Director of Public Prosecutions v Walsh (a pseudonym)

[2018] VCC 1710

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER WALSH (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Walsh (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1710

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Slade & Parsons

HIS HONOUR:

1       Peter Walsh[1], you have pleaded guilty to one charge of rape.  You are now 50 years of age.  You pleaded guilty in a manner which at least expressed ultimately some remorse and you must get the utilitarian benefit of that plea of guilty.  That benefit is a very significant one in terms of saving your former partner the ordeal of having to give evidence before a jury in such a matter.  Whilst the plea was late and there was obviously cross-examination at the committal, I take it as I say into account in the sense that there is at least a recognition of remorse in it.

[1] This is a pseudonym.

2 Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I would advise you that should you refuse to provide such a sample for police they may use reasonable force to take it from you.  That order is made and handed down.

3       There has been a delay obviously insofar as the matter is concerned from the time of the offending until the time of plea of guilty.  There was a period of some three years before the matter was reported and there has been another trial take place in the meantime.  That delay is totally understandable insofar as the victim is concerned but in the sentencing process it is a matter which I must take into account.

4       

The offending can be summarised in fairly brief compass.  You and

Ms Schafer knew each other from childhood as your parents had been friends.  You had been living in Warrnambool.  You and her reconnected in around 2013 or so and you would come and spend time with her at her house in Melbourne.  In around February of 2014 she, as a result of difficulties with the father of two of her children, had a what she described as a breakdown.  Certainly she was suffering badly from anxiety.  You came to see her and stayed.  Over the next few days you asked for sex a number of times and were told that she did not want to.  On the basis of her victim impact statement it would appear that there had been some discussion of anal sex previously where she had said that she did not want to do that.

5       In any event on the night of the offence the two of you went to bed together.  She had taken medication and went into what she describes as a deep sleep.  She was clearly fairly heavily medicated and the nature of the medication has been described.to me.  She was lying on her side and woke feeling you pressing up behind her.  At that point she realised that you had penetrated her anus with your penis.  She could feel it, it was painful.  Due to shock and still semi being asleep and the effects of the medication she felt unable to move or speak and you ultimately ejaculated.  She did not consent to that penetration and obviously it commenced at least while she was asleep. 

6       You got up and went to the bathroom, she lay in bed for a while and went to the bathroom herself.  You saw her and said, "Oh you're awake."  She was sore and semen and blood came from her anus.  She said to you, "You fucked me up the arse and now I'm bleeding, I can't believe what you've done."  You then quasi apologised and the matter was never spoken of again.

7       Subsequent to that the relationship continued and you commenced to live together over a period of years.  The matter was not reported until in 2017 when allegations were made against you by two of the children of the complainant.  I note clearly that a trial has taken place in relation to that and you have been acquitted.  It was at that point in time when those allegations were made that the complaint was understandably made by the complainant to police and the matter proceeded from there. 

8       The offending has to be regarded as serious as all rape offending does.  It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  In this particular situation it is conceded by the parties that an active custodial sentence does not have to be imposed.  Some years ago I probably would have imposed a suspended sentence but of course that disposition is no longer open to me. 

9       The Crown concede, and I make this clear for any future use of these sentencing remarks, that this is a very unusual set of circumstances. 

10      Firstly the set of circumstances are in the way that it all came about, the way that it was reported and the way that it proceeded.  Insofar as consequence is concerned, the victim impact statement was read by your victim.  And whilst it is conceded there are matters in that which are not admissible for the purposes of  sentencing in this situation, I take into account the matters that are. 

11      Clearly on her evidence she had spoken to you about anal sex before and when she awoke to what you were doing she felt totally violated and that her trust had been grossly breached.  She said, and indeed she said in her statement as I recollect, that she just went silent for a few days and felt unable to speak to people about it.  She took the view that it was a one off and that she would persist in the relationship with you.  Subsequent to that there are obviously a multitude of other factors that occurred and this is not a serious injury disentanglement exercise but  it is quite clear that the effect of what you did albeit within that relationship, had a devastating effect upon her.  As I say I am simply referring to the offending itself, not the sequelae.

12      I then turn to matters personal to yourself and are very succinct if I may say so.  An outline of personal circumstances was provided by your counsel.  You have three children and you live in shared private rental accommodation. You are employed full time as a truck driver.  You were born in Brisbane and the family moved into the western district.  You, I do not need to go into the detail of all this, have pretty much always worked.  You have got children as I have described and you have a history of disaster.  Prior to your shifting to the western district your paternal uncle suicided and in February of 1983 your family farm was burned in the Ash Wednesday bushfires.  Not long after that your other paternal uncle passed away and your father fell into a deep depression.  He committed suicide in October 1983.  You only being 15 years of age had to leave school following that and worked on the family farm and after that worked at various jobs which you have always been able to maintain. 

13      When you were 24, a younger sister committed suicide.  A year after that your brother committed suicide.  The family farm was then sold.   You have for many years now been on antianxiety medication and you no longer use drugs or drink excessively.  There is concern about mental health.  There are no Verdins type principles involved but your life, it is obvious, has been in many respects a series of disasters.  I do not think I need to take it any further than that.

14      In these circumstances I think the prospects of your rehabilitation should be good at your age and the risk of you reoffending should be relatively low if you undergo the appropriate programs.

15      Submissions were made as I have said as to the appropriate disposition, I will not repeat what was discussed in the plea.  The circumstances are that you have effectively no prior convictions.  You have stable accommodation, you have stable work, and you still have the support of your own, or what remains, of, your own family.

16      I had you assessed for a Community Corrections Order and they have found you to be suitable.  One of the aspects that concerns me is that your employment as a truck driver takes you interstate and I am concerned that that could cause difficulties with a Community Corrections Order.  But your counsel will explain to you that  if problems do arise, an order can always be brought back before me to be varied or to endeavour to accommodate different circumstances as they arise. 

17      That Community Corrections Order must show the seriousness of what occurred and in no way shape or form be seen to be a lenient option. 

18      In all those circumstances you having been accessed as suitable, if you agree, you will be placed on a Community Corrections Order for a period of three years.  The order will be with conviction which is a penalty in itself.  The conditions of that order will be supervision, mental health, and programs to reduce reoffending.  I am aware of what the programs to reduce reoffending will involve and it will be a somewhat considerable effort. 

19      In this situation I direct that you perform 250 hours of community work, but I direct that be hours done on programs can all be deducted from the community hours that I have placed within the order. 

20      Are there any other?

21      MR GRANT:  No Your Honour, I do not think there is any other orders.

22      HIS HONOUR:  I suppose I have got to do 6AAA on that.

23      MR GRANT:  There is a 6AAA, sorry Your Honour is correct.

24      HIS HONOUR:  We will make it a CCO of 500 hours.  You can just go with your client Mr Rattray.

25      MR RATTRAY:  Certainly Your Honour.

26      HIS HONOUR:  Thanks Mr Rattray.  That order is made and that is the end of the matter.  Can I simply say this also to those at the Bar table, as well as instructors, these matters can be very distressing and this has been going for a couple of weeks and I just want to thank each of you for the very sensitive and sensible way in which the whole thing was conducted.

27      MR RATTRAY:  Thank you Your Honour.

28      MR GRANT:  If Your Honour please.

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