IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT BENDIGO
CRIMINAL JURISDICTION

CR 19-01046

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DAMIAN TOULL		

---

JUDGE:	HER HONOUR JUDGE WILMOTH	
WHERE HELD:	Bendigo	
DATE OF HEARING:	11 October 2019	
DATE OF SENTENCE:	16 October 2019	
CASE MAY BE CITED AS:	DPP v Toull	
MEDIUM NEUTRAL CITATION:	[2019] VCC 1679	

REASONS FOR SENTENCE
---
Subject: Criminal law - sentence
Catchwords:Plea of guilty to one charge of sexual assault and one charge of failing to comply with reporting obligations under SORA – attack on stranger in the street at night after stalking her – profound impact on complainant – offender of indigenous background but no links to his culture – deprived background – drug use – depressive illness – intellectual impairments - remorse
Legislation Cited: Sex offender Registration Act 2004
Cases Cited: Bugmy v R [2013] HCA 37; DPP v JF (a pseudonym)
Sentence 3 years 2 months  non- parole period  2 years.
---

APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr Hayward	OPP	
			
For the Accused	Ms E. Millar	VLA	

HER HONOUR:
1	Damian Toull, you have pleaded guilty to one charge of failing to comply with reporting obligations under the Sex Offenders Registration Act and one charge of sexual assault.
2	The offence of sexual assault took place in the early hours of New Years Day 2019.  The complainant was walking home and you followed her and attacked her.  You had been celebrating New Year's Eve with your partner and friends at the Metropolitan Hotel in Hargreaves Street in Bendigo and then at the Universal Nightclub nearby.  From there you and your partner returned to the Metropolitan Hotel where the two of you argued, and your partner left the hotel alone and went home.
3	The complainant was also out that night with friends.  After spending time at the Metropolitan Hotel she decided to go home and attempted to book an Uber but the New Year surcharge made it too expensive for her.  Her partner had already gone home.  At 1.41 am she sent a text message to him saying she was going to walk home.
4	You had left the hotel a few minutes earlier and had walked some distance before arriving at Lyttleton Terrace.  The complainant arrived at the same location with you walking about 80 metres behind her.  You began to follow her and the complainant realised this.  She noticed that your steps were quickening and the gap between you and her was closing.  At the same time her partner sent a text message to the complainant saying, 'Message me along the way to I know you're safe'.  At 1.49 am she replied, 'There's someone kinda right behind me but I think all good'.
5	As she crossed the train tracks near Abbott Street she could hear you running behind her.  Shortly after passing the corner of Abbott and Mundy streets you came alongside her and she felt you brush along her right side.  You then grabbed her buttock over her jeans for a second or two.  You then turned in front of her and faced her.  She said, 'Please don't'.  You said, 'Can I have a cuddle?'  She repeated, 'Please don't'.  You then hugged her while she kept her arms by her sides.  You had your arms firmly around her and squeezed her tightly for several seconds.  She felt her arms pinned beside her, and felt your crotch pressed against her.
6	When you let go of her she stepped back and you stepped towards her.  She tried to avoid you and you blocked her path, but she quickly darted away towards a tree on the corner of the street near the fence line of the houses.  You grabbed her with both your arms and swung her against the tree, pinning her there with your body weight.  You then grabbed at her vagina over her jeans and underwear.  You rubbed her vagina vigorously, causing her a great deal of pain.  This lasted for about a minute, during which the complainant screamed for help three times, saying, 'Please help', and again, 'Please help', and then, 'Someone help me'.
7	You had your crotch against the left side of the complainant's hip and as you rubbed her vagina you thrust into her hip and upper leg.  She noticed your penis was erect and made contact with her leg each time you thrust into her.  At some point during the attack you whispered to her, 'Happy New Year's, baby'.  
8	Eventually you stopped attacking her and ran away down Mundy Street.  The complainant immediately telephoned her partner and then 000.  A woman driving past pulled over and waited with her until police arrived.  In the days following she suffered extreme pain in her genital region and very significant emotional trauma.  She read to the court her victim impact statement, prefacing her statement by explaining that the attack was something she could hardly bear to think about.  Her trauma has been so great that she has needed frequent support from sexual assault specialists and medical professionals.  She believes she will need ongoing support in counselling and therapy for the rest of her life.  She said she is not the person she used to be and has difficulty trusting others and with forms of intimacy.  Referring to a night which should have been a night of celebration she said, 'For me it was the night a stranger hurt and abused me for his own gratification.  No one came to my rescue.  No one saved me.  I was in pain and terrified.  I feared for my life, alone there.  I believe I will always have flashbacks of that horror'.
9	She explained that because of the attack she has changed her behaviour and activities, unable to walk alone any more, unable to be outside in the dark, constantly on edge and mistrusting every man who is near her on the street.  With great clarity she stated, 'The crime he has committed is gratuitous, violent, self-indulgent and has torn every ounce of confidence, safety, dignity and trust I once had from me in the most forceful and vicious way imaginable.  I never want another woman to go through what I have gone through at the hands of this man.  I wouldn't wish this on anyone, not even him'.
10	On 4 January you were arrested and interviewed and you denied all the allegations put to you about the assault.  You had been released from prison a month earlier on 4 December 2018, after serving a three month sentence for several offences, including failing to comply with reporting obligations and contravening a Family Violence Intervention Order.  On 3 December whilst still in custody you have been served with a notification of reporting obligations under the Sex Offenders Registration Act, requiring you to report to police within seven days of your release from prison.  You did that but two days late and you did not advise that you had been released from custody, nor did you make an appointment for an interview to provide all information required under the Act.
11	When this breach was detected you were charged with failing to comply with reporting conditions without a reasonable excuse in that you failed to report that you had been released from custody.  That is Charge 1 on the indictment, to which you have pleaded guilty, and the maximum penalty is five years' imprisonment.
12	For the charge of sexual assault the maximum penalty is ten years' imprisonment.   It is a serious offence and in the circumstances of this case its gravity is at the higher end of the range of seriousness.  You attacked the complainant after using stealth, to stalk and follow her in a terrifying manner.  She said she was terrified and feared for her life.  She did not know that you were not going to kill her and she had to endure the pain and degradation of what you did to her on a lonely street in the middle of the night with no one around to rescue her, as she put it.
13	I turn now to your personal background and circumstances.  You are a single man aged 32.  You were 31 at the time of the offence.  You are a Yorta Yorta man on your mother's side but you had not made any connections with indigenous culture until your recent incarceration when you have begun to learn about your culture and engage with other indigenous people.
14	Your childhood was dysfunctional with both parents having been drug and alcohol users and your mother a prostitute, to which you were exposed when clients came to the house.  Your parents were mentally and physically abusive to you and eventually the Department of Health and Human Services stepped in.  For a time you and your brother lived with your grandparents but when they became too old to care for you, you were placed in foster homes and residential care until you were 18.  You were moved many times, sometimes physically abused and on occasions locked in dark rooms.
15	After you left residential care you were homeless for a time.  You struggled at school and left in Year 9.  Aged 12 or 13 you were diagnosed with ADHD and were medicated for it for a year or two and you are not aware whether that diagnosis still applies.
16	Around this time you were also starting to use cannabis and alcohol.  By the age of 21 you had begun using heavier drugs including ecstasy, heroin and ice and you continued doing so, mainly using ice until you were 26.  You then abstained for two years but recommenced using drugs and alcohol at the time of your father's sudden death about 18 months ago.  You had reconnected with your father about five years ago and you have become close.  You were able to reconnect with your mother just before you were remanded.  You were intoxicated when you committed the offence and you have little recollection of it.  You were walking home alone as your partner had gone home earlier but you cannot explain why you offended in this way.
17	You have previously commenced a sex offender program as part of a CCO but you breached that order and did not complete the course.  While serving a sentence you completed year 12 through VCAL and during your recent incarceration you have completed relevant programs for drug and alcohol abuse and various courses, including a certificate in bakery.  You take classes in English and maths and have participated in indigenous programs and you hope to work as a baker when you are released.
18	You pleaded guilty at the earliest opportunity and that plea means you are entitled to a discount on your sentence.  It has avoided the need for a trial and, importantly, has spared the complainant from having to give evidence.  It has also enabled the case to progress relatively quickly and so is of benefit to the criminal justice system overall.  It is also accepted as an indication of remorse, which you have expressed as well, to Dr Cunningham, the psychologist who assessed you recently.
19	Dr Cunningham conducted tests which disclosed a mental state consistent with a depressive illness, and intellectual impairments such that your thinking and reasoning ability is in the bottom 3 per cent of your age peers.  He states that this is consistent with your lack of insight into the causes of your offending behaviour and presents an ongoing risk of reoffending.  Indeed, he assessed you as being a moderate risk of reoffending.  Having considered the difficulties associated with your upbringing. Dr Cunningham's opinion is that you have coped with emotional stress through drug and alcohol abuse.
20	I have set out the disadvantageous circumstances in which you grew up which have the effect of diminishing your moral culpability for these crimes.  It was held in the case of Bugmy v The Queen that the effects of such disadvantages on a child's social and moral development do not diminish over time.  I take this into account in determining an appropriate sentence.
21	I was referred to the sentence and the decision of DPP v JF, in which an offender with an intellectual disability violently attacked a woman on a walking track and sexually assaulted her.  He had prior convictions for violence but none for sexual offending, although a series of armed robberies he had committed often included sexual touching of the victims.  That offender had also had a very deprived background and was regarded as being severely institutionalised.  He as assessed as being at high risk of reoffending.  He was sentenced to
18 months' imprisonment with a non-parole period or 12 months.  Although there are some similarities between that case and yours, the nature of the sexual assault you committed was more serious.  It was a brazen and terrifying attack with very profound effects on the complainant.  In addition, your previous sexual offending indicates poor prospects for your rehabilitation.
22	In relation to Charge 2 you are to be sentenced for a rolled up charge comprising three sexual assaults in the same instance.  Because you have been convicted for two charges of indecent assaults in the past you are to be sentenced for Charge 2 as a serious sexual offender, which means the protection of the community is to be regarded as the principal purpose of the sentence.  Significant weight needs to be given to that matter, particularly given the circumstances of this offence, although the prosecution does not seek a disproportionate sentence.  At the same time your intellectual impairments mean that there is less need for the sentence to reflect the important principle of general deterrence.
23	The need for specific deterrence remains to be addressed in full measure as part of the sentence, notwithstanding the positive steps you have taken towards your rehabilitation whilst in custody.
24	For Charge 1 you are sentenced to six months' imprisonment.  For Charge 2 you are sentenced to three years' imprisonment.  I order that two months of the sentence for Charge 2 be served in cumulation upon the sentence for
Charge 2.  That results in a total effective sentence of three years and two months.  I order that you serve a minimum period of two years before being eligible for parole.
25	I declare that the 284 days you have spent in pre-sentence detention be reckoned as already served and I shall note that on the court record.
26	As you have already been placed on the Sex Offenders Register for life there was no application by the prosecution for such an order.  However, there was an application for an order for the disposal of clothing.  That is not opposed and I make that order.  If you had pleaded not guilty to these charges I would have sentenced you to four years' imprisonment with a non-parole period of three years.
27	Now, Mr Hayward, are there any other matters that I have neglected or omitted?
28	MR HAYWARD:  I have the PSP of 285.
29	HER HONOUR:  I see, thank you.  I will correct that.  Ms Millar?
30	MS MILLAR:  Yes, I agree with that, Your Honour, 285.
31	HER HONOUR:  Any other matters?
32	MS MILLAR:  No, Your Honour.
33	HER HONOUR:  Thank you.  Officer, you may take Mr Toull now, thank you.
- - -