DPP v FORBES [2017] VCC 1705

1 January 2013 ("the first incident") against the victim, who is your former partner and the mother of your then young daughter. The convictions on Charges 6, 7, 9, 11 and 12 relate to conduct against the same victim on 1 July 2013 ("the second incident").

4 The circumstances of your offending were set out in the summary of prosecution opening at trial and I sentence you on the basis of the relevant facts set out in that document concerning the charges upon which you were convicted. I summarise them here briefly.

5 You were born in 1984, met the victim in 2009 and starting living with her some time thereafter. Your daughter was born in early 2011.

6 On 31 December 2012, you attended a New Year's Eve party with the victim. You both returned home at around 2 am the next morning. The victim was intoxicated and required your help up the stairs. At the top of the stairs, you were arguing with her about her contact with a male at the party. You began to yell and scream. The victim was on the floor. You then punched and kicked her to the right leg, stomach and rib, while she attempted to crawl away from you and yell for help. You then kicked her to the head, causing her to fall down the stairs and lose consciousness. This conduct is the subject of Charge 1, intentionally cause injury. When the victim woke the next day in bed, you told her that she had fallen down the stairs as she was drunk and that you had helped her upstairs to bed.

7 The victim suffered a terrible headache and was taken that day by her mother to a hospital emergency department, where she was diagnosed with concussion, but sent home after being told that the danger period was over. The following day, the victim still had symptoms and was taken back to hospital by her mother, but left without seeing a doctor after waiting for a considerable period.

8 In early 2013, the victim left you and moved with your daughter to another address. You shared parenting of the child and therefore maintained contact with the victim.

9 On 1 July 2013, a special celebration day for the victim, the victim invited you over to her home for a drink. Your two year old daughter was sleeping in a bedroom in the premises. You and the victim drank a small amount of alcohol. While sitting on the couch with the victim, you suggested having sex and she stood up and refused. You then grabbed her around the neck with your forearm, choking her. This conduct is the subject of Charge 6, common law assault. You then pushed her head down onto the couch, preventing her from moving. You pulled down her track pants and penetrated her anus with your penis, while she was pleading with you to stop. This conduct is the subject of Charge 7, rape.

10 The victim then told you she needed to go to the toilet. You allowed her to stand up and she ran to the bathroom, trying to close the door behind her. You followed her and forced the door open, grabbed her by the arms, dragged her into the bathroom, put your forearm around her neck and squeezed to the point where the victim lost consciousness. This is the subject of Charge 9, intentionally cause injury. When the victim regained consciousness, she was lying on the bathroom floor, naked from the waist down and you were penetrating her vagina with your fingers. This is the subject of Charge 11, rape.

11 Your young daughter cried out from her bedroom and the victim pleaded to be allowed to settle her. You went with her to the bedroom. Once your daughter was asleep, you forced the victim to return to the lounge room, where you pushed her face down on to the floor. You then penetrated her anus with your penis. She pleaded with you to stop, but you continued until you ejaculated. This conduct is the subject of Charge 12, rape.

12 You moved interstate in March 2014, but the victim continued to have contact with you for the sake of your daughter.

13 At trial, the victim said that the day after the second incident, she rang your mother and told her what had happened. Your mother denied that this occurred. The victim also gave evidence that she reported your conduct in both the first and second incidents to her friend on the phone in early 2014. She also stated that she told her partner in late November 2014 in detail about your conduct in the second incident. Her partner gave evidence that he rang you some time after that disclosure and put to you that you raped and assaulted her on 1 July 2013. His evidence was that you replied: "I'll never do it again. I told her I'd never do it again. I was sick then."

14 The victim reported the matters to police on 31 January 2015 and made

a statement on 5 February 2015. You were contacted interstate and indicated through your solicitor that you were unwilling to be interviewed in relation to the allegations. You were charged and the matter went to contested committal at Melbourne Magistrates Court on 19 September 2016. You were committed for trial and entered a plea of not guilty. You pleaded not guilty on arraignment. At trial, you denied committing any of the offences of which you were subsequently convicted. As mentioned above, on 12 May 2017 a jury found you guilty on Counts 1, 6, 7, 9, 11 and 12. By its verdict on these counts, the jury rejected your claim that the victim caused herself to fall down the stairs on the night of 31 December 2012/1 January 2013 and that on 1 July 2013 you had consensual sex after watching a movie on television with the victim, and was instead satisfied beyond reasonable doubt that you committed the offences, the subject of Counts 1, 6, 7, 9, 11 and 12. You were remanded in custody after verdict.

15 The plea commenced on 27 July 2017, but was adjourned at your request, so that a psychological assessment could be obtained. Not including today, you have spent 189 days in custody. Throughout the plea hearing and in your psychological and psychiatric assessments, you continued to maintain your denial of the conduct of which you were convicted.

16 On 27 July 2017, a victim impact statement dated 13 July 2017 was read to the court by the victim from a remote facility. The victim stated that she has been scarred for life by your offending. She suffers from post-traumatic stress disorder and is reminded daily of the offending. She also suffers ongoing neck and head problems which have affected her career. She found the experience of having to give evidence at trial very traumatic, humiliating and painful. Your offending has made it difficult for her to embrace trust and physical intimacy in her current relationship.

17 I note that you have a very limited criminal history, comprising of one charge of causing harm by dangerous driving, for which you were sentenced by an interstate District Court in late 2008 to two years' imprisonment, wholly suspended for two years, a bond of $500 and cancellation of your driver's licence for ten years. There are no subsequent matters.

18 Your personal circumstances were set out in the material tendered by your counsel, which I have read in full.

19 You are 33 years old and were 28 years old at the time of offending. You lived overseas from ages 7 to 13. You were sexually abused by a friend's father between the ages of 9 and 11. At the age of 13, you moved interstate for around a year, then moved to another State. Your parents had a difficult separation when you were 14 years old. You lived with your mother for a year or two, but did not get on with her new partner and moved away. You lived with your father for about two years until the age of 17, but he moved overseas and left you to fend for yourself. You moved senior schools a number of times and attempted Year 11 twice, but left school after breaking up with your girlfriend. Your work history is a chequered one, as the longest job you have ever held was for a year in a café. You have worked in various jobs in hospitality, in factories, in nightclubs, in cleaning and labouring and as a personal trainer. Your employment has always been compromised by your mood swings, with periods of elevated mood and periods of low mood.

20 Your mental health history can be briefly summarised. You were involved in

a serious motorcycle accident at the age of 22, in which your friend and passenger suffered permanent brain damage. You suffered guilt and shame, were rejected by most of your friends, quit your jobs, moved back with your mother and began drinking heavily. You were on anti-depressants between the ages of 16 to 24, with little benefit.

21 You were first diagnosed with bipolar disorder in August 2014. You were treated with lithium for about nine months in 2014 with some reported benefit, but then opted instead for a non-pharmaceutical treatment, namely a vitamin and mineral formula.

22 The material tendered on your behalf includes a report from forensic psychologist, David Ball, dated 25 July 2017; a report from psychiatrist,

Dr Nicholas Owens, dated 3 October 2017; and letters to your general practitioner from Dr Will Liaw, a psychiatrist who treated you in 2014 and 2015 and who saw you again in early 2017.

23 Dr Liaw saw you in August 2014, diagnosed you with bipolar disorder and placed you on lithium. Within two weeks, you told him your mental state had improved considerably. However, you discontinued this medication and ceased regular contact with Dr Liaw by August 2015. When he saw you again in February this year, Dr Liaw reported that you had experienced relapse of fluctuating mood states, but that "curiously, he had not experienced any manic symptoms or significant pervasive depression in the last eight months". He noted that you wanted to consider non-pharmacological treatment options.

24 Your treating general practitioner, Dr Kylie Dodsworth, has diagnosed you with "pyroluria", a "biochemical imbalance" for which she has prescribed

a "supplement formulation of specific vitamins and minerals" which is made up through a compounding pharmacy. She noted in May 2017 that you felt this compound has "made a significant difference" with regard to your mood and behaviour. She did not state when this diagnosis was first made.

25 David Ball reported on 25 July 2017 that you "emphatically denied the offences". He diagnosed you with bipolar affective disorder. He also diagnosed "moderate stimulant, severe cannabis and alcohol use disorder, in early remission in

a controlled environment". He felt that you narrowly failed to fulfil the diagnostic criteria for personality disorder. In spite of what he described as your "frank mental illness", he considered that you were fully able to reason morally and to understand the difference between "responsible and illegal behaviour". He felt that there was a clear link between your mental illness and your substance abuse.

26 Dr Owens noted in his report of 3 October 2017, that you gave a history of swinging between high and depressed mood and that your condition improved after an initial period on lithium. Thereafter, you became depressed. Although the dose of lithium was adjusted, you ceased taking it. Your mood swings then recurred. You told him you drink alcohol regularly and have used methamphetamines and other drugs in the past year. You acknowledged that you probably need drug counselling and treatment.

27 You have had four long-term relationships, the last of which was with the victim. To Dr Owens, you denied committing the offences with which you were charged and insisted that the victim had fabricated them. You said that on 31 December 2012, you were experiencing low mood and had been out of work for some time and that on 1 July 2013, your mood was "really good". Dr Owens noted that on both occasions, you had been drinking alcohol. He reported that if you were suffering mania on 1 July 2013, this may have caused you to be disinhibited and may have impaired your ability to exercise appropriate judgment, but that "this is speculative, because he claims that he did not commit the offences".[2]

28 Dr Owens felt that there is a "significant possibility" that you have bipolar disorder, but that he was "not satisfied that this is the case". Given your current and recent mental state, he did not consider that you need mood stabilising treatment. He noted that there were "likely alternative explanations" for your mood instability since mid-adolescence, including the effects of drug and alcohol use and personality traits of emotional instability. He noted there were aspects of your past symptoms that are suggestive of traits of histrionic or emotionally unstable personality disorder.[3] He concluded that you meet the criteria for a diagnosis of alcohol dependence, currently abstinent in a protected environment. Dr Owens noted that "pyroluria" is not generally accepted as

a bona fide medical diagnosis, nor is he aware of any broadly accepted evidence that psychiatric symptoms or psychiatric disorders are caused by such a condition. He noted your belief that your mental state was more stable when you take the dietary supplements prescribed by Dr Dodsworth. He did not consider that your current mental health status would make imprisonment weigh more heavily on you than on a prisoner without a mental health condition.

29 There were personal references from your stepfather, two sisters and an uncle. Your stepfather indicated that he has known you since 1999 and that you needed mental health treatment at that time, but were resistant to it. He noted that you stayed with your mother and him in the second half of 2014, after your separation from the victim and that, at that time, you had a problem with alcohol and substance abuse. He encouraged you to seek mental health treatment and you did so. He considered that your offending was out of character and that you are a devoted and caring father.

30 Your sisters noted that you behaved unusually throughout your life, with highs and lows and that this behaviour was explained by your diagnosis of bipolar disorder. They stated that you are devoted to your young daughter and have been very distressed at not being able to see her.

31 Your uncle has known you all your life, is aware of your problems with mental health, drugs and alcohol, but has never seen you behave badly and believes that you are of basically good character. He has seen you with your daughter and considers that you are a devoted father.

32 Your counsel made a number of submissions on your behalf, which may be briefly summarised as follows: It was conceded that at the time of offending, you were not receiving any medical or psychological treatment. In light of

Dr Owens' report, it was conceded that any Verdins[4] link to your offending is tenuous and speculative. However, my attention was drawn to Dr Owens' comment at paragraph 80 of his report in which you told him that, on 1 July 2013, you were in an "elevated phase of mood". Dr Owens noted that if you were suffering from mania at that time, then this condition may have caused you to be disinhibited and may have impaired your ability to exercise reasonable judgment. For this reason, your counsel did not abandon his reliance on the first principle of Verdins.

33 Your counsel also noted your unsettled adolescent years, interruptions to schooling and your erratic work history, which has been affected by your ongoing mood swings. He noted that the motorcycle accident, which led to your only prior conviction, is of limited relevance to your current offending.

34 It was submitted that your prospects for rehabilitation are favourable, because you do not have any psycho-sexual disorder, have committed no prior offences, have no matters outstanding and have family support interstate. In addition, you have a record of employment and have been working as a food billet whilst in prison, as well as undertaking available courses. Your counsel emphasised that this is your first time in custody and whilst acknowledging that orders for cumulation would be necessary, he submitted that these should be modest.

35 It was submitted by the Crown that each of the offences committed by you is

a serious example of that offence, each committed because you were trying to demonstrate your desire to control the victim. In particular, it was submitted that the rapes perpetrated by you lie in the upper half of seriousness for this kind of offence. In addition, by pleading not guilty and going to trial, you showed no remorse. Since being convicted, you have continued to maintain your innocence. It was submitted that this speaks to the absence of remorse, but also casts a shadow over your prospects of rehabilitation. It was conceded that the absence of relevant prior convictions, along with the absence of subsequent matters, are factors in your favour. The prosecution submitted that the third rape was the most serious of the rapes, because it was the last in a sustained episode of violence and sexual violence and was anal rape involving ejaculation, which must have been particularly humiliating for the victim.

36 It was submitted that, in the light of your denial of the offending, it is not possible for Verdins principles to be applied. In any event, it was submitted on the evidence, particularly the opinion of Dr Owens, that I ought not be satisfied, on the balance of probabilities, that at the time of offending, you had a mental condition which impacted on the offending, nor that you now suffer from bipolar disorder. It was submitted that pyroluria is not a recognised medical condition and the unavailability to you of the dietary supplements prescribed by

Dr Dodsworth, cannot found a claim of hardship in prison.

37 I turn to the gravity of your offending. I consider that each of the offences committed by you was a serious example of that kind of offence. The conduct constituting the charge of intentionally cause injury on 31 December 2012 was a serious assault on a small woman, who should have been able to trust you, who was incapacitated by alcohol, in her own home. It occurred for reasons relating to your own jealous belief that she had been paying attention to other men in a bar earlier that evening. Kicking her to the head at the top of the stairs was inherently dangerous and indeed caused her to lose consciousness and to suffer concussion.

38 The common law assault you committed on 1 July 2013 involved choking of the victim that did not result in concussion or unconsciousness. However, your conduct caused her fear and distress and the risk of serious harm and was perpetrated with the aim of enabling you to carry out the rape which followed.

39 I consider that for the following reasons, the three rapes committed by you on 1 July 2013 are serious examples of the offence of rape. You had been invited by the victim to her place because of your ongoing connection as parents. Your young daughter was in the home at the time. You took advantage of the situation, using your greater strength to overpower the victim twice for the purpose of committing two of the three rapes. Two of the rapes (the first and third, Charges 7 and 12) were anal rapes and were likely to be very degrading and humiliating for the victim. The second rape was accompanied by serious personal violence, after you had pursued the victim, who had attempted to flee to the bathroom and choked her to the point of unconsciousness. Your offending continued, even after a pause, while you accompanied the victim to your daughter's bedroom, so that she could comfort your crying daughter.

40 In relation to the first and second rapes, which were preceded by violence on your part, I am mindful of the need to avoid doubly punishing you for the personal violence committed by you on two occasions before raping the victim. However, each of Charges 6 and 9 relates to conduct which is separate from, and precedes, the rapes which followed. I consider that this personal violence increases your culpability in relation to two of the rapes (Charges 7 and 11), as it demonstrated a high level of determination on your part to commit the rapes and the conduct would have increased the victim's sense of fear and hopelessness.

41 The third rape was the second anal rape, one which involved ejaculation by you. It was therefore likely to have been particularly distressing and humiliating for the victim, coming after a protracted course of terrifying conduct on your part. I consider that the repetition of the rapes aggravates the seriousness of this offending in its totality.

42 The recent psychiatric evidence is to the effect that whilst you were diagnosed with bipolar disorder in August 2014 and treated for it for 12 months or so, your mental health status after ceasing medication was such as to cast doubt on the accuracy of the diagnosis and to raise the alternative possibility, according to Dr Owens, that since adolescence, you have suffered from an unstable personality disorder. In any event, I accept his opinion that you do not currently attract a diagnosis of bipolar disorder.

43 In relation to whether you suffered from this condition at the time of offending,

I note the relevant sections of Dr Owens' report referred to, at paragraph 26 above and I consider that there is no medical evidence before me capable of supporting a conclusion that you suffered from bipolar disorder at the time of offending. I also accept Dr Owens' opinion that pyroluria is not a recognised medical condition which causes psychiatric symptoms or disorders. For these reasons, I consider that Verdins principles have no application.

44 Given your plea of not guilty to these charges and your continued denial of responsibility for the charges of which you were convicted, it is clear that there is no remorse on your part for your offending. Your offending has had

a dramatic and long-term impact on the victim, traumatising her and affecting her ability to trust others and engage in relationships. In addition, your plea of not guilty meant that the victim had to endure a trial, in which she was obliged to re-live, in front of strangers, the traumatic experiences to which you subjected her.

45 General and specific deterrence, denunciation and just punishment are the principle sentencing considerations in your case. In relation to Charge 12, to which the serious offender provisions of Part 2A of the Sentencing Act[5] apply, protection of the community is the paramount consideration.[6] In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. However, the prosecution do not seek

a disproportionate sentence and I indicate that I do not intend to impose one.

I note also the presumption of cumulation in respect of Charge 12, for which you are being sentenced as a serious sex offender. I recognise, however, that the principle of totality continues to apply, alongside the serious offender sentencing regime and I have considered the need for today's sentence to reflect the totality of your offending.

46 Also relevant are the absence of prior convictions and subsequent relevant convictions or matters and your prospects of rehabilitation. I consider that your prospects of rehabilitation are difficult to assess. On the one hand, you have committed no similar offences before or since and have no diagnosis of

a psycho-sexual condition. You have a supportive mother and stepfather, sisters and uncle. On the other hand, you continue to deny this offending, which occurred against the mother of the child you claim to adore. On balance,

I consider that your prospects of rehabilitation are guarded. I give appropriate weight to the submissions made by your counsel and the absence of prior convictions or subsequent matters.

47 In relation to cumulation and concurrency, the prosecution submitted that there should be substantial cumulation between the two sets of incidents, which occurred six months apart. In addition, it was submitted that there should be some cumulation between sentences relating to the counts involved in the second incident, as the conduct on 1 July 2013 was sustained and involved multiple acts of sexual violence. It was conceded, however, that the degree of cumulation overall must yield to the principle of totality. Your counsel acknowledged that a modest degree of cumulation is warranted.

48 I acknowledge that Charges 6, 7, 9, 11 and 12 occurred as part of one course of conduct, but consider that appropriate weight must be given to the fact there were multiple acts of violence and sexual violence. Given your status on

Charge 12 as a serious sex offender, s 6E of the Sentencing Act[7] requires that there be full cumulation on any uncompleted sentence, unless the court "otherwise directs". The principle of totality must also be given appropriate weight. In the circumstances of this case, I propose to direct partial cumulation, which is otherwise than the primary position mandated by s 6E of the Sentencing Act. [8]

50 On Charge 1, intentionally cause injury (between 31 December 2012 and

1 January 2013), you are convicted and sentenced to 12 months' imprisonment.

51 On Charge 6, common law assault (1 July 2013), you are convicted and sentenced to six months' imprisonment.

52 On Charge 7, rape, you are convicted and sentenced to seven years' imprisonment.

53 On charge 9, intentionally cause injury (1 July 2013), you are convicted and sentenced to two years' imprisonment.

54 On Charge 11, rape, you are convicted and sentenced to seven years' imprisonment.

55 On Charge 12, rape, you are convicted and sentenced to seven years' imprisonment.

57 I order that three months of the sentence on Charge 1, one month of the sentence on Charge 6, six months of the sentence on Charge 9, 18 months of the sentence on Charge 7, and 18 months of the sentence on Charge 11, be served cumulatively upon the sentence on Charge 12. The total effective sentence is therefore one of ten years and ten months' imprisonment. I impose a non-parole period of seven years and three months' imprisonment.

58 I declare that you have served 189 days of pre-sentence detention, which is to be deducted administratively from your sentence.

59 The prosecution has also sought an order, pursuant to s.464ZF of the Crimes Act[9] in relation to the taking of a forensic sample and you do not oppose that order being made, as I understand it from your counsel. I make that order because, having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.

60 In making this order, I need to inform you, Mr Forbes, that I am signing an order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample, until a sample of sufficient standard is obtained for the placement on the database. I advise you that, if at the time of the request for such a sample is made, you do not consent to the taking of

a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?

62 HER HONOUR: All right. Are there any matters arising from my calculations?

66 HER HONOUR: No, all right. In that case, I will sign the order. You might wish to approach Mr Forbes, so I will adjourn now and if you need to have a chat with him, you can.

68 HER HONOUR: All right, thank you, we will adjourn.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269

[6] Sentencing Act 1991 (Vic) s 6D(a)