R v David John STEVENS [2014] NSWDC 167

District Court New South Wales

Medium Neutral Citation: R v David John STEVENS [2014] NSWDC 167 Decision date: 01 August 2014 Before: Yehia SC DCJ Decision: An aggregate sentence of 10 years is imposed with a non parole period of four years six months. Catchwords: Sexual assault, rape, gang rape, aiding and abetting rape Legislation Cited: Crimes Act 1990 Crimes (Sentencing Procedure) Act 1999 Parole of Prisoners Act 1966 Cases Cited: AJB v Regina [2007] NSWCCA 51 (5 March 2007) Catalan 1975 NSWCCA 226 Flaherty & Ors (1968) 89 NSW (as said) 141 Hili v R [2010] 520 CLR 537 Magnuson v R [2013] NSWCCA 50 (1 March 2013) R v Flaherty & Ors (1968) 3 NSWLR R v MJR [2010] NSWSC 653 (18 June 2010) R v Todd [1982] 2 NSWLR 517 Category: Sentence Parties: Director of Public Prosecutions (Crown) David John Stevens Representation: Mr Robinson for the Crown Mr Greenhill for the Offender File Number(s): 2013/91176

SENTENCE 1HER HONOUR: The offender Mr Stevens pleaded not guilty to nine counts relating to sexual misconduct against the complainant. 2On 15 May 2014 the trial commenced in relation to the nine counts on the indictment. 3On 27 May 2014 the jury returned verdicts of guilty with respect to counts 1 to 8 inclusive and not guilty on count 9. It is appropriate to note at this early stage that counts 1 to 8 relate to events that all took place on one night between 1 September 1978 and 31 December 1978. 2Count 9 related to a separate occasion between 1 February 1980 and 31 August 1980. 3Mr Stevens maintained a denial that the events ever took place that night or indeed on any night. The jury's verdict on counts 1 to 8 is however consistent with the rejection of that denial and the acceptance of the complainant's evidence on those counts. 4For the purpose of sentencing I make the following findings. 5Mr Stevens attended a house-warming party in the south west of Sydney at the home of Julie Caldwell. He was about 19 years old. The victim was also at that party. She was 17 years old. 6The offender and victim lived on the same street in Campbelltown, New South Wales, the offender having moved there with his mother and sister in early December 1978. 7The offender had been driven to the party by his friend Rudolf Reichel in Mr Reichel's yellow Holden Sandman panel van. The offender and the victim were part of a group who walked outside Julie Caldwell's house at about the same time. Part of this group included Rudolf Reichel, Glen Partridge, Mark Johnson, Edward Lewockie, Susan Thomas and Vickie Chalker. 8Julie Caldwell had also walked out of her house and down the driveway. Mr Reichel's Sandman was parked outside. Just after leaving Julie Caldwell's house the offender picked up the victim against her will and placed her into the back of the Sandman. The offender did this for the purpose of having sexual intercourse with her. These are the facts that give rise to count 1, the offence of forcible detention pursuant to s 89 of the Crimes Act 1990. 9The Sandman was then driven away by Mr Reichel. There was dispute during the trial as to the configuration of seats in the Sandman as this was relevant to who got into the van at Julie Caldwell's residence and was present at all times when the other offences later occurred. 10It was also relevant to the credibility of the complainant's account that essentially she was unable to climb into the front cabin of the car and make good her escape because of the bench seat. I accept that the configuration of the front seat was a bench seat. The back of the van was arranged for the mattress. The back door was divided into two panels with the top panel opening upwards. 11The complainant was in the back of the van with the offender, Mark Johnson, Glen Partridge, Edward Lewockie. Rudolf Reichel was driving. Seated next to him was Susan Thomas with a friend, Vickie Chalker, occupying the far left front passenger seat. 12Once the complainant was in the back of the van she was held down. Her underwear was taken off by the offender who passed it to Mark Johnson. Mr Johnson passed it to Rudolf Reichel who threw it out the window. They laughed. 13The offender proceeded to push the complainant down and lay on top of her. The victim said that he was pushing his penis into her vagina and that it was hurting, so she tried to push him away. 14The offender continued to push down and push his penis inside her vagina. The victim said she also felt Mark Johnson touching her leg and starting to stroke it. Those are the facts that I find which constitute count 2, the count of rape pursuant to the then s 63 of the Crimes Act 1990. 15After the offender had finished the complainant said that she attempted to move away to the passenger side of the van in an attempt to get away from the offender and the other men in the van. I accept her evidence. 16The complainant asked Mr Reichel to take her back to Julie's place where her bag and shoes were. Sue Thomas who was sitting in the front of the panel van next to the driver also heard the complainant ask Mr Reichel to take her back to Julie's place and heard her offer Mr Reichel money for petrol. 17Ms Thomas also gave evidence that prior to that she saw the offender on top of the complainant in the back of the van and that other men were also in the back of the van. 18The panel van then pulled up at Browning Street Hamilton and Vickie Chalker and Sue Thomas got out. Rudolf Reichel had gotten out of the front seat and the front driver's door was still open. The complainant tried to jump over the front seat in an attempt to get out. However the offender pulled her back towards the back of the van. The offender then proceeded to lay on top of her and have penile vaginal intercourse again. 19The complainant said that she struggled. These are the facts that constitute count 3, again an offence of rape pursuant to the then s 63 of the Crimes Act 1990. 20At this stage the other men that had been in the back of the van including Mr Reichel, had gotten out and were standing at the back of the van. The complainant could see them from where she was in the back of the van. When the offender had finished having intercourse with her Mark Johnson got into the van and had penile vaginal intercourse with the complainant. 21The offender had gotten out and was standing at the back of the van during this time. 22Consistent with the jury's verdict the offender was aiding and abetting Mark Johnson to rape the victim. The offender was standing there ready, willing and able to assist if need be. For example if the victim tried to escape. He did not however commit any physical act of assistance. These are the facts constituting count 4 aiding and abetting rape in contravention of the then s 63 of the Crimes Act 1990. 23Once Mark Johnson had finished with the victim Edward Lewockie got on top of her. The complainant said that she did not have time to get up "or anything." Mr Lewockie also put his penis in the complainant's vagina without her consent. Again the offender was present outside the van in sight of the victim aiding and abetting Edward Lewockie to rape the victim. 24The offender is liable on this basis in relation to count 5 and again the count of rape pursuant to the then s 63 of the Crimes Act 1990. 25Count 6 is in contravention of s 76 of the Crimes Act 1990 and involves the indecent assault of the victim by Rudolf Reichel. 26After Mr Lewockie raped the victim Mr Reichel got on top of the victim in the back of the van. The victim said that he didn't "really try and enter her", although he had his penis on her and was simulating sexual intercourse with her. At one stage Mr Reichel pulled out a cross that was hanging around his neck out from under his shirt and held it up in front of her face. 27The offender was standing outside the van knowing what was taking place and ready and willing to assist if Mr Reichel needed it. 28The offender then aided and abetted the attempted rape of the victim by Glen Partridge in contravention of s 65 of the Crimes Act 1990. Mr Partridge tried to get on top of the victim. He had his trousers down and was lying close to the victim with his head slightly above hers. He was close enough that she was able to bite him on the left shoulder. As soon as she did Mr Partridge backed off straight away. 29The actions he performed up until that time constitute the attempted rape. The offender is liable as an aider and abettor of the attempted rape as again he was standing at the back of the van ready, willing and able to assist if Mr Partridge needed. 30Following that, some of the men, it is unclear who, tried to tip the victim over. The victim said she struggled and they pulled her back down. The victim remembers the song "Working For The Man" came on. One of them asked her "Are you working for the men?" and laughed. 31By then the victim says she was lying down and the offender had his legs straddled over her abdomen. He was facing towards her and grabbed her breasts. Her clothes were on the upper part of her body. He pushed her breasts together and thrust his penis between her breasts. These are the facts that constitute count 8, an indecent assault in contravention of s 76 of the Crimes Act 1990. 32Some time after that and as the victim was pulling her skirt up Mark Johnson picked up a bottle and suggested using it on the victim. Rudolf Reichel replied "no she'd had enough". 33The victim was then dropped off at a man called Simon's house. Simon's friend Rick was also staying there. Both were unknown to the victim, however the victim stayed there the night as she said she was unsure whether the offender was still outside and she did not want to risk leaving and running into him.