Director of Public Prosecutions v Thompson (a pseudonym)

[2020] VCC 1178

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE THOMPSON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2020 and 30 June 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Thompson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1178

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr M. Turner	Cahills Solicitors

HER HONOUR:

1Blake Thompson[1], you have pleaded guilty before me to two charges of rape, one charge of common assault and one charge of false imprisonment.  The facts underlying your offending are as follows.

[1] A pseudonym.

2You and the complainant had been in a relationship since January 2018 after meeting on Facebook.  The complainant lived in Ballarat and you lived in Brisbane.  On one occasion between January and June 2018 you travelled to Ballarat to meet with her and stayed with her and her family for two days before returning to Brisbane.

3You then arranged to stay for one or two days before July 2018 school holidays, to which the complainant agreed.  And during those holidays you visited her home but shortly after arriving said you were not going to leave.  The complainant did not agree to this but did not know how to make you go.

4On one occasion between July and August 2018 you had consensual sex with the complainant but then she ended the relationship about a month later because you always wanted sex and she did not.  You then forced her to have sex with you when no one else was home on a number of occasions.

5Charge 1 relates to an occasion between 1 July and 31 August 2018 when you went into the complainants bedroom where she was sitting on the edge of her bed, pulled down your pants to your thighs, stood over her and said, 'Eat my dick'.  The complainant said she did not want to do this, then you grabbed the back of her head and then put your penis into her mouth.  This underlies Charge 1, rape.

6You continued in this behaviour for about a minute while the complainant continued to push you away.  You then removed your penis and she went to the bathroom and washed her mouth.

7Charge 2 relates to an occasion on 1 September 2018 when the complainant and her family, and you, moved to Wendouree and lived with a community leader, Jane Tegan[2].  Ms Tegan lived with you for three weeks then moved out herself.

[2] A pseudonym.

8On an occasion between 1 and 26 September 2018 the complainant was in her shared room laying on her sister's bed when you came in and tried to kiss her on the mouth and began to touch her body, including her breasts on the outside of her clothing, which is an uncharged act.  You then wrapped your arms around the complainant restricting her movement while she repeatedly tried to get up.  On each of these attempts you dragged the complainant back to her bed.  You then pulled down your pants and exposed your erect penis and then pulled down the complainant's pants and inserted your penis into her vagina.  The compliant tried to get you off her by fighting against you and because of her movements you were not able to thrust properly and you stopped, breathing heavily.  The complaint on this occasion felt disgusted and ashamed.

9I now refer to Charges 3 and 4.

10On 29 September 2018 you went to Brisbane and then a week later, on
6 October, returned to the complainant's home.  At about 3.30 am, on
6 October, you returned to the Wendouree address and the complainant's mother let you inside.  The complainant did not hear you enter and when she woke up you were sitting on the edge of her bunk bed wearing only your underwear.

11The complainant tried to hide behind her sister in another bed, in the process waking her sister, but you came towards her telling her you wanted to sleep with her.  The complaint's sister told you to get out and you reached over the grab the complainant's hand.  But her sister again shouted for you to get out, you ignoring her.

12The complainant then left her bedroom, tried to get to the toilet, but you followed and grabbed her before trying to kiss her.  You then grabbed her by the throat, using your thumb to apply pressure, causing her to have difficulty breathing.  Those actions underlie Charge 3 on the indictment, common law assault.

13The complainant's older sister was asleep in the living room but woke up and told you to be quiet.  Whilst you were distracted by that sister the complainant sought refuge in the toilet, locking the door to prevent you from coming in.  You continually knocked on the door, telling the complainant you needed to use the toilet.  She then unlocked the door and tried to leave but you forced her back into the toilet and closed and locked the door behind you, trapping the complainant inside.  These actions underlie Charge 4 on the indictment, false imprisonment.

14The two of you argued, the complainant yelled and screamed at you to let her out and then tried to push you away, in the process hitting the toilet roll holder which caused her pain.  She screamed and she was then able to get out of the toilet, and was afraid you were going to force her to have sex.

15Eventually the complainant's brother was awoken by the noise, hearing his sister screaming in the toilet knocked on the door but you refused to open it.  He then punched the door, causing a dent.  You opened the door and spoke to him and at this time the complainant escaped and sought refuge in the living room where her family had gathered.  Police were called and you were eventually taken to the Ballarat police station.  The complainant reported matters to police the same day.

16You were interviewed by police on 6 October 2018, telling police that you were in a relationship with the complainant and had been for eight months.  Saying that she forced you to stay with her when you wanted to go back to Brisbane and that she in fact sexually assaulted you.  You told police that the complainant had ended the relationship before July 2018 but only for one or two days, and that you were then in Brisbane and the complainant called you to end the relationship.  You told police that the relationship was no longer broken up and that all sex between you had been consensual.  In relation to Charges 3 and 4 you said you grabbed the complainant by the throat to kiss her and that you locked her in the toilet and that her brother had punched the toilet door which had caused you to open it.

17You were remanded in custody on 7 October 2018.  During breakfast you told another inmate in the cells that you had raped your girlfriend, although you did not say how many times had occurred.

18Another person in custody saw you in the main cell area on 7 October 2018 and when he asked you why you are in custody you said it was, 'For raping my missus'.  You said to her, 'What, so did she say stop?'  And you said, 'She said stop, but I no stop because I love her'.

19A third person in custody also saw you in the main cell on October 7 and also asked you what you were in for and again you replied for raping your girlfriend.  That person asked if you were serious, you said that you were and when asked why you had done it you replied, 'She is the only girl for me'.

20In terms of how this matter proceeded, you first offered to plead guilty at the initial directions hearing stage after a contested committal hearing during which the complainant and several of her family members were cross-examined.

21You were remanded in custody on these matters from 6 October until obtaining bail on 9 November 2019.

22The maximum penalty for rape is 25 years' imprisonment.  The maximum penalty for common law assault is five years' imprisonment. The maximum penalty for false imprisonment is 10 years.

23I now turn to your personal circumstances.

24You are now 27 years old and have no prior convictions.  You were born in a Thai refugee camp where you parents had fled to escape the murderous Pol Pot regime in Cambodia.  You are the eldest of four children.  They lived there in very difficult circumstances until you were 13, when you family was accepted into Australia.

25You told psychiatrist, Dr Nina Zimmerman, whose report was tendered on the plea, that your family lived in a bamboo hut which had no electricity or running water but you did attend school there.

26Your family settled in Brisbane and you underwent a year at an intensive English school, then entered Years 9 and 10 at high school.  You struggled academically and were hospitalised for the first time in a psychiatric ward when you were in Year 11, at which time you were diagnosed as suffering a bipolar affective disorder.

27You then cleaned trucks for about 18 months and went on to complete a mechanics apprenticeship working in that area from ages 19-21 when you became unwell again and had to stop work.  You went back to cleaning trucks on a part time basis but this work stopped due to the COVID crisis and you are now on Centrelink payments.

28You live at home with your parents who are law abiding, as are your siblings; who are a fulltime mother, student nurse and Year 12 student, respectively.  No one in your family has ever been in trouble with police.  As I have said, you yourself have no prior convictions apart from some speeding fines.

29You continue to suffer from a serious mental illness. Dr Zimmerman said you have a lifelong bipolar disorder, which is at the severe end of the spectrum, which causes you to experience what she described as 'episodes of rapid cycling with both depressed and manic symptoms'.  She said your illness frequently requires admission to psychiatric wards, more than once a year, as well as treatment with antipsychotics, mood stabilisers and electroconvulsive therapy.  She noted you have a history of poor compliance with your medication at times and this is then accompanied by a relapse.  This was apparently the case when you offended.

30In the month leading up to that offending you had stopped taking your medication and unfortunately were regularly using ice.  Dr Zimmerman believed your offending occurred during a relapse into your illness when you stopped taking your medication.

31You were bailed, as I said, in November 2018 and by December had been admitted back into a psychiatric ward.  Significantly, in my view, Dr Zimmerman stated, 'Mr Thompson has a history of sexual disinhibition when manic' and it was her opinion that the sexual nature of your offending was likely linked to your manic relapse.  She stated,

'I believe that he would have been unable to think rationally about the impact of his behaviour or to manage the impulses.  He would not have been able to exercise appropriate judgement at the time'.

32The prosecution has conceded there is a direct causal link between your mental illness and the offending, and I also accept this.

33As a result, pursuant to s.10A of the Sentencing Act 1991, a special reason exists so that the court is not obliged to sentence you to a term of imprisonment as it otherwise must (see s.5(2)(G) of the Sentencing Act).

34Fortunately, since returning to your family you have been re-established in a highly protective mental health regime.

35You have been involved with the Early Psychosis Intervention Program in Brisbane since 2016.  Under that program you have had the regular support of a case manager, regular reviews with a psychiatrist, regular physical health review and psychological interventions.

36In his report consultant psychiatrist, Dr Rahul Bhardwaj, noted that before going on the program you were taking illicit drugs, which inevitably led a relapse.  He said you had been compliant with the program but from about May to December 2018, your attendance had dropped away.  You are now back on this program, have attended regularly and experienced no relapses.

37Dr Bhardwaj described your family has close knit and supportive.  He stated,

'Given the severity of his illness, Mr Thompson is likely to remain in the care of adult mental health team for the foreseeable future'.

38In terms of the sentencing principles applicable to your case, it is clear in my view that you are not a suitable vehicle for general or specific deterrence.  I agree with your counsel that protection of the community is inextricably linked to management of your mental health.

39Finally, denunciation of your conduct is not appropriate in this case because of the role your mental illness played in this offending.

40Having said this, may I make it very, very clear, sir, that the effect on your victim, even though there was no victim impact statement, would have been horrendous.  It is the common experience of this court that persons like the complainant who have been subject to unwanted and forcible and frightening sex suffer very serious emotional disturbance afterwards.

41There was mention in the summary of the prosecution opening, which I have summarised myself, that the complainant felt disgusted and ashamed.  It is very common in this court in victim impact statements from persons who have been subjected to sexual assault to become introverted, terrified of going out, insecure and uncomfortable in the world.  It can interrupt study.  It can interrupt and get in the way of that person forming satisfactory relationships in the future.  So that what you did was something which the court acknowledges would have had extremely serious effects upon your victim.

42I am making this point, Mr Thompson, because even though I am accepting that what you did was done in the grip of your mental illness you have a responsibility to stay on your medication.  You certainly have a responsibility to avoid using illicit drugs.  It is clear that when your mental illness is raging, and it comes on when you stop taking your medication and particularly when you are using drugs, you become highly sexualised and in those circumstances committed extremely serious offences, which would ordinarily see you being placed in gaol for many years.  Most importantly, it has a devastating and terrible effect on your victims, and this is something that you must take into account in terms of the responsibility that you have to properly manage your illness.

43Now, I am satisfied that you have a very good protective environment and that your illness is being properly attended to.  None of that works if you do not cooperate, if you do not attend, if you do not take your medication and if you take drugs like ice.  All of this happened because during May and September of 2018 you stopped taking your medication and you started taking drugs like ice.

44If this ever happened again, Mr Thompson, the fact of your mental illness, because of this prior matter that will now appear on your history, is going to be less relevant.  If you know that if you stop taking your medication and start taking drugs, if you are aware of the likelihood that this will lead to you behaving in a highly sexualised way then the courts will know you have been given an opportunity previously.  I am going to give you the opportunity, as I will go on to say, of being placed on a community corrections order.  But if this happens again the fact of your mental illness will be seen to be far less important and far less relevant, because you will have already been through the experience of knowing what happens when you stop taking your medication and knowing what happens when you take drugs.

45So it is extremely important that you understand that if you stop being guided by the psychiatrists and the psychologists who are part of your mental health team, that if you offend again in this way you will undoubtedly get years in gaol.  Because the court will have seen that you had this opportunity previously and the court will understand that you know what is likely to happen if you do not stick to your medication regime and the directions of your team.  Is that very clear, sir?  Mr Thompson, do you understand what I am saying?

46OFFENDER:  (Indistinct words.)

47HER HONOUR:  Yes.

48OFFENDER:  (Indistinct words.)

49HER HONOUR:  All right.  You are not going to get this opportunity again, it is only because you have got no prior convictions.  But, you know, it is quite clear that if you do not take your medication you are dangerous to other people and it is dangerous for you as well, all right?  All right, thank you very much.

50Now, in the time that you were held in custody before being released on bail it was clear that your mental health deteriorated and you demonstrated clear signs of mental unwellness, such as plunging your hand into boiling water and suffering auditory hallucinations.  I am therefore also satisfied that imprisonment would likely cause your already serious psychiatric illness to deteriorate.

51In all the circumstances, I am satisfied that your offending in the very special circumstances of this case is best dealt with by you remaining with your family and you continuing to be monitored and supported via the EPIP.

52I have had you assessed for a Community Corrections Order and you have been found suitable.  The order will be transferred to Brisbane for case management by the Corrections department here.

53Again, I wish to make it clear that what you did had a terrible effect on your victim, who was terrorised and traumatised by your actions. As I said, she would undoubtedly continue to experience great emotional suffering.

54It is extremely important the complainant understands that in placing you on a Community CorrectionsOorder the court is not ignoring the trauma she suffered or what you did to her.  If there had not been evidence that there was about the part your mental illness played you would have been sentenced to a long term of imprisonment.

55Now, before I can place you on this order, Mr Thompson, I have to gain your consent and I need to explain the conditions of the order.

56They are that you must contact the community corrections order within two days of the making of this order, that is by Tuesday of next week.  The order will last for a period of 18 months.  Whilst on the order you must not commit any other offence punishable by imprisonment.  If you commit an offence than you would be brought back in front of me on a breach of the order and I will have to
re-sentence you on this offending.

57You must report any change of address or employment within 48 hours of that change.  Ordinarily you would not be allowed to leave Victoria without the permission of the Community Corrections Office, but in this case as has been made clear management of this order is going to be transferred up to the Brisbane Corrections department.

58You must report to and received visits from the Community Corrections Office and you must obey all lawful directions of the Community Corrections Office.

59I am going to order that you undergo treatment and rehabilitation for mental health difficulties, that there be supervision and that you undergo programs designed to reduce reoffending.

60I am not going to order judicial monitoring.  In my view fortunately you are on the sort of regime that I can be confident that as long as you play your part will keep you safe.  And that is undoubtedly the regime that will be handed across to you - that you will be handed across to once this order is moved up to Brisbane.

61Are you prepared to enter this order?  I am going to make it an aggregate.  I understand that there is more than one offence there, but it all seems to be one episode, if you like, of offending over a particular period of time.  Mr O'Doherty, does that make sense to you?

62MR O'DOHERTY:  Yes, it does, Your Honour.

63HER HONOUR:  Thank you very much.  What we will do is that we will forward the order up to Brisbane once I have signed it.  All right?  So that is all we need to do.  Is there anything else that I need to attend to, Mr O'Doherty?

64MR O'DOHERTY:  (Indistinct) under this particular order that you've made,
Your Honour.

65HER HONOUR:  Could you - I am sorry, we missed some of that.  What was that, Mr ‑ ‑ ‑

66MR O'DOHERTY:  Sorry.  I'm just checking to see whether judicial monitoring is a requirement under this order, Your Honour.

67HER HONOUR:  Is judicial monitoring a requirement now?

68MR O'DOHERTY:  I'm just checking to see if it is, I'm not sure.

69HER HONOUR:  No, I am not ordering - I mean, I am not ordering judicial monitoring because of the - probably because of the difficulties of ‑ ‑ ‑

70MR O'DOHERTY:  Yes.

71HER HONOUR:  ‑ ‑ ‑ setting it up.  And also because the structure he has got is so good.

72MR O'DOHERTY:  Yes.

73HER HONOUR:  That I really do not see the need for it.  I usually do judicial monitoring when I am bit worried about how they are going to travel on the order.

74MR O'DOHERTY:  Yes.

75HER HONOUR:  But, you know, there has been no relapse in the almost two years since this offending occurred.  And he has remained, you know, well controlled under the current regime.  So in those circumstances I do not think it is necessary.

76MR O'DOHERTY:  Has Your Honour got s.44A in front of you, could you have a look at that?

77HER HONOUR:  Is that the Sentencing Act?

78MR O'DOHERTY:  Yes.

79HER HONOUR:  I did not know they started making judicial monitoring - you learn something every day, Mr O'Doherty, don't you?

80MR O'DOHERTY:  I'm not saying that I'm right, Your Honour, I'm just apprehensive that I might be right, that's all.

81HER HONOUR:  That is a mandatory treatment and monitoring order.  How does a - if the court is sentencing an - actually, you are right.  Well done.

82MR O'DOHERTY:  Yes, this is the only ‑ ‑ ‑

83HER HONOUR:  If a court is sentencing an offender for (indistinct words) satisfied that the order under this ‑ ‑ ‑

84MR O'DOHERTY:  Yes, you have to do that, Your Honour.

85HER HONOUR:  All right, so - all right then ‑ ‑ ‑

86MR O'DOHERTY:  It's a mandatory treatment order.

87HER HONOUR:  All right then ‑ ‑ ‑

88MR O'DOHERTY:  It's a ‑ ‑ ‑

89HER HONOUR:  Thank you, I was not aware of that.  All right.  I will also include judicial monitoring.  We will do judicial monitoring in six months.  It is a long period of time but I do not see the need for that.  So can we get a date for six months please, Gem.  What date?

90ASSOCIATE:  24 February 2021.

91HER HONOUR:  24 February 2021 will be the first judicial monitoring.  We will do it by remote means, all right.

92MR O'DOHERTY:  Yes, thank you, Your Honour.

93HER HONOUR:  Thank you very much for that, Mr O'Doherty.

94MR O'DOHERTY:  I should announce that that was brought to my attention by my very learned instructor, Mr Lu.

95HER HONOUR:  Well done.  Thank you, Mr Lu.  I am a bit sad, I actually thought it must have come from Mr O'Doherty who had suddenly developed an enormous interest in reading legislation, but it appears not.

96MR O'DOHERTY:  Thanks very much.

97HER HONOUR:  Thank God for instructors, Mr Lu.  Thank you very much.  All right, so I am going to add judicial monitoring to that, thank you very much.  All right, I think that is everything that - is there anything else that I need to attend to?  I am just going to stand down because the documentation will be forwarded up to Brisbane.

98MR O'DOHERTY:  Thank you, Your Honour.

99HER HONOUR:  Thank you.  I thank counsel very much and in particular you, Mr Lu, for your assistance and we will stand down until 10.30, thank you.

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