Director of Public Prosecutions v Webster (a pseudonym)
[2019] VCC 1437
•3 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN WEBSTER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 September 2019 | |
CASE MAY BE CITED AS: | DPP v Webster (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1437 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Custovic | |
| For the Accused | Mr T. Danos |
HIS HONOUR:
1 Damian Webster[1], by jury verdict upon an indictment which alleged seven counts of rape you were found guilty of four, Charges 1, 5, 6 and 7.
[1] A pseudonym.
2 The first of these were committed on 2 December 2015, involved sexual penetration of the victim's vagina by finger.
3 The second, Count 5, was committed on 29 January 2016 involving sexual penetration of a vagina by penis.
4 The third, Count 6, involved the sexual penetration of the victim's vagina by penis on 2 February 2016.
5 The last Charge 7, sexual penetration of the victim's vagina by penis again on 2 February 2016, being the second occasion on that day.
6 In mid-2015 when aged about 28, you commenced a relationship with Jessie Baron.[2] You moved in to premises together in July of that year. At the time you were a member of the Finks Motorcycle Club either prospective, later patched. The relationship continued until February 2016 and the police gave the victim assistance to leave those premises. While together you and the victim had consensual sexual intercourse which was vigorous, often very frequent, aggressive and very varied in nature.
[2] A pseudonym.
7 However on a number of occasions the victim awoke to discover that you were having sexual intercourse with her. There had not been any discussion, communication or negotiation about allowing such behaviour. The first occasion was in August of 2015 when the victim woke to find you penetrating you by penis in her vagina. She sought an explanation from you but you maintained you did not know how it started. Two days later the same thing happened. The third was similar and followed consensual anal sex after which the victim had fallen asleep. On 16 September 2015 you were involved in a motorcycle accident. In early September before this accident, the victim had again woken up to find you having penile intercourse with her. By this time the victim had made it abundantly clear to you that she was upset by this conduct and that she did not consent to it. Despite obtaining an intervention order in October of 2016 against you. She continued living with you. On 13 November she again woke to find you penetrating her vagina by your penis. At the end of an angry exchange you apologised for your behaviour. The following evening the victim woke to find your fingers in her vagina and your mouth on her vagina.
8 All of these seven occasions were acts which were led as acts being not the charged offences.
9 On 2 December 2015 the victim went to sleep on the couch. She woke up and found you kneeling beside her next to the couch touching her leg. She pretended to sleep and then you penetrated her vagina with your fingers, Charge 1.
10 In verbal and text communications, the victim had made it clear she did not consent to you having such sexual activity with her while she slept but that she found it very upsetting and demeaning. Thereafter she continued questioning you about it and making it clear in no uncertain terms her positive non consent and dismay at your actions.
11 On or about 29 January 2016, the victim woke up from sleep having fallen asleep on the couch to the sensation of a very sore vagina. This was another instance of sexual intercourse with the victim while she was not consenting while asleep. You admitted this penetration by penis and apologised again to her.
12 On or about 2 February 2016, the victim again woke in the early night hours to find you penetrating her vagina by penis. She fell asleep only to wake up at about 5.30 am to once again find you penetrating her vagina by penis. These were the final three charges upon which the jury convicted you.
13 When you were confronted by the victim about what you had done on 2 February on two occasions to her, you said you could not remember. She left the Coldstream premises the next day. In December of 2015, the victim had complained about this behaviour to a friend and also made a complaint to you in the presence of another of her friends, remonstrating about what you had done to her while she slept. You were arrested in November of 2016 and denied the allegations.
14 During the relationship with the victim both of you used the drug ice and that continued throughout your time together. During the interview you maintained that it was the victim who was the prime mover in both drug use and the sexual conduct.
15 The victim prepared and read out a comprehensive and impressive victim impact statement which had been redacted from a very long and detailed statement, some 23 pages in length, which contained other material more generally pertaining to other matters in your relationship. It was said on a second plea hearing by your counsel that these matters which related to your affiliation to the Finks in part had been central to the impact upon her in that they caused her anxiety, fear and consternation.
16 While more generally it can be said that this aspect clearly had an effect on her which was deleterious and negative, the redacted statement largely focused on the relevant matters which pertain to how you dealt with her physical integrity in this regard of her clear assertion of not consent, and the impact of this sexual conduct making her statement highly relevant and powerful material for the court to consider and take into account.
17 The statement of the victim outlines her life before the relationship with you in which she was outgoing, confident, happy and socially engaged. She was a youth and social worker and thought that she had met her soul mate. She describes the sexual abuse as occurring in the midst of a broader emotional mental and physical abuse, fuelled by what she described as your sexual addiction, relentlessly pursued by you for your own needs, in which she emerged injured and exhausted in which the sex became aggressive and without regard for her well-being. And in which the rapes were representative of your utter disregard for her. She resorted to drugs in order to cope with life. Her savings were depleted, she assisted you in attempting to secure your exit from the Finks with more financial commitments leading to financial ruin. After she left she had to resort to food shelters and churches' assistance and she was suicidal. The progress of the case through the courts was traumatic, through committal, at trial and re-trial.
18 She writes that every day is an emotional struggle. She experiences fear, anger, loneliness and helplessness with regular panic attacks which leave her frightened and exhausted. She has been diagnosed with complex post-traumatic stress disorder, an adjustment disorder, a dissociative disorder, obsessive compulsive disorder, and experiences anxiety and depression. Her physical health has been severely impacted as outlined in the statement and she had had to resort to long term trauma counselling and psychiatric assistance.
19 Her social networks have been destroyed, her trust and ability to form new friendships diminished, her family distanced by these harrowing years. Although it must be recognised that the impact must be ascribed generally to the toxic and dysfunctional relationship with you, the rapes represent in my view a pinnacle and exemplar of stark gravity in this process. And in that sense the victim impact statement speaks eloquently of the humiliation, the embarrassment and hurt which they produced in her, and I will take this statement into account.
20 Rape is a serious criminal offence which carries a maximum penalty of 25 years' imprisonment. By this maximum the legislature indicates its gravity. It is an abhorrent offence which is inherently violent and intrusive of the physical integrity of the victim with deep psychological and emotional repercussions which are profoundly felt over many years. In this case you have been repeatedly warned, questioned and told that this specific activity when the victim was asleep was not consented to. You totally ignored those expression of rejection, you did so brazenly, selfishly for your own base and vile sexual motives. On the last occasion twice in a short period of time to a woman you professed to care for and to love. This is grave offending and I consider that your moral culpability is high.
21 The victim's father also prepared a statement for the court. He has endured the full gamut of emotions while listening to the evidence of his daughter's abuse. He is plagued by feelings of guilt and anger. This traumatic journey has cost him and his family financially and emotionally as he has attempted to help his daughter.
22 The victim's mother also made a statement. She remarks how her daughter went from being a strong, resilient young woman to a fragile and disintegrated figure unrecognisable from the daughter she knew. She has become anxious and depressed herself but like the victim, determined to overcome this ordeal.
23 Without a plea of guilty I do not assign any acceptable level of remorse to your conduct. The victim was cross-examined at committal and at trial.
24 I take your personal circumstances into account. You are 30 years old. Your parents who are both religious people according to your reporting, wished you to behave in accordance with those beliefs and values and you refused and left home when aged 17 or 18. Reference is made to a matter concerning you as a young person in paragraph 19 of the first report of Mr Cummins dated June 2018, but this matter was specifically not relied on upon your instructions and insistence.
25 You have three younger brothers with whom you have little contact although of late I understand that at least two of them have been visiting you. Your father according to your report was an angry and violent disciplinarian, your mother was a compliant witness which led to you having little or no bond with either of them. Your schooling concluded in Year 11. Throughout your schooling you had been medicated on Ritalin to aged 17 when you were suddenly discontinued by your parents and you were asked to leave home.
26 You did complete a horticulture certificate course and did work in landscaping for about 12 months thereafter followed by bricklaying and general labouring but your work has only been erratic, intermittent and of brief duration.
27 Strictly speaking you have no prior criminal record chronologically. However I was properly informed of subsequent matters which form part of your circumstances and antecedents to this sentence.
28 In March 2016 in the Magistrates' Court you were placed on a community corrections order for persistent contravention of a family violence order and committing an indictable offence whilst on bail.
29 Further more serious offending followed on two indictments, the second of which contained offences which breached that community corrections order. You were sentenced on these indictments to six years and ten months' imprisonment with a four year non-parole period.
30 The matters and circumstances pertaining to these offences are set out in his sentence of that date. Briefly they pertain to conduct related to the motorcycle club the Finks and its apparent dispute with a rival club the Rebels. At the time of the first offence of arson in March 2015 you were 'a prospect' for the Ringwood Chapter of the Finks. By the time of the second set of offences in March 2017, you had become 'a patched member'.
31 The arson involved you and others causing damage by fire to two premises by pouring petrol and the use of Molotov cocktails. The second of armed robbery, two charges of causing injury intentionally, kidnapping, being a prohibited person in possession of a firearm, causing injury recklessly, damaging property and resisting police were also accompanied by summary offences related to bail and driving offences. On that second occasion in company with others, you concealed a .22 sworn off shotgun and hit a victim on the head with the butt of the gun, kicked the victim until he lost consciousness, hit him over the head with a metal pole, kidnapped him over a number of hours, stomped on him, stole items from him.
32 At that time it was noted in the sentence that you were staying with a girlfriend, not the victim in this case. You started to have sex with her and then told her you wanted to break up because you had started to sleep with another woman. When she attempted to leave you punched her, put your hand around her throat and then followed her out to the car where you attempted to punch her and then deliberately drove your car into a neighbour's fence. You then drove around hitting her several times to the head and chest. She found and threw out of the car the gun which you then stopped and retrieved and eventually she was taken back home by you where she called the police. The next day you resisted and struck police who were trying to arrest you. Police found the .22 and it was loaded.
33 These later offences occurred while you were on bail for the first matter, bail which you then breached. Others involved in these offences pleaded and were dealt with. Others went to trial. A trial was held in relation to those others. When the time came to sentence you, you had already given evidence against other Fink members. You undertook to give further evidence against others and the presiding judge took that into account in his sentence. He noted the greater custodial hardship resulting from circumstances of requiring protection, a situation which has apparently persisted to this point.
34 Although the four co-offenders were in fact acquitted, it is clear and accepted by the prosecution that you fulfilled your undertaking made to the Court and that this was 'at considerable ongoing risk to your safety'. I shall return to your current state of reclusion in a moment.
35 A report from Mr Jeffrey Cummins dated 19 June 2018 was originally prepared and tendered for the presiding judge for purposes of his sentence and he briefly referred to it. In that report Mr Cummins firstly notes another relevant matter, not strictly speaking a prior but of some relevance, that is the breach of the community corrections order imposed in March 2016 which was dealt with in April of 2017. And the victim in relation to that persistent contravention of family violence intervention order was the victim in this case.
36 Mr Cummins notes that you were earlier married before 2015 but that relationship had floundered because of infidelity on your partner's part. He noted the relationship with the victim from July/August 2015 until February 2016, the CCO of March 2016 and its breach, followed the victim leaving the relationship. In 2016 you then began a relationship with the woman the victim at the time of the armed robbery and other offences that I have described above. Mr Cummins reported that since your arrest you had always been in protection for the six months that followed in 23 hour lockdown.
37 You told Mr Cummins on that occasion you stopped associating with the Finks around the time you were living with the victim in July/August 2015. At the time of his interview you told Mr Cummins you were held in a particular unit with two hours exercise per day in the yard and had completed a number of courses, hope to undertake further studies. During your plea a number of copy certificates were tendered as to these courses in relation to a relationship skills program, a managing emotions program, an OH&S program and an AOD loss program. A prison report from the Metropolitan Remand was also tendered which shows you to be considered an essential and valued worker having attained an EWP, essential working program status at industries and showing leadership with new prisoner receptions, a willingness to study and compliant behaviour. The status was approved following application in April 2019. You also engage in sporting activities interacting and participating in appropriate behaviour with no prison incidents in the past six months.
38 This on any view is commendable but acts also as a counterbalance to the earlier more oppressive regime of protection. Of course this is still in the context of relative protection and I do take into account that some more protective regime will continue to be in place.
39 Mr Cummins' report also refers to an injury to your left hand which is more vulnerable than otherwise and onset of arthritis. You expressed your understanding that the years involving the relationship with the victim and the other two women were years full of lack of trust, anger fuelled by drugs. You spoke of accepting anger management, psychological assistance in order to make something of your life, unlike this period of serious offending when you acknowledge your perception and judgment was significantly impaired. It remains a pity that you could not have chosen a different resolution in the matters involving the victim which may have at least consistently represented your insight and remorse about your later offending, thereby attracting a significant discount.
40
That is not to say that I will punish you more for having run a trial, but given your asserted newfound clarity about your situation you would have gained some benefit in this matter which you cannot draw upon at this important juncture of your rehabilitation. But you maintain your innocence of these offences to
Mr Cummins and his updated report to which I shall refer in a moment.
41 Mr Cummins in the 2018 report opined you probably were suffering from a complex post-traumatic stress disorder, although chronic illicit drug use makes it difficult to confidently speak of real memories as opposed to distorted ones. You had difficulty providing symptoms and precise details of dysfunctional upbringing and various traumatic events, despite displaying a significant level of insight. His opinion as to post traumatic stress disorder is couched in terms of the balance of probabilities. He found your risk of further violent offending was moderate at least and that your commitment to rehabilitation was serious although only time would tell if your motivation would hold.
42 During the plea I queried whether I could draw anything significant from this report given that Mr Cummins had not reviewed any of the material pertaining to this trial and expressed an opinion as to the psychosexual matters relevant to this sentence. He provided an updated report dated 6 August 2019. He confirms that you maintain your innocence. This presents with a paradox between your progress while incarcerated on the later offences, and your lack of remorse for this offending. It must of necessity without too much sophistry be resolved by accepting that as I have said, the court cannot extend any credit in respect of a plea, remorse or insight pertaining to this serious offending, while acknowledging that both totality and parsimony must impact on the setting of a new total effective sentence and consequent new non-parole period.
43 Mr Cummins confirmed you continue to be held in a protection unit, that you are unmedicated and not receiving either physical or mental health treatment., You are visited by your two brothers and an ex-girlfriend has phone contact with you. There are nine prisoners in the unit. You remain the only EWP prisoner in the whole protection population. You act as a manager of the work requirements, you are also the unit billet and prisoner representative. You assist a blind prisoner with documentation. Mr Cummins outlines a number of educational courses undertaken by you and your study of maths with a view to commencing a university studies in small business management. All of these matters are to your credit and I will take them into account.
44 What can't be gainsaid by what you related to Mr Cummins is that you still characterise the relationship with the victim as one that would have been made more stressful and difficult by your involvement with a bike gang but not by how you dealt with her physically and sexually. You mention mutual drug use, alcohol use, and both of you 'very significantly elevated libidos'. And that both of, 'Your judgment, perception and ability to think clearly would have been clouded because of the ice dependence'.
45 This rationalisation runs square in the face of the evidence and the depositional material in this case and counter to the tenor of accepted evidence. If as asserted by you, your time in custody has helped you to develop insight into the dynamics of intimate relationships, your continued denial of guilty and rationalisations to the offending points to much rehabilitative work to still be done which in my view makes your prospect of rehabilitation not as positive as submitted.
46 Mr Cummins is of the opinion your rehabilitation is nevertheless advanced and trending towards a low risk. I am not persuaded on the material of this conclusion. 'Problems of self awareness' which may have existed at the time as well as 'problems with coping because of dependency on alcohol and ice' would have dissipated with time. Reclusion has brought no fresh reappraisal of culpability for what was serious sexual offending. Mr Cummins did not find any personality disorder or paranoia and that you are currently feeling very settled in the custodial environment. You indicated a preparedness to engage in offence specific treatment programs and I take his report into account.
47 I take into account two handwritten letters of June 2019 by prisoners Douglas[3] and Watkins,[4] prisoners in the same unit where you are currently housed. They both speak of your work ethic and efforts in the unit including for Mr Watkins, the blind prisoner. I take into account the note written by you and tendered in the August further plea hearing in which you write of the restrictions particularly in educational opportunities and yard time, being a maximum security environment. I take into account that this kind of reclusion is more onerous than if served as part of the general prison population.
[3] A pseudonym.
[4] A pseudonym.
48 As I have recited the maximum penalty for rape is 25 years' imprisonment. That is an important starting point in evaluating what the sentence here should be. It is necessary after imposing a sentence for those four counts to fix a global total effective sentence and fix a new non-parole period which should be served pursuant to s.14 of the Sentencing Act. At the time of the sentence on the other matters, 443 days were declared by the presiding judge as pre-sentence detention which he noted in the records of the court. This declaration continues to operate and is not to be taken into account by me in this sentence. There are as I see it, no pre-sentence detention days referrable to these offences. Given that I will impose sentences of imprisonment on the first two charges, you are to be sentenced as a serious sexual offender for the subsequent two charges. In sentencing you for those offences, the sentence must have regard to community protection as the principal purpose. The prosecution does not seek a disproportionate sentence and I do not propose to impose one. Although s.6E raises the cumulative imposition of sentences in these circumstances, I direct that the appropriate formulation of the sentence requires only partial cumulation in recognition of the discrete nature of each offence and not total cumulation.
49 Your status as a serious sex offender will be entered on the record of the court pursuant to s.6F.
50 In my view denunciation of your conduct, just punishment and general deterrence is the primary consideration in this sentence. Although you have no priors of a similar nature, and your subsequent offending is relevant only in as much as it is violent offending, it goes to your prospects about which I have already spoken and assessed.
51 In my view your general approach to this matter enlivens considerations of specific deterrence to a significant extent making community protection a relevant principle in this disposition even if not attracting as I have indicated a disproportionate sentence.
52 Would you please stand please Mr Webster.
53 On Charge 1 you are convicted and sentenced to four years' imprisonment.
54 On Charge 5, you are convicted and sentenced to four years' imprisonment.
55 On Charge 6, you are convicted and sentenced to four years' imprisonment.
56 On Charge 7, you are convicted and sentenced to four years' imprisonment.
57 I order that one year of Charge 5, 6 and 7 each be cumulative on Charge 1. I order that three years and three months be cumulative on the sentence currently being served, making a total effective sentence of nine years and three months. I order a new non-parole period of six years to run from the date of sentence on the other matters.
58
If a calculation is required in terms of those matters I have prepared it but I think that as long as I make clear as to when the non-parole period is to run then
Mr Webster knows when he will be eligible for parole and that is in effect about three years and eight months from today.
HIS HONOUR: Ms Custovic, is there a registration which is required in this case?
MS CUSTOVIC: No Your Honour.
HIS HONOUR: Thank you. Yes thank you, you can remove Mr Webster. Just for those who are in court, the sentence effectively is one of seven years. I have had to order a new total effective sentence by cumulating a period of three years and three months making a total effective sentence of nine years and three months. By calculating the time that Mr Webster has already served, that is 443 days of pre-sentence detention, plus approximately one year and one month of the sentence meaning about 28 months. That is to say he has one year and eight months on the non-parole period sentence imposed in relation to the other matter. I have set a new non-parole period as from that date of six years which means he has about three years and eight months to serve as a non-parole period. In total that will mean that by the time he comes to apply for parole, he will have served six years' imprisonment and depending on whether parole is then granted to him, he has a further three years and three months in which to serve should he not be granted parole at that time. Is that sentence clear Mr Danos?
MR DANOS: Yes Your Honour.
HIS HONOUR: Thank you.
MR DANOS: If Your Honour pleases.
MS CUSTOVIC: Thank you Your Honour.
HIS HONOUR: Thank you Ms Custovic. I have another matter beginning soon, I will simply stand down.
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