Director of Public Prosecutions v Albert

[2017] VCC 1088

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 16-01862

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENRY ALBERT

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	3 August 2017
DATE OF SENTENCE:	9 August 2017
CASE MAY BE CITED AS:	DPP v Albert
MEDIUM NEUTRAL CITATION:	[2017] VCC 1088

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Mr H. Rattray

HIS HONOUR:

1Henry Charles David Albert, you have pleaded guilty to two charges of rape.  That crime carries a maximum penalty of 25 years' imprisonment.  You are now 28 years of age, and were 25 years of age at the time of the offending.

2You have pleaded guilty to a settled indictment, and I take into account that there is now a - without any further comment, a three-year delay since the offending.  You have no prior convictions, and as I understand it, have nothing pending.

3Your plea of guilty on the material before me does not appear to be accompanied by remorse, but you must get the utilitarian benefit of it, having saved the victim the ordeal of a trial.  All those matters go in your favour.

4The circumstances of the offending are that in March of 2014 the victim and you, and others, were at a birthday party in Traralgon.  The party was attached to a motel, and your then-girlfriend and the victim were to share a room.  It was clear that alcohol had been drunk by all concerned, including the victim.

5At one stage during the night, the victim was unable to get access to licenced premises, and it was suggested that you put your arm around her and pretend to be her boyfriend to get her in.  That did not work.  In any event, you waited outside and made sure she was in a taxi before you went in to join the group.  She described you at that time as being caring, and that you had made sure she was safely in the taxi back to the hotel.

6On the way back to the hotel - or initially on the way back to the hotel, you and your girlfriend argued, and in the end the victim went to sleep in a single bed, and you ultimately went to bed with your girlfriend.

7At around 3.30 am on the 16th, she was woken by you sitting on the edge of the bed with your fingers inside her vagina (Charge 1, rape).  She says she tried to move away from you, and you continued to penetrate her until she went to get up to go to the toilet.  That is a rape on any basis, simply that she was asleep.

8Neither of you said anything when she went to the toilet, and she had to leave the room to go to the toilet.  She came back in and returned to the bed.  You again went to her bed and rolled her onto her back and inserted your penis into her vagina.  She says she was scared of being hurt, so did not struggle.  You then whispered in her ear "Can I come inside you?", to which she did not reply.  Apart from this, nothing else was said or done by either of you, and you ejaculated inside her.  That gives rise to Charge 2 of rape.  You got back into bed with your girlfriend, and the victim went outside for a cigarette, and she then described the offending to others in the group.

9You were then confronted with the matter, and again, when police interviewed you and you denied that intercourse had taken place.  At first glance, that would seem to have been a rather strong indication of consciousness of guilt, but when one takes into account the circumstances in which you were in, of having had sex with this person in your girlfriend's presence, it becomes more understandable.

10The agreed basis of the mens rea is that you gave no thought as to whether or not the victim was consenting.  That raises the interesting question as to whether that reduces moral culpability.  I think to a degree it has to, because it would seem to me that that is a different mens rea to the others.  It is quite clear that one is not to distinguish between various forms of penetration, and I do not intend to do that.

11What has occurred in this situation is that by reason of the inactivity, it is understandable how you could have come to the situation where you did give no thought, certainly on the second occasion.  That, I think where she is asleep, does not apply to the first. 

12In that respect, I refer to a decision of the Court of Appeal in R v Simon, no.860 of 2008.  In that, Court of Appeal said:

"They and the indecent assault were committed in unusual circumstances.  Those circumstances included the complainant's response, rather lack of response, to the applicant's acts.  Alcohol, though not a circumstance of mitigation, seems likely to explain the applicant's behaviour on this occasion, which was quite out of character.  Nothing in the applicant's antecedents, his relationship with the complainant and the nature of his minor criminal record hinted that the applicant would offend in such a way, or in my opinion, carried any implication that he would be likely to do so in the future.  Again, readily accepting that his offending understandably caused the complainant continuing distress, that was but one of the considerations bearing upon sentence".

13That seems to me to be of a similar circumstance as exists here.  In that matter, the two incidents were very close together, and were given total concurrency, and I have taken the sentence in that matter into account, bearing in mind that you in fact have pleaded guilty.  In that matter that I have referred to, the applicant had run a trial.

14That is the offending - insofar as the victim is concerned - I have read her victim impact statement, which was tendered, and it describes the consequences of this offending to her.  Rape, in any form, always has to be regarded as serious and calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.

15A gaol term in this situation is inevitable, and your counsel quite properly conceded so.  It was also conceded that it was not within range of what is known as a "combination disposition".

16I then look to matters personal to you to ascertain the appropriate sentence.  I say from the outset I have not had the experience of sentencing for this particular rape mens rea before, and cannot find any other judge who has.

17However, in your situation, I have before me references which are supportive of you.  You clearly have a very good work record, and have had your own business since you were 25.  You have no prior convictions, and as I have said, nothing pending.  You have family support, and the prospects of your rehabilitation should be good.  The risk of you reoffending should be low.

18In respect of that, none of the principles of Verdins apply here.  As I have already indicated, you are in the unfortunate situation of not being able to call upon remorse, and there are no other factors in that respect. 

19Tendered on your behalf was a report from Mr Patrick Newton, and that outlines your history, which I do not know that I need to go into any great detail here.  You have obviously had a relatively troubled childhood at school in terms of behaviour, and it is to your credit that at your stage, you do not have any (adult at least) prior convictions.

20What is of concern is the alcohol aspects of that, and also Mr Newton's perceptions that:

"He alternates between turning his distress inwards in the form of depressive brooding and ruminative worry, and expressing his anger, bitterness and resentment at the situation in which he finds himself.  While he does not resile from his plea, he nevertheless views his situation as unfair.  He feels deeply aggrieved to be before the courts for his conduct.

"Mr Albert's moral reasoning tends to be based on egotistical considerations.  He lacks empathy, and expresses considerable cynicism and wariness about women."

21He then went on to say further:

"The main issue identified in my review of Mr Albert's sexuality was his lack of insight into the nuances of consent in the sense of sexual interactions.  Thus he continues to believe that since the complainant indicated a sexual interest in him [which apparently are your thoughts], she had therefore given implicit consent to the subsequent acts of sexual intercourse between them.  I was concerned by his tendency to attribute malevolent motives to her complaint, and his frank anger and bitterness at the situation in which he finds himself.  Notwithstanding his plea, Mr Albert continues to be convinced that the complainant is responsible for his predicament.  Such beliefs reflect his concrete stance more broadly, and they are likely to pose challenges to effective treatment."

22In your situation, you will undoubtedly, in a custodial environment, be compelled to do a sex offenders course, if you wish to ever have parole.  That will be a matter for you, and whilst Mr Newton has those concerns, it really comes down to what you do with your time in custody.  I have imposed a minimum term, which will arrive sooner than might otherwise have been the case for somebody with prior convictions, but as I have indicated, if you are not compliant with what the authorities are endeavouring to do over the next period of time, you will not get parole.  That is entirely a matter for you, and it is not a matter of course I take into account when determining the length of the sentence. 

23In any event what is serious offending - on Charge 1, you are sentenced to be imprisoned for a period of two years; on Charge 2 18 months.  I direct that six months of the sentence imposed on Charge 2 be cumulative on the sentence imposed on Charge 1.  That gives an effective total sentence of two and a half years.  I direct that you serve a minimum term of 15 months before becoming eligible for parole, and I direct that six days be reckoned as having been served under this sentence.

24Pursuant to s.6AAA of the Sentencing Act, I say but for your plea of guilty, you would have been sentenced to be imprisoned for a period of three years and six months with a minimum term of two years and three months.

25So it is two and a half with a 15-month minimum.  Any other orders I have to make, gentlemen?

26COUNSEL:  No Your Honour.

27HIS HONOUR:  No?  All right, yes, thanks for that.  Yes, thank you.  You are excused, thanks Mr Rattray, I just want to talk for Mr Hutton for a second about the other matter.

28(At this stage the court proceeded with another matter.)

‑ ‑ ‑