DPP v Hyde

[2019] VCC 712

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00161

DIRECTOR OF PUBLIC PROSECUTIONS

v

MASON HYDE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 May 2019
CASE MAY BE CITED AS:	DPP v Hyde
MEDIUM NEUTRAL CITATION:	[2019] VCC 712

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr N. Papas QC	Emma Turnbull Lawyers

HIS HONOUR: 

1Mason Hyde, you have pleaded guilty to one charge of rape.  That crime carries a maximum penalty of 25 years' imprisonment.  You are 19 years of age and were 19 years of age at the time of the offending.  You are still a young offender and it is clear from the material provided on your behalf that you are relatively immature.

2You pleaded guilty at the earliest reasonable opportunity, made appropriate admissions and have shown appropriate remorse insofar as the offending is concerned.  You must also of course get the utilitarian benefit of that plea of guilty.  As discussed with your counsel during the plea, you could have fought this out, had you so chosen.  You have not done that and must receive credit for that.

3You have no prior convictions of any description and you have no subsequent convictions and as I understand it, you have no matters pending.

4The circumstances of the offending are that you and the complainant, who I will refer to as the complainant - you understand that is for anonymity reasons - were both 19 years of age.  You had been friends for some time and the relationship had always been platonic.  You had been supportive of her in recent times, as she had been going through a separation, as I understand it, from another person.

5On 29 September 2018, she attended her work place and arrangements were made with various people to have drinks after the AFL grand final.  At approximately 7 o'clock that night she finished a shift from where she had been working and drove home.  A neighbour approached and invited her over to his house for a drink.  She accepted and went there around 7.45.  During the evening it is estimated she consumed between 250 to 500 mils of vodka mixed with orange juice.

6She had been in contact with you during the course of the evening and told you that she was unable to drive.  You were invited to come over to her house, where you went.  She had arrived home between 10.30 and 11.30 and gone to bed, wearing a bra and underwear.  You arrived sometime around about midnight.  You came in through the unlocked door, entered the bedroom and sat on the bed talking to her for about a half an hour or so.  After that time she told you she wanted to go to sleep and you were welcome to stay, as you had been drinking too and she did not think you should drive.  She fell asleep while you were still sitting on the bed. 

7At approximately 2 am she woke up with you on top of her, having sexual intercourse with her by penetrating her vagina with your penis, obviously without her consent.  She tried to roll over at which point you withdrew your penis.  She told you to leave.  You said words to the effect of, 'I'm so sorry', and left.  She realised that she was no longer wearing any underwear and her bra whilst still on, had been unhooked.  She contacted friends for assistance and stayed with another friend for the remainder of the night. 

8In the hours following the incident you initiated contact with her, made admissions to the offending and expressed appropriate remorse for what you had done.  On 30 September, that is that same afternoon or morning, she attended the Morwell Multidisciplinary Centre and undertook a forensic medical examination.  A pretext call took place where essentially you confirmed the nature of all this.

9When interviewed by police you essentially said that you had blacked out but did not deny the offending and that would appear to be the explanation you have given to the psychologist as well.  Whether that is true or not, I do not know but the fact of the matter remains that you did express appropriate remorse at the time and made admissions to her, which is probably the most important admissions that could be made.

10I have before me the victim impact statement which outlines the damage that this offending has caused to the complainant.  She is endeavouring to get her life back on track.  This has all occurred in a small community, of which I am very much aware and obviously causes all sorts of conflicts and problems which are often ongoing.  She is doing her best to repair the psychological damage that has been caused and is receiving counselling from a number of people.  She hopes that she will be able to get over this eventually and one shares that hope.

11The victim impact statement eloquently describes the impact of such offending and why it has to be treated as serious. It calls for the application of general and specific deterrence, though in your situation I regard the risk of you
re-offending as low and specific deterrence are thereby ameliorated.  There must be denunciation and there must be appropriate punishment.

12I then turn to matters personal to you endeavouring to determine what that punishment should be.  Tendered on your behalf were many references and letters of support and I take them all into account.  It is important for people to understand that in these circumstances, whilst they might have their own views on things, you did do this, you have pleaded guilty to it and people are just going to have to get used to that idea.  I will also point out, as I did to counsel at the time, there are matters in the victim impact statement which are not admissible and I certainly do not take those into account either.

13Tendered on your behalf as I said were many references and a report from
Mr Patrick Newton.  Mr Newton basically outlines your history and says that you have an adjustment disorder with anxiety and he believes that is in response to stressors, rather than a pre-existing condition.  He believes that that will remit with the resolution of this current matter but there could be a mood deterioration in the meantime.

14Your circumstances are outlined in your counsel's assessment and I think very clearly outlined in a reference from Mr Vuilleman, your employer and also a letter from your mother.  You have everything going for you in effect, insofar as rehabilitation is concerned.  You were essentially brought up in the area around Toora.  Your parents separated but you have maintained contact with your nature father and indeed he still lives in the area.  You went to Toora primary school, you went to the Foster high school and you have been working since the age of 14. 

15Upon leaving high school you were able to get an apprenticeship as a carpenter to the family firm of Villeman's and you have worked there successfully.  You have been engaged in sport since your early years.  You have played soccer, you have played football in the juniors for Toora and you have played basketball in the Welshpool Association.  On all accounts you have been a useful and appropriate member of your local community until this occurred.

16I think the letter from the employer encapsulates what is contained within the majority of this material and Mr Vuilleman says:

'Mason Hyde has been in our employ since February 2017 and this year will become a third-year apprentice carpenter at the end of February.  We are able to give many and varied jobs which he learns quickly and performs to our satisfaction.  Mason is a quiet young man and he fits in very well with our company and works very well with our team.  Mason is early to work every day and from that moment works extremely hard and diligently until he leaves and often does overtime.  We have never had to remind him to do anything.  He is a very good worker and follows instructions well.  Mason is honest, courteous and polite, traits that are not often common in young people these days.  He converses well and enjoys the company of his peers and we have found him to be a great member of our team'. 

17The other references from family and friends and acquaintances all say much the same thing.  That you are in general terms a quiet, hardworking, polite young man.  I am prepared to accept that what occurred on this night was an aberration on your part.  That it was not anything of a predatory nature and that it was a one-off situational set of circumstances.  Your immediate cessation of the offending and your apology evidenced that.  However, the consequences as I have indicated to the victim, are indeed serious and do require punishment.

18You, upon your release which it now has to be, for reasons I will explain in a moment, will still have, as I understand it, employment available to you.  You will have stable accommodation, you will have family support and as is pointed out in the Youth Justice assessment, you have a number of factors indicative of positive prospects of rehabilitation.  I have had you assessed for Youth Justice and that report has now been made available and includes the following paragraph, insofar as rehabilitation is concerned:

'This includes his lack of prior criminal history, his ability to maintain stable full-time employment, positive and pro-social family support, acceptance of responsibility for the offending, willingness to engage in treatment to address this.  Although Mr Hyde reports he has no recollection of the offending, he has accepted responsibility for his actions, stating that, "It shouldn't have happened".  He has not minimised the offending and reports a willingness to develop further insight into this.  Whilst the severity and significant harm caused to the victim is noted, Mr Hyde has been assessed by Patrick Newton as low to moderate risk [and I have indicated I regard it as low] of continued sexual offending, which further reflects his positive prospects of rehabilitation.'

19That, in a very succinct way, outlines the circumstances of all this.  The prospects of rehabilitation are excellent and the risk of re-offending is low.  Having heard the plea of Mr Papas of Her Majesty's Counsel and discussing it with the Bar table, it was my view that I should have you assessed for a community corrections order.

20Subsequent to that it has become clear that legislatively, I am forbidden from granting such an order.  I make it very clear that had I the power to do so, I would have given a community corrections order.  Having been denied that in terms of the ultimate overall situation here, my next step would have been a Youth Justice Centre order of less than 12 months, together with a CCO but as Justice of Appeal Whelan has pointed out in the case of Bradshaw, unfortunately that option is not available to me either. 

21I point this out simply for the record.  That a community corrections order would have involved hundreds of work hours, it would have involved great disruption of your life.  Knowing as I do how country areas work, having to perform that many work hours, people would become aware of what you were doing those hours for and there would have been an element of humiliation involved.  The punishment would have been serious indeed, but would not have interrupted your rehabilitative process.  In any event, as I have said that disposition is unavailable to me and it must be one of Youth Detention.

22This is a matter which attracts the standard sentence of 10 years' imprisonment.  I have discussed that matter with counsel and it is accepted that the correct approach to take is that of His Honour Justice Champion in the case of Brown.  Having done so, I take the standard sentence into account as one of the factors to consider in my instinctive synthesis, of all the relevant factors.  My consideration of that standard sentence is one of these factors which was 10 years, is reflected in the sentence I impose. 

23The sentence I impose in respect of the charge is lower than the standard sentence.  Having identified and considered the relevant factors in assessing sentence, including the standard sentence, the objective seriousness of the offending and matters available in mitigation, this is the sentence I have determined to be appropriate.

24I am sure that the one 24-hour period you spent in custody has been of significance to you and would have I think, in the end, sufficed but at the end of the day despite all the material that has been provided on your behalf and me being acutely aware of the seriousness of all this and being acutely aware of the decision of Boulton which points out that a community corrections order which was anticipated at that time in matters such as this, operates as a severe punishment, operates for general deterrence and operates as specific deterrence as well. I have no choice.

25All I can really do here is, knowing as I do the way the youth justice system or youth detention system works, is impose a sentence which would have had roughly the same effect as a combination sentence with a youth justice, had I been able to employ such a thing.  I say to the Youth Parole Board, for what value it has, that bearing in mind your circumstances, it would be my sincere wish that you be able to perform on work release as soon as possible. 

26I understand that certain programs will have to be put into place in respect of sex offending and the like, but I think it is going to be to everybody's advantage including the complainant ultimately, I think, that you be released back into the community to continue working and continue rehabilitating yourself as soon as possible.  However, having said that I obviously have no control or power of direction over what the Youth Parole Board do.

27Accordingly, taking all those matters into account, on the charge of rape, you are sentenced to be detained in a Senior Youth Justice Centre for a period of 15 months.  I direct that one day be reckoned as having been served under this sentence.  Pursuant to 6AAA which I assume is applicable in this situation, but for your plea of guilty you would have been sentenced to be detained in the Senior Youth Justice Centre for a period of 24 months.

28All right.  Are there any other orders I need to make?  PSD of one day.

29MR HARRISON:  Nothing further, Your Honour.

30HIS HONOUR:  Yes, all right.  All right, thanks.  Yes, you can take him now.

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