DPP v Yannic (a pseudonym) [2019] VCC 1308 (20 August 2019)

Last Updated: 4 September 2019

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
V
FREDDIE YANNIC (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 August 2019
CASE MAY BE CITED AS:	DPP v Yannic (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1308

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	Office of Public Prosecutions
For the Accused	Mr J. Desmond

HIS HONOUR:

1. Freddie Yannic^[1], you have been convicted by a jury of two counts of rape and two counts of common law assault. The circumstances of your offending are as follows.
2. Between about 1 June 1998 and 31 December 1998 you were living in a de facto relationship with the complainant, who I do not intend to identify by name in these reasons. You were residing with her at her home in a small town in Gippsland during that period. On two occasions during that period you engaged in anal sex with her without her consent. She told you on both occasions that she did not want it; you ignored her. On both occasions you penetrated her anus with your penis. Your conduct on these occasions constitutes in both cases the offence of rape, Charges 2 and 3.
3. On a date between September and November 1998 you were showering at her home when the complainant went into the bathroom to pass a towel to you. You then proceeded to punch her hard in the stomach. The punch was of sufficient force to cause her to drop to the ground. She had done nothing to antagonize you or to provoke such an assault. That conduct constitutes the offence of common law assault, Charge 4.
4. On a date between October and November 1998 you were at her home and intoxicated. You were complaining about some aspect of her behaviour. You grabbed her by the throat and squeezed it very hard. The complainant found it difficult to breathe. She was terrified that you would not let go. Eventually you did so. This conduct constitutes the offence of common law assault, Charge 6.
5. The maximum sentence for the offence of rape is 25 years' imprisonment. The maximum sentence for the offence of common law assault is five years' imprisonment.
6. You are currently aged 59. At the time of the offences for which you have been found guilty you were aged about 39. You were born in Mount Beauty in Victoria and raised in the Omeo region. You have two siblings. One sister, who is now aged about 65, and a younger brother who died at the age of 18 months. It appears that your parents, or at least one of them, blames you for the death of your brother. You were about four years old when you gave him a soft drink in a bottle from a shed at your home without knowing that it contained poison. You were unaware of this until your father told you when you were aged about 18.
7. By way of education, you completed Year 11 at school. Later you joined the Army and served in it for some six years from the age of 21. Whilst in the Army you were trained as a trauma nurse. On leaving the Army you worked on fishing trawlers for about two years in the Lakes Entrance area and then returned to nursing work for three years. You later worked as a labourer for about two years before returning to fishing boats for a period of time.
8. You married in 1980 and fathered a child in 1981. You separated soon after and married a second time. You fathered two children in that second marriage. You married a third time in 1990 and fathered one child in that marriage. You had a brief relationship after that and fathered one child from that relationship. In May 1996 you married a fourth time, before forming a relationship with the complainant in 1997. It appears that you have had no contact with any of your children for many years. In more recent years you have lived with a partner on a boat in Darwin harbour until you were sentenced to a prison sentence in Darwin in about November 2015.
9. You have prior convictions, although they date back many years. They consist of the following. In 1982 and 1989 you had convictions for assaults. In 1992 convictions for intentionally or recklessly causing injury, possessing a drug of dependence, two counts of cultivating cannabis, possessing a firearm without a licence, and possessing an unregistered firearm. In 1993 convictions for possessing cannabis, three counts, using cannabis, cultivating cannabis, behaving in an offensive manner in a public place and being drunk in a public place. In 1994 a conviction for being found in an enclosed yard without lawful excuse. In 1995 careless driving, failing to stop or assist, failing to provide your name and address, driving whilst exceeding the prescribed concentration of alcohol.
10. Further, counsel have informed me that on 10 November 2015 in the Northern Territory you were convicted for offences of trafficking marijuana and handling stolen goods. You were sentenced to imprisonment for three years and eight months with a non-parole period of two years and six months. You were extradited to Victoria in relation to the current charges on about 18 April 2018 and have been remanded here since.
11. The Northern Territory head sentence expired on 12 July 2019. Although the period between November 2015 and 12 July 2019 is not properly regarded as pre-sentence detention in connection with the offences for which I am to sentence you, I do take into account in sentencing you that you were in custody for that period of approximately three years and eight months. For the purposes of sentencing you I have assumed that you have not offended since 1998 save for the Northern Territory offences.
12. I accept that you suffer from a debilitating low back injury. In a report from Ms Gina Cidoni, a psychologist, tendered at your plea hearing, she states that you injured your back in the late 1990s performing nursing duties. I note that shortly before this trial commenced a medical report from Dr Bruce McLaren of St Vincent's Correctional Health dated 5 June 2019 was provided to the court in relation to problems that you were experiencing in being transported between Port Phillip Prison and the court. In that report, Dr McLaren stated that you had a longstanding spinal condition and that you had told him that your condition had deteriorated during the period of remand in Victoria from April 2018.
13. Dr McLaren noted that significant pathology of your spine had been demonstrated by a CT scan taken in May 2018 and that pain medication had been prescribed for you. I note that you used a wheelchair to move about in this court; although there was no medical evidence concerning your need to use a wheelchair, I accept that you require such means of transport. I accept that your low back injury is likely to make a term of imprisonment more arduous for you than for an otherwise fit, mobile and pain-free person.
14. Ms Cidoni concluded that you had an IQ of 78, which she described as borderline, where 93 per cent of people of your age would perform better. She concluded that you had problems with expressive language functioning and low-average capacity for verbal learning. She said that you had difficulties with processing and using visual-spatial information. She noted that you had experienced in your youth incidents of blunt trauma which she described as brain injury risk factors. However, she stated that further testing would be required to ascertain whether this was linked to any organic damage. It appears that no such further testing was performed, or at least the results of any further testing were not tendered at your plea hearing.
15. Ms Cidoni noted that your personality testing indicated a moderate paranoid ideation, sociopathic traits and a manic trend. She diagnosed you with a personality disorder. She noted that you had an understanding that the type of behaviour constituting your offending conduct was wrong, but that you maintained your denial that you had committed these crimes notwithstanding the jury verdicts. I note that she does not refer to you as suffering from any mental illness as such. I note that you have shown no remorse at all for your offending conduct.
16. Your counsel submitted to me that there had been considerable delay in the bringing of the charges against you and that you have had these matters hanging over your head for some considerable time. It is correct that more than 20 years have passed between your offending conduct and the date of this sentence. A substantial part of that period passed before the complainant reported your offending conduct to police. The law recognises that many victims of sexual offences take years to bring a complaint, and of course many never do. Time passed while you were in the Northern Territory and facing charges there and later while you were extradited to Victoria. Nevertheless, I accept there has been some delay which appears not to have been adequately explained and I will take this into account when sentencing you.
17. Pursuant to s.5 of the Sentencing Act the only purposes for which the court may impose a sentence upon you are, firstly, to punish you to an extent and in a manner which is just in all the circumstances; secondly, to deter you and other persons from committing offences of the same or of similar character. I add there that specific deterrence, that is the deterrence to deter you from committing similar offences, is not a factor to take into account here it seems to me on account of your physical injuries. General deterrence for others in the community is relevant, however.
18. Thirdly, to establish conditions within which it is considered by the court that rehabilitation of you may be facilitated. Fourthly, to manifest the denunciation of the court of the type of conduct in which you are sentenced. Fifthly, to protect the community from you. Again, I do not consider that is a prominent matter to take into account here. I consider that the principal purposes applicable to you in your case are the denunciation of your offending conduct, appropriate punishment, and general deterrence.
19. I have regard to the matters set out in sub-section (2) of s.5 of the Act which directs me to have regard to a number of matters, including the maximum penalties prescribed by Parliament for the offences in question to which I have previously referred (these reflect the seriousness with which Parliament views these offences); the current sentencing practices; the nature and gravity of the offences, which I consider to be high; your culpability and the degree of responsibility for the offences, which I consider to be high; the impact of the offences on any victim; the personal circumstances of any victim; any injury, loss or damage resulting directly from the offences; whether you pleaded guilty to the offence and, if so, at what stage of the proceeding; your previous character; and any aggravating or mitigating factors concerning you or other relevant circumstances.
20. Ms Cidoni opined, and I accept, that you were disadvantaged by a traumatic past and also by your personality disorder and that your physical health has more recently been reduced. As a result, I accept that your experience in prison has been to date and is likely to be harsher than for someone not burdened by those conditions. I note also that although you have prior convictions they do not relate to sexual assaults.
21. I have no doubt that the rapes would have been distressing, painful, and humiliating for the complainant. The fact that she was in a de facto relationship with you at the time is of no relevance. No man is entitled to engage in sexual intercourse with a woman without her consent regardless of the nature of their relationship or the nature of the intercourse.
22. With regard to the two common law assaults, they were unprovoked and violent. The complainant would have been a soft target for you. I accept that each of the assaults would have caused her significant pain and fear. In all of the circumstances I consider that your offending conduct requires me to sentence you to an immediate and significant term of imprisonment.
23. With regard to Charge 2, anal rape of the complainant, you are convicted and sentenced to a term of imprisonment of seven years. This shall be the base sentence.
24. With regard to Charge 3, the later anal rape of the complainant, you are convicted and sentenced to a term of imprisonment of seven years of which two years shall be served cumulatively to the base sentence.
25. With regard to Charge 4, the common law assault of the complainant by punching her in the stomach, you are convicted and sentenced to a term of imprisonment of six months, of which three months shall be served cumulatively to the base sentence.
26. With regard to Charge 6, the common law assault of the complainant by grabbing her around the throat and squeezing her hard, you are convicted and sentenced to a term of imprisonment of six months, of which three months shall be served cumulatively to the base sentence.
27. It follows that I have sentenced you to a total effective term of imprisonment of nine years and six months. I direct that you shall not be eligible for parole until you have served five years and nine months of that sentence.
28. Counsel, I believe, are in agreement that you have served 38 days in custody by way of pre-sentence detention relevant to these charges, not including today. That is based on what I think I was told at the plea hearing, plus the time since.
29. MR PERRY: Yes, Your Honour.
30. HIS HONOUR: That is from the period from the completion of the Northern Territory head sentence on 12 July 2019 up until yesterday, including yesterday but not including today. I direct that that 38-day period be reckoned as time already served under this sentence and recorded in the records of this court accordingly.
31. The prosecutor has informed me that no application is made for you to be registered under the Sex Offenders Registration Act of 2004 on the basis that no protection of the public from you is required on account on your current physical health problems.
32. In terms of ancillary orders sought, you have mentioned this morning the application for an order pursuant to s.464ZF.
33. MR PERRY: I'm not sure if one was made at the plea hearing or not. It should have been, Your Honour.
34. HIS HONOUR: I can't recall.
35. MR PERRY: Out of an excess of caution I make the application.
36. HIS HONOUR: Yes. Do you want to say anything about that,

    Mr Desmond?

37. MR DESMOND: I'm trying to recall from the police interview whether a sample was taken. In that case it would be one of retention as opposed to taking – ordinarily they do take a – may I just approach the dock?
38. HIS HONOUR: Yes, please. Just seek some instructions on that point.
39. MR DESMOND: He doesn't believe they did, Your Honour, in Victoria. There will be one up in Northern Territory.
40. HIS HONOUR: Yes. I will make that order on the grounds of the seriousness of the offending. Mr Yannic, as I understand it, there is a swab on the inside of your cheek, a small scraping, and that is then analysed to obtain the DNA profile and it is placed on the Victoria database. I should ask you, I suppose, whether you consent to such a test being taken or not.
41. MR DESMOND: I think all Your Honour is required to do is to indicate to him you are making the order and that unless he complies the police are entitled to use reasonable force.
42. OFFENDER: I consent.
43. HIS HONOUR: Notwithstanding the consent, and I thank you for that, if come the time you do not consent then police do have power to use reasonable force to obtain a blood sample.
44. MR DESMOND: No, a buccal swab. Not the blood sample.
45. MR PERRY: The mouth scraping, Your Honour.
46. HIS HONOUR: I think the orders that I have signed for the last nine years refer to blood sample in the event that there is a dispute about consent, but either which way they have power to use reasonable force to obtain a sample and to have it DNA profiled.
47. MR PERRY: I will have, as I indicated, Your Honour - - -
48. HIS HONOUR: We will have a look at the order, yes.
49. MR PERRY: Proper forms for the order will be submitted for Your Honour’s approval and signature but they will be for the buccal swab.
50. HIS HONOUR: And you will provide Mr Desmond with a copy of the proposed order?
51. MR PERRY: If he's ever talking to me again, Your Honour, yes.
52. HIS HONOUR: Is there any other ancillary order sought?
53. MR PERRY: No, sir.
54. HIS HONOUR: Yes, thank you. Anything else that either counsel want to raise?
55. MR DESMOND: No, sir.
56. MR PERRY: No, Your Honour.
57. HIS HONOUR: Thank you. Mr Yannic can be taken downstairs, thank you.

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^[1] A pseudonym.