IN THE SUPREME COURT OF VICTORIA	Not Restricted	
 AT MELBOURNE
 CRIMINAL DIVISION
S CR 2014 0007

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v   		
		
CLINTON JAMES TUITE		

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JUDGE:	HOLLINGWORTH J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23–27, 30–31 July; 1–3, 6–10, 13–14, 16–17, 20–24, 27–31 August; 3–7, 10–14, 17–20, 24–27 September, 1–3, 11 October 2018, 25 February 2019	
DATE OF SENTENCE:	22 March 2019	
CASE MAY BE CITED AS:	DPP v Tuite	
MEDIUM NEUTRAL CITATION:	[2019] VSC 159	

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CRIMINAL LAW – Sentence – Aggravated burglary – Attempted rape – Indecent assault – Intentionally causing injury – Offender broke into victim’s home in the early morning, armed with offensive weapon and with intent to sexually offend – Bound and gagged victim before assaulting her – Offending carefully pre-planned – No remorse – Delay – Prison more burdensome due to depressive disorder – Guarded prospects of rehabilitation – Sentenced to total effective sentence of 10 years and 2 months’ imprisonment with non-parole period of 7 years.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Dr N Rogers SC with
Ms J Warren	Solicitor for Public Prosecutions	
			
For Mr Tuite	Mr A Lewis	Doogue & George	

HER HONOUR:
1	Clinton James Tuite, you have been found guilty by a jury of aggravated burglary, attempted rape, indecent assault and intentionally causing injury.  The offending all occurred on 13 October 2007, at the Chirnside Park home of Ms Jasmine Belmont.
2	Ms Belmont lived alone.  In the early hours of that morning, Ms Belmont finished her night shift at work and drove home, arriving there around 2:30am.  She drove into her garage, closed the garage door behind her, and went inside through the front entrance, locking both the flyscreen and wooden doors behind her.  
3	After watching television and eating some food in her lounge, she went and used the computer in one of the bedrooms.  While she was doing that, she heard a faint noise coming from somewhere in the house, which sounded like paper rustling; she dismissed it as being an insect.  Ms Belmont then showered, dressed, and walked into her bedroom. 
4	You were waiting for Ms Belmont in her bedroom.  You had brought with you an offensive weapon, a wooden furniture leg, which you intended to use to injure or threaten to injure your victim.  Entering her house armed with that weapon, with an intention to assault, constitutes the offence of aggravated burglary (charge 1). 
5	You were wearing a black balaclava, latex gloves and dark clothing.  Ms Belmont was immediately frightened, and asked you not to hurt her.  You told her not to look at you.  You moved towards Ms Belmont and grabbed her, attaching a cable tie to each of her wrists, and securing them together with a third tie.  Ms Belmont did not struggle at this time, as she thought you were only going to steal from her.  A deeply religious woman, she told you several times that Jesus loved you.  You told her to shut up.
6	You then turned Ms Belmont around to face the bed, pushed her face-forward onto it, pulled down her pants and underwear, and lay on top of her.  Realising your true intentions, she began to struggle and cry out.  She fell off the bed and onto the floor, and managed to sit up.  She continued to yell and scream for help.
7	You picked up the piece of wood you had brought with you, and struck Ms Belmont hard to the side of her face.  While she was still dazed from the blow, you wrapped duct tape around her neck and mouth as a gag.  You put a homemade blindfold over her eyes.  
8	These various acts were done in order to incapacitate her, to enable you to sexually offend. 
9	Ms Belmont felt your fingers touch her vagina, moving and trying to go inside her vagina; this constitutes the offence of attempted rape (charge 2).  At the same time, you pinched one of her breasts, which constitutes the offence of indecent assault (charge 3). 
10	Ms Belmont fell backwards onto the floor, still struggling.  You stood up and stood on her throat to restrict her breathing until she lost consciousness.  This constitutes the offence of intentionally causing injury (charge 4).
11	When Ms Belmont regained consciousness, after an unknown period of time, she was still lying on the bedroom floor.  You had removed the cable tie from her right wrist, and the one that had been securing her wrists together.  You had also pulled the duct tape down off her mouth, and pulled up her pants and underwear.  Ms Belmont sat up, feeling dizzy, and saw you standing in the doorway.  You said something like, ‘You fell asleep,’ and then left the house. 
12	Ms Belmont managed to make her way to the kitchen where, fearing that you were still in her home, she armed herself with a kitchen knife.  At 4:33am, she called 000. 
13	Ms Belmont sustained the following physical injuries: a 3mm vaginal tear; a black eye, with swelling and bruising extending right up to the scalp; a laceration to the lower lip; bruising to the chin, neck, shoulders and upper arms, and the right abdomen; petechial bruising to the left eye; and linear raised marks on both wrists. 
14	Crime scene investigators seized a number of items from the scene, some of which were later examined for DNA.  Items collected inside Ms Belmont’s home included the homemade blindfold, and 8 cable ties found on the bathroom floor.  Investigators also collected two used cigarette butts from the adjoining property at No 34: one was found on the middle rail of the side boundary fence, and the other on the ground nearby.  The evidence at trial established that the offender entered Ms Belmont’s house through the sliding door adjacent to No 34, and close to where the cigarette butts were found. 
15	Various forensic items were examined for DNA at the Victoria Police Forensic Services Centre at Macleod.  An unknown male profile was identified, and placed on the national DNA database.  The police were unable to find a match for the profile at that time, despite conducting comprehensive investigations.
16	In March 2012, you provided police with a DNA sample in connection with an unrelated matter, and your DNA was put on the database.  After your DNA was matched with items from this case, in June 2012 you were arrested and interviewed by police.  You denied any knowledge of, or involvement in, these offences.  
17	At trial, there was no challenge to Ms Belmont’s account of the offending.  The only issue in dispute was the identity of the offender. 
18	Although the two cigarette butts contained single source DNA, the blindfold and cable ties contained DNA from multiple contributors.  In order to analyse the more complex or inferior quality samples, the forensic scientists needed to use a relatively new probabilistic genotyping software called STRmix.  Considerable time was spent before and during the trial explaining and testing the validity of STRmix.
19	The prosecution case against you was a circumstantial one, based on a number of pieces of evidence, of which the DNA evidence was by far the most important.   Given the way the prosecution case was run, the jury must have been satisfied beyond reasonable doubt that the DNA evidence proved that you were the offender. 
20	This was all very serious offending, for the following reasons.  
21	The victim was somewhat vulnerable, being a slightly-built woman who was living alone.  She was a stranger to you.  The offences took place in the early hours of the morning, in the victim’s own home – a place where she had a right to feel safe.  
22	It is not clear when you chose Ms Belmont as the target for your intended sexual offending, or for how long you had been observing her and her movements.  However, there was nothing spontaneous about the offending; it involved considerable planning and preparation.  You had made the makeshift blindfold out of a piece of cloth and some shoelaces, before you took it to the scene.  You also took cable ties and duct tape, for the purpose of restraining your victim while you assaulted her.  You took the piece of wood with you, intending to use it as a weapon if the need arose.  You were wearing a balaclava and gloves, to conceal your identity.  You monitored the victim’s home from the adjoining property, for at least the time it took to smoke two cigarettes, before you jumped the fence and entered her home through the adjacent sliding door.  Once inside, you waited in her bedroom for an opportune moment to attack her.
23	You used the cable ties and duct tape to restrain your victim, and blindfolded her so she could not identify you or see what was happening.  Even after you had restrained her, you struck her to the side of the head with the piece of wood, in an entirely gratuitous act of violence.  Having incapacitated her in these ways, you then sexually assaulted and attempted to rape her while she was completely defenceless.  When she tried to resist, you stood on her throat until she lost consciousness.
24	Ms Belmont’s physical injuries took several months to heal, but psychological injuries still remain.  She has been diagnosed with PTSD as a result of her ordeal, and still suffers from hyper-vigilance and nightmares after all these years.  She moved out of her home, and eventually sold it, as she could not bear to live in it again.  For the next five years, she lived with other people, to avoid living alone.  Some of her work and personal relationships suffered, as all of her male colleagues and friends were asked to provide DNA samples as part of the police investigation.  
25	She has since undertaken tertiary studies and started a new career in which she is caring for others.  Her relationship with God has been sorely tested by this whole experience, although she continues to feel supported at church. 
26	Quite understandably, the long court process has been emotionally draining.  Not only have there been repeated delays, but she has had to give evidence at two trials.  Throughout the court process, Ms Belmont has displayed remarkable courage and great dignity.  
27	I turn to consider your personal circumstances.  You were born in January 1984, and were 23 at the time of the offending.  You are now 35 years old.
28	You initially grew up on a farm with your parents and three older siblings.  Your father was a violent alcoholic.  After your parents separated when you were four, your mother moved repeatedly with the children.  You finished school at the end of year 9.  You struggled academically and behaviourally at school.
29	After leaving school, you worked steadily as a landscape gardener, a tree lopper, and a tyre fitter.  You haven’t been working for the past five years or so, due to your drug use and criminal offending.
30	You began using cannabis and alcohol in your early teens.  Your drinking escalated to about two bottles of spirits a day.  Around the age of 19, you started using amphetamine and ecstasy.  You began using methamphetamine (‘ice’) about 10 years ago, and GHB about three years ago.  You have been diagnosed as suffering from Stimulant Use Disorder, particularly in relation to your use of ice.  While there is no evidence that drugs played any role in this offending, it seems to be directly related to later offending.  You have been unable to reduce your drug consumption upon previous releases from custody, or when undergoing community correction orders.  
31	You have had three long-term relationships.  The first lasted for three years, and produced a daughter who is now 13 years old; you have been unable to contact your daughter for the last couple of years.  Your next long-term relationship lasted for seven or eight years, and produced a son who is now nine years old.  You were in regular contact with your son prior to being incarcerated for this offending.  You have been with your current partner for about three years.
32	Two psychological reports were filed on your behalf: one prepared by Dr Aaron Cunningham in December 2016, in relation to other offending; and one prepared by Ms Pamela Matthews and Ms Daria Sizenko in January 2019, for this matter.  
33	Your cognitive functioning has been assessed as being in the low average range.  You have also struggled with social anxiety, including stuttering, since childhood.
34	All of the psychologists agree that you suffer from a longstanding Major Depressive Disorder,  which will make a sentence of imprisonment more onerous for you than for a prisoner of average health.  In addition to continuing with your current antidepressant medication, they recommend that you receive counselling support in custody.  However, there is no evidence that you were suffering from the disorder at the time of this offending, or that Verdins principles are otherwise engaged in this case.
35	At the time of this offending, you had no prior convictions.  However, you do have two dozen subsequent convictions, imposed between 2012 and 2018, for which you have received several terms of imprisonment; they include two burglary and one aggravated burglary conviction, as well as numerous drug and driving offences.  Although subsequent convictions such as these ones cannot be used to increase the length of the head sentence, they may be relevant in assessing prospects of rehabilitation and setting a non-parole period. 
36	None of your subsequent offences are for sexual offending.  However, based on the features of this offending, the authors of the January 2019 report assessed you as being of above average risk for sexual reoffending, which is also relevant in assessing your prospects of rehabilitation.
37	You did untie the restraints on Ms Belmont, and wait around until she regained consciousness; whether that was out of concern for her wellbeing, or for your own situation, is unknown.  But you then fled the scene without making any attempt to call 000, despite the fact that she was obviously injured.  You still maintain your innocence, and therefore have shown no remorse since the offending.
38	There has been a long delay from when you were arrested and charged on 28 June 2012, to the completion of these proceedings.  Delay may be relevant to sentence in several ways, only one of which is relevant here.  Courts have long recognised that the prospect of a sentence hanging over one’s head during the period of delay can be a punishment in itself.  In your case, there is evidence that the delay and uncertainty surrounding these charges has caused you anxiety.  
39	That said, this is not a case where blame for most of the delay can be attributed to the prosecution or the court.  You were committed to stand trial in January 2014.  Because your previous lawyers and Victoria Legal Aid decided to run this as a test case for an attack on STRmix, a significant amount of time was spent in preliminary hearings.  Almost 30 days were spent arguing evidentiary matters before Emerton J, from which there were two interlocutory appeals.  A further couple of days were spent arguing evidentiary matters before me.  There were more than 30 other mention or directions hearings in this court, and provisional or fixed trial dates were adjourned repeatedly to allow further expert evidence to be prepared.  Your first trial, in late 2017, had to be aborted after 7 weeks, due to your previous counsel’s conduct.  I am not suggesting that you should be punished for the forensic decisions made by your lawyers, but the mitigating effect of the delay is not as great as it might have been had it been due to circumstances beyond your control.
40	Although you no longer have contact with any of your siblings, you are fortunate to still enjoy the support of your mother, who has attended court over a long period of time.  She and your partner visit you in custody.  Their support will be important when you are eventually released from custody.  
41	However, your rehabilitation prospects – including your prospects of employment and of not committing further offences – are guarded, and very much dependent on whether you are able to address your drug addiction problems (something you have so far been unable to do upon previous releases from custody, or under supervision in the community). 
42	Your bail was revoked on 11 October 2018, after the jury returned their verdicts.  Since December 2018, you have been held in a management unit at the Metropolitan Remand Centre at your request, due to threats that were made against you after another prisoner found out details of your offending.  For the past three months, whilst in protection, you have only been allowed out of your cell for between one and three hours per day, for the purposes of exercise or to perform your job of a billet assisting with cleaning and laundry duties.  Whether or not you will continue to be held in protection after you are sentenced, and moved out of the MRC, remains to be seen.  Even if you remain in some form of protection, based on correspondence received from Corrections Victoria, it is not possible to conclude that you are likely to continue to be held in a restrictive environment. 
43	It is not known how long you were in the house before you confronted Ms Belmont in her bedroom, but there was a discrete period between breaking into the house and the next part of the offending.  Because Ms Belmont was unconscious for some time, it is not possible to be precise as to the total period over which the offending in the bedroom took place; however, that period may have been up to half an hour.  The attempted rape and indecent assault essentially occurred at the same time as each other, so I will only order a small amount of accumulation for the indecent assault.  Although each of the offences was committed in the course of a single incident, they each involve separate criminality.  There needs to be some accumulation between sentences to reflect that fact, whilst still having regard to the totality principle.
44	For charge 1, aggravated burglary, I sentence you to imprisonment of 8 years.  I will treat that as the base sentence.
45	For charge 2, attempted rape, I sentence you to imprisonment of 3 years and 6 months.  I order that 1 year of that sentence be accumulated on the base sentence.
46	For charge 3, indecent assault, I sentence you to imprisonment of 1 year.  I order that 2 months of that sentence be accumulated on the base sentence.
47	For charge 4, causing injury intentionally, I sentence you to 3 years’ imprisonment.  I order that 1 year of that sentence be accumulated on the base sentence.
48	This makes a total effective sentence of 10 years and 2 months’ imprisonment.
49	I fix a period of 7 years as the period you must serve before you become eligible for parole.
50	Further, I declare that the period to be reckoned as already served under this sentence is 162 days, not including today's date.  I direct that there be noted in the records of the court the fact that such declaration was made and its details.
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