DPP v McInnes

4 You have admitted your prior criminal history. It spans a period from 9 February 2018 to 26 April 2019. There are no prior convictions or appearances in relation to sexual offending. You have had nine attendances in court in respect to predominantly offences involving dishonesty, driving offences and street offences, for which you have received fine and community based orders. When aged 19, you were ordered to be detained in a

Youth Training Centre in respect to various thefts and burglary and some driving offences. You have never previously been sentenced to a period of imprisonment in an adult custodial setting.

5 I will now sentence you on the basis of the summary of prosecution opening that has been filed with the court and dated 28 April 2020.

6 The offending concerns a single charge of rape and the victim, whom I will not name and whose details will be anonymised in the revised sentencing remarks, was aged 17 at the time of the offending.

7 You were a family friend of her boyfriend, who again I will not name and he will be anonymised. He was 16 years of age at the time this offence occurred. You had met both the boyfriend and the victim previously. They were acquaintances.

8 On the evening of 1 November 2018, you together with another friend had visited the home where the victim's boyfriend was living with his siblings and his mother. The victim was present at that time. There was a discussion and it was agreed that they would go with you to the beach at some stage later that night. You returned to those premises at about midnight and the boyfriend, his sister and the victim went with you in a vehicle to the beach. At about 1.15 am, you drove the group back to the home and at that time you invited the group to go back to your home, so that you could smoke cannabis. The boyfriend and the victim accepted, although the victim did not did not intend to smoke anything; she was just accompanying her boyfriend. The boyfriend's sister declined and went inside.

9 You then drove the victim and the boyfriend to your home where you lived with your parents. You arrived there at about 2 am and went into your bedroom.

10 You told both the victim and her boyfriend to be quiet. You and the boyfriend then smoked a bong while the victim sat on your bed. You then suggested to them that they should lay on the bed and watch television, which they did. The victim was between you and her boyfriend. You pulled a blanket over to cover all three of you. At the time the victim was wearing a denim skirt and a singlet.

11 You and the boyfriend then smoked another bong. You were then laying on the bed with your right side facing towards the victim. You put a hand on her left knee on bare skin. She moved her leg in an attempt to indicate to you that she wished for you to move your hand. You kept looking at the television and your hand remained on her knee for about three to four minutes. You then moved your hand up her leg to the top of her thigh and under her skirt for about one to two minutes. She tensed her thigh. You moved your hand back to her knee and continued not to look at her. She then grabbed her boyfriend's arm and put it behind her head in an effort to remind you that her boyfriend was present and that you should not be touching her. You then moved your hand quickly from knee under her skirt, along the thigh and touched the top of her leg next to her vagina. You then removed your hand from under her skirt and placed your hand down inside the top of her skirt and underwear. All the while you were continuing to watch the television. The victim looked at you angrily. She squeezed her partner's hand and put his arm between your two bodies.

12 At this stage you moved your hand down and touched her clitoris with your fingers. She clenched her vagina in an attempt to prevent you from moving your fingers and further into her vagina and elbowed her boyfriend to try to get his attention without causing a scene. She was afraid of how you would react if she attempted to leave. You then pushed your fingers hard through her, clenching into her vaginal canal. The victim did not consent to you touching her vagina.

13 The victim's boyfriend noticed some movement under the blanket and thought your arm must have been around the victim. He noticed the victim looked scared but was afraid to do anything. He got out of the bed and sat on the couch and smoked another bong.

14 At that time you leaned in close to the victim and whispered, 'Can you sneak out?' The victim's boyfriend then said he was going to be sick and asked to go home, to which you responded, 'Yeah in a second'. Your fingers were moving in and out of and around the victim's vagina and that went on for about three minutes.

15 The boyfriend again said he was going to be sick, at which stage you moved your fingers from the victim's vagina and that constitutes the facts of the charge of rape. The victim got out of the bed and then the three of you left and drove back to the home where they had been collected from.

16 The victim ran inside and told her boyfriend's mother what had happened. She left the victim and took her son into another room and asked him what happened and he confirmed what he had seen.

17 Police were contacted and advised about what had occurred. They attended and the victim was taken for a forensic medical examination, including a vaginal examination. Swabs were taken that were later subject to forensic analysis and that analysis revealed a match between your DNA profile and a male DNA profile obtained from the victim's vaginal swab.

18 You were arrested by the police at your home on 19 December 2018. You were formally interviewed but denied any offending. You said that you did not remember what you did on the night. Since then you had taken a lot of drugs, namely amphetamines and cannabis. You denied using amphetamines on the night and conceded you may have had a bong or two at a friend's house. You denied taking the victim or her boyfriend inside your home at any time.

19 Ultimately, you were charged by summons on 20 May 2019. The matter resolved on 25 October 2019, the date of a contested committal hearing. You indicated an intention to plead guilty prior to any witnesses being called to give evidence.

20 Mr McInnes, your offending is objectively serious. Whilst the offending was unsophisticated and opportunistic, once you took the victim into your bedroom and she was lying on your bed and you placed the blanket over her and started to touch her in a sexualised manner, you understood what you were doing and you persisted, notwithstanding you did not seek the consent of the victim to your acts. Whilst she did not overtly tell you to stop, she did try to get you to stop in the manner that has been previously described but you persisted notwithstanding the presence of her boyfriend.

21 The victim was particularly vulnerable, she was present in your bedroom in a strange house, in the early hours of the morning. She was also dependent upon you to be able to get home later that day. She was not that well acquainted with you, her boyfriend was under the influence of cannabis and was unwell and unable to come to her aid. There is a big age discrepancy as well. You were the older person in the situation, you were a lot older than her, aged 36 and in a situation of some power. You only ceased when her boyfriend insisted on going home because of him feeling unwell. You persisted with this offending and committed the offence without any due regard for the victim's personal rights. I do not accept that this is offending at the lower end of the scale of seriousness for this sort of offence. It is a serious example of this offence, in the lower end of the midrange of this type of offending.

22 In sentencing you, general deterrence, denunciation and just punishment are important considerations. Others who would engage in sexual activity without first seeking the consent of the other person must be deterred from such conduct. In view of the absence of any relevant prior criminal history in relation to sexual offending, as well as the assessment that you present moderate risk of future sexual offending, as assessed by Dr Dion Gee, psychologist, I accept that specific deterrence has a somewhat limited role to play in your sentence.

23 The impact of your offending has been great. The victim in her victim impact statement declared on 13 May 2020 confirms it has affected her relationship with her boyfriend. She is more aggressive and emotional, she now struggles catching a bus to and from school because of her fears of seeing you again. She has also modified what she wears and she reacts whenever she hears the name "Daniel".

24 It was obvious also from her behaviour when she returned home and spoke with the people at her boyfriend's home that she was very upset by what had occurred. I have taken the impact of the offending into account in formulating the appropriate sentence.

25 I must impose just punishment and I have had regard to the powerful mitigating features highlighted by Mr Van Arkadie, who appeared on your behalf.

26 You currently reside with your parents, Malcolm and Priya McInnes[2], at their home and have an excellent relationship with them. They were present during the plea hearings and are here today and are very supportive of you. They play a significant role in your day-to-day life. You experience a number of complex physical health issues and it is accepted by reason of your particular health issues that they will impact greatly upon your experience in custody.

27 From your birth through to age 19, you had no health issues of note. However, at age 19 during a period of youth detention, you were diagnosed with a condition, Idiopathic Thrombocytopenic Purpura (ITP), which is now known as Common Variable Immunodeficiency. It is a rare autoimmune disorder where a person's blood does not clot properly because the immune system destroys blood clotting platelets. Your spleen has been removed and as a result of having no spleen you require lifelong, daily administration of antibiotics to help fight infection.

28 Since the diagnosis you have been attended by medical health professionals who are responsible for ongoing treatment and management of your condition. You see a general practitioner, haematologist and immunologist. You have attended at a hospital Infusion Centre monthly to receive lifesaving immunoglobulin infusions. And over the course of the month as those infusions wear off you experience noticeable fatigue.

29 I have had regard to the contents of the letters provided by Dr Josh Chatelier (dated 25 September 2019) and Dr Julian Bosco (dated 25 March 2020) that confirm in comprehensive terms your medical history and ongoing treatment needs. It is noted that that material has already been provided to Corrections Victoria.

30 It is accepted by reason of your diagnosed conditions that you have an increased susceptibility to infections generally; infections from herpes simplex virus and bacterial infections.

31 Dr Bosco also confirms that you have bronchiectasis with moderately impaired lung function and that you suffer recurrent chest infections. You require lifelong antibiotic treatment, blood tests, regular chest physiotherapy and cardiovascular exercise along with three to six-monthly reviews. You are at risk of infection and that risk is higher than that of the general public. The frequency of the infections is reduced by your immunoglobulin treatment.

32 However, notwithstanding your regular medical care and strict adherence to treatment routine, you are still a person who suffers ill health. And over the course of 2019 you were admitted several times for hospital inpatient treatment for respiratory tract infections, eye infections, so that you could receive intravenous antibiotic treatment over and above your oral medication.

33 Your conditions have had a profound effect on your life and your activities for daily living as well as on your mental health.

34 It is accepted that as a consequence of any term of imprisonment being imposed that in addition to the uncertainty that surrounds the current COVID‑19 pandemic anxieties, you will suffer further risk, having regard to your particular frailties and susceptibilities to infections. It is accepted that your anxiety about your health generally will be exacerbated in those circumstances and I have taken that into account.

35 I have taken further into account the impacts of the COVID-19 pandemic, insofar as it does cause additional distress and concern for both prisoners and their families, as it is for every other member of the community. But in this case I have taken into account it is a greater source of anxiety for you because of your particular frailties.

36 Dr Bosco confirms that it is likely you would be more susceptible to respiratory complications should you contract COVID‑19. He says you should be encouraged to practice social distancing and hand hygiene where feasible. It is apparent that imprisonment will be a greater burden for you by reason of your precarious state of health. You will be highly vulnerable in custody. You present a higher risk of infection than that of the general public. Your experience in custody will likely be more burdensome than that of an ordinary prisoner and I have taken that into account.

37 I am satisfied having regard to the contents of the affidavit sworn by

Jennifer Ann Hosking of 8 May 2020 that the relevant authorities within Corrections Victoria have been appraised of your particular frailties and health needs and that there are clear plans in place to manage you from the time you are recepted into the prison. In the affidavit it is acknowledged that you will need regular immunoglobulin infusions and monitoring by the specialist units and in addition, there will be a splenic action plan and/or chronic health care plan developed for your ongoing monitoring of your condition and preventative health care whilst in prison.

38 Ms Hosking's affidavit sets out the steps which Corrections Victoria will take in order to ensure that you are properly treated in the prison system. All medications including prophylactic antibiotic therapy will be prescribed in accordance with your clinical needs and in accordance with legislative requirements and clinical guidelines.

39 In the event that the services cannot be provided at St Vincent's Public Hospital, permission can be sought for treatment to occur at another public health facility depending on the recommendations made by the prison general practitioner, your clinical needs and the need to ensure continuity of care is maintained.

40 Importantly, she states, health service delivery within the Victorian Corrections system is based on the principle of community equivalence whereby prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health system. To assist the authorities further copies of the information obtained from your specialist treating team, together with the affidavit that has been furnished with the court, will be provided to Corrections to facilitate your reception into the prison system in the safest manner possible.

41 I have had regard to your personal history and background. You have little by way of formal education. You completed Year 9 but left to pursue a trade. You started but did not complete a construction course and then you enrolled in a different course following completion of which you qualified to obtain employment in traffic control/management. You have some work experience in that field as well as working as a labourer for a bricklayer. However, because of your poor health attributable to your medical condition, you have been in receipt of a disability support pension since 2001.

42 You enjoy a loving relationship with your parents, who are committed and heavily involved in supporting you and providing you with care. Your mother has provided a letter to the court that says that you are incapable of living independently and she describes the high degree of need that you have due to your physical illness and she also describes the intimate role they play in ensuring that your care is appropriate. They are and remain very supportive of you.

43 Your mother states that the offending was out of character and she was shocked about it when she heard what had happened. You have expressed remorse to her.

44 You have an eight-year-old son with whom you have a close relationship. You have regularly had him in your care pursuant to an agreement with his mother and usually see him every second weekend from Friday afternoon to Sunday afternoon and then every second Tuesday after school for an overnight visit. It is accepted that you will be anxious about the impact of your incarceration upon your son.

45 Your parents will continue to maintain a relationship with him during your imprisonment.

46 Your childhood was somewhat unremarkable, however you did experience an occasion of sexual abuse by a family member at age 10, when you were raped, but no action was taken against the perpetrator. You mentioned this in your interview with police.

47 You experienced some behavioural problems at school and you were also seen by a child psychiatrist Dr Selwyn Leeks for about a year with no memory of what was discussed during the sessions or treatment administered.

48 You have had a chronic history of abuse of drugs from around the age of fifteen. You began smoking cannabis initially and that progressed to a daily habit by early adulthood. You also have used methamphetamines and other drugs. In part you use illicit drugs to make yourself feel better about your poor health but you acknowledge that it is an ineffective and harmful coping mechanism.

49 It was submitted that around the time of the offending you had been using methamphetamine and cannabis heavily and that you were not sleeping and had not slept for at least a day up until the point of the offending. You say you had little recollection of what occurred. In view of the deliberative acts that took place on the evening in question and what occurred in the early hours in your bedroom, I do not accept that you have no recollection. The evidence shows that you were consuming cannabis at around the time of the offending and whilst that may explain why you did and why what happened happened, it in no way excuses your behaviour. On behalf of the community I must condemn your behaviour.

50 In order to ensure you do not offend in the future you do need to address this longstanding use of illicit drugs. You need to accept the need for abstinence for the future. You now accept that you should undertake such treatment and that is a positive factor in your favour.

51 Dr Dion Gee confirms in his report that you meet the diagnostic criteria for depressive disorder, moderate, without psychotic symptoms on a background of elevated anxiety disorder due to substance use and also a degree of enduring trauma pathology that now appears to be incorporated into your personality.

52 In the past you have not had any mental health treatment and it is acknowledged by your counsel that the Verdins principles do not apply in respect to moral culpability.

53 It is accepted, however, by both defence counsel and the prosecution that by reason of your mental state that you do present greater risk of your mental health deteriorating than an ordinary prisoner and that you will experience a greater burden in custody and there is a likelihood of adverse impact upon your mental health owing to your history. I have taken that into account.

54 I have further taken into account the fact that a plea of guilty was entered at a relatively early stage. The plea does have real utility. In particular, and importantly, you spared the victim and her boyfriend the trauma of having to come to court, give evidence upon your trial and be cross-examined.

55 I accept that you now have some insight into your offending and you now understand that your actions were wrong and I accept that the plea of guilty is some indication of some remorse on your part. I accept that you have facilitated justice and your sentence will be discounted accordingly.

56 Dr Gee's has assessed you as not meeting the diagnostic criteria for a paraphilic disorder. He says you present at most a moderate risk of reoffending sexually into the future. I accept that assessment.

57 Overall I consider that your prospects for rehabilitation are fair.

58 In conclusion, because this is a standard sentence offence where the standard sentence is 10 years' imprisonment, I have been mindful of the maximum sentence and the standard non-parole period.

59 However, having regard to your very particular needs and frailties that have been fully articulated in these sentencing remarks, I will be setting a non-parole period less than that, that is set out in s.11A(4) of the

Sentencing Act as it is in the interests of justice not to do so.

60 I have had regard to the table of cases that were helpfully provided to me by Mr Van Arkadie that sets out a series of sentences that have been imposed in respect to this standard sentence offence since the introduction of the changes. But ultimately, I must sentence you on the basis of the particular facts and circumstances of your case.

61 I have had regard to the written submissions of the prosecution and the oral submissions made at the plea hearing.

62 Overall, I have come to the conclusion that the length of the term of imprisonment should be significantly lower than that which would ordinarily be imposed having regard to both the objective gravity of the offence and also your significant and compelling personal circumstances, and also the impact upon you, particularly, of the COVID‑19 pandemic.

63 In formulating the sentence I have had regard to all the material that has been provided to the court.

64 I will now impose the formal sentence, if you could please stand.

65 In relation to the one charge of rape, you will be convicted and sentenced to five years' imprisonment. I fix a non-parole period two and a half years' imprisonment.

66 I make the following declaration pursuant to s.6AAA, but for your plea of guilty I would have imposed a term of imprisonment of seven years to serve five years.

67 Finally, because rape is a Schedule 1 (Class 1) offence where the victim was under the age of 18 at the time of the offending, and you have now been convicted of a single Class 1 offence, you are required to comply with reporting obligations imposed by Sex Offender Registration Act 2004 for a period of 15 years.

68 You will be provided with a notice detailing the requirements under that legislation.

69 I do not believe there was any other ancillary orders.

71 HER HONOUR: No, all right. Have we got the notice? All right, we are going to print off that notice and I will ask you, Mr Van Arkadie, to ask your client to sign that for us. Other than that, that concludes the sentencing remarks.

72 MR VAN ARKADIE: If I may just approach the dock so I can - just until the order's ready to sign in relation to the - - -

73 HER HONOUR: Yes, certainly. Certainly, Mr Van Arkadie. Mr Cameron, and everyone else who is listening on the WebEx. We are finished in court now and all we have got to do is have the notice, the SORA notice signed by Mr McInnes so we will discontinue the link. Thank you, Mr Cameron. And I assume the suitcase will go?

75 HER HONOUR: Yes. Everyone in Corrections understands there is a particular issue here. We have notified downstairs already this morning. Your client's mother, she is intimately aware of all his needs, would it be of assistance if she had a chat with the Corrections people before they take your client downstairs?

76 MR VAN ARKADIE: Your Honour, there has been comprehensive written instructions by Ms McInnes provided.

78 MR VAN ARKADIE: She's given very detailed explanation to the authorities.

79 HER HONOUR: Yes, I can see she is very anxious and she has been trying to communicate.

81 HER HONOUR: So I am happy to permit her to do that.

82 MR VAN ARKADIE: Yes, certainly, Your Honour.

83 HER HONOUR: There is no need for the G4S officer to interfere.

84 MR VAN ARKADIE: If I may just accompany your associate to the dock,

85 HER HONOUR: Yes, certainly. Thank you, Mr Van Arkadie. Thank you for your help, Mr Van Arkadie. We can adjourn.

[2] Malcolm and Priya McInnes are pseudonyms.