Director of Public Prosecutions v White

[2021] VCC 697

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00166

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY WHITE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2021
DATE OF SENTENCE:	25 May 2021
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2021] VCC 697

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Threat to commit a sexual offence – Recklessly cause injury – Offender made threat to sexually touch the first victim by words and conduct – Offender bit second victim who was trying to restrain the offender – Remorse – Limited criminal history – Prospect of deportation.

Legislation Cited:      Crimes Act 1958 ss 18, 43; Sentencing Act1991 ss 6AAA, 18.

Sentence:                  Imprisonment for a period of 15 months, with a non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Stefanovic	Office of Public Prosecutions
For the Accused	Mr L Gwynn	Theo Magazis & Associates

HIS HONOUR:

Introduction

1Corey White, you have pleaded guilty to one charge of threatening to commit a sexual offence contrary to s 43 of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment (Charge 1) and one charge of causing injury recklessly contrary to s 18 of the Crimes Act 1958 which carries a maximum penalty of five years imprisonment (Charge 2). 

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of the offending you were 30 years of age and living in Australia. You are a New Zealand citizen. 

5The victim in relation to Charge 1 is Madeline O’Hanlon[1] who was 26 years of age at the time of the offending and previously unknown to you.  She is an Irish citizen and was on a Work visa in Australia.  The victim in relation to Charge 2 was Ms O’Hanlon’s housemate Daniel Walters[2] who was 29 years of age at the time of the offending.

[1] A pseudonym.

[2] A pseudonym.

6On 25 October 2019 just prior to midnight, Ms O’Hanlon had arrived with friends at a bar on Chapel Street, Windsor.  She was also meeting Mr Walters and his girlfriend, Grace Bertolli[3]. 

[3] A pseudonym.

7At approximately 12.30am, Ms O’Hanlon observed you standing and staring at her and her friends.   She told one of her friends that she thought you were good looking and eventually walked towards you.  You said to Ms O’Hanlon, 'you're cute.' 

8At some stage during this initial conversation which lasted for about two minutes, you pulled Ms O’Hanlon towards you and kissed her.  Ms O’Hanlon cannot recall whether you kissed her on the face or on the lips.  Eventually, she returned to her group of friends.

9Later in the evening, Ms O’Hanlon met you again.  You offered her a drink which she drank from once but did not consume any further.  Ms O’Hanlon asked you what your name was, and you responded 'Paella'.  Ms O’Hanlon observed that you were not very talkative and felt as though you were 'pretty drunk'. 

10Ms O’Hanlon went to the toilet and once again ran into you.  You asked her to buy you a drink, but she declined and walked away from you. 

11After a while, Ms O’Hanlon realised that her friends had left the bar and she decided to return home.  She walked through the front door and attempted to order an Uber.  You went up to her and made a reference to coming back to her house.  Ms O’Hanlon stated that she didn't say that you could not come back, however, she said to you that 'nothing would happen'.

12At about 3.30am, you and Ms O’Hanlon took a taxi from Chapel Street to her residence on St Kilda Road, arriving at 3.40am.  Ms Bertolli and
Mr Walters were eating pizza at the kitchen table and you engaged in conversation with them both.  Ms O’Hanlon left to go to her room and changed into her pyjamas.  Ms Bertolli recalls that Ms O’Hanlon walked towards her room and said something like, 'he will be very disappointed if he thinks he's getting some.'

13Eventually, Ms Bertolli and Mr Walters decided to go to bed and they fell asleep shortly thereafter between 3.50am and 4.10am.  Ms O’Hanlon also decided that she was going to bed as well.  You followed her to her room. 

14You both got into Ms O’Hanlon’s bed at the same time, still clothed.  Shortly thereafter, Ms O’Hanlon turned off her bedside table light.  You started kissing her, and she kissed you back.  You were lying on your sides and facing each other.  At that time, Ms O’Hanlon was comfortable with you being there.

15While you were kissing, you had your hand on Ms O’Hanlon’s back and slid your hand down towards her pants and pulled them down slightly.  Whilst Ms O’Hanlon did not stop kissing you, she took your hand and pulled it away.  You moved your hand down to her genital area more than once, but Ms O’Hanlon cannot recall each specific time that you did so. 

16You kept kissing.  Ms O’Hanlon was not overly worried at this point, as she had pushed people's hands away before and did not expect it to be a problem on this occasion. Eventually, she decided that she wanted to sleep and indicated this to you.

17After she turned around, you pulled her right arm back to try and move her so that she would be facing you again.  The force of your grab was not so strong to warrant her concern.  She was still on her side and she resisted you by pulling her arm back. 

Charge 1 – threat with intent to commit a sexual offence

18Ms O’Hanlon recalls that within a few seconds, you were on top of her lower back.  Her head was facing into the mattress and her body was facing down towards the mattress.  She began to panic and was struggling to get away from you.  She managed to move her legs off the bed whilst underneath you and ended up with her knees off the bed with her upper body pressed up against the mattress.  You were standing behind her and forcefully pinned her neck down against the bed with your hand. 

19You were pulling Ms O’Hanlon's hair back when you were speaking to her and told her 'play the game'.  She pleaded with you that she would do whatever you wanted.  Ms O’Hanlon was scared and noted that her voice was in a panicked state.  She knew that you wanted her to have sex with you.

20You then put at least two of your fingers into her mouth, which caused a cut on the inside of her mouth.  Ms O’Hanlon believed that this was your attempt to stop her from making noise.  She thought that she may have bitten your fingers and recalls that your fingers were only removed from her mouth once she had forcefully pulled them away.  She then screamed as loudly as she could and yelled ‘Daniel’ repeatedly.  Following this, you used your hand to repeatedly hit the back of her head.  Ms O’Hanlon recalls that she remembered seeing stars at one point.  It is these facts that relate to Charge 1, threat with intent to commit a sexual offence.  You have pleaded guilty to this offence on the basis that the charge encompasses your words together with your conduct, being the assault on Ms O’Hanlon.

21Mr Walters and Ms Bertolli heard Ms O’Hanlon's screaming, entered
Ms O’Hanlon's bedroom and switched on the lights.  You then released Ms O’Hanlon.  Mr Walters observed that Ms O’Hanlon was in hysterics and that you were calm.  He observed that Ms O’Hanlon was wearing her pyjama top and her face looked like she'd been 'roughed up a bit'.  Mr Walters got between you and Ms O’Hanlon and you kept saying, 'if you can't play the game'.

Charge 2 – recklessly cause injury

22You then attempted to force your way past Mr Walters.  Mr Walters tried to restrain you, at which point, you started grappling with each other in the hallway.  At some stage, the scuffle caused a glass frame in the hallway to break.  You both ended up on the ground in the hallway and Mr Walters had pinned you down. 

23After doing so, you bit Mr Walters on his chest and, at some stage, bit him on the bicep.  Mr Walters found the bites to be excruciatingly painful.  It is these facts that relate to Charge 2, recklessly cause injury.

24Ultimately, you were separated, and you were told to get out of the house.  At 5.32 am, another housemate Lucille de Silva[4] called 000.  At 5.35am and at 5.36am, two neighbours called 000 and reported screaming and yelling emanating from their adjoining flats.  Eventually, you left the apartment building.  CCTV footage records you arriving at your own apartment at 6.18am.

[4] A pseudonym.

Injuries to the victims

25The victims were subsequently assessed and examined by forensic medical Officers from the Victorian Institute of Forensic Medicine. 

26Ms O’Hanlon suffered bruising to her eye, right jawline, right earlobe, both legs and right arm, and tenderness to the back of the left side of her head but no visible injury.  She sustained a scratch on the right side of her face and a white coloured wound inside her mouth.  She also experienced numbness to her scalp from where her hair was pulled.  The prosecution summary provides further detail of the forensic medical officers' opinions of the injuries.

27As a result of the bites, Mr Walters received bruises to the areas where he had been bitten.  During the scuffle with you, he also sustained other injuries, being a laceration to his left ear, a graze around his right eye and swelling to the back of his head.

Arrest and interview

28At 4.30am on 28 October 2019, you were arrested at your residence and conveyed to the Melbourne West Police Station for interview.  Two mobile phones and your clothing were seized.  In your record of interview you stated, amongst other things, that:

·you and Ms O’Hanlon were kissing for a while and feeling each other;

·you didn't force yourself onto Ms O’Hanlon but got frustrated and snapped when you felt her pulling away from you;

·you shoved her face against the pillow;

·you wanted her to have sex with you but knew 'it wasn't gunna happen';

·you did not remember putting your hand into Ms O’Hanlon's mouth or hitting her;

·you were intoxicated at the time;

·Mr Walters attacked you first and wouldn't let you go;

·he (Mr Walters) got you in a lock;

·you bit him so he would let you go; and

·your conduct towards both victims was wrong.

29You were arrested on the same day and released on bail on 10 February 2020.

Nature and gravity of the offending

30Pursuant to s 43 of the Crimes Act 1958, the offence of threatening to commit a sexual offence is constituted by a threat by words or conduct to sexually penetrate or sexually touch the victim.  In this instance, the prosecution case is put on the basis that your threat was to sexually assault or sexually touch the victim which was conveyed by your words and conduct.  However, in this instance, the conduct aspect of your offending is concerning.  While the physical assault on the victim is subsumed in the charge as part of your threat to commit a sexual offence, in my view, the aggressiveness of the physical assault elevates the seriousness of the charge.

31Ms O’Hanlon clearly conveyed to you that she did not want to engage in sexual activity with you, which you understood.  Indeed, in your record of interview you frankly state that you were annoyed that she did not wish to go further and that is why you assaulted her in the way described.  There can be no doubt that
Ms O’Hanlon was in a state of panic when you violently reacted to her rejection of you.  She screamed to her housemates, one of which described her as in hysterics.

32As a result of your attack, Ms O’Hanlon suffered bruising and abrasions to a number of parts of her body.  As conveyed in her victim impact statement, this was a terrifying experience for Ms O’Hanlon and your attack has also had a lasting psychological effect.

33A report was prepared by Simon Candlish psychologist, dated 4 May 2021 and was tendered on your behalf.  Mr Candlish, in my view, accurately describes your conduct in relation Ms O’Hanlon as follows:

Mr White appeared to feel a sense of entitlement to sexual activity after arriving back at the victim's home.  He disregarded the victim's disclosures that she did not want to engage in sexual activity.  Mr White appeared to feel slighted by the victim's decline to engage in sexual activity when in her bed.  Mr White used physical force and verbal coercion in an attempt to achieve his goal of sexual activity, due to his anger arising from a sense of rejection and his distorted views, particularly due to alcohol disinhibition.

34Your assault on Mr Walters resulted from him trying to restrain you.  You bit him on the chest and bicep and he also suffered other minor injuries.  While this is not a high end example of recklessly causing injury, in my view, it is nonetheless still a serious offence.

Victim impact statements

35Ms O’Hanlon and Mr Walters prepared victim impact statements which were tendered on the plea.  Ms O’Hanlon pre-recorded the reading of her statement which was played in court.  Ms O’Hanlon speaks of the loneliness and isolation she felt as a result of not feeling comfortable to tell others about the offending, as well as being away from family and friends.  She feels anxious when talking about the offending and has had nightmares and flashbacks.  She also describes a change in her personality in that she now feels unsafe drinking alcohol, going on dates and being out late at night.  She speaks of the pain and discomfort of the injuries and the medical assessment and treatment she has had to undertake.  Ms O’Hanlon required two weeks off work which was unpaid leave and also had to pay for medical appointments.

36Mr Walters describes replaying the incident in his head and feeling guilty and frustrated for failing to protect Ms O’Hanlon.  He has struggled to sleep and ultimately moved house, as he was worried you might return to the address. 
Mr Walters also writes that your offending has undermined his ability to trust and be open to others.  He feels on high alert in unfamiliar settings, meeting new people and he worries for his fiancé's safety when she is out.  In addition to the physical injuries, he has also suffered a financial burden as he is a casual employee and has been required to take time off work for court related matters.

Personal circumstances

37You were born in New Zealand and are now 31 years of age.  Your parents separated before your birth and you lived with your mother for your first 10 years.  Your mother is a retired army officer and you moved regularly, as she was posted to different army bases.  Both your mother and her new partner were violent towards you.  Your father, who is of Maori heritage, was an SAS army officer and you went to live with him when you were 10, after your mother was posted to East Timor.  Your father was a harsh disciplinarian.  You lived with him for a period of time when he was posted in Australia.  He now lives in Indonesia.  You have lived in Australia for 13 years and you are a permanent resident. 

38You have two half sisters from your father's subsequent relationship who both reside in New Zealand.  You also have two stepsisters from your mother's subsequent relationship however, you do not have contact with them.

39You struggled with literacy and left secondary school after Year 12, which is the second last year of secondary school in New Zealand.  You have not completed any further formal education. 

40Since leaving school, you have been consistently employed in scaffolding and prior to being remanded for other matters, you had been working for a year with Cityline Scaffolding.  A letter was tendered from Leigh Major, the operations manager of that business, stating that you are a hardworking and reliable employee.

41You have a daughter to a previous relationship who is now 12 years of age and is living in Sydney. 

42You have been in a relationship with Kasey Ahchee for three years.  Ms Ahchee is in stable employment and continues to support you.

43You do not suffer any medical problems, however, you have struggled with binge drinking from the age of 18.  You have, at times, used illicit substances, however, you have not become dependent on any particular drug. 

44You admitted your prior criminal history which, while limited, does contain relevant matters, including convictions for assaults in New South Wales and South Australia.

45As noted above, a report was tended from Simon Candlish, psychologist.  A subsequent report dated 7 May 2021, was also prepared by Mr Candlish addressing new information in relation to you having assaulted your partner in the morning following the assault on Ms O’Hanlon.  Mr Candlish is of the view that the assault on your partner provides more context in relation to understanding your assault on the victim in this matter and may impact on your willingness to address the issues you have in relation to violence towards women.

46A report was also tendered from Carla Lechner, clinical psychologist and tendered on the plea.  Ms Lechner conducted psychometric testing and formed an opinion as to your future risk.  Ms Lechner found you to be a 'moderate/low risk of sexual reoffending and a moderate risk of violent offending when compared with other offenders.'  Unsurprisingly, she found that those risks would be reduced through abstinence from alcohol and by anger management counselling. 

47Ms Lechner states that during her interview with you, you expressed deep shame for your actions and demonstrated appropriate victim empathy.

48A letter was tendered from Amanda Brown of Lamberti Associates, rehabilitation consultants.  Ms Brown reports that while you were on bail, you participated in rehabilitative treatment with her from 22 September 2020 until 4 February 2021.  Ms Brown reports that you actively participated in the counselling and noted the positive supports you are able to rely on, such as employment and your partner.

49Following the plea hearing, I received a number of reports relating to your engagement with the Court Integrated Services Program (CISP).  I have read those reports and taken them into account.  The final report acknowledges your successful involvement with case managers and confirms your commitment to remain abstinent from alcohol.

Sentencing considerations

50I take into account your plea of guilty.  This matter came before me as a case conference on 18 March 2021.  The matter formally resolved following that conference and you pleaded guilty on 31 March 2021.  You conducted a contested committal where the victims were cross examined.  However, while your plea of guilty was not indicated at the outset, I accept that, in the circumstances, it is a plea at the earliest reasonable opportunity.  You originally faced a more serious charge which gave rise to an arguable defence.  As such, in the circumstances the resolution of the matter has avoided the need for a trial and. importantly, has avoided the need for the victims to have to give evidence again.  Your plea of guilty has utilitarian benefit, which is of particular importance in the current circumstances where the pandemic has placed enormous burdens on the courts.

51Mr Gwynn who appeared on your behalf, submitted that there is evidence of genuine remorse.  I accept that you have expressed shame for your behaviour and shown appropriate victim empathy when discussing this matter with your psychologist.  I accept, therefore, that there is some evidence of genuine remorse.

52As to your prospects of rehabilitation, in my view, currently they must be approached with some caution.  As noted by Mr Candlish, you appear to have distorted views in relation to women and consent.  In addition to the passage quoted above, Mr Candlish also noted that in relation to sexual activity with women, you indicated that, 'when you go home with someone, it's the whole way.'  As such, in my view, while you have gained some insight into the relationship between your alcohol use and violent behaviour, your understanding of consent clearly requires further work.  That said, the work you have done since the offending has enabled you to commence that process and, if you continue with further counselling and remain alcohol free, your prospects will undoubtedly improve.

53I accept that during the time you have been on remand you have faced the prospect of deportation in circumstances where you have lived in Australia for some 13 years and you consider Australia your home.  I take into account the added stress this has placed on you while this matter has progressed through the criminal justice system.

54General deterrence is a prominent sentencing consideration in this instance.  A message must be conveyed that behaviour such as yours is entirely unacceptable.  Denunciation of your conduct and protection of the community must also be given weight, in my view.  As to specific deterrence, while you do not have an extensive criminal history, you do have prior matters for alcohol related violence.  Further, given the nature of this offence and your attitude towards women and consent, you must be appropriately deterred from this type of conduct in the future.

Sentence

55Mr White, would you please stand.

56Corey Peihana White, on Charge 1, threat to commit a sexual offence, you are convicted and sentenced to 14 months imprisonment.  On Charge 2, causing injury recklessly, you are convicted and sentenced to 3 months imprisonment.

57I direct that 1 month of the sentence on Charge 2 be served cumulatively on the sentenced imposed on Charge 1, making for a total effective sentence of
15 months imprisonment.  I direct that you serve 9 months before becoming eligible for parole.

58Pursuant to s 18 of the Sentencing Act1991, I declare that 106 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

59Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty, I would have sentenced you to 20 months imprisonment, with a non-parole period of 12 months.

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HIS HONOUR:  Thank you, you can have a seat.  I think there was a disposal order.  Is that right?

MR PATHMARAJ:  Yes, Your Honour, and that was in relation to clothing and possessions of Ms O’Hanlon. 

HIS HONOUR:  Any problem with that?

MR GWYNN:  There's no problem with that, Your Honour.

HIS HONOUR:  All right, I'll just sign that now as well.  And any other matters in the sentence require clarification?

MR PATHMARAJ:  No.

MR GWYNN:  No, thank you, Your Honour. 

HIS HONOUR:  All right, thank you very much.  We'll adjourn.

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