DPP v Mitchell

[2019] VCC 305

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-01901

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MITCHELL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:	12 March 2019
DATE OF SENTENCE:	13 March 2019
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2019] VCC 305

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Ms V. Peters	Ann Valos Criminal Law

HIS HONOUR:

1Thomas Wayne Mitchell, on 27 February this year you were found guilty by a jury of eleven of one charge of aggravated burglary and two charges of rape.  Those crimes carry maximum penalties of 25 years' imprisonment.  You are now 40 years of age.  You did not plead guilty and conducted a trial.  Accordingly you do not get the normal benefit of having put in a plea of guilty.

2Insofar as a trial was concerned it was fought out and the complainant was called a liar and you gave sworn evidence that she in fact was a sexual aggressor and was essentially telling lies about you.  It is a situation where that is demonstrative of a total lack of remorse, a total lack of insight and causes me concern about your ultimate prospects for rehabilitation.

3As I indicated with your counsel it seems to me that the version of events you came up with was concocted to cover the Crown opening of you having done a "no comment" record of interview.  Be that as it may it does not aggravate the situation, it just simply takes away what in this situation would have been a very, very significant mitigating factor indeed.

4You have an extensive criminal history and on what I am told only ever spent about six months out of gaol or youth detention since you were 14 or 15 years of age.  You do have four on my calculation prior convictions for aggravated burglary and obviously you have been gaoled on a number of occasions.

5You do not have any prior convictions for sexual offending and obviously I take that into account.  It appears clear from the material that has been placed before me that you if not institutionalised are very, very close to it.

6A summary of the offending is that you are now 40 and were aged 39 years at the time.  You are an Aboriginal man and had been out at Warrakoo Station.  The complainant is an Aboriginal woman and she was 36 years old at the time of the offending.  She has a cognitive impairment and has been diagnosed with a progressive neurological disorder that is relapsing and remitting multiple sclerosis that had been diagnosed in 2014 and she has had symptoms since 2009.

7Among her numerous physical symptoms were mobility issues, motor co-ordination, bladder control and swallowing.  Indeed she required to be fed by a tube through her stomach.  That tube would in place for something like 22 hours a day.  The only way she could get around was to either drag herself or be on a walking frame.  It seems clear that she would spend extensive periods of time in a wheelchair.

8She was a very disabled and very vulnerable person as indeed she said during the course of her VARE, "Why would someone prey on me?"  In any event, at the time of the offending she resided in Merbein with her three children aged 18, 17 and her 14.  Her children are now her full time carers.  She was a person who with those grave disabilities was endeavouring to make the most of her life and to look after her three children and be independent to whatever extent she could be.

9In any event, in February of 2018 you left the Warrakoo healing centre and were dropped off firstly at Wentworth and later on in Merbein.  At approximately 11.00 PM on 20 February the complainant was at home with her daughters who were asleep.  Her son was at a friend's house.  He was going to be going later on to an Aboriginal program and he was leaving at 3 o'clock in the morning.

10You, who were unknown to the complainant, attended her home and knocked on her front door.  She was sitting on her wheelie walker at the time and spoke to you through her front fly screen door while you were standing on her front porch.  At that point in time she, as she said, was on her wheelie chair and discussions took place about whether she had a cigarette for you and also as I understand it at that point some discussion about art.

11You said to her, "Hey, sister girlie, have you got a cigarette?"  She said, "No, I haven't", and that she did not know you.  She said she was just new to the community, meaning the Aboriginal community.  You said, "So you know me, you know Thomas".  You also told her, "I staying up at the flat up on the corner.  In number two".  She told you, "I sorry, I can't help you", and she said good luck and closed the door on you.

12At that point in time she had opened the fly wire screen door to see who it was and to get a better look.  She when closing the door forgot to snib the lock and she said later on that was her virtually fatal mistake.  At approximately 1 am, some two hours later, and during that time she had been working on the feeding tube and the pump that was operated to it. You returned to her home and knocked on her door.

13When she went to the door you said to her, "Hey, sister girl, it's Thomas.  You wouldn't have a coffee, would you?"  She said, "Hang on, I’ll get you a coffee", and went to the kitchen to make you a coffee.  She had assumed that the flywire screen door was locked and that you would not be able to enter and her intention was that she make a coffee, give it to you and then you take it home.

14At that stage she was using her red wheelie walker mobility frame which she can shuffle around on.  I have no doubt that you were aware of the physical circumstances of her and indeed later on during the trial when you gave sworn evidence you said that you were aware that she was a very sick woman.

15Your defence seemed to be that there was nothing wrong with her which is in effect palpable nonsense.  She went in to make the coffee and you entered clearly as a trespasser and very quickly began to assault her.  That gives rise to the crime of aggravated burglary.

16The crime itself is for assault but I have no doubt in this situation it was going to be some form of sexual assault though I do not sentence you on the basis you entered for the purpose of rape.

17Once in the kitchen - I am summarising from the Crown opening here - there were some differences in her sworn evidence which in my view do not make any real difference to the outcome - you entered her home uninvited, approached her near the sink and microwave area of the kitchen.

18You tried to touch her and she said no and she told you basically to leave her alone.  You kept trying to grope her.  You grabbed hold of her hair, pulled down her singlet and attempted to kiss and grope her.  You forcibly dragged off her wheelie walker and onto the ground.  She landed flat on her stomach causing her pain as she landed on her peg feeding tube.  You during the course of your sworn evidence admitted that you knew she had a peg feeding tube and you claimed that she had shown it to you earlier in the day, which is again clearly false.

19She struggled and tried to fight against you by trying to grab and scratch you.  In that she received a bruise to her back which was borne out by the medical evidence.  You covered her mouth to stop her from yelling.  You pulled her shorts off and forced her head into the washing which was on the floor in the laundry.

20You then pulled her hands behind her back and spread her legs.  She then heard a spit, believing that you had spat on her.  She could not kick you off as she is weak in the legs and in fact has very little use of them.  She explained during the course of her evidence that she has very little feeling in her legs and as the situation was described she had not had sex for years as already indicated, and was very weak in the legs and incontinent.

21She said that she could not kick you off as she was weak in the legs.  You then inserted your penis into her vagina causing her to feel pain and she then felt a different kind of pressure like an intensive sharp pain or a pressure as you inserted our penis into her anus.

22She believes that you ejaculated and pulled your shorts up.  Her evidence was that you had ejaculated and much was made of that during the course of the trial.  It does not for these purposes really matter whether you did or not.  Indeed at the special hearing your counsel put to her the possibility of you having ejaculated when she was on your version of events playing with your penis.

23In any event she looked over her shoulder and watched you leave.  She got up and locked the front door and she went to the bathroom to turn on the shower so that her daughters would not hear her cry.  On the evidence before me I think it is fairly clear that she did get under the shower and sat on a chair for a period of time.

24She changed her clothes and changed into another pair of pants.  She then went and saw various people and the complaint evidence does not mean much in this sentencing process and was basically asked why she had not told anyone about the incident and said she did not want to tell her children and did not want to tell her son and she just said that she felt too ashamed and dirty and filthy to tell anyone.

25It was not until the next day when a friend and a worker spoke to her that she determined to tell them and tell the police.  Initially she said she did not want to do anything about it.  There was evidence from her that you came back again at 4 am in the morning and I am not buying into that, it matters little for these purposes and accordingly I will not take that into account.

26When the next day she went to Vicki's house next door she told Vicki that she "felt yucky" and "could smell him".  Vicki asked the complainant what had happened and she said there was this bloke who went there and asked her for something and then came back again.  It was later on when she was speaking to Nikita that she told Nikita that she was in pain and said, "You know that Thomas cunt up the road?  That dirty dog raped me in my own home".

27Again I do not think I need to go into descriptions of tattoos and various things like that.  It was conceded that you were present at the house on that day.  The defence was as I have indicated that some form of consensual sexual activity had taken place much earlier in the day and you endeavoured to give sworn evidence of that.

28You have endeavoured to provide an alibi which was pointed out pretty clearly at the end of the trial fell in a heap.  She was medically examined and there was nothing particularly unusual about that except a fresh looking bruise on her back.  The examination of the crime scene, and this was made clear in the hand up brief to which your lawyers made a defence response, various items were seized and it turned out that you clearly were a contributor of DNA on her left breast and that you almost as clearly were the contributor to two areas on the hip region of a pair of pants that she had put on and they were originally tested positive for sperm but that could not be confirmed and I do not sentence on that basis.

29The ejaculation, as I have said, does not really matter in this overall sentencing process, it is the act of penetration that you have been found guilty of.  When interviewed by police you refused and were uncooperative which is obviously your right and it was much later in the event that a version of events from you indicating that she was the proponent of all this came into existence.

30You have been in custody ever since and you have undergone a six month sentence during that period of time and I take that into account in a Renzella fashion.  There are victim impact statements from the complainant and also from one of her daughters.  The complainant was in my view a compelling witness who showed great dignity when he was a humiliating set of circumstances for her.

31I did not think that she exaggerated or anything like that.  She was cross-examined for a significant period of time and despite her cognitive impairment was able to grapple with it.  She said in her victim impact statement in regard to how all this occurred, "It made me feel that I was stupid because I didn't lock the door, that I was too kind and trusting and just being part of the community, and the way it is that I feel that I should think first now.

32"I felt dirty, disgusting, stupid, scared that he was going to come back".  She said she felt scared for her kids, felt like her body was not hers for that period of time and just wanted to wash you away.  She said that she sat with the smell of you on her for 27 hours she said.  She felt helpless, "No means no, stop means stop", she said.

33She said, "I lost the person that I was that night.  He killed something inside me that made me me.  I lost my body and my control.  He took everything away from me.  My life has changed immensely because of this.  Life at home is shit, I feel paranoid and I need to lock the house always.  I can't be on my own, I am petrified of men and I want to be in control of these feelings but I can't be.  I suffer from really bad depression.  I felt free once and I could wear what I want to wear and I could be happy and I felt comfortable being out on my own or at home on my own.  Now I can't leave the lights off.

34"I triple check of the door locks, I wake up a lot to check on the kids to check the house.  I could once go out socially.  I have lost my confidence.  I watch behind me all the time.  I feel scared of bad things happening.  It is taking away my will to do anything.  I am overwhelmed, uncomfortable.  It is surreal having all these events happening.

35"This has ruined my life, who I was, ruined me as a mum, ruined my self-confidence.  I have got none.  I have constantly got none".  That is the position that the complainant now finds herself in as a direct consequence of what you did that night.  She starts by pointing out how stupid she feels having dealt with you at that door in the middle of the night essentially because she wanted to be part of the community and she only shifted there and you clearly were Aboriginal.

36There is a betrayal involved in that, Mr Mitchell, in itself.  Her daughter also has made a victim impact statement which confirms aspects of the mother's and I will not be doing it twice.  She said that she felt guilty, as is often the case, that she had not stayed up longer or stopped this happening.

37She said, "It is very hard because I saw the strong woman my mum not be who she once was in front of my eyes.  Since it has happened she has turned into a totally different person.  She was confident, self-aware, she was like superwoman and that was very overwhelming that all that changed in a flash.  It is very hard trying to help her, trying to cope with it and it was heartbreaking for us siblings to watch her drinking and trying to cope.

38"The mental breakdowns, for us to try and help her and her not being who she used to be is very heartbreaking.  There are days that she is better but there are days when she can't leave her room.  She won't socialise with us.  There are still days when she'll wipe herself out and not be my mum and not recognise us and it changes all a full 360.

39"She'll never be the same person again.  She'll never go back to that again".  The support from her daughter as to what has occurred from all this and as indicated earlier it was a very, very disabled in that sense woman who was trying to make the best of the world and then you came through her back door.

40The offending is in my view very serious.  It calls for the application of general deterrence as well as specific deterrence, denunciation and an appropriate punishment.  Insofar as it is concerned there are a number of factors which aggravate this offending.  Firstly, you were a stranger to her.  Secondly, it was in her own home, two of at least her children were present.

41The rape took place with force and with a level of violence.  She was a defenceless, very vulnerable woman unable to defend herself and it is clear from the materials that you were aware that she had extreme physical difficulties, even if you may not have been aware of her cognitive problems.

42Again, as I indicated, you knew about the peg that was in her stomach for the feeding tube and you knew she was a very sick woman.  You essentially treated her like an object in that situation and so there were matters that aggravate it and a very defenceless woman was totally overpowered in a brutal, is the only way to describe it, way.

43The only available sentencing option here clearly is a very significant gaol term indeed.  In order to ascertain the nature of that gaol term I note that in this particular situation the standard sentence in regard to rape applies.  The standard sentence for rape is ten years.  Time will only tell how that plays out in the overall sentencing process and I am certainly not going to make the sentences cumulative, I will be making a small portion of the sentence cumulative because they are two quite distinct acts.

44One is a vaginal rape and one is an anal rape.  The aggravated burglary also will get a limited amount of cumulation.  Your counsel pointed out in what I might say was a very succinct and a very sensitive plea your background.  You are an Aboriginal man, you are the second of five male siblings.  All your brothers have been to gaol.

45Your mother and father had a relationship raising the five of you and it is clear from the material that your father was a heavy drinker and was violent both towards you and towards your mother.  Each of you would appear to have forgiven him and indeed miss him.  He died I was informed in 2014.

46You were born in Condobolin and came to Mildura.  At the age of 14 or 15 you became the father to a daughter.  At that time you were placed in a juvenile justice facility.  You last saw your daughter at one month old.  The mother and grandmother left the town with the child.  Both the mother and grandmother of that child as I am told are now deceased.

47You believe that that child is now in her mid-20s and living in Horsham but that is all you know.  You have had difficulty accepting that over an extended period of time and in the sentencing process I accept that that has been a problem for you.  It is something that you have always had difficulties with.

48I suspect DHS - not suspect, it would have been - with DHS involvement you and your brothers were ultimately fostered out.  You were - the word was "fostered" - out to people called Newcomb in Adelaide.  It would appear that they were really a hiring service for remote cattle stations in the north of South Australia.

49You went up round Coober Pedy and Oodnadatta and your mother has told your counsel that you did well while you were working on those stations.  You drifted off to the Northern Territory and obtained occasional work.  You often returned to Mildura and this is where the problems really started.

50At a very early age you were drinking and using marijuana at an early age and then amphetamine a little bit later.  Your counsel told me, and I have no reason to doubt it, and she has been in court every day to support you, that you have a good relationship with your mother.  He told me that when not affected by substances you were a great support to her.

51It was also pointed out that you have an interest in your indigenous heritage and while in prison have written several poems and made some artwork.  A number of poems and writings and artwork was tendered on your behalf and it is quite clear from those that you do have a degree of skill in terms of that sort of artwork.

52As one of the elders said in Koori court recently it is just a tragedy that you felt you did not start doing that while you were outside, you always seem to wait until you are in.  You had a very difficult life and I take that into account so far as Aboriginal people are concerned and I am well aware of the decision in Bugmy and I am fully across all of those matters as counsel are aware I had a long time in the Koori court to understand the sense of hopelessness and abandonment that young Aboriginal men have and then carry through into their later lives.

53Tendered on your behalf was a report from Mr Bernard Healey which went into some detail about your background.  Again I will just summarise that very briefly.  He pointed out that prison had become your home and that you are institutionalised.  He said you had been subject to assaults in prison and he said that your main substance abuse over the years was alcohol.

54He said you attempted to take speed at around the age of 17 and by 2015 you were using ice, up to a gram to 2 grams a week depending on availability.  You also had been prescribed the anti-depressant, Avanza, for a long period of time, back into the 90s, and you feel that without that substance you would have more experience of thought intrusions, restlessness and intention.

55In recent times in prison you have been taking methadone and as he points out there is an identified tendency in custody to get the secure synthetic morphines.  You told him that you felt angry about racial abuse and prejudice and I understand all those things but simply point out your victim was Aboriginal.

56Your IQ was found to be 71 which is very much on the borderline of a mental disability and I take that into account as well, and the decision of Muldrock and decisions such as that.  He goes on to describe the family violence that your father would hit you with sticks and at one stage your brother lost an eye as a result of all this.

57Human Services would have appeared to become involved around about the age of 11 or 12 and all five boys were fostered to aunties.  At around 14 you went to an Aboriginal hostel in Essendon and your older brother went to Bert Williams which I am very much aware of.

58He goes on to describe how you started to use ice.  He said that whilst in custody which has been the majority of your life since you were a young teenager you tried to improve reading about culture and are involved in painting which is clearly to your advantage and to your credit.

59He talks about that first relationship with the child, that you then had a further relationship with a lady who was around about the age of 18.  That lasted for some four years.  She had two children and together you have two mutual children.

60As I understand it you still communicate with those two children who are both daughters and so that in the long term that may assist you in rehabilitating.  You told Mr Healey that during periods of liberty where you have relapsed into alcohol and drug abuse, you spent time in Condobolin or Mildura, you spent time living on the streets, sleeping in your car or in a tent on the river.

61There is no diagnosis of an acquired brain injury but it appears clear there has been some damage over the years, probably because of assaults and probably because of substance abuse.  Mr Healey said on the basis of testing there was evidence of higher level cerebral impairment most likely consistent with significant blows to the head, particularly whilst intoxicated and the effects of alcohol abuse over a number of years.

62He said custody has stopped a further marked decline because of interruption to the abuse of alcohol.  He seems to take the view that custody is probably the only thing that has kept you alive over the years.  He says, "He suffers an elevated level of depression for which he is still receiving treatment with anti-depressant, Avanza.  There was a paranoid trend which reflected the presence of persecutory ideas and the schizophrenia scale was also significant which reflected significant social alienation and some bizarre sensory experiences with his reported auditory intrusion with some voices and the possible visual aberrations.

63"No doubt his medication regime contains the extent of this disturbance and it wasn't possible to conclude that there was a presence of blatant schizophrenia".  In other words, whilst there is concerns about paranoid features and the like there is no cause for the application of the principles of Verdins.

64It seems in one strange way that your time in custody probably assists you in terms of your mental health.  He goes on to say that, "It wasn't possible to conclude at this point in time that he is suffering an ongoing psychotic illness, however warning signs are there that further deterioration of his mental state could well occur.

65"The intake of prescribed medication has a containing effect upon him.  He has however remained highly paranoid about the government, the authorities and indeed rejection from his own community.  He does experience some intrusive aberrations with voices and some suggestion of visual intrusions".

66It was pointed out earlier in the report that you feel abandoned by just about everybody and at one stage told him that you could not wait to die.  They are the matters personal to you and they are matters which certainly in my position provoke a great deal of sympathy.

67They however have to be balanced against what was a very serious, as I have indicated, set of charges of aggravated burglary and rape.  The standard sentence as I have said is ten years.  In this situation I think there is a very strong likelihood that you actually do not remember what happened on that particular occasion.

68It was a combination of alcohol, ice and Avanza.  That is no defence and it does not mitigate the matter in any way.  It might explain your desperation to come up with some confabulated version of events which exonerated you from all this, but that has failed dismally.

69The situation as I understand it with the standard sentencing is contained and explained in a decision of His Honour Justice Champion of the Supreme Court.  What his ruling confirmed was that standard sentences operate as a legislative guide post and are consistent with the instinctive synthesis approach for sentencing. The standard sentence is one of many sentencing factors and does not have a dominant role in sentencing.

70When complying with the statutory duty to explain how the sentence imposed relates to the standard sentence the court is not required to classify the objective seriousness of the offence.  In Muldrock, as has been confirmed later on, the standard sentence is a "legislative guidepost as the middle range of objective seriousness of an offence which must be considered together with other legislative guideposts of the maximum sentence".

71In this matter the instinctive synthesis process which is what is to be used I have taken into account all of the matters that I have raised.  The sentence that I intend to impose in respect of each of the charges of rape is higher than the standard sentence.  I do that because having identified and considered the relevant factors in assessing sentence such as the gravity of the offence, the running of a trial, the absence of remorse and the absence of a plea of guilty, these are the sentences I have determined to be appropriate.

72The prospects of your rehabilitation have to be guarded.  The risk of you reoffending in general terms has to be very high.  Whether you reoffend in a sexual manner is somewhat more problematic.  I am well aware of the principles involved of totality and I am well aware that where possible a judge should not impose a crushing sentence.

73I am conscious of the prospect of double punishment which is why the cumulation on Charges 1 and 3 will be very moderate indeed.  However, taking all those matters into account you do fall to be sentenced for what is a gross crime against a totally defenceless woman and the sentences that I impose must reflect that.

74Accordingly on Charge 1 of aggravated burglary, five years.  On Charge 2 of rape, 12 years.  On Charge 3 of rape, 12 years.  One year of Charge 1 and one year of Charge 3 cumulative upon the sentence on Charge 2.  That gives a total effective sentence of 14 years.

75Because of the statutory provisions I must impose a non-parole period and 60 per cent is the cut-off point so accordingly you will serve a minimum terms of eight years and four months before becoming eligible for parole.  Simply for the purposes of the record I might indicate as most other judges may not, that but for that statutory provision the minimum term that I imposed would have been higher.

76I direct that 183 days be reckoned as having been served under this sentence.  There is no other orders I have to make?  You can remove the prisoner, thank you.

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