Director of Public Prosecutions v Tutchell
[2017] VCC 1694
•15 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00821
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KANE TUTCHELL |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 November 2017 | |
DATE OF SENTENCE: | 15 November 2017 | |
CASE MAY BE CITED AS: | DPP v Tutchell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1694 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentencing – Rape – 2 charges – Victim not known to perpetrator – Plea of guilty – Sentence of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Bourke | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr B. Johnston | Balmer & Associates |
HER HONOUR:
1 Kane Tutchell, you have pleaded guilty to two charges of rape. The offences were committed on 3 March 2016.
2 The charge of rape is serious and that is reflected in the maximum penalty prescribed by law and that is 25 years’ imprisonment.
3 In addition, you admitted a prior criminal record. I accept that the prior criminal record is limited and note that you do not have any prior matters for sexual offending.
4
There is one appearance in the Children's Court, dealing with two charges of theft and an appearance at Geelong Magistrates’ Court on 29 January 2013, for charges of affray, intentionally cause injury, use threatening language in
a public place, theft, recklessly cause injury, unlawful assault, drive in breach of a licence condition and without authority or excuse, enter scheduled public place, for which you received a combination of fines, together with a Community Correction Order of 12 months duration, with special conditions, including 125 hours of community work, supervision, assessment and treatment for alcohol abuse and mental health assessment and offence behaviour programs and that was with conviction.
5 The 2012 offending concerned an occasion when you were 19. The Community Correction Contravention Report included the details of your offending and that has been exhibited in this plea hearing and is available.
6 On 25 November 2013, you were dealt with for contravention of that Community Correction Order. The breach was found proven and the original order was varied. A new Community Correction Order was made. That was operational for 18 months, with 125 hours community work, 12 months’ supervision, assessment and treatment for alcohol abuse and mental health assessment and offence behaviour programs was imposed.
7 I am advised by Mr Johnston this morning that ultimately, you completed that new Community Correction Order successfully and I have taken that into account.
8 I will be discussing an aspect of that earlier offending, later in these remarks.
9 I shall proceed to sentence now in respect to the rapes, on the basis of the Crown opening. No issue was taken with the factual circumstances, as set out in the opening at the plea hearing.
10
You were 23 at the time of the offending and you are now 25. The victim is
a German national who was travelling and at the time of the offending, was in Australia. It was the night of her 28th birthday. She was out celebrating with
a fellow traveller. She was at a bar, which was part of the Nomads All Nations Hostel, known as UBar and that hostel is located in Spencer Street, Melbourne and it is frequented by backpackers. The victim was heavily affected by alcohol, having consumed a large amount of alcohol at various locations, prior to meeting you at the UBar. You were not previously known to each other, prior to the commission of these offences.
11 You met and shortly after, left the UBar together in a taxi. The victim has no recollection of leaving the bar and travelling in a taxi to a place where you were then living in Lara.
12 In your record of interview, you told police that you had consensual penile/vaginal sex, although the victim has no memory of this sexual activity and this is not a charged act.
13 The victim’s next recollection is being at an ATM, in company with you. She did not know where she was or who she was with. She was unable to withdraw money from the ATM, as she could not remember her PIN.
14 CCTV footage shows you grabbing the victim’s arm and leading her into the darkness, away from the ATM. You took her into nearby parkland, where it was dark. You became aggressive and forced the victim to suck your penis. You said, “Suck my dick and make it hard”, otherwise you said that you would kill her and bury her in the fields. The victim performed oral sex on you without consent, because of fear of what you might do, should she refuse. That is Charge 1 – rape.
15 You became angry after she did not make you erect and took her by the arm and led her to your house, where you took her to your bedroom, removed her clothes and had penile/vaginal intercourse. She acquiesced again, due to fear of reprisals. You slapped the victim a number of times to the face causing injury. You did not use a condom. That is Charge 2 – rape.
16 The victim made her escape when you fell asleep. She quickly departed the property, partially dressed and was very distressed. Fortunately for her, a man, who was a witness, Gary Fairchild, was getting ready to go to work and saw the victim in a very distressed state. He assisted her by consoling her and calling the police.
17 Mr Fairchild said that when the victim approached him, she was incoherent and was shaking and was saying words, “he raped her” and that “he would kill her”.
18 Police attended and the victim was taken for medical treatment.
19 You were quickly identified as the perpetrator and arrested at home whilst you were still in bed at about 9.50 am.
20 Police interviewed you and during the formal interview, you made admissions about meeting the victim at the UBar and taking her back to your house for consensual sex. You told police that she asked you to slap her and you did so.
Impact of offending
21 Mr Tutchell, the victim has suffered dramatically as a consequence of your offending and I have read and had regard to the document headed, "Victim statement", signed but not declared. It is dated 1 November 2017. No objection was taken at the plea hearing to it being read by the court.
22 The crimes have had both emotional and social impacts. The victim has lost trust in people. She was previously a light-hearted, confident person, who says her trust in people has been completely destroyed. The experience has overshadowed her other happy memories of her travels. She suffers nightmares and anxiety and ruminates about her experience. She has had counselling from a support group and it is fortunate that she has not suffered any long-term physical impacts.
Seriousness of offending
23 Mr Tutchell, I consider this offending to be objectively very serious. Part of that seriousness is reflected in the maximum penalty of 25 years' imprisonment. There were also aggravating features of your offending. You preyed on a drunk, vulnerable woman and took advantage of her for your own base sexual gratification.
24 You had no right to impose yourself upon the victim. You took her, a stranger, to a strange location and raped her first in the dark parklands and then you took her to your home where you had penile/vaginal intercourse without a condom, accompanied by some violence. Those actions constitute a serious violation of her rights over her own body and they are not to be tolerated. These were violent, aggressive acts on your part.
25 Any act of rape is a serious matter. I do note, by your plea of guilty, you acknowledge that when the acts of sexual penetration took place, that you knew the victim was not consenting.
26 Your actions must be condemned and on behalf of the community, I formally denounce your behaviour.
27 Mr Johnston advised the court that you instructed him that you met at the bar and asked the victim if she would like to come back to your home and she agreed to do that. He did, however, concede that the offending that took place was a serious example of this sort of serious offence and that your actions would have been terrifying for the victim, a stranger in this country, who was alone, vulnerable and intoxicated. He also acknowledged that the rapes were accompanied by threats and infliction of violence at the house and that they have had a significant effect on the victim. He conceded that you injured the victim during the second rape, but noted that the victim's injuries, that is, physical injuries, were not long-lasting and also that no weapon was used.
28 He confirmed the context to the offending was that you too had been drinking. You told police up to ten pots in the record of interview, but you now say that it may well have been a greater amount. You have had problems with binge drinking since you were in your mid-teens.
29 Whilst being intoxicated offers an explanation for your offending, it in no way excuses your behaviour.
30 It is somewhat troubling to the court that you did not learn from your past experiences about being intoxicated and how that impacts upon your behaviour. In the past, you have acted aggressively and impulsively whilst intoxicated and those charges for which you were convicted at the Geelong Magistrates' Court, as set out in the criminal history, reflect this.
31 The Australian Community Support Organisation (ACSO) assessment, dated 27 March 2013, indicated that you had achieved a level of understanding with regards to alcohol use and not drinking to intoxication, via an episode of treatment, completed prior to the Community Correction Order being imposed, with Sharon Hocking of Headspace Jigsaw, Corio.
32 Sadly, this latest offending is yet another example of your aggression and violence, in the context of your being intoxicated and you do need to reflect upon your behaviour and to seek appropriate treatment, so as to manage this in the future.
Mitigating factors
33 I have had regard to your personal history and background.
34 You are currently single and living with your mother and step-father at their family home. You enjoyed a loving, caring, supportive and nurturing childhood and you are well supported by family members, many of whom have been present during the plea hearings.
35 Your parents separated when you were young and both re-partnered.
36 You have twin biological sisters and twin half-sisters and a stepsister.
37 You have some limited formal education. Notwithstanding being a poor student, you were able to complete a Certificate III Horticulture and General traineeship, after leaving part-way through Year 10.
38 You also completed a scaffolding course and there is an excellent work history between the ages of 18 and 23 years, where you have worked at various petroleum refineries and also at an abattoir.
39 In the past you were a keen cricket and football player.
40 I have read the written references that were provided from Gary Hopper, who was an employer and also a partner of your aunt, your aunt and a friend. Gary Hopper, confirms that when you have worked with him, you have been a good worker. He has spoken to you about these charges and his view is that you are remorseful.
41 Catherine Hopper, your auntie, states she was shocked when she was told of your involvement with these crimes. She describes a close and loving relationship with you. She considers you to be a kind and loving person and that these crimes, she considers, are out of character. Growing up, she said, you have lived a very positive lifestyle, playing football and cricket. She described you as being somebody who shows love and respect to his family members and in particular, to your aunt who has been diagnosed with cancer, whom you have provided great support to. She describes you as being extremely remorseful.
42 Taneika Davis, a friend, confirms she has known you eight years. In the past, she was in a relationship with you and she too has noted your remorse.
43 In formulating the appropriate sentence, I have taken into account current sentencing practices and I have had regard and read the decided cases that were submitted by your counsel and I have further considered the discussions I have had with the counsel during the plea hearing.
44 Ultimately, you must be punished, having regard to the particular circumstances of your offending and I must impose just punishment.
45
In sentencing you, I have had regard to your plea of guilty. There was
a contested committal hearing, during which the victim was
cross-examined, as well as other witnesses. The matter ultimately settled after the committal hearing, but well prior to trial.
46 There is still real utility in your plea. By your plea, you have spared the State the expense, time and cost of a trial and importantly, you spared the witnesses the inconvenience and trauma of giving evidence at your trial. You have facilitated justice and your sentence will be discounted accordingly.
47 I accept, in the circumstances, that your plea is evidence of genuine remorse for your wrongdoing. I have had regard to your insight, as reflected in your discussions with Gary and Catherine Hopper, your aunt and Ms Davis as further evidence of remorse.
48 I accept that you now admit that what you did was wrong. Your behaviour showed a total lack of respect towards the victim and has had a significant impact upon her.
49 I have formed the view that your prospects for rehabilitation are reasonable. There are factors in your case which leads me to the conclusion that your prospects are reasonable, given that you have pleaded guilty to the two charges of rape, you show insight into the offending, you demonstrate genuine remorse and you have a nurturing and supportive family who are committed and willing to support you upon your eventual release and those factors will enable you to further your rehabilitation in the community.
50 I am unable to express what your risk of re-offending is, absent a proper risk assessment.
51 I consider that there is a need for you to be considered for the Sex Offender Treatment Program and for further programs to address your binge drinking and associated violent tendencies.
52
Overall, I have formed the view that the only appropriate disposition is
a custodial sentence. Mr Johnston conceded that proposition in his sentencing submissions.
53 In formulating the appropriate sentence I have fixed a non-parole period shorter than it would otherwise have been because of your prospects for rehabilitation, having regard to your relative youth, stable supports in the community and your prospects generally.
54 You require supported transition back into the community to further facilitate and optimise your rehabilitation. That provides the best protection for the community in the future.
55
I have also had regard to the submissions made to me this morning by
Mr Johnston, concerning your situation currently whilst you are in custody. There are some genuine concerns with respect to your personal safety because of your sister's involvement in the matter of Azzopardi.[1] Mr Azzopardi is currently undergoing sentence with respect to the death of a cyclist and he has known connections to the Banditos. I have taken that into account in a general sense, that your concerns for your personal safety will make your time in custody more onerous.
[1]DPP v Azzopardi [2017] VCC (26 June 2017).
56 I have had regard to the principles of totality and proportionality. There will be a degree of cumulation in respect to the sentence, to reflect the two episodes of serious crimes, involving the sequential rapes on the same victim in a short timeframe.
57 I will now announce the formal court orders.
58 If you could please stand, Mr Tutchell.
59 Charge 1, rape, convicted and sentenced to six years' imprisonment.
60 Charge 2, which is the base, you will be convicted and sentenced to six years' imprisonment.
61 I order that two years of the sentence imposed on Charge 1 be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of eight years' imprisonment and order that you serve five years' and nine months' imprisonment before being eligible for parole.
62 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have imposed a term of imprisonment of 11 years, to serve seven years and nine months.
63 An application has been made for an order that you be registered, pursuant to the Sex Offenders Registration Act 2004. The power to make a registration order in this case is discretionary. I have applied the test set out in the case of Bowden v The Queen.[2]
[2][2013] VSCA 382.
64 The enquiry is a two-stage process. I am satisfied, as a sentencing court, that the conditions for the making of such an order are present, namely that you have pleaded guilty to qualifying offences and I am also satisfied beyond reasonable doubt that you do pose a risk, a real risk to the sexual safety of one or more persons, or of the community. I have had regard to the factors relevant in this case, namely that you have been convicted for two charges of rape, you exploited a vulnerable stranger, taking her to a strange location and raped her in a public place and at your home. During the first rape, you made threats of violence and during the second rape, you inflicted actual physical violence.
65 Therefore I make the order that you be registered and therefore you are required to comply with the reporting obligations of the Sex Offenders Registration Act for a period of 15 years.
66 Finally, I make a declaration of pre-sentence detention. I direct that it be entered into the records of the court that you have already served 11 days of the sentence that I have imposed this day.
67 MR JOHNSTON: Twelve days, Your Honour.
68 HER HONOUR: Twelve days, I am sorry, 12 days. That will be entered into the records of the court.
69
All right, I will sign the notification in relation to the SORA requirements,
Mr Johnston if you could accompany my associate and just get your client to acknowledge receipt.
70 MR JOHNSTON: If I could leave the Bar table.
71 HER HONOUR: Yes, sure.
72 MR JOHNSTON: As Your Honour pleases.
73 HER HONOUR: All right. Thank you, Mr Johnston and Mr Bourke. We can adjourn.
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