Director of Public Prosecutions v Worthington (a pseudonym)
[2020] VCC 670
•22 May 2020
guj
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN WORTHINGTON (a pseudonym)[1] |
[1] To ensure that there is no possible identification of a victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the offender and letters for the victim.
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2020 | |
DATE OF SENTENCE: | 22 May 2020 | |
CASE MAY BE CITED AS: | DPP v Worthington (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 670 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Rape- Plea of Guilty-rape committed in context of a marriage-offender a carer
for wife at time of offending- first time offender- early plea of guilty- absence of remorse
Legislation cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Sentence: Total effective sentence is 2 years imprisonment with a non-parole period of 10
months
| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z Menon | Office of Public Prosecutions |
| For the Accused | Ms E Millar | Victoria Legal Aid |
HER HONOUR:
Introduction
1.Steven Worthington on 6 August 2016, your wife of seven years told you to stop having sexual intercourse with her. You did not do so. Those next few minutes cost you your marriage and lead to you, a man who was then 66 years old with no prior convictions, being charged with rape.
2.Your wife, WA, was 56 years old and suffered from serious medical issues including severe pain and poor mobility. She was on a disability pension, used walking aides or a scooter and relied on you for help with her medication, dressing, showering and household chores. You received a carer's pension for your role in looking after her.
3.The agreed facts are set out in the Summary of Prosecution Opening, but essentially WA had gone to bed early that evening when you entered the bedroom and took off your clothes. WA told you that she was ‘in agony with back pain’ and did not want to have sex. You suggested a back massage instead and she agreed. You massaged her for about five minutes with WA reminding you to be gentle, before WA rolled onto her back and started watching television. You then started fondling her breasts before straddling her and inserting your penis into her vagina. Until that point WA had not said or done anything to encourage you, but nor had she told you to stop. After you inserted your penis WA told you to stop and that what you were doing was hurting her, but you continued thrusting. WA could not get out from under you and again told you to stop and that you were hurting her, but you didn’t. You continued thrusting despite her protestations, until you reached orgasm. She estimated the episode lasted for about 4 minutes.
4.Over the next few days, WA complained to several people, including a friend, her mother and support workers. On 17 September 2016 she asked you to move out from the matrimonial home. Two days later she reported the matter to police and on 21 September 2016 made her formal statement.
5.You were interviewed on 22 September 2016 but not charged until 31 January 2019. Thereafter, there were several mentions of the matter in the Magistrates' Court and the matter was booked in for a contested committal hearing. However, on that day, which was 1 October 2019, you indicated you would plead guilty prior to any witnesses giving evidence. The matter then proceeded as a straight hand-up brief and you were committed to this Court.
6.On 6 May 2020 you pleaded guilty before me to a single charge of rape consisting of your failure to withdraw your penis upon WA communicating her lack of consent.
7.After a plea on your behalf, it now falls to me to sentence you for your conduct. Your counsel submitted that yours was 'a somewhat rare and unusual case‘, such that a community corrections order was within range and appropriate. The prosecutor disputed that characterisation and submitted that nothing but an immediate term of imprisonment with a period of parole was within range.
8.In arriving at an appropriate sentence I am required to have regard to all the factors set out in section 5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
Objective Gravity of your offending and moral culpability
9.On any view rape is a serious offence. It is a deeply personal crime which, at the very least, involves the violation of a person’s body and right to sexual and physical autonomy. It is punishable by a maximum penalty of 25 years' imprisonment and is now also subject to various sentencing provisions reflecting the seriousness with which Parliament regards the crime. That is, it is now classified as a category 1 offence; is subject to the serious offender provisions and has a standard sentence of 10 years. None of these provisions apply to you because of the date of your offence, but the maximum penalty does.
10.Whilst conceding that rape is an inherently serious offence, your counsel, Ms Millar, submitted that your offending had several features which placed it at the lower end of seriousness. The prosecution contended to the contrary that your offending should properly be categorised as mid-range.
11.In your favour, your crime was not at all premeditated. Indeed, Ms Millar, submitted that you were engaging in consensual sexual intercourse ‘right up until immediately prior’ to WA telling you to stop. Whilst I am not satisfied that correctly characterised what was occurring, it must be accepted that up until then you reasonably believed that she was consenting. Clearly, you did not set out to rape your wife, rather, what you did was to continue after she made it clear to you that she was not consenting. Further, your crime was not accompanied by violence or threats, or any specific acts of humiliation or degradation. It was not motivated by revenge or malice. It was of relatively short duration and apart from causing pain at the time, had no lasting physical consequences.
12.On the other hand, as WA's husband and carer, you were acutely aware of the pain she suffered and her physical vulnerabilities. I do not accept your counsel’s submission that you did not enjoy a physical advantage over WA. She told you early on this night that she was in ‘agony with back pain’ and did not want to have sex. You should have had heightened sensitivity to her situation, proceeded with caution and desisted immediately when she requested you to do so, whether or not she put up with the pain on other occasions. Instead, you callously disregarded her physical and emotional wellbeing for your own selfish ends.
13.There was some debate during the plea as to the significance of the fact this was a rape within marriage, not a rape by a stranger and I was referred to authorities on this point. Suffice to say the fact a rape occurs in the context of a relationship does not necessarily mean that it is any more, or less, serious than any other type of rape. Rather, each case must be assessed according to its circumstances.
14.In a 2001 case of Mason[2], the former President of the Court of Appeal, Justice Winneke, said:
'It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim’s person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms.'
[2] R v Mason [2001] VSCA 62 at [8].
15.In this case, it is true that WA did not suffer the trauma inherent in being raped by a complete stranger. However, she did suffer the destruction of the bond of trust that existed between you as husband and wife and, indeed, as carer, and all that flowed from that; ultimately the loss of that marriage. In her statement she described feeling ‘violated, hurt, confused, dumbfounded, empty and hollow’, feelings which her victim impact statement shows have persisted to this day.
16.It is often said that rape is a crime of violence, rather than a crime of passion. Whatever the motivation for your crime, you asserted your dominance over your wife by continuing to have sexual intercourse against her wishes. Not only that, you knew that she was physically vulnerable and that what you were doing was causing her pain. She was entitled to expect love, respect and concern from you as her husband and her carer, not what happened on this night.
17.A psychological report tendered on your behalf indicates that you are of average intelligence and that your moral culpability is not reduced by any mental impairment or other personal factors, although you are now anxious and depressed.
18.What you did was undoubtedly serious. However, having regard to the circumstances, I consider your offending and moral culpability to be at the lower end of the spectrum of seriousness for the offence of rape. To be clear, that is not to say that what you did is not serious, rather it is to rank your offending on the scale of seriousness for the offence bearing in mind the maximum penalty is 25 years.
Current Sentencing Practices
19.One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices. The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
20.The most recent Sentencing Advisory Council Statistics of the higher courts (May 2019) indicate that over 90% of people charged with rape over a five year period received an immediate term of imprisonment, with the most common term being in the order of 4 to 5 years. A community corrections order was the next most frequent sentence imposed in 2.4% to 5.2% of cases, depending on whether one is considering charges of rape or cases involving rape. Ms Millar quoted slightly different figures, but what is clear is that it is only in exceptional circumstances that a sentence for rape will be anything other than a term of imprisonment and usually of some years.
21.Of more use than statistics are sentences imposed in comparable cases, which may serve as a guide or yardstick against which to measure the sentence proposed in the instant case. Neither counsel was able to point me to any similar cases to yours and nor have I been able to find any. However your counsel referred me to a number of cases where a corrections order was imposed or upheld for rape, including, it was submitted, where the offending was more serious and/or the mitigating factors were less significant than present. The prosecutor submitted that each case could be distinguished on its facts.
22.I agree the sentencing remarks in each case are closely confined to the facts of the case and provide some, but only limited assistance. Suffice to say the 2017 Court of Appeal case of DPP v McInnes[3] accepted by a majority that ‘a properly conditioned‘ community corrections order, could fulfill all sentencing purposes in some, albeit, rare cases. In that case the offender was 23 years old. He penetrated the victim, a friend, whilst she was asleep in his bed. He apologised the next day and reported himself to police. The majority found that there was extraordinary remorse and that the community corrections order imposed by the sentencing Judge, being 3 years, 300 hours of work and various programs, was properly conditioned because it contained a significant punitive component. Whelan JA dissented as to the adequacy of the sentence imposed, but exercised his discretion to dismiss the appeal.
[3] [2017] VSCA 374
23.In so far as your counsel relied on the fact that you had many more years of good behaviour than at least one younger offender in the cases to which she referred, your culpability may be considered correspondingly increased because of your vastly greater experience and maturity.
24.Ultimately, whilst examination of these other cases is informative, my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Impact of your offending
25.In the victim impact statement dated 13 March 2020, WA described feeling violated, dirty and worthless. She said that she now has ongoing trust issues and that what you did ‘devastated [her] and [her] future’. I accept that your actions on this night had a profound and lasting impact on WA. On the other hand, I also take into account that in some ways her life has improved since she ended the relationship with you. In a second police statement dated 25 May 2018, she described feeling much happier. She said she had more confidence and freedom, was more mobile and no longer felt like a zombie.
Plea of Guilty, co-operation and remorse
26.Whilst you did not plead guilty at the first opportunity, you did so at an early stage. This entitles you to a significant discount in your sentence for the utilitarian benefit alone. It is particularly important to recognise the utilitarian benefit in this case, as without your plea of guilty a conviction was by no means a certainty, even considering admissions you made subsequent to the offence.
27.Ms Millar originally submitted that your plea was accompanied by genuine remorse. If so you would be entitled to an even greater discount in sentence. She relied on your conduct after the incident, your early plea of guilty and the opinion of Mr Cummins, psychologist, who you saw on 17 February 2020. He described you as genuinely embarrassed, ashamed and remorseful.
28.It is true that you moved out of the bedroom and out of the house when WA asked you to do so. Further, whilst you made a largely no comment record of interview to police, it is apparently true that you admitted raping WA to various people soon after the incident, including your General Practitioner, a friend of WA and WA’s mother.
29.That said, there is no evidence that you ever apologised to WA. When she asked you why you had done it, you told her you did not know. Moreover, Ms Millar’s written submissions suggest your admissions may not have been entirely voluntary. She said, ‘Mr Worthington also suffered the humiliation of WA telling many people about what had happened, including confronting him about what happened in front of family and friends and effectively forcing him to make admissions in front of them’.
30.The account you gave Mr Cummins also raised doubts as to your remorse as it tended to minimise your offending and shift responsibility to WA. Without descending into details, you described her as being an eager and active participant who only said to stop when you were about to ejaculate. You told Mr Cummins that you ‘still feel confused about what happened and the fact [you have] been charged’ and that you pleaded guilty after seeking legal advice.
31.This account varied so much from WA’s account, which was reflected in the summary of prosecution opening, that I asked Ms Millar during the plea whether it was maintained. At that point Ms Millar indicated that it was. After a short break in proceedings in which Ms Millar obtained further instructions, I was told that as you did not wish to cross-examine WA you accepted the prosecution summary.
32.After the plea hearing I had you assessed for a community corrections order. The assessment report I received late in the day of 20 May 2020 provided a comprehensive answer to the question of your remorse. You were found unsuitable for a community corrections order on the basis that you showed no insight into your offending, blamed WA for the charges and in fact denied that you had committed the offence. You told the assessor that you only pleaded guilty because your lawyer told you to do so. You said the sex was consensual and the only reason WA complained was because of her mental health.
33.Given the matter was booked in for sentence via remote hearing at 9.30 am today, being the 22nd May 2020, I invited the parties to provide any further submissions by lunch time on 21 May 2020. I received no submissions, however upon specific enquiry with your counsel was advised that you did wish to maintain your plea of guilty.
34.This morning I enquired of your counsel whether your plea of guilty was made freely and voluntarily and whether you understood that by your plea you were admitting the essential elements of the offence and was assured this was so.
35.None of this affects the significant discount you get for the utilitarian benefit of your plea of guilty, however you do not get the additional benefit of remorse. To be clear you are not punished for a lack of remorse, it is not an aggravating feature, rather you do not get the discount you would have if your plea of guilty had been accompanied by remorse.
Delay
36.The reason for the 28-month delay between interview and charge has not been properly explained, other than the Prosecutor accepting it was through no fault of yours and he believed it may have related to illness of the informant. I take into account in mitigation of sentence the fact you have had the worry of this matter over your head for nearly four years. I accept what you told Mr Cummins, that during this time you have been very worried, anxious and depressed about the prospect of being incarcerated. This is a significant matter.
Background and personal circumstances
37.Your background and personal circumstances were set out in detail in the Outline of Defence Submissions and Mr Cummins' reports were tendered on your plea and marked as Exhibits 1 and 5, respectively. I think in that case just to intervene that the report that was tendered today should actually be Exhibit 6. Anyway, I will come back to that. Or not Exhibit 6, maybe Exhibit 7, I think. All right. So the supplementary report is Exhibit 8 and the letter was 9. All right.
38.Very briefly, you were born in January 1950 and you were raised in Horsham by your two parents. You are now 70 years of age. You have two younger sisters. Your father died in 2001. Your mother is still alive and is 92 years of age. You were her carer for two years after you moved out from WA, but she now lives in a retirement village in Horsham. She is suffering from Alzheimer's and I accept that any separation from her will cause you hardship.
39.You have a limited education. You completed primary school followed by two years at Horsham Technical College. You reported that you were not academically inclined and were provisionally diagnosed with dyslexia at the age of 40.
40.You have worked in many jobs over the years. After leaving school you worked in Horsham in several different jobs including at a bakery, in a supermarket and at a foundry. When you were 20 you moved to Melbourne, initially working at a mechanical workshop, then Coles Supermarket and finally at the Herald Sun.
41.You moved back to Horsham after 18 years when your first wife and son became ill. You struggled to find employment and eventually moved to Nhill where you worked at ‘Luv-a-Duck’ for four years.
42.You have not been employed since then, but you have been a carer for both your first and second wives and your mother.
43.To your credit you have worked as a volunteer in various capacities over the years. You have volunteered for the Nhill Neighbourhood House, the State Emergency Service (‘SES’) and the Country Fire Authority (‘CFA’). The latter you did for 30 years.
44.Your first wife died in 2007 of a prescription drug overdose. You had two sons with her, now aged 37 and 38, but are estranged from them.
45.Your relationship with WA started after the death of your first wife. You married in April 2009 and separated in the latter part of 2016 following this incident.
46.You are currently on the age pension and live in a rented unit outside of Horsham.
47.You suffer various physical ailments which include tinnitus, erectile dysfunction, Type 2 diabetes, high cholesterol, gastric reflux, lower back pain, moderate chronic obstructive pulmonary disease (‘COPD’), pulmonary fibrosis and a blood disorder called Myelodysplastic Syndrome. You take various medications and are under specialist care for your lung and blood disorders which are stable at present. You still smoke despite your COPD.
48.After the incident you became depressed and anxious and were prescribed Prozac by your General Practitioner which you still take. You also sought counselling from a mental health social worker in Horsham. Mr Cummins considered you to be suffering anxiety and depression as a reaction to your predicament and that your mental health would deteriorate and ‘most probably significantly so’ in a custodial setting.
49.Although there appears no reason why you cannot receive appropriate medical treatment in the prison environment, I accept that prison will be harder for you than a person in good physical and mental health. Further, I take into account that your age and various medical conditions, particularly the state of your lungs, renders you more vulnerable to a COVID-19 infection. Whilst the chance of you being infected in prison is speculative, I accept that you have a greater ability to isolate outside of prison and that, at the very least, the worry of contracting the virus is an additional burden for you.
The effect of COVID-19
50.In addition to the worry of your exposure to the virus, I also take into account that any term of imprisonment during the pandemic will be harder due to restrictions on or abolition of visits to prisons, although I have no details of whether anyone would be likely to visit you, and the curtailment of various programs and activities.
Your character and risk of reoffending
51.You have no prior convictions and are entitled to be sentenced as a first offender. However, it cannot be said that your offending was entirely out of character. That is because subsequent to this offence you pleaded guilty to a rolled-up count of sexual assault consisting of three occasions where you grabbed the breasts of the victim against her wishes and despite her protestations. The victim was a friend of your wife and the offending occurred between December 2015 and your rape of WA. On 28 June 2017 you received an 18-month community corrections order and were placed on the Sex Offender’s Register for 8 years.
52.You successfully completed that order, including the sex offender program. That said, the community corrections assessment report of 20 May 2020, indicated that you also blamed the victim in that matter, saying ‘she was bullied into making the complaint’ by your wife.
53.Less significantly, on 21 December 2016, you also pleaded guilty to contravening an intervention order which WA had taken out against you. I do not know the precise details of the breach, however, I accept it was relatively minor as the charge was proved and dismissed.
54.Mr Cummins provided two reports to the Court. In the first, dated 26 February 2020, he was unaware of your sexual assault conviction. I note that this necessarily means you did not tell him about it. At that point he considered your rape to be situationally motivated and out of character and your risk of
re-offending to be low. Once appraised of the sexual assault matter he
re-interviewed you and provided a supplementary report indicating that his view remained unchanged. Whilst your sexual assault charge is concerning, it at least occurred prior to this matter. You have since completed the sex offender program and a corrections order. The Community Corrections Order assessment report of 20 May 2020 assessed you as being a medium risk of re-offending.55.On balance, considering your age and health, your plea of guilty to all matters with which you have been charged, your completion of the sex offender program and your prior good character, I am satisfied that your prospects of rehabilitation are good. I think it likely that the last few years have been a salutary lesson for you.
Purposes of Sentencing
56.In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort.
57.Yours is a particularly difficult sentencing exercise. On the one hand rape is a serious crime which is rarely punished by anything other than a term of imprisonment. Denunciation and general deterrence are always important sentencing considerations in rape cases and no less so if the rape occurs in a domestic setting. The court in the case of Mason[4], to which I have already referred, said:
'In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification.'
[4] R v Mason [2001] VSCA 62 at [8].
58.Yours was a rape within the context of an existing relationship, yet the message is the same. Husbands, or wives for that matter, are not entitled to have sexual intercourse with their partner when their partner does not want it. That applies just as much to commencing the act of sexual intercourse as it does to desisting from the act when requested to do so. The sentence I impose in this case should serve the dual purposes of denouncing your conduct and deterring others from thinking it is acceptable to treat their spouse or partner in that way.
59.Added to that is the fact your wife asked you to stop because she was in pain. Although she would have been entitled to do so, it was not a case of WA simply changing her mind. As her carer, as well as her husband, you knew she was physically vulnerable and suffered significant pain and yet you continued having sexual intercourse knowing that what you were doing was hurting her. This adds another dimension to your crime.
60.On the other hand, whilst your offending was serious, it was a less serious example of rape than many others. Further, you have a number of significant mitigating factors, your prospects of rehabilitation are good and I do not consider that there is a significant need for specific deterrence.
61.As I said, I have had you assessed for a community corrections order and you have been found unsuitable. The fact that you have been found unsuitable is not a bar to me imposing such an order however, in the end, balancing the competing factors in your case as best I can, I have decided that your offending is just too serious and your mitigating factors not significant enough, to justify anything other than a term of imprisonment with a period of parole. I will fix a relatively short non-parole period to take into account the mitigating factors that apply in your case.
Sentence
62.If you could stand please.
63.On the charge of rape I convict and sentence you to a term of imprisonment of two years. I fix the minimum period before which you will be eligible for parole as 10 months.
Presentence Detention
64.I declare that you have served no time in custody up until today so there is no pre-sentence detention.
Section 6AAA
65.If you had not pleaded not guilty to the charges and been found guilty by a jury, I would have sentenced you to a term of imprisonment of three years six months with a non-parole period of 2 years.
66.Now, there are no ancillary orders sought. Are there any other matters before we close the proceedings?
67.MR MILLER: No, Your Honour.
68.MR MENON: No, Your Honour.
69.HER HONOUR: All right. Yes. If Mr Worthington could be removed please and taken into custody. I assume because I can only see a portion of the court there, our custodial officer is there in Horsham?
70.VOICE (from body of the court): There is, Your Honour.
71.HER HONOUR: All right. Thank you.
72.Yes. If you could terminate the link and close the court.
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