DPP v Wright
[2020] VCC 837
•12 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01368
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSIE WRIGHT |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2020 | |
DATE OF SENTENCE: | 12 June 2020 | |
CASE MAY BE CITED AS: | DPP v Wright | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 837 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Rape – standard sentence – objective seriousness – subject factors – serious sexual offender – youthful offender
Legislation Cited: Sentencing Act 1991; Sex Offender Registration Act 2004
Cases Cited: Peter Brown v R [2019] VSCA 286.
Sentence: 8 years’ imprisonment with 6 years’ non-parole period - s.6AAA: 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Hamill | Solicitor for Public Prosecutions |
| For the Accused | Mr John Lavery | Victoria Legal Aid |
HIS HONOUR:
1 Jessie Wright, on 28 May 2020, you pleaded guilty to one charge of rape. You admitted your criminal record. The maximum penalty for rape is 25 years’ imprisonment. Pursuant to the provisions of the Sentencing Act 1991, the offence of rape is a Standard Sentence Offence and the standard sentence for the crime of rape that “is in the middle range of seriousness” is 10 years’ imprisonment while the non-parole period is 6 years’ imprisonment. Further, as you will be sentenced to a term of imprisonment in respect to the crime of rape, because of your prior convictions, you fall to be sentenced as a serious sexual offender and protection of the community becomes the principle purpose for which sentence is imposed.
2 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening on plea. In summary, on 5 March 2019 at about 11.00am, your victim was shopping at the Bridge Mall, Ballarat Central. You were also present in the Bridge Mall and by chance simultaneously walked along the same pedestrian crossing as your victim but in the opposite direction to her. Your victim stopped at or near the crossing in order to light a cigarette and crouched down to do so. As your victim crouched down, you stopped and “had a bit of a perve” at her. After your victim stood up and continued to walk along the crossing, you did likewise but in the opposite direction to her.
3 As you walked away from your victim, you thought that she “was pretty” and you decided to turn and follow her and grab her “arse or something”. You caught up to your victim at a point where she had stopped at Grenville Street North and checked to see that it was clear to cross. While your victim stopped to check the traffic, you grabbed her from behind. You reached over your victim’s left shoulder and across her chest with your hand over the area of her right collar bone and held her. Your victim thought it was someone playing a practical joke on her. While you held your victim, you reached up your victim’s dress from behind with your right hand, you reached between her legs, pushed her underwear to the left and inserted your finger into her vagina. While doing so, you jerked your hand back and forth and “lifted her up a bit”. Your victim yelled, “Get off me, you fucking cunt” and shortly thereafter you let go of the victim and fled towards Field Street. As you left the scene of your offending, your victim recognised you as the man who had looked her up and down earlier on the crossing.
4 Your victim was approached by three males who comforted her and who had each witnessed the incident.
5 While your victim was being comforted, you ran west along Field Street through the car park at the rear of Rebel Sport, down a laneway past Carpet Court and back onto Grenville Street. Upon re-entering Grenville Street, you were spotted by the victim and the male witnesses and you then walked along Grenville Street past the court complex and decided to hand yourself in to the Police.
6 As you walked along Grenville Street, you were followed by your victim who had called triple zero and described her plight to the operator.
7 At the time of your offending, you were on bail and this is an aggravating feature of your offending. It is also the basis for the related summary charge to which you pleaded guilty, being commit an indictable offence whilst on bail. The maximum penalty for this offence is 3 months’ imprisonment
8 When you entered the Ballarat Police Station, you spoke to the police officer at reception and advised her that you wished “to hand myself in … I've done a bad thing”. You were then dealt with by Detective Senior Constable Morton who cautioned you and briefly interviewed you. During your conversation with Detective Senior Constable Morton, you told her that “I touched a lady at Rebel Sport” and when asked, “Where did you touch her?” you responded, “I grabbed her between the legs.” You were subsequently formally interviewed under caution and while you gave an accurate and detailed account of the incident, you denied penetrating your victim’s vagina although you readily agreed that you had rubbed your victim on her vagina with your right hand. When asked why you touched your victim, you responded, “Coz I was horny I suppose”.
9 As part of the Crown opening were documents that summarised your previous sex offending and that were marked as Annexures A and B. I will not summarise the Annexures, but the conduct described therein is strikingly similar to the conduct that constitutes the instant offending, save on the previous occasions you did not sexually penetrate your victims. In respect to your previous offending, on 2 June 2017, you appealed the sentences imposed on you by the Magistrates’ Court at Ballarat and were sentenced by a Judge of the County Court to terms of imprisonment in respect to four charges of sexual assault.
10 It is the frequency and striking similarity of your offending that causes the Crown to make an application that you be subject to the provisions of the Sex Offender Registration Act 2004. The making of such an order under the Act is discretionary. Should such an order be made, then you will be subject to the provisions of the Act for life.
11 The application of the standard sentence provisions was considered by a Bench of five Justices of the Court of Appeal in Peter Brown v R [2019] VSCA 286. At paragraph [4] of the judgment of the Court opined:
“The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
• is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
• does not affect the established ‘instinctive synthesis’ approach to sentencing;
• does not require or permit ‘two-stage sentencing’; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.”
12 Later, at paragraph [7] of the judgment, the Court opined:
“In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’.”
13 Later, at paragraph [25] of the judgment, after reviewing the authorities, the Court opined in respect to the non-parole period for a standard sentence offence that:
“These passages may be distilled into a number of propositions, as follows:
1. The standard non-parole period is a ‘legislative guidepost’, in the same way as the maximum sentence is.
2. In order for it to serve as a guidepost, meaningful content must be given to the legislature’s specification of the standard non-parole period as the non-parole period ‘for an offence in the middle of the range of objective seriousness’.
3. Giving meaningful content to that specification requires that ‘objective seriousness’ be assessed:
(a)‘without reference to matters personal to a particular offender or class of offenders’; and
(b)‘wholly by reference to the nature of the offending’.
4. The sentencing court is neither required nor permitted to assess whether the subject offence falls within ‘the middle of the range of objective seriousness’ by comparison with ‘an hypothesised offence answering that description’.
5. The requirement to give reasons for fixing a non-parole period above or below the standard non-parole period does not require the judge to ‘classify the objective seriousness of the offending’.
6. The judge must, however, identify all of the facts, matters and circumstances which bear on the conclusion reached as to the appropriate sentence.”
14 Tendered as Exhibit B on the plea was the Victim Impact Statement of your victim. At the time that you offended against your victim, she was aged 19 years and unemployed and living in her car. She was a vulnerable young person. Since the time of your offending, she has experienced nightmares on an almost daily basis in respect to your offending against her. She wakes shaking, sweating and terrified in the dark from these nightmares. Luckily within two weeks or so of your offending against her, your victim obtained a job interstate which she accepted immediately because it took her away from the place where she was offended against. Your victim returned home to celebrate her twentieth birthday in part at a restaurant in Ballarat. The restaurant where the celebration was to take place was close to the place where your victim was offended against and as she approached the restaurant she suffered a panic attack.
15 Your criminal conduct has profoundly and adversely affected your victim and these adverse effects will be with her for some years to come.
16 Tendered on your behalf by Mr John Lavery of Counsel who appeared for you, were his outline of submissions on plea as Exhibit 1, a neurological report by Associate Professor Warrick Brewer dated 11 February 2017, as Exhibit 2, an undated document headed “Clear Thinking Medical Health Group” setting out consultations had with you by a Ms Holding, mental health nurse practitioner between 27 August 2018 and 19 February 2019 as Exhibit 3. Finally, tendered as Exhibit 4 were the reports of Dr Adam Deacon, consultant psychiatrist, dated 31 January 2020 and 8 March 2020 respectively.
17 When consulting with Associate Professor Brewer together with your mother, you instructed him that your parents separated when you were about two years of age. After your parents’ separation, you lived with your mother. From the earliest time at school, you proved to be a problematic student in respect to your disruptive behaviour. You instructed Associate Professor Brewer that you repeated Grade 3, however, your mother’s view was that you repeated Grade 1. You required remedial one-on-one support during Years 7 and 8 and in Year 8, your final year at school, you were suspended and then expelled. After leaving school, you attempted VCAL but did not complete this form of study. There is a suggestion that you attempted Year 10 at Ballarat Secondary College but experienced academic difficulties there and exhibited your continuing delinquent behaviour as well as signs of anxiety, depression and low self-esteem. You worked at bricklaying for approximately 18 months but were sacked because of difficulties with your co-workers. Overlaid against this background, is that you left home at the age of 14 or 15 years to live with friends. You began using methylamphetamine at the age of 18 years and have experienced withdrawal psychosis which included auditory hallucinations which caused you to be treated as an outpatient with Ballarat Psychiatric Services. Your longest relationship lasted approximately six months when you were approximately 18 years of age and your girlfriend broke off the relationship.
18 Upon testing in 2016, you had a full scale IQ of 75. During testing you were unable to regulate your mood. You appear to have been diagnosed with oppositional defiant disorder at the Royal Children’s Hospital in 2000, when you were aged approximately seven years. In addition, you have been diagnosed with Autism Spectrum Disorder and experienced further episodes of drug-induced psychosis in 2014 according to the records of the Peninsular Mental Health.
19 Associate Professor Brewer opined that your overall intellectual ability falls within the borderline range and accordingly you remain ineligible for Disability Support Services based upon your intellectual function alone. Further, he was of the opinion that the results of your testing reflect a significant reduction from premorbid intelligence, being your intelligence prior to the impact of psychosis on your intellect, such psychosis resulting from your abuse of methylamphetamine. As at the time of your consultation with Associate Professor Brewer, you were suffering from a significant mental illness being schizophreniform disorder, that is developing schizophrenia, associated with cognitive and functional decline against a longstanding background of atypical Autism Spectrum Disorder.
20 Finally, Associate Professor Brewer opined:
“The cluster of mental status and cognitive difficulties detailed above leave Mr. Wright disinhibited, and further, they limit his ability to mindfully consider the longer-term impact of his behaviour (sic) on others, and for himself, or to allow his memory of previous offending and sanctions to successfully inhibit him following through on his impulses. More certainly, Mr. Wright is compromised in his ability to make calm reasoned decisions and appropriate judgements, and in his ability to control his emotions and actions.”
21 When consulting with Dr Adam Deacon, you informed him that you first consumed alcohol at about the age of 10 and regularly engaged in binge drinking between the ages of 13 and sixteen. Your alcohol consumption reduced markedly when you commenced to regularly use cannabis when you were aged approximately 16 years.
22 Dr Deacon in his first report opined that you have an established diagnosis of schizophrenia and Autism Spectrum Disorder. Although you were not formally psychiatrically assessed until you were a young adult, this diagnosis explains your complex behaviour and learning difficulties throughout your childhood. Your intellectual functioning is low-average and is marked by discrepancy between your verbal and performance sub-sets which is consistent with the diagnosis of Autism Spectrum Disorder and your underlying learning disabilities. Your psychotic illness was likely triggered by methylamphetamine use at the age of 18 or 19 against the background of prior cannabis misuse.
23 Dr Deacon formed the opinion that you appeared to have been prompted to offend when your attention was drawn to the physically attractive features of your victim. You seemed to have promptly developed cognitive distortions in the form of a belief that the victim wanted to be touched because she was attractive.
24 Finally, Dr Deacon opined:
“Mr Wright’s offending is repetitive in nature. His underlying ASD is possibly relevant to aspects of his offending behaviour, but it does not limit his capacity to understand the wrongfulness of his conduct.”
25 In his subsequent report of 8 March 2020, Dr Deacon when asked the question: “Whether there is a causal connection between Jessie’s psychiatric condition and his offending on the day of the incident”, opined:
“There is feasibly a causally [causal] connection between his Autism Spectrum Disorder and the offending on the day of the incident, not his Schizophrenia or Major Depression.”
26 Based on Dr Deacon’s reports there is insufficient evidentiary material to find a causal connection between your serious psychiatric illness and your offending. However, this finding does not preclude me from taking into account your serious psychiatric illness and the effects that it has upon you.
27 You are a youthful offender. You surrendered yourself to police immediately after the commission of the instant offence. You gave police an accurate account of your offending, save that you would not admit that you had sexually penetrated your victim. You entered your plea at the earliest possible opportunity. You are entitled to a substantial benefit for surrendering yourself to the police and you are entitled to the benefits that flow to you from your early plea of guilty, namely that it is has utilitarian benefit and is some evidence of your remorse. However, your previous offending, when combined with your psychiatric illness, in my opinion, makes it likely that you will offend again in the future in a similar way to the instant offence and calls for the full effect of the serious sex offender provisions of the Sentencing Act 1991 to be applied to you in order to protect the community. The proper application of this sentencing principle will not result in a disproportionate sentence.
28 Your offending is a serious example of offending of its kind. Although there was limited premeditation prior to your offending, you had walked away from your victim and then decided to offend against her. You pursued her in broad daylight in a public place and raped her.
29 You suffer from a serious psychiatric illness. In your case general deterrence must be sensibly moderated. It appears that you have limited impulse control and limited insight into your psychiatric illness despite it being appropriately treated with antipsychotic medication. Accordingly, specific deterrence must also be moderated in your case. However, the community must be protected from you. In addition, your conduct must be publicly denounced and justly punished.
30 My interpretation of the Standard Sentence legislation is that I am required to identify fully the facts, matters and circumstances which bear upon the judgement which I have reached as to an appropriate sentence in your circumstances. I have endeavoured to this in the reasons set out above.
31 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you and your offending, I sentence you to 8 years’ imprisonment and I fix the period of 6 years’ imprisonment as the period that you must serve before you will become eligible for parole.
32 In respect to the related summary offence you are convicted and sentenced to 1 months’ imprisonment
33 I declare that you have spent 434 days by way of pre‑sentence detention, not including today.
34 I direct that it be entered in the records of the Court that you were sentenced as a serious sexual offender in respect to Charge 1.
35 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 10 years’ imprisonment with a non-parole period of 8 years’ imprisonment.
36 In respect to the application that you be ordered to comply with the reporting obligations of the Sex Offender Registration Act 2004, you are “serious sex offender” as defined by s.8(3) of the Act. Charge 1, rape, is a Class 3 offence under the Act. Should a sex offender registration order be made for the purpose of calculation of the reporting period, your offence is to be treated as a Class 1 offence pursuant to s.34(4) of the Act and the registration period is for life. Having had regard to your prior criminal history and in particular the factual basis for your previous sexual offending as set out in the Annexures attached to the summary of prosecution opening upon plea, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons. Accordingly, I direct that you are subject to the provisions of the Sex Offender Registration Act 2004 for life.
37 What will take place now, Mr Wright, is that my associate will bring to you documents that notify you of your obligations under the Act, you are asked to sign it. That is merely acknowledging receipt of the documents. Once it is signed, a copy will be made and provided to you to go into your personal property within the prison so that you have that document as part of your records. So if that could be done please? Mr Lavery, if you wish to assist your client in that respect, you may leave the Bar table.
38 MR LAVERY: Thank you, Your Honour.
39 HIS HONOUR: Once again, I remind members of the press that the provisions of the Judicial Proceedings Report Act 1958 and its constraints upon you.
40 Are there any other matters arising out of the sentence?
41 MS PIGGOTT: No, Your Honour.
42 MR LAVERY: No, Your Honour.
43 HIS HONOUR: I would like to thank counsel for their assistance in the matter. Would you remove the prisoner please?
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