R v Lowe No. DCCRM-00-486

[2001] SADC 10

R v BARRY DEXTER LOWE
[2001] SADC 10

Judge Lunn
Criminal

REASONS FOR SENTENCE

1. On 24 January 2001 Lowe was found guilty by a jury of one count of indecent assault and two counts of rape.

2. The victim on each count was a 19 year old, somewhat immature woman.  She lived in a home unit with her mother.  The mother befriended Lowe, who was socially withdrawn and who had a speech impediment, through a church which they both attended.  Lowe assisted the mother by mowing her lawn, doing gardening work and other odd jobs.  The mother provided him with meals.  Through the association with her mother the victim came to know Lowe, but they were never more than acquaintances.  In early 2000 the mother went to Canberra for several months and left the victim living alone in her unit.

3. On the evening of 3 March 2000 Lowe left a message on the telephone answering machine of the victim asking her to ring him.  Shortly before 9pm she rang him back.  He inquired whether she had anyone else at the unit.  When she replied that she was there alone he asked if he could come over and visit her.  She agreed.  Earlier that evening Lowe had been watching pornographic videos and had been drinking heavily.  Although he denied it, I am satisfied that his purpose in visiting the victim that evening was to endeavour to have a sexual relationship with her.

4. The victim let Lowe into the unit because she trusted him as a friend of her mothers and she had no inkling of his sexual purpose.  She, to the knowledge of Lowe, was in a relationship with another man at the time.  She did not at any time consent to sexual activity with Lowe or lead him to believe that she might consent to it.

5. While the victim was making coffee for them both in the kitchen Lowe grabbed her from behind, fondled her breasts and put his hand under her skirt and onto her underpants near her vagina.  This was the indecent assault in count 1.

6. Soon after in the lounge Lowe sat on the victim while she was in a lounge chair, put his hands up her skirt and tried to pull off her underpants in the course of which he ripped them.  After an ensuing struggle, in which the victim was yelling for help and Lowe was continuing to pull down her underpants, they finished up on the floor with Lowe on top of her.  In the course of this encounter Lowe placed his finger into her vagina on several occasions.  This was the digital rape which was count 2.

7. In an effort to escape from Lowe the victim suggested that they went into the bedroom.  He then picked her up, carried her into the bedroom, placed her on the bed and got on top of her.  He restrained her on the bed for some considerable time and engaged in various sexual activities with her including again placing his finger into her vagina.  This is the digital rape which was the subject of count 3.  Eventually he voluntarily desisted and left the unit.

8. As a result of her struggles with Lowe the victim had a number of minor abrasions and scratches on various parts of her body.  The Victim Impact Statement discloses that although she only suffered minor physical injuries from the offences she was mentally and emotionally traumatised by them and her enjoyment of life was substantially disrupted.  She had major consequential problems in subsequent relationships with men and with her mother and progress in her education was substantially delayed.  The stress involved has affected her general health and she has been depressed.  The offences have also had a significant detrimental effect on the victim’s mother.

9. Lowe is 47 years of age.  He is unemployed and has been on a disability pension due to a back injury.  He is single and lives alone.  He has always had extreme difficulties in having normal relations with females.

10. In 1984 Lowe was convicted of both rape and attempted rape and was imprisoned for 4 years with a 2 year non parole period.  In 1987 he was sentenced to 9 months imprisonment for indecent assault while he was on parole.  Those offences were broadly similar to this matter in that Lowe made sexual advances to women who he knew, one being a neighbour and the other his house cleaner.  He has no other criminal record.

11. I have a psychological report dated 12 February 2001 from Dr White whose contents I have taken into account.  It discloses that Lowe is a person of low average intelligence with an extremely emotionally unstable personality although he is not aggressive by nature.  He has had an extremely dysfunctional sexual development history and has a distorted view of sexuality.  He has a history of past mental health problems and of abuse of alcohol.  Dr While found him to be a person with highly significant psychological problems that related closely to his sexuality problems.  He considered that Lowe would benefit from treatment to assist him understand his sexual dysfunction, but without that treatment there would be a high risk of him continuing his sexual offending.

12. Lowe has some support from his family and from a Church which he has been recently attending.  A letter from the pastor of that Church indicates that they think well of him and will continue to support him.

13. As the rapes were digital the penalty should be less than for penile rapes in similar circumstances:  R v Barraclough (1987) 144 LSJS 330.

14. Although the rapes did not involve major violence or the use of weapons, Lowe was only able to perpetrate them because he abused the trust which had been placed in him as a friend by the victim’s mother and the victim.  In view of Lowe’s previous history of similar offending, albeit many years ago, there must be substantial elements in the sentence of both personal and general deterrence.  While hopefully suitable treatment can reduce the risk of re-offending, there still needs to be a substantial message of personal deterrence in the sentence imposed.

15. There will be a single sentence under s18a of the Sentencing Act on all 3 counts that Lowe be imprisoned for 5½ years with a non parole period fixed at 3 years. Both the sentence and the non parole period are to run from 24 January 2001 when he was taken into custody after his convictions. Hopefully, a long period on parole will assist in his treatment and rehabilitation.

16. There will be an order under s30 of the Criminal Law (Forensic Procedures) Act 1998 authorising the taking of material for the purposes of obtaining a DNA profile from Lowe. He did not oppose this order being made. If he does not voluntarily submit to the necessary procedure to enable the material to be taken there is liberty to the DPP to apply for consequential orders under s30(3) of the Act.