Director of Public Prosecutions v Tilley
[2018] VCC 1700
•18 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01169
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER TILLEY |
---
JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2018 |
DATE OF SENTENCE: | 18 October 2018 |
CASE MAY BE CITED AS: | DPP v Tilley |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1700 |
REASONS FOR SENTENCE
---
Subject: Attempted Rape x1
Sentence: 3 year Community Corrections Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes (Plea) Mr G. Martin (Sentence) | |
For the Accused | Mr S. O'Brien |
HIS HONOUR:
1Christopher Tilley, you have pleaded guilty to one charge of attempted rape for which crime the maximum sentence is 20 years imprisonment. You are now aged 46 and you have no relevant prior convictions.
2The circumstances of your offending are contained in a prosecution opening that was tended and marked as Exhibit A on the plea.
3That document was read in open court by the prosecutor Ms Coombes. Your counsel Ms O’Brien accepted that the summary was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.
4It is not necessary that I hear again repeat what is set out in the prosecution opening except in an abbreviated way. These sentencing remarks need be read however with what is contained in the prosecution summary.
5Your offending occurred more than three years ago. On the 13 September 2015 you, and your wife and three children, were invited to the home of the victim and her husband. The invitation was on the basis that your family would stay the night at the victim’s home. The victim and her husband were long-time friends of you and your wife.
6You and your family arrived as invited during the afternoon. The children swam in the spa and pool whilst the adults conversed over drinks and nibbles. The victim consumed a bottle of champagne and a bottle of wine. Her husband was also drinking champagne and wine.
7You took 30 cans of beer with you to the gathering and you began drinking shortly after you arrived. Your wife drank wine. You were the only person consuming beer.
8By the end of the evening there were only 8 cans left, meaning you consumed 22 cans of beer and I was told you also had cocktails. By late evening the children had all gone to bed.
9The adults got into the spa and after some time the victim left and went to her bedroom where she got into bed naked before falling asleep. Your wife left soon after to also prepare for bed and you and the victim’s husband remained in the spa. By this time you were drinking spirits. You both left the spa and you were seen heading towards the bedroom where you were to sleep. You went to your room where your wife was in bed with her head buried in the pillow. Soon after you left your bedroom.
10The victim, who had been sleeping under a doona cover on her bed awoke to find herself in a different position on the bed. She felt herself moving backwards and forwards on the bed and felt a penis moving up and down on her vagina. She opened her eyes and saw you lying naked on top of her.
11Whilst this was happening the victim’s husband was downstairs when he heard a noise that is said to have unnerved him coming from upstairs. He went upstairs and saw you standing at the side of his bed naked. He saw his wife in the bed naked with a doona cover around her lower half.
12Your mobile phone was later found near the victim’s bed. The victim told her husband what you had done to her and the police were immediately called. Forensic examination of the sheets on the victims bed detected the presence of your DNA on the sheets.
13You were arrested that day and interviewed. You told the police that you have no recollection of what occurred because of the amount of alcohol that you had consumed.
14Although this offending occurred on the 13th September 2015 and you were interviewed on that day, you were not charged until 11th July 2017, some 21 months later when you were charged with rape.
15There was a committal mention on the 22 September 2017 and a contested committal to the rape charge was booked in for hearing on the 1st June 2018 when the matter resolved. That was 33 months after the offending.
16There were real issues in contest on the rape charge. There is medical evidence that suggests you suffered from erectile dysfunction and could not have or sustain and erection. There is also an issue about your intoxication. Ms O’Brien argued that you had an arguable defence of intoxication.
17It is not in contention that you have indicated that you would plead guilty at the earliest opportunity. Your plea of guilty has utilitarian value. That is especially so in this case because I accept Ms O’Brien’s submission that there were issues that could have seen you plead not guilty and go to trial. By your plea of guilty you have avoided all of that and you have saved the time and costs of a trial and you have accepted responsibility for your offending.
18In pleading guilty you have advanced the administration of justice and importantly, you have saved the victim and her husband from having to give evidence against you. For this you must receive a lesser sentence than you would have received had you fallen for sentence after a trial and this will be reflected in the sentence that I will shortly pass.
19I also accept that your plea of guilty reflects genuine remorse on your part for your offending consistent with the remorse that you have expressed to your wife and relatives and friends and to psychologists who have treated you since this offending.
20There can be no doubt that your offending is serious and shameful. You attempted to rape a long-time friend when you were a guest in her own home and whilst your wife and children were also present in the home. In so doing you breached the trust of your family, and that of the victim, her husband and their family.
21I accept that at the time of the offending you were hopelessly intoxicated. That is no excuse. It only helps to explain your offending and put into a complete context. How on earth someone like you can drink so much alcohol in circumstances where your family are present beggars belief. It is totally irresponsible and reprehensible conduct that I accept you are now ashamed of.
22That this is so is further explained when one takes into account the fact I was told that on the night in question you were actually on call for your employment and unable to properly attend to calls that were coming from Perth that required your full attention. Understandably, that employment was soon after terminated.
23The prosecution has not filed a victim impact statement. It is the experience of the courts that in offending involving sexual assault (as here) the effect or impact of such offending upon the victim can be profound and long lasting. I act on the assumption that is likely to be the case here.
24Offending of this kind almost always results in a term of immediate imprisonment. That is because, in passing sentence the court must have full regard to general deterrence and denunciation. The sentence imposed must send a clear message to those who would attempt to rape a woman in this way that if they are apprehended they will go to prison. The sentence imposed must have full regard to the importance which Parliament attaches to this offence as gauged by the maximum penalty of twenty years imprisonment.
25In your case Ms O’Brien, for reasons that I will shortly set out, asked that I not impose a sentence that requires your immediate incarceration. She asked that I make a Community Corrections Order and impose appropriate conditions both punitive and to assist in your full rehabilitation.
26Ms Coombes submitted that in all the circumstances of this case a Community Corrections Order in combination with a term of immediate imprisonment which cannot exceed 12 months is the appropriate disposition.
27I have given this matter a great deal of thought since the plea. I have decided that all of the purposes of sentencing in this case can be achieved by the making of a Community Corrections Order with proper conditions. For the reasons that I will shortly come to, I would have imposed a term of immediate imprisonment in this case had it not been for the delay in bringing this matter before the courts which can in no way be attributable to you.
28Importantly, you have unnecessarily had this matter hanging over your head for far too long and you have suffered psychologically because of this, but also you have taken important steps during that time to rehabilitate yourself.
29I have formed the strong view that I should not impose a sentence that would now interfere with your rehabilitation. I am conscious of a number of decisions of the Court of Appeal in this State, particularly in recent times, that remind judges of this court that they must properly take inexcusable delay into account.
30This offending occurred on the 13th September 2015 and you were arrested and interviewed on that day. Inexplicably you were not charged until nearly two years later. That is just not good enough. There is no good reason for such a delay in a case like this where the complaint was made within minutes of the offence and where all important witnesses were available and had made statements.
31You are 46 years of age with no relevant prior criminal history. You were convicted and discharged of being drunk and disorderly in a public place 25 years ago. The penalty imposed in the Magistrates’ Court at that time I think reflects the seriousness attached to that offending at that time. It is not a matter I need have regard to here.
32You are married with three teenage girls. You are the principal bread winner employed in the IT industry where you earn a modest salary around $80K per year. Your wife works part time. You have been diagnosed Type 2 diabetic. You have had a good work history starting as a turner and fitter, then to Australia Post for many years then into the IT industry.
33After you were charged, you and your wife sold your home so that in the event you were to be gaoled she would not have a mortgage to pay off and so that she would have money for her and your girls to survive financially.
34That was a big decision for you and your wife to have to make and I accept it has had financial repercussions for you and your family, a direct consequence of your offending and in some small way non-curial punishment. You now live in rented accommodation.
35I received into evidence a psychological report from Geoffrey Burrows, a forensic counsellor (Exhibit 2). You voluntarily attended upon him to participate in a Sex Offender Treatment Program on the 14th January 2018 and you have now participated in eight sessions of that program at your own expense. In his report Mr Burrows said as follows:
(3) The initial phase of treatment focused on assisting Mr Tilley to gain insight into the underlying motivations for his offending behaviour. This process was difficult as Mr Tilley explained that he was not able to recall his offending behaviour. He was, however, able to discuss circumstances leading up to his offending which may have contributed to his behaviour.
Mr Tilley told me that for several months leading up to, and on the day of his offending, he had been abusing alcohol daily in response to ongoing bullying in his workplace and feelings of inadequacy regarding erectile dysfunction. Treatment therefore involved assisting Mr Tilley in gaining insight into the underlying motivations for his alcohol abuse.
(4) Mr Tilley's difficulty coping with negative emotions was identified as a prominent motivation for his alcohol abuse. The negative impacts of alcohol abuse were explored, including the manner in which such use increases his propensity for impulsive and reckless behaviour. Cognitive behaviour therapy, CBT, was then implemented to assist Mr Tilley to develop healthier coping mechanisms and to treat underlying symptoms of depression, anxiety and poor self-esteem.
He reported that he had begun applying several coping skills when required with some benefit, but was still finding it difficult to manage negative emotions. Further treatment is clearly required for Mr Tilley to effectively manage negative emotions, however due to his progress in this phase of treatment, he reported that he no longer considered alcohol abuse an effective coping skill.
(5) Mr Tilley expressed remorse for his actions despite telling me he was unable to recall his offending behaviour. He remarked that he was very upset to learn what he did and felt horrible for hurting the complainant. While Mr Tilley demonstrated a fair understanding of the culpability of his offending behaviour, treatment involved psycho-education regarding the requirements for consent and the destructive impact of sexual assault to develop a more complete understanding and to enhance victim empathy.
Following this phase of treatment, Mr Tilley was better able to appreciate the continued impact his behaviour would like have on the complainant and subsequently expressed further remorse and regret for his offending behaviour.
(6) The most recent phase of treatment has focussed on developing a relapse prevention plan to assist Mr Tilley in developing strategies to reduce his risk of re-offending. This involved Mr Tilley implementing solid decision making skills to recognise potentially risky situations before they arise and identifying appropriate avoidance and escape strategies. This plan will require Mr Tilley to implement appropriate coping skills when required.
(7) In summary, Mr Tilley has made good progress in relation to gaining insight into the motivation for his alcohol abuse and developing appropriate coping skills, but continues to lack insight into the inter-personal and sexual motivations for his offending.
Mr Tilley will require considerably longer engagement in treatment to enhance his insight, to improve his ability to apply relevant coping skills and to consolidate his relapse prevention planning.
Mr Tilley also requires ongoing assistance to cope with intimacy-related issues in his marriage more effectively. I confirm that I am willing to continue treating Mr Tilley if he is at liberty to attend."
36I also received into evidence a psychological report from Dr Matthew Barth who assessed you over two interviews on the 25th June and 25th September 2018. He assessed you as a low to moderate risk of re-offending in a sexual way. He referred to your feelings of shame and guilt at the impact of your offending on your family.
37You also expressed to him appropriate empathy for the feelings of your victim. He opined you suffer from Adjustment Disorder-with Mixed Anxiety and Depressed Mood. He also opined you suffer from Erectile Disorder for which on-going medical treatment is clearly warranted.
38He said your alcohol use extends beyond normal limits and despite your reported reduction in alcohol intake you meet the criteria for “Alcohol Use Disorder” at a Moderate level. He further specified that this diagnosis would be classified as “In Partial Remission”.
39A medical record from your general practitioner shows you have been medicated for depression for a number of years before this offending. Because of these conditions I have concluded that you would find a term of imprisonment more onerous than other prisoners.
40I received into evidence a character reference from your brother in law who also gave evidence before me. He told me of your remorse for your crime and the consequences that it has had for you and your family. He also told me of your shame and your concern for the victim. He told me of the steps you have taken to get treatment for your depression and other psychological problems including your depression and your excessive alcohol intake. I accept that evidence.
41I also received other character evidence. A letter from your wife, Exhibit 5, speaks of your crime being completely out of character as do other references that I received into evidence.
42As I said before, had it not been for the inordinate delay in charging you for this offence I would have sent you to gaol. However, you have used the time of the delay well.
43Importantly you have sought help for your depression and to address your offending behaviour and the reasons for it, namely your alcohol abuse. I assess your prospects for rehabilitation as good and I doubt you will re-offend in this way.
44I take the view as I said earlier that I should not interfere with the clear path to rehabilitation that you yourself have embarked upon. I repeat the purposes of sentencing can be met here by the making of a Community Corrections Order with appropriate punitive conditions and conditions to ensure your rehabilitation.
45To that end I have had you assessed as to suitability for the making of a Community Corrections Order. You have been assessed as being suitable for such a disposition and as being low risk of general reoffending.
46On the charge of attempted rape you are convicted and I make a Community Corrections Order with conviction for a period of three (3) years commencing this day. There will be conditions as follows:
47That you undertake 250 hours of unpaid community work;
48That you continue to attend upon Mr Geoffrey Burrows Forensic Counsellor and continue to obey his lawful instructions and directions;
49That you undergo supervision by Corrections;
50That you undertake programs for treatment and rehabilitation from alcohol;
51That you undertake programs for treatment and rehabilitation to reduce re-offending, specifically the Sex Offenders Program.
52That you be judicially monitored by me every 6 months.
53For the purposes of s. 6AAA of the Sentencing Act 1991 had it not been for your pleas of guilty to the charges I would have imposed an overall sentence of four (4) years imprisonment and I would have fixed a non-parole period of two years and eight months.
54Now I have told you the terms of the Community Corrections Order, Mr Tilley, that I propose to make, but I can only do so if you consent. You need to understand that you must not breach any of the conditions of the order in any way. If you do so you may be brought back before me for breaching the order and I have the power to re-sentence you.
55Above all you must not commit any offence punishable by a term of imprisonment during the term of the order. That will also be a breach and will trigger you perhaps being brought back and re-sentenced on this charge. Do you understand that?
56OFFENDER: I do, Your Honour
57HIS HONOUR: Do you understand it clearly?
58OFFENDER: I do, Your Honour.
59HIS HONOUR: Do you have any questions?
60OFFENDER: No, I don't, Your Honour.
61HIS HONOUR: Do you still wish to consent to the order?
62OFFENDER: Yes, I do, Your Honour.
63HIS HONOUR: Now there will be times when you will think it is too harsh as you get into the order, perhaps six months down the track and you will be saying to yourself, well I do not feel like going to unpaid community work today. It is meant to be hard, do you understand?
64OFFENDER: I do.
65HIS HONOUR: It is meant to be hard because you are now convicted of attempted rape. Do you understand that?
66OFFENDER: I do, Your Honour.
67HIS HONOUR: You will have to comply in every way because if you come back and absent a miracle, I will send you to gaol. Do you understand that clearly?
68OFFENDER: I do Your Honour.
69HIS HONOUR: Very well. Come out of the dock if you would. Now the first thing that you will have to do is report to Corrections in Geelong, Level 5, 38 Little Malop Street within two clear working days. That is either today or tomorrow. Do you understand?
70OFFENDER: I do, Your Honour.
71HIS HONOUR: Very well. On the rising of the court, you are free to leave.
72MR O'BRIEN: As Your Honour pleases.
73MR MARTIN: If it please the court.
‑ ‑ ‑
2
0
0