Director of Public Prosecutions v Allen

[2019] VCC 2119

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01986

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL ALLEN

---

JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2019
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2019] VCC 2119

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp
For the Accused	Mr C. Terry

HER HONOUR: 

1Daniel Allen, after a trial, you were found guilty by a jury of charges of assault with intent to commit a sexual offence, rape, attempted rape and sexual assault.  You had already pleaded guilty to supplying a drug of dependence to a child, trafficking in a drug of dependence and theft, as well as the summary charge of driving whilst disqualified.

2The outline of those offences are as follows:  In December 2017, Bianca Sennitt,[1] the principal victim, was 17 years old.  Indiana Nilsen,[2] her friend, was 18 years old.  You were 41 years of age.  At the time of the offences, Bianca and Indiana lived together in a residence in Reservoir. 

[1] Pseudonym used

[2] Pseudonym used

3On 28 December 2017, you imposed yourself into their lives, first by knocking on their door late at night and posing as a neighbour.  You shared cigarettes with them and invited yourself into their house.  You produced and provided to the young women an amount of ice.  Ms Sennitt gave evidence that she felt pressured by you to smoke it.  Over her protest, you said to her, 'Fucking have it.'  You all smoked ice together.  That is the start of Charge 1 on the plea indictment, supplying a drug of dependence to a child.

4The next day you said to the victims, 'I'm staying here now.'  While you stayed at their home, you made sexual overtones towards both of them.  You exposed your penis, you touched the girls sexually by rubbing their legs.  In particular, you rubbed Bianca on her upper thigh, close to her genital area over her clothing and put your hand up her top to touch her stomach and her breasts under her bra.  These acts are not the subject of charges, but form the background narrative to your offending. 

5You told Bianca at various times that you wanted to have sex with her.  She refused saying, 'I'm only a kid.'  You said, 'I don't care.'  To protect Bianca, Indiana offered to have sex with you instead and did so.  Nonetheless, you continued to try and touch Bianca, who continued to refuse.  That, at one point, made Indiana angry with you and she told you to stop touching Bianca saying, 'I fucked you, so don't touch her.'  You became angry. 

6After that point you still continued to randomly grab Indiana's breasts, slap Bianca on the bottom and run your hand up and down both girls' legs near their genitals. 

7On 29 December 2017, you told the girls that you were going to go and get more drugs and they had to go with you.  Indiana agreed for you to use her identification to pawn your jewellery for money.  You all travelled to pawn the items together.  You pointed to Bianca, told her she was to be in the front seat and Indiana had to sit in the back seat.  While driving around, you were in touch with and met a number of people for the purpose of trafficking ice to them.  That is Charge 2 on the plea indictment, trafficking in a drug of dependence. 

8You drove with the young women to a number of different houses, where you delivered ice to customers.  The girls stayed in the car while you did this, except on one occasion when you told them to go inside a house somewhere in Broadmeadows.  Inside they sat on a couch and you gave them both a glass pipe with ice in it and they smoked it.  Those events are part of Charges 1 and 2 on the plea indictment.

9You all returned to the girls' unit that night.  You smoked ice in a pipe and again, you gave that to Bianca and Indiana.  Again, that is part of Charge 1.

10You brought your clothes into the unit and you told the victims that they had to do your washing. 

11At one point in the early hours of Saturday 30 December, you told Bianca to come with you for the purpose of buying cigarettes.  You told Indiana to stay at the house.  You and Bianca drove to a service station near Bell station. 

12Although I could not be satisfied to the requisite standard that it was your intention during that car trip to rape or commit sexual offences against Bianca, your intention to have sexual contact with her was clear.  On the way to the service station you told her a number of times how badly you wanted to ‘fuck her’.  After the cigarettes were purchased, you began to drive back towards the apartment and repeatedly told her how badly you wanted to ‘fuck her’.  She again told you she was only a kid.  She was scared.  She was by herself with you. 

13On nearing the house, your intention to have sexual contact with her, regardless of her consent, became clear.  It is at that point you drove past the home and stopped the car at the end of the street.  The end of their street was interrupted by a reserve.  It was an isolated area.  You locked the doors of the car.  Bianca was very scared and wanted to get out. 

14You pushed her seat down so that she was in a horizontal position and you began rubbing your hands up and down her legs.  Again she said to you,
'I'm just a kid, can I please go, I just want to see my friend?'  You yelled at her and spoke to her in an angry voice.  You said, 'Why are you playing so hard to fucking get?'  You tried to get on top of her while she was lying flat.  She pushed you off her.  She was crying and kicking you and told you to get off.  You said again, 'Why are you playing so hard to fucking get?'  You grabbed her by the hair and kissed her face and her mouth.  That is Charge 1 on the trial indictment, the assault with intent to rape. 

15You then put your hand up Bianca's top and touched her breasts on her skin, before putting your hand down her pants and touching her bottom underneath her clothes.  You then pushed your finger inside her vagina and after, tried to put your whole fist in her vagina.  That is Charge 2 on the trial indictment, rape.

16Bianca said, 'Please, I'm only 17.'  She said in evidence that you then threatened her with what she believed was a silver gun.  I could not be satisfied beyond reasonable doubt that you in fact had a silver gun in your possession.  However, when you were arrested and your vehicle was searched a number of days later, a silver cigarette lighter with the appearance of a gun was located in the console of your car.  Whether it was this item which was produced to her or some other object, your intention at the time was to brandish something and give the impression that you had a weapon.  That is an aggravating feature of your offending against her. 

17After threatening her in that way, you pushed her head towards your penis by grabbing the back of her head.  Her lips touched your penis, but she refused to take it into her mouth.  That is Charge 3 on the trial indictment, attempted rape.

18Obviously frustrated, you then pushed her out of the car.  She walked back to her house, where Indiana let her inside.  Indiana observed that Bianca was upset, that her face was red around her mouth and her hair was messed up.  She asked Bianca what was wrong and Bianca said, 'I'll talk to you later.'  Indiana told her to have a shower, which she did and she changed her clothes. 

19You returned to the unit soon after and lay on the bed in Indiana's bedroom.  You turned on the television.  The young women sat on the floor.  You told them to sit next to you on the bed and they complied.  You gave them both ice in a pipe and you all smoked it.  Again, that forms part of Charge 1 on the plea indictment of supplying a drug of dependence to a child, being Bianca. 

20You rubbed Bianca on her legs near her genital area.  Both girls told you to stop.  You merely laughed.  That act forms Charge 4 on the trial indictment of sexual assault.  You pulled your penis out of your pants and asked Indiana to suck your penis and she refused.  Bianca walked out of the bedroom.  Shortly after Indiana left the bedroom.  

21You eventually fell asleep and it is while you were asleep the victims started to make a plan to leave the house.  While they were planning, a woman knocked on the door and asked for you.  Indiana told her you were not there.  Indiana woke you up and told you about the woman.  You became angry, yelling at her.  You got out of bed.  Indiana said it was her house and that you had to go. You said, 'Shut the fuck up.  I'm going to bash you now.'  Again that is an uncharged act.

22Later that day, 30 December, you told the two young women that you were leaving and that you would be back in 10 minutes.  You told them they were not to leave.  Once you had gone, the two girls put all of their belongings into the attic and ran to the train station.  At some point around this time, Bianca told Indiana about what you had done to her in the car.  Bianca later spoke to both of her parents.  They thought she sounded terrified and upset. 

23The victims returned to their home late that night and discovered that you had broken in and left your belongings in the unit.  At that point and in fear that you would return, they reported your sexual offending to the police.  Police later attended the unit, where they found inter alia, the belongings of the victims stashed in the attic. 

24On 1 January 2018, you returned to the victim's unit and broke in through the front door.  You observed that your property was missing.  You stole a television belonging to Indiana and personal cards belonging to Bianca.  That is
Charge 3 on the plea indictment of theft.

25A week later you were arrested sitting in your vehicle at a service station in Melton.  At the time you were disqualified from obtaining a driver's licence.  That is Charge 29, a summary charge, driving whilst disqualified.

26You were interviewed by police.  You admitted meeting the victims, breaking into the house, stealing the television and disposing of it, smoking ice with the two young women, staying at their home for a few days, travelling around in a manner consistent with what they had described as the alleged drug dealings, although you did not admit any drug dealing at that time.  You admitted having sex with the older girl, being Indiana, and that you thought Bianca was attractive, however you denied touching Bianca at any time or intimidating the victims. 

27Your behaviour clearly was intimidating to them.  Your age disparity, your aggressive tone of conversation, your unilateral decision that you would live at their residence and your sexualised behaviour, were all designed to get your own way and ride roughshod over these two young women.  No doubt that aggressive behaviour was, at least in part, fuelled by your regular consumption of ice during that period. 

28You must have been aware that they were living alone and to that end, were vulnerable.  Although you did not physically force Bianca to use ice, you ignored her initial refusal and became insistent that she did so.  You then provided it multiple times over the next few days.  Similarly, although you did not force Bianca into the car alone, you made clear your control over the situation by instructing her to do so and instructing Indiana to remain at the unit.  Once in the car, again, she was not forcibly held, however she was fearful and intimidated by you. 

29This is serious offending.  Rape, in particular, is a serious offence carrying
a maximum penalty of 25 years' imprisonment.  Attempted rape carries
a maximum of 20 years' imprisonment.  Assault with intent to rape carries a maximum penalty of 15 years' imprisonment.

30General deterrence, denunciation and community protection must be at the forefront of my sentencing considerations. 

31Higher courts have said digital penetration should be treated as similarly serious to penile penetration.  I have had particular regard to the decisions of the Victorian Court of Appeal in Shrestha v The Queen[3] and DPP v Macarthur[4].  This is a rape which, in my view, is at the upper end of the mid-range of seriousness for the following reasons: 

[3]Shrestha v The Queen [2017] VSCA 364

[4]DPP v Macarthur [2019] VSCA 71

32You were a virtual stranger to Ms Sennitt.  She was living with a similarly young person, away from her family and in that sense, was vulnerable.  The sexual offending occurred in the context of your controlling and intimidating behaviour over the preceding days.  You deliberately isolated her from her friend, at least from the time you drove past the unit.  It occurred at night in a secluded spot and in a locked vehicle.  You ignored her protests that she did not want sexual contact with you and that she was a child.  It was preceded by the assault where you forcibly grabbed her by the hair and kissed her face and lips.  It was accompanied by aggressive, threatening words.  After inserting your finger into her vagina, you also attempted to insert your fist. 

33Similarly, the attempted rape which followed is at the upper end of the
mid-range of seriousness for that offence.  Having assaulted and raped her, as I have described, you then threatened her by producing and brandishing an object in a way so as to make her believe it was a gun or other weapon.  The attempted rape was an attempt by trying to force your penis into her mouth and it was accompanied by force as you tried to push her head towards your penis. 

34Despite her refusals to engage sexually with you by variously pushing you away, kicking at you and crying, you did not stop.  Your sole aim was your own sexual gratification.  You were prepared to achieve that with threats and aggression.  It was, no doubt, a terrifying experience for that young woman.  Fortunately Ms Sennitt was not physically injured and the timeframe in the car was relatively brief, although it only ended due to her strong and courageous resistance of you.  When making orders for cumulation, however, I will take into account the fact that those offences were part of one ongoing episode. 

35Not to be deterred by her resistance of you in the car, you later the same evening, committed the sexual assault of her on the bed.  Even though the nature of that offending is at the lower end, your moral culpability for that offending is high, given it occurred after that earlier episode and it was preceded by you supplying her with ice.  Once the girls had managed to get away from the unit and in an act of revenge, you stole their television.  Knowing they were young and living on their own, that was a nasty act.  It was another attempt by you to exert your control over them. 

36In relation to the matter of Shrestha, in my view, your offending is broadly comparable for the reasons I have outlined.  Your counsel suggested that your offending falls somewhere between that and the case of Shrestha and Macarthur.  In my view, there are also broad similarities between your offending and the offending in Macarthur, although I accept there is something particularly menacing about following a stranger off a tram at night, as occurred in Macarthur, but as I have outlined, the offending, in my view, has broad similarities to both of those cases.

37I note in relation to Macarthur, that Mr Macarthur made full and frank admissions in his interview and pleaded guilty at a very early opportunity.  He was found to be genuinely remorseful for his offending.  He had a low number of dissimilar prior convictions, although he was on bail at the time of the offending, which is similar to your situation, where you were avoiding a number or outstanding warrants for your arrest. 

38More generally in relation to sentencing for sexual offending I have also noted, of course, comments of the Court of Appeal and the High Court in the matter of DPP v Dalgleish (a Pseudonym)[5]. 

[5]DPP vDalgleish (a Pseudonym) [2016] VSCA 148. See also DPP v Dalgleish (a Pseudonym) (2017) 262 CLR 428 and DPP v Dalgleish (a Psuedonym) [2017] VSCA 360

39Court and the community now better understand the impact of sexual offending on victims and in particular, young victims such as
Ms Sennitt.  I have read her victim impact statement.  She says she experienced high levels of fear at the time of the crime and ongoing fear since.  She has heightened anxiety and has required anti-depressant and sleep medication since the offending.  She felt anger at what happened to her and has had trouble eating and sleeping.  She struggled with drug-taking in her attempt to cope with the effects of your offending on her.  She says being required to undergo a rape kit examination was a violating experience.  She has been unable to work, has felt unsafe in her home, is fearful of people and has trouble trusting anyone.  Your offending has impacted her relationships with her family.  She separated from her former partner because of her trust issues with men and she says she is generally withdrawn.

40Turning now to your personal circumstances.  Those are outlined in reports from Ms Carla Lechner, psychologist and Martin Jackson, neuropsychologist.  You are currently 42 years of age.  You were born in Bowral, New South Wales and you have one older brother.  Your father was apparently a violent man.  You were exposed to his violence towards your mother and in addition, he directly abused you.  He left the family when you were six years old.  Your mother then raised you and your brother on her own.  She worked as a house cleaner and an elderly care worker.  You retain a relationship with her, which you describe as positive.  You speak to her once a fortnight on the telephone.  She lives still on the south coast of New South Wales. 

41When you were eight years of age, your brother sexually assaulted you on a number of occasions.  It is apparent that you are reluctant to talk about this, but you said to those assessors, that this involved touching and oral assault.  You apparently told your mother about that offending when you were in your 20s, but she did not, or could not, believe you.  Your brother was never charged.  You said to Ms Lechner that you have come to terms with his offending, but it made you angry for a long time. 

42Growing up and as a result of your anger towards him, you and your brother had a fractious relationship, often coming to blows.  This resulted in you being hospitalised at age 18, due to a fractured skull after your brother king-hit you.  You were hospitalised in Bowral for approximately one to two weeks and afterwards, had problems with balance, walking and had memory loss. 
Mr Jackson opines that you likely sustained an acquired brain injury as a result of that event.  I will return to that in due course. 

43Your maternal grandfather took on a father figure role for you and you were close to him.  He was a mechanic by trade and lived in Bowral.  However, he passed away when you were 13 and it is at that point you say you started getting into trouble.  You became involved in petty crime, including thefts and minor assaults. 

44During your teenage years, you were placed in a number of boy's homes.  You recall it was around that time that you began your use of drugs, initially cannabis, but by age 15 years, amphetamines and eventually methamphetamines.  At age 14 you first spent time in juvenile detention for property offences. 

45Since your father left the family, you had very little contact with him.  Occasionally when you were living in the boy's homes, he would call and ask to speak with you.  He would be drunk and tell staff there had been a death in the family, as a means of being put through to you.  Those phone calls were understandably distressing to you. 

46You harboured significant anger from your childhood years as a result of both your absent father and because of the sexual abuse and resulting difficult relationship with your brother. 

47You attended Bowral primary school and later Bowral secondary school.  You had some difficulty learning to read and write and were not particularly interested at school, but were a good sportsman.  You were quite small for your age and were bullied.  You were suspended due to fighting and absenteeism and eventually were expelled during Year 8.  You have had no other formal schooling or education. 

48You have worked on and off as a furniture removalist and in other labouring and factory jobs since then.  A back injury interrupted your employment.  You often lost jobs because of your drug and alcohol problems or because of the consequences of your criminal behaviour, including several periods of incarceration. 

49Your prior criminal history is extensive, although it does not include any sexual offending.  Of relevance to my task however, are offences of dishonesty and violence.  In particular, you have numerous past offences against women. 
I have read summaries in relation to a number of those matters. 

50In 1995 you were dealt with for assault.  In 1999 for assault occasioning actual bodily harm.  In 2004 for recklessly causing injury, theft, unlawful assault, harassing a witness and recklessly causing injury.  You were placed on an intensive corrections order.  In 2005 you were dealt with for breaching an intervention order and intentionally damaging property.  In 2007 you appeared a number of times for breaching an intervention order, recklessly causing injury, assaulting police, criminal damage and threat to kill.  You breached your intensive corrections orders imposed and eventually served time in custody.

51You returned to court in 2009 for offences of breaching family violence intervention orders, recklessly causing injury and assault.  You served

[6] Pseudonym used

12 months' imprisonment.  Yet again in 2010, you appeared for similar offending and you served a two year term of imprisonment, with a non-parole period of 18 months.  Most of those offences were committed against your former partner, Amy.[6]  That relationship lasted on and off from when you were 26 years old, until you were approximately 34.  A number of your other prior matters for violence also relate to offences committed against women partners. 

52You were released in late-2011 and there was a gap in your offending.  It is upon release from prison in late-2011 that you moved to Bendigo and met the mother of your two children, Zoe Richmond.[7]  You had twin boys, Logan[8] and Jeremy,[9] who are now six years of age. 

[7] Pseudonym used

[8] Pseudonym used

[9] Pseudonym used

53This was apparently a good relationship for the first three years, before you relapsed into heavy drug use.  Your partner eventually left you, taking the twins.  She was forced to seek an intervention order against you.

54You appeared in the Magistrates' Court in July 2016 for charges of criminal damage, threaten serious injury, assault with a weapon and intentionally damage property, along with a raft of summary offences.  Those matters related to your then-girlfriend and another woman.  You served a three month term of imprisonment, before being released in September 2016 to a community corrections order for 12 months with treatment conditions.  That order would have finished approximately three months prior to this offending, however
I understand it never really began.

55Since this offending you have also been dealt with in March 2018 for offences of assault and breaching family violence orders in relation to your partner,
Ms Richmond, the mother of your children.  Those offences occurred variously in 2015 and 16. 

56When not in custody for the 14 months prior to the offending before me, you were on the run from police as a result of warrants that were issued in relation to driving offences.  You apparently became aware of the existence of those shortly after being released from prison.  You were a heavy user of methamphetamine prior to your arrest on these matters in January 2018. 

57Apparently your awareness of the outstanding warrants was a factor in you not having contact with your two children during the time between your separation from their mother and your remand in relation to this offending.  Your priority currently is to commence a legal process to obtain some access to your children.

58You have a significant mental health history, although given the overlay of drug use, it was not suggested Verdins[10] principles applied.  You have had two past suicide attempts, one by hanging and one by overdose and you have had ongoing difficulties with anxiety and depression.  You have been prescribed Serepax, Seroquel and Avanza in the past. 

[10]R v Verdins & Ors [2007] VSCA 102

59You have attended at the Dandenong Hospital Psychiatric Unit for treatment on a number of occasions and you were admitted there on 26 February 2009 after presenting with self-harm and suicidal ideation.  At that point you were homeless, living on the streets and out of work.  At that stage you were a chronic drug user and drinking heavily.  You had been using heroin, ecstasy, LSD and speed. 

60You had previously presented to Dandenong Hospital Psychiatric Service in August 2006 in the context of ‘feeling like you were losing control and ending your life’.  Drug and alcohol use was a feature.  There were also similar previous presentations, including in December 2003, May 2004 and February 2005 and diagnoses of general depression and substance use disorder.  On another occasion, you had superficial lacerations to your wrist.  Diagnosis also included anti-social personality disorder. 

61Ms Lechner assessed you and determined that you come from a dysfunctional family background and presented with a history of complex developmental trauma which undermined development of your personality structure, vocational options and social and emotional maturity. 

62Your counsel submitted that your dysfunctional background, including being a witness to and victim of your father's violence and abuse, being the subject of sexual abuse by your brother, losing your significant male role model in your grandfather when you were 13, being placed in a number of boy's homes during your teenage years, being placed in juvenile detention at age 14 and your introduction to drug use around the same age, place you in a category of significant disadvantage.  In particular, he submitted that this raises the type of considerations outlined in the Court of Appeal in Bugmy[11]. 

[11]Bugmy v R [2013] HCA 37

63The prosecution accepted that Bugmy applies, but noted that there is a spectrum of hardship.  In my view, on any objective assessment of your early life, there was significant disadvantage.  I accept in those circumstances that disadvantage does raise the type of considerations outlined by the High Court  in Bugmy and I take that history into account when determining sentence. 

64I have also taken into account comments in cases which follow Bugmy, such as the DPP v L'Eveille[12] and Leishman v The Queen[13], to the effect that comments in Bugmy were not to suggest that an offender's background has the same mitigatory relevance for all purposes of punishment, which is what makes giving weight to the conflicting purposes of punishment and the exercise of discretion difficult. 

[12]DPP v L’Eveille [2018] VSCA 60

[13]Leishman v The Queen [2019] VSCA 270

65Further, that ongoing drug and alcohol abuse, in circumstances where an offender knows of his or her propensity for violence, may mean moral culpability for offending remains high, even if some mitigation is given on Bugmy principles.  Further, that the amount of mitigation may decrease in the face of serious offending.  However, as I have said, I accept in the circumstances of your early life, the principles of Bugmy are enlivened.

66In addition to your complex developmental trauma, Ms Lechner stated that you have symptoms of stimulant use disorder and major depressive disorder.  She raised concerns about the possibility of cognitive impairment due to brain injury and recommended a neuropsychological assessment. 

67To that end, you were assessed by Mr Martin Jackson, who concluded that it is highly likely that you have sustained a significant acquired brain injury, possibly due to a significant traumatic brain injury when aged 18, but also as a likely consequence of long-term drug and alcohol abuse.  He could not confirm your report of an assault which saw you hospitalised in 2006.  He identified that your ABI causes you particular difficulties with new learning and memory, attention skills and a range of executive skills. 

68Your counsel properly conceded that there is no causal link between that injury and your offending, in particular, given Mr Jackson's comments that it does not evidence a disorder of impulse control.  Mr Jackson did, however, opine that your mental state as a result of your ABI would have a significant impact on your ability to function on a day-to-day basis.  To that end, your time in custody is likely to be more difficult and I take that matter into account in that regard. 

69I also take into account the fact you have been in protection for almost the entirety of your time on remand.  That status is a result of the nature of the charges which you face.  You have apparently found this period of time on remand much more difficult than any previous sentence of imprisonment due to that protection status. 

70You are isolated in custody and you are unlikely to have anyone visit you.  I take those matters into account to the extent I am able.  Your protection status and isolation as a lack of support network do not mitigate your punishment however in any significant way here.

71You pleaded guilty to a number of offences, as I have outlined, on the plea indictment and you are entitled to a discount in sentence because of your plea of guilty to those matters.  I accept it is a reflection of some, though limited, remorse.  You are entitled to a utilitarian discount for those pleas of guilty, giving the saving of time and expense, however, this is limited by the reality that the substantial matters did go to trial and the complainants did have to undergo cross-examination about more sensitive topics.

72You have not demonstrated any remorse for your offences against those young women, i.e., the sexual offending in relation to Ms Sennitt or the theft of items in relation to both of them.  You do not receive any benefit of having shown regret, empathy or insight, though, of course, you are not disadvantaged, it is not an aggravating factor that you elected to run a trial, but you do not receive the benefit of any plea or show of remorse. 

73You clearly have serious issues with violence and in particular, serious issues regarding women and your violent treatment of them and as much was conceded by your counsel.  In this instance, this involved sexual violence. 
Ms Lechner assessed your risk of further sexual offending as moderate/high.  Any prospects of rehabilitation must be seen to be very guarded.  Chronic drug use and your issues of anger loom as significant obstacles to your successful reformation. 

74I have taken into account maximum penalties for each offence.  I will also take into account that once you are sentenced on Charges 1 and 2 on the trial indictment, you will fall to be sentenced as a serious sexual offender on Charges 3 and 4 on that indictment and I direct that status to be noted in the record. 

75General deterrence is important.  That is, I must impose a sentence which is likely to deter others from behaving as you did.  Specific deterrence is important.  Community protection is important.  Denunciation of your conduct on behalf of the community is important. 

76In all the circumstances of your case, I propose to sentence you as follows: 

77If you can stand up please, Mr Allen.

78Looking at the trial indictment first. 

79On Charge 1, assault with intent to rape, you are convicted and sentenced to three years' imprisonment. 

80On Charge 2, the offence of rape, you are convicted and sentenced to seven years' imprisonment.  That will be the base sentence. 

81On Charge 3 of attempted rape, you are convicted and sentenced to four years' imprisonment. 

82On Charge 4, sexual assault, you are convicted and sentenced to two years' imprisonment. 

83I direct that on Charge 1 of the trial indictment, eight months be served cumulatively on the base sentence. 

84On Charge 3 on the trial indictment, 10 months be served cumulatively on the base sentence.

85On Charge 4 on the trial indictment, eight months be served cumulatively on the base sentence.

86Turning to the plea indictment.

87On Charge 1, supplying a drug of dependence to a child, you are convicted and sentenced to three years' imprisonment. 

88On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to two years' imprisonment.

89On Charge 3, the theft, you are convicted and sentenced to two years' imprisonment.

90I direct that on that indictment, on Charge 1, the supplying a drug of dependence, 12 months is to be served cumulatively on the base sentence on the trial indictment. 

91On Charge 2, six months is to be served cumulatively on the base sentence on the trial indictment. 

92On Charge 3, six months is to be served cumulatively on the base sentence on the trial indictment.

93But for your pleas of guilty on those matters, the sentence I would have imposed on Charge 1, the supplying drug of dependence, would have been a sentence of five years.

94On Charge 2, it would have been a sentence of four years' imprisonment.

95On Charge 3, of three years' imprisonment.

96In relation to the summary charging of driving whilst disqualified, you are convicted and sentenced to three months' imprisonment and your driver's licence is cancelled and you are disqualified for a period of two years. 

97The total effective sentence in relation to both indictments is a sentence of
11 years and two months' imprisonment. 

98I direct that you serve nine years' imprisonment before you are eligible for parole.

99In addition, you are now liable to registration under the Sex Offenders Registration Act.  And I believe, Ms Thorp, there were requests for orders for 464ZF and disposal orders?

100MS THORP:  That is right, Your Honour.

101HER HONOUR:  Yes.  From memory there was no opposition to those,
Mr Terry?

102MR TERRY:  No, Your Honour.

103HER HONOUR:  Yes, all right.  I will make those orders in the terms sought.  Now, the complication is the SORA material.  Have a seat, Mr Allen, please.  Because Mr Allen needs to sign it.  The SORA registration is mandatory life, as I understand it. 

104MS THORP:  Fifteen.

105HER HONOUR:  Sorry?

106MS THORP:  Fifteen years. 

107HER HONOUR:  All right.  Well I understand what's been done in other matters where there's a video link, is that the paperwork is emailed to the prison.  A signed copy of that is signed by me and that Mr Allen will then need to sign it and it is then returned to my associate, effectively.  So unless there is any issue, that is what will happen today.

108MR TERRY:  No issue.

109MS THORP:  No issue with that, Your Honour. 

110HER HONOUR:  So, Mr Allen, there will be a bundle of material that will come to you today at the prison.  It is the Sex Offenders Registration Act material.  There is a mandatory registration, now that you have been dealt with for this offending, of 15 years.  So I will have that material prepared and I will sign it.  You will need to have a look at it and sign it and then the prison staff, they will have the information to provide that back to my associate and the paperwork will outline your obligations, so that will include things like reporting changes of address.  It is a little bit like bail, I suppose, reporting changes of address, restrictions on leaving Victoria, et cetera, but that information will all be on the paperwork that you receive, so it is important that you read that. 

111I have also - I am making an order in relation to a forensic sample.  I am not sure whether that has been obtained and it is just a retention.  I do not think so.  So, a forensic sample will - is likely to be a cheek scrape.

112OFFENDER:  Yeah, they got one off - they got one off me a few years ago as well.

113HER HONOUR:  Yes, all right.  Well it may be that it is on the database and that is the end of it, but I am required to let you know that I am making that order, so if you are asked for that sample, if you were to refuse it, reasonable force can be used by police to take that sample. 

114OFFENDER:  Yeah.

115HER HONOUR:  Just so that you are aware of that.  All right. 

116Counsel, do you want a moment to check that maths, or are you ‑ ‑ ‑

117MS THORP:  Yes, just in relation to the summary offence, is that wholly concurrent?

118HER HONOUR:  Yes.

119MS THORP.  Yes, that's fine.  The pre-sentence detention.

120HER HONOUR:  Sorry, yes.  Thank you.

121MS THORP:  We have calculated it as 584 days, which is taking into account that he has served four months' imprisonment while he's been in detention. 

122HER HONOUR:  Right.  So that ‑ ‑ ‑

123MS THORP:  Sorry, four months on the sentence while he's been ‑ ‑ ‑ 

124HER HONOUR:  On the other sentence.  And that - so it is 500 and ‑ ‑ ‑

125MS THORP:  Eighty-four days.

126HER HONOUR:  Four.  All right, well I declare, in relation to this sentence,
pre-sentence detention, that is 540 - sorry, 584 days should be reckoned as having already been served.  Also, and I know this is a little bit artificial, but in relation to his driver's licence, that can be backdated to the date of going into custody.  Do you want to say anything about that, Mr Terry, or it is ‑ ‑ ‑

127MR TERRY:  No, Your Honour. 

128HER HONOUR:  Otherwise I will make it start from today.  As I say, it is a bit - I realise it is artificial, but ‑ ‑ ‑

129MR TERRY:  I have got nothing to say about that, Your Honour. 

130HER HONOUR:  All right, well I will start it from today. 

131All right, thanks very much, counsel.  Mr Allen, we will turn the link off now, thank you. 

132MS THORP:  As Your Honour pleases. 

133HER HONOUR:  Thank you, I will leave the Bench.  Thanks, 12 o'clock. 

‑ ‑ ‑