R v Netherwood
[2020] VCC 415
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL NETHERWOOD |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 February – 18 February 2020 (Trial) 20 February 2020 (Mention) 13 March 2020 (Plea) 7 April 2020 (Further Plea) |
DATE OF SENTENCE: | 8 April 2020 |
| CASE MAY BE CITED AS: | R v Netherwood |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 415 |
REASONS FOR SENTENCE
---CRIMINAL LAW – SENTENCE – Attempted rape – Statutory alternative – Young offender – Short burst of offending – No premeditation – Notable victim impact – Good prospects of rehabilitation – Anxiety – Depression – Effect of drugs and lost future opportunities – Custodial sentence for other offending – Effect of adult custody on a young offender – COVID-19 considerations – Low risk of sexual reoffending – No prior convictions – Community interest in rehabilitating young offenders – Azzopardi v The Queen (2011) 35 VR 43 – Boulton v The Queen (2014) 46 VR 308 applied – Crimes Act 1958 – Sentencing Act 1991– 2 year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. O'Doherty | Ms A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr A. Marshall | Mario Vaccaro |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses
HIS HONOUR:
1Mr Netherwood, after a short trial in Wodonga you were found guilty of one charge of attempted rape, maximum penalty 20 years' imprisonment. You were acquitted of three charges of rape. The circumstances of the offending emerged in the course of the trial I incorporate by reference what was set out in the Crown opening which was filed before the trial.[1] You and your friend, your co-accused, Mr Walsh[2] had attended at the house of the complainant effectively your own invitation, a Ms Noise[3] who was a friend of the complainant was also over there. The complainant had a young baby.
[1] Exhibit A.
[2]R v Walsh [2020] VCC 394
[3] A pseudonym
2The two of you invited yourselves over to have a cigarette. When the two of you arrived you both went out the backyard with Ms Noise and then had a smoke. At one stage it was put that you came back into the house and it is then that the complainant alleged that you digitally raped her in the kitchen on two occasions. You were found not guilty of those two charges and I must give you full credit for the acquittal on those two charges. The events that led to your conviction by the jury of the statutory alternative emerged on the basis that just shortly after.
3During that afternoon the four of you were back in the loungeroom. Ms Noise was on a mattress in the loungeroom playing with the 10 month old child. The complainant, you and Mr Walsh were sitting on the couch. It was contested as to whether you pushed the complainant onto the couch but her account was that the three of you were sitting on a two seater couch and she in the middle. This was described by a witness as ‘a sandwich.’[4] While the you and Mr Walsh your co-accused of you were on each side of the complainant, he held her arm and you then proceeded to put your hand down at the front of your pants and attempted to digitally penetrate her.
[4] Transcript (T) 75.1
4You were found not guilty of the charge of rape but you were found guilty of the attempted rape charge. She was attempting to resist you, struggling and then eventually she stood up. At that point you engaged in what was described by the victim as ‘dacking’ her which involved pulling her pants, including her underwear down to her ankles. The three of you at that point, apart from the complainant were effectively laughing and so the event itself had something of a joking nature, but it was deadly serious as far as the victim was concerned. After that event she pulled up her pants and just at that time another person arrived, a friend of theirs and he stayed for a short time. Everyone went outside except for the complainant and her friend for another cigarette and then they left.
5The victim then effectively complained to Ms Noise for failing to stop you and Mr Walsh doing what you were doing and then she went over to her mother's place, told her mother and then made further complaints to other people and eventually to the police. You were arrested and interviewed about six or eight weeks later and you purported to deny knowing anything about it, said you could not remember the events and finally certainly denied any sexual conduct on the night, on that afternoon but late in the interview you admitted that you did dack her but denied anything else. Subsequently both you and Mr Walsh were charged with rape. With Mr Walsh, there was a committal and you were pleading not guilty so there was a hand-up brief of Mr Marshall as your counsel put.
6Mr Walsh was pleading not guilty and it took a while for his to resolve his case. He eventually pleaded guilty to a charge of sexual assault and that delayed your matter being brought on for trial as the delay was caused as Mr Walsh sought to negotiate a resolution of his matter. So, finally, after he resolved his matter and that stalled the hearing of your case, in about November of last year and so then the matter finally came on for hearing in the circuit that took place in February of this year in Wodonga.
The seriousness of the offence.
7Rape is a serious offence and so is attempted rape, both of offences carry very serious penalties. Attempted rape carries a 20-year maximum penalty. Your counsel, Mr Marshall, put in a comprehensive plea that this was effectively a very short period of offending of almost youthful exuberance involving Mr Walsh and there was nothing premeditated or planned. The complainant indicated in re-examination that there was ‘mucking around’ and the event might have only taken 4 or 5 seconds.
8So, your counsel submitted to me and I accept that this was immature behaviour in a group situation and that is supported by the report of the psychologist who examined you and Mr Walsh. She said that effectively that both of you were immature and that is what led to this event.
Victim Impact
9In assessing the seriousness of the offending, I must also take into account the victim impact statement.[5] The victim in this matter put in a victim impact statement which indicates that she has suffered significantly as a result of this offending. What has happened has affected her and it has affected her in a form that changed her life completely. She feels more depressed, she does not want to go out. She feels cannot do anything with her life, feels dead inside and she puts is, ‘people cannot really understand what she is going through’ and she has lost some important friendships.
[5] Exhibit C.
10She is still suffering the sequalae of these events. She is crying. Her anxiety has got greater. So, you can see, and I must take into account that this offending, this offence by you has had a significant impact on her. This goes to the seriousness of the offence.
Offender’s Personal Circumstances
11You are now just turned 21. You were 18 and a half at the time of this offending. You come before the court with no prior convictions. A major matter in the plea was that if this matter had not been dealt with a lot earlier, you would have been able to be dealt with in the Youth Justice Centre regime as a person under 21 and you cannot now because you are now over 21. So, you have lost that opportunity to be dealt with in a rehabilitative environment.
12Mr Marshall put that you are a young offender, you are aged, as I said, 21. He also put your life circumstances which I incorporate by reference, in his plea outline[6] and also in the report of the psychologist which he tendered in evidence.[7] Your mother has been in Court supporting you for the whole time and she is here on the video link listening. You have been brought up by her as a single mother with no male figure, no father figure, he is over in Western Australia and he has nothing to do with your life.
[6] Exhibits 1 & 2.
[7] Exhibit 11.
13So, it has been difficult for her to bring you up as a single mother out in Tallangatta, a small town, 60 or so kilometres from the centre of Wodonga. You had your moments with your mother and that led to you and her having family therapy and being referred to a psychologist, Ms Horner, in May 2016 when you were 17 and a half. So, six months or so or 12 months before this offending. So, she had some sessions with you there which sort of settled things out. At that point you were probably still at school and I note a very good report from the teacher at Tallangatta High School where you successfully completed your VCE.
14So, your mother's done the best she can to try to lead you into adulthood but obviously that has got its limitations because she is the only one there trying to help you out. Since you left Tallangatta High School your aim was to join the army and of course that has been blown by this event and by you moving into Wodonga and then getting involved in the drug scene with criminogenic peers. As a result of that you got picked up in Albury for the use of a knife and possession of drugs and had a Community Corrections Order imposed on you.
15It was in that context you were using in polydrug use and you ended up going to the Gateway Health and having a number of sessions with them to address those drug problems and I have got a number of reports from that, that you had a number of counselling sessions from June 2018. [8]
[8] Exhibit 4.
16You also have had long term anxiety and depression and it got to the stage in January 2018 that you were sent, that you saw a psychiatrist on a couple of occasions and you also started some drug and alcohol counselling at the Gateway Health. So, with the assistance of your mother you have, attempted to, over the period up until now to address the problems that you have had. The issue of this longstanding depression, trying to address the drug problems, and your mental health problems. You also fell into bad company.
17You actually, during the period from about middle of last year until Australia Day or so this year, worked on a dairy farm saving up to buy a car and of course that then fell away when you entered a multidrug using Xanax and alcohol problem. You engaged in some event involving a firearm which led to you being arrested in late January. You were held in custody for those matters at the time of this trial. The trial that took place in February of this year on the circuit.
18So, the result of all this is that at the present moment, you are serving a four-month sentence imposed by the learned Magistrate Dunn in March of this year and you will complete that sentence on 30 May 2020. Mr Marshall your counsel put to me that you are an immature young man in an adult gaol there at Ravenhall and that has been a big wakeup call. There has been an incident where you have been assaulted by a prisoner and so you have really come into the big time very quickly and it is impacting on your mental health and it is also impacting on your mother who is a long way away and it is difficult for her to try and give you support, (a), because of the distance and, (b), because now the authorities have stopped visits as a result of the COVID-19 pandemic.
19Mr Marshall and his instructing solicitor arranged for you to be examined by
Ms Crutchfield a psychologist. In a comprehensive report she indicates that you were at low risk of sexual reoffending. She indicates that you are a relatively immature young man and explains that that is really at the heart of this offending, that it is here, it is offending in the presence of peers where one leads the other on and you were immature at the time and that leads to a reduction effectively in your moral culpability, that you really were unable to understand the position you were in with Mr Walsh and then suddenly it escalated to this attempt.
Sentencing issues.
20First of all, Mr O'Doherty put to me that this is serious offending and he demanded a gaol sentence for you. Mr Marshall put that this, because of your youth, your relative youth, your first offender status and your immaturity then factors of rehabilitation should be given the most prominence notwithstanding the seriousness of the offending and he reminded me of the comment in Boulton[9] to that effect:
‘It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment ... The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[10]’
[9]Boulton v The Queen (2014) 46 VR 308
[10] Ibid [131]
21He also took me to the case of Azzopardi where the Court of Appeal has emphasised that it is in the community interest in relation to the youthful offenders that they be rehabilitated and that Courts should focus on rehabilitation rather than on considerations of general deterrence if at all possible.[11]
[11]Azzopardi v The Queen (2011) 35 VR 43
22Mr Marshall emphasised that because of the passage of time, you lost the opportunity for a Youth Justice disposition and so now you are in the adult prison system serving this current term of imprisonment which is a salutary experience. The psychologist who examined you indicates too that it has been a salutary experience for you. In her report she says that you were immature and noted that your brain was still developing. You now understand the significant repercussions of your behaviour. You have not being able to join the army and this has resulted you in using drugs which in her report Ms Crutchfield has noted 'has had devastating consequences on his life and indeed on his developing brain.[12]’
[12] Above n7, p. 6.
23She notes you have the support of your mother and she says with appropriate therapeutic supports, it is likely to further decrease any form of offence behaviours. She puts you down as having a low risk of further sexual offending. In her report which I have considered, she reminds the Court about the immaturity of young men and that is really a crucial factor in giving rise to the offending and what attempting to craft a disposition that will encourage your rehabilitation.
24So, notwithstanding the submissions by Mr O'Doherty and recognising that I have got to resolve a number of competing issues of general deterrence, specific deterrence, punishment, rehabilitation and denunciation, I regard it as appropriate to accord you leniency as a first offender and to focus on the interests of the community in your rehabilitation. This was a case where the offending was in a sense a spur of the moment lack of premeditation event. It went too far and now you find yourself, not for this offending, but for other offending, in an adult prison having a hard time of it.
Sentence
25So, this is really a case where the community interests, the focus should be on your rehabilitation in the long run and so for that reason I am going to convict you and impose a two-year Community Corrections Order on you to commence when you are released from prison. The order is going to be sent out. I am going to have some special terms on it, that you will undertake 150 hours of community work, that you undertake treatment as directed for drug abuse and dependency and also for alcohol abuse and dependency as directed by the Director, mental health assessment as directed and offending programs which will be a sex offender program.
26I will allow any hours you do on any of those programs, to count against the 150 hours of community work. Now, that will be, the Community Corrections Order. Mr Marshall will have discussed it with you or I would ask you to further discuss it and explain it. Part of the order is that you are under effectively a good behaviour bond. If you commit a crime, within the term of the sentence, of the next two years until the end of May 2022 that is a breach of the Community Corrections Order and you will be brought back and resentenced for this original offending and the breach of the Community Corrections Order which carries a three-month gaol sentence on its own.
27In addition to that I want to keep an eye on you and so I am arranging for judicial monitoring. So, I want you to come back and I will direct that you give an account to me of how you are going on the Community Corrections Order. You can do that via video link from Wodonga. So, the first time I want to see you is going to be on 10 August 2020.
28The order requires that you turn up or ring the Wodonga Community Corrections people within two days of leaving prison and then they will induct you. I think they are still open for business but they will explain to you what is required.
29You have been on one in New South Wales so you will know what is required and when things get a bit more stable under the current virus regime, they will arrange for relevant programs for you to undertake.
30Now, you are required to sign that document and then have the prison send it back to me. I will sign it and then we will send it up to the registrar up in Wodonga and you can get a copy in prison. Your mother can request a copy in due course too.
31Any other matters, Mr O'Doherty?
32MR O'DOHERTY: No.
33HIS HONOUR: Mr Marshall?
34MR MARSHALL: No.
35HIS HONOUR: I have taken into account all the matters that Mr Marshall put in a comprehensive plea to me and you can regard yourself as lucky you have had a counsel like Mr Marshall who can marshal all these matters in this case.
36I thank Mr O'Doherty for his role in this and Mr Marshall we have just about wrapped up that circuit.
37MR MARSHALL: Yes.
38HIS HONOUR: I thank your mother for attending.
39So I will get you to sign that Community Corrections Order. The prison will send it back to me and I will adjourn the court sine die.
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