' as a result of this diagnosis, including experiencing elevated levels of paranoia, hypervigilance and suspicion at the time of your offending. Mr Cummins concludes:
'In my opinion there was a genuine nexus between Mr Thompson being traumatised and becoming over-vigilant due to his wartime experiences and his inappropriate, unacceptable and criminal behaviour towards Ms [Jewell].'
84In his report dated 17 July 2024, Mr Cummins confirmed that you did not suffer from any form of sexual deviance or personality disorder, including a paranoid personality disorder. He concluded that you are a person of high average intelligence. As to your offending, Mr Cummins had regard to the fact that consensual sexual relations continued with the victim despite your separation, causing you confusion, 'emotional turbulence and conflict'. He considers you were in a state of stress and 'high vigilance' about the risk of the relationship ending over the period of your offending. In Mr Cummins’ assessment your offending, whilst serious, was 'situationally motivated'. He diagnosed you with an adjustment disorder at the time of the offending, further stating[6]:
'At the time he offended his emotional regulation was very poor and his level of insight was compromised as a result of his emotional turbulence and as a consequence of his perception, judgement and reasoning ability were impaired by virtue of him suffering from a Persistent Complex Bereavement Disorder.'
[6]Exhibit 1 – Psychological Report of Mr Jeffrey Cummins dated 17 July 2024, at p7 [42]
85Following discussion with the parties at the plea hearing on 22 July 2024, the matter was adjourned to enable your legal representatives to obtain a supplementary report from Mr Cummins if reliance was to be placed on his opinion to enliven Limb 1 of the authority in Verdins[7] to reduce your moral culpability for your offending.
[7]R. v. Verdins 16 VR 269
86The principles enunciated in the case of Verdins recognise that an offender’s mental impairment at the time of offending can reduce their moral culpability, but not their legal responsibility for offending where there is some 'realistic connection' with the offending; where it 'caused or contributed' to the offending; or was 'causally linked’ to the offending.'[8] To show some connection to the offending, the mental impairment must have affected the offender’s ability to appreciate the wrongfulness of the conduct or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.[9]
[8]DPP v O’Neill [2015] VSCA 325; 47 VR 395, at [74].
[9]Ibid, at [75]
87Mr Cummins gave evidence at the further plea hearing on 21 October 2024 and his supplementary report dated 17 October 2024 was tendered. Mr Cummins expanded upon the basis for his diagnosis that you were suffering from a persistent complex bereavement disorder at the time of your offending.
88Mr Cummins confirmed his diagnosis of three trauma and stress related disorders at the time of your offending; an adjustment disorder, complex PTSD and a persistent complex bereavement disorder, the symptoms of which overlap. In evidence Mr Cummins stated that your underlying complex PTSD predisposed you develop the other two disorders at the time your relationship deteriorated, the magnitude of which led you to act 'in an aberrant way'. In Mr Cummins’ opinion these disorders operated for the entire period of your offending. Mr Cummins said that the diagnosis of a persistent complex bereavement disorder was the 'best fit' for the symptoms you experienced at the time, complicated by your misunderstanding of the prospects of reconciling with the victim during this period.
89In Verdins the court made it clear that the particular diagnostic label is not determinative.[10] Having assessed you on 11 occasions Mr Cummins ultimately concludes that at the time of your offending your ability to 'accurately perceive, assess, think about and then behave in an appropriate manner in relation to [the victim] was significantly impaired by virtue of the various symptoms' relating to these disorders. In my view Mr Cummins was well placed, having assessed you on multiple occasions over a lengthy period, to form this opinion.
[10]Ibid, at [71]
90I accept that your impaired mental functioning at the time of the offending, including your complex PTSD, heightened your sense of paranoia and impaired your ability to make rational decisions in response to the breakdown of your relationship. The nature and severity of your symptoms reduce your moral culpability for the offending to a degree as they contributed to your level of paranoia and suspicion and diminished your ability to think and act rationally. However, you are also an intelligent person and must have appreciated the wrongfulness of your conduct. In addition, you told Mr Cummins that you were also drinking heavily at this time which also contributed to your poor decision making. These matters limit the extent to which your moral culpability is reduced by reason of your impaired mental functioning.
Burden of imprisonment
91Finally, I accept that your experience of custody will be more difficult than that experienced by others.
92Given your time in the army and work undertaken on security systems in prisons, you have been placed in a restrictive custodial environment for your protection. A senior chaplain with the army, Lieutenant Colonel John Raike, has supported you since being remanded. In his letter to the court Lieutenant Colonel Raike states that your placement, particularly if it becomes known you have served in the Middle East, risks your physical and mental wellbeing. He observes that you are a resilient person and have kept a low profile to manage this risk whilst held in protective custody.
93In addition, you report to Mr Cummins that your father’s condition has deteriorated since your remand. As a result, he is unable to visit you very frequently. Concern for your father’s wellbeing, being unable to assist, also adds to the difficulty of your remand.
94For a first-time offender these factors combine to add to the burden of your imprisonment, and I have taken them into account in moderating your sentence.
95Mr Cummins is of the opinion that you continue to experience complex PTSD, although he assesses you as 'a psychologically robust and resilient person'. Mr Cummins did not conclude that your mental health further adds to the burden of your imprisonment and accordingly there is no basis for me to find that limbs 5 or 6 of the authority of Verdins are enlivened because of your mild complex PTSD.
Prospects of rehabilitation
96I now turn to consider your risk of re-offending and your prospects of rehabilitation.
97Despite the restrictive circumstances of your remand, you have taken the opportunities available to you to engage in multiple educational and vocational courses in custody, including those focused on construction, horticulture and business.[11]
[11]Exhibit 2 – Prisoner Education Summary Report dated 11 June 2024.
98You continue to be supported by your close friends and family. Your aunt and uncle visit you weekly in custody and have also demonstrated their ongoing support for you by the attendance at your court hearings. You have regular telephone contact with your wider family and friends.
99Clearly this was serious offending and the fact it occurred over a protracted period is concerning. However, there are many positive indicators for your future rehabilitation.
100Having regard to your previous good character, including your strong work history, your lack of prior convictions and the assessment of Mr Cummins that you pose a low risk of offending in a similar way, I ultimately consider you to have good prospects of rehabilitation. Ongoing treatment for your underlying complex PTSD in order to improve your emotional regulation will also be of benefit in moderating your risk of reoffending. Mr Cummins states he is able to continue to provide such treatment and that you are motivated to continue with psychological counselling.
101Given my positive assessment of your future prospects the sentencing considerations of specific deterrence and community protection are correspondingly reduced.
Other Sentencing Considerations
102The sentencing considerations of general deterrence and denunciation are both to be accorded significant weight in this case. Those who may be inclined to engage in predatory stalking and sexually violent behaviour, motivated by jealousy and a desire to control the activities of their former intimate partners, must be deterred from such conduct by the sentence I impose.
103The sentencing principle of totality is also relevant. Having regard to the various offences that make up your offending conduct over the relevant period, the sentence I impose must reflect the totality of your conduct and no more. I have had particular regard to this consideration in determining the level of cumulation and concurrency to impose on each of the charges.
104Finally, the sentence I impose must also foster your future rehabilitation and I have sought to do so by fixing an appropriate non-parole period.
Sentence
105Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence, I sentence you as follows:
106On Charge 1, recklessly causing injury, you are convicted and sentenced to four months’ imprisonment.
107On Charge 2, false imprisonment, you are convicted and sentenced to eight months’ imprisonment.
108On Charge 3, criminal damage, you are convicted and sentenced to one month’s imprisonment.
109On Charge 4, stalking, you are convicted and sentenced to two years, six months’ imprisonment.
110On Charge 5, false imprisonment, you are convicted and sentenced to 18 months’ imprisonment.
111On Charge 6, assault with intent to commit a sexual offence, you are convicted and sentenced to three years’ imprisonment. This is the base sentence.
112On Charge 7, recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment.
113On Charge 8, theft, you are convicted and sentenced to one month’s imprisonment.
114It is appropriate that there be a level of communication of the sentences imposed to reflect the separate criminality of your more serious offending. I make the following orders for cumulation on the base sentence, being Charge 6, and upon one another.:
(a) On Charge 4, stalking, 12 months.
(b) On Charge 5, false imprisonment, three months.
(c) On Charge 7, recklessly causing injury, two months.
115All other sentences are to be served concurrently having regard to the sentencing principle of totality.
116This gives a total effective sentence of four years, five months' imprisonment.
117I fix a non-parole period of two years, six months' imprisonment. This is the period of imprisonment that you must serve before you are eligible for parole.
118
Pursuant to s18 of the Sentencing Act 1991, I declare a total of 789 days of
pre-sentence detention as served by you under the sentence I have imposed.
119I indicate pursuant to s6AAA of the Sentencing Act 1991 that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of five years, 10 months' imprisonment with a non-parole period of four years.
120Finally, I make the disposal order sought by the prosecution, noting that it is not opposed.
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