Director of Public Prosecutions v Anderson (a pseudonym)
[2023] VCC 2347
•11 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VERN ANDERSON (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2023 | |
DATE OF SENTENCE: | 11 December 2023 | |
CASE MAY BE CITED AS: | DPP v Anderson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2347 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty - Persistent contravention Family Violence Intervention Order (1) – Rape (2) – Causing injury recklessly (1) – Relevant criminal history – Offences committed against de-facto partner – No Victim impact Statement – Application of Bugmy principles – Long history of substance abuse – Expert opinion of stimulant and alcohol use disorder – Evidence of depressive disorder
Cases Cited:Bugmy v The Queen (2013) 249 CLR 51
Sentence: Convicted and sentenced to a Total Effective Sentence of 6 years’ imprisonment with a non-parole period of 3 years and 7 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration – 677 days’ imprisonment declared as having already been served as part of the sentence imposed – Ancillary orders Disposal
--
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett | Office of Public Prosecutions |
| For the Offender | Mr S. Ranjit | Papa Hughes Lawyers |
HER HONOUR:
1Vern Anderson (a pseudonym), you have pleaded guilty to one charge of persistent contravention of a Family Violence Intervention Order, two charges of rape, and one charge of causing injury recklessly.
2The offence of rape has a maximum penalty of 25 years’ imprisonment. Persistent contravention of a Family Violence Intervention Order has a maximum penalty of five years’ imprisonment, and causing injury recklessly has a maximum penalty of 15 years’ imprisonment.
3Also, you have committed the summary offences of unlicensed driving, which has a maximum penalty of 60 penalty units or imprisonment of up to six months, and one charge of contravene bail conditions, which has a maximum penalty of 30 penalty units or three months’ imprisonment.
4I must have regard to the maximum penalties as these reflect the seriousness with which parliament regards each of the offences that you have committed.
5You were 45 years of age at the time of the offending and living in a suburb of Melbourne. The complainant was 36 years old at the time and living in another suburb of Melbourne.
6You and the complainant had been in an on and off de facto relationship for 14 years, sharing three children together whose ages ranged between one and 12 years at the relevant time.
7On 29 March 2021, a Family Violence Intervention Order was made against you at the Magistrates Court. I will refer to this as 'the order' from time to time. The order was to remain in place until 5 January 2023. You were served with the order on 14 April 2021. The protected people on the order were the complainant and your three children.
8The order prohibited you from doing a number of things, including committing family violence against protected persons, contacting or communicating with the protected persons by any means, and going to or remaining within 200 metres of the complainant’s address or any place where the protected persons lived, worked or attended school or childcare.
9The basis for Charge 1 is that you persistently contravened the intervention order between 14 January and 2 February 2022 as follows.
(a) on 14 January 2022 you attended the complainant’s address and remained there until 18 January 2022;
(b) on 31 January 2022 you contacted the complainant by text message, and you also attended the complainant’s address on that day;
(c) on 1 February 2022 you contacted the complainant by text messages, and you also attended her address; and
(d) on 2 February 2022 you attended the complainant’s address.
10On Friday 14 January 2022 at about 4.30pm, as previously stated, you attended the complainant’s home. You and the complainant spoke casually outside the house. Later that same evening the complainant put your youngest child to bed. You followed the complainant inside. After the child was in bed you and the complainant continued your conversation inside the house, following which you and the complainant slept the night at the house.
11On 15 January 2022 you and the complainant continued to engage in conversation. You both smoked methamphetamine in the afternoon and evening.
12On Sunday 16 January 2022, between midnight and 2.00am, the complainant went to bed. At one stage, at around 8.00am to 10.00am, she woke up. You were on top of her penetrating her vagina with both your penis and a penis-shaped implement.
13She felt unable to move and had no energy or strength.
14At one point you pushed the complainant on her side and whispered, 'You deserve it' and 'I told you I’d get this'.
15The complainant recalls you inserting your penis into her mouth and ejaculating, causing her to vomit. You then used a tissue to wipe her face.
16Plainly, the complainant did not consent to any of these forms of sexual penetration.
17You recorded the offending on your iPad and the various episodes were set out in the summary of prosecution opening.
18The basis for Charge 2, a rolled-up charge of rape, is that at 00:55, you leaned over between the complainant’s legs and appeared to perform oral sex. At 01:09 you moved on top of the complainant and moved your penis back and forth towards her vagina.
19After appearing to engage in oral sex with the complainant once more and moving your penis back and forward towards her vagina, at 06:59 you introduced a penis-shaped implement into the complainant’s vagina, giving rise in part to Charge 3, a rolled-up charge of rape.
20At 08.58 you attempted to insert a strap-on penis-shaped implement into the complainant’s vagina and subsequently you were seen to move your head down to the complainant’s vagina apparently performing oral sex.
21At 14:13 you inserted a silver vibrator into the complainant’s vagina, giving rise in part to Charge 3, a rolled-up charge of rape.
22At 14:30 you used your fingers to rub the complainant’s vagina, which is part of the conduct giving rise to Charge 2.
23Subsequently, you rolled the complainant onto her side and appeared to thrust your penis towards her anus, giving rise in part to Charge 2.
24Subsequently, you introduced a penis-shaped implement into the complainant’s anus, giving rise in part to Charge 3.
25After this you are seen to be leaning over the complainant’s head and ejaculating near her face and chest. Subsequently, you used toilet paper to wipe yourself and the complainant.
26At 1.18.35, the complainant is seen to wake up and say, 'I can’t get up, my back’s fucked' and 'I can’t move'.
27After the offending concluded the complainant got out of bed and attended to your child.
28The complainant avoided you for the rest of the day, that day being 17 January 2022.
29That evening you and the complainant began arguing about various issues.
30In the morning of Tuesday 18 January 2022, you left the complainant’s home.
31At about 7.00am to 8.00am the complainant left the house in her car. She saw you walking towards a Shopping Centre outside Melbourne and pulled over to offer you money to help you get home. You got into the car, and you used your electric cigarette to hit the complainant over her left shoulder, giving rise to Charge 4, recklessly causing injury.
32You then got out of the car and the complainant drove off with the door still open.
33On 19 January 2022 the complainant recovered the recording of your offending which you had recorded on the iPad. The recording went for about one and a half hours. After watching parts of the video, she contacted police.
34On 20 January 2022 the complainant made a statement and provided the video footage to police, and police also took photographs of her injuries.
35Between 31 January and 2 February 2022, you and the complainant exchanged text messages, continuing the argument you had previously been engaging in and discussing your offending on 16 January.
36On 31 January 2022 at about 6.00 pm, you sent a text message asking the complainant if you could stay at her place and she agreed. You stayed overnight and left on the morning of 1 February 2022.
37On 1 February 2022 you and the complainant exchanged several text messages throughout the day. At about 9.30pm you attended the complainant’s home and asked if you could use her car. She agreed and gave you the key. You left her home using her car at about 10.30pm.
38On 2 February 2022 you returned to the complainant’s home. You went inside and you had a short conversation with her before the complainant asked for her keys back. You then said, 'You can have your car back with the wheels inside it for $1,000'.
39The complainant refused to give you any money. You then told the complainant you could not find the car key and walked outside to the front of the house. The complainant told you that if you left with the key, she would call the police. The complainant then walked back inside. Moments later the complainant saw you get into her car and drive off. This gives rise to the related summary offence of unlicensed driving.
40I understand that these facts were also relied on as context in respect of the nature of the relationship that you and the complainant had at the relevant time.
41The basis for the related summary offence, which is a rolled-up charge of contravening bail conditions, is that between 14 January and 2 February 2022 you contravened your bail conditions to live at a fixed residential address, where you were supposed to be living, and to comply with the curfew condition between 10.00 pm and 6.00am, as you were living at the complainant’s address during that period.
42On 2 February 2022 police found you sitting in the driver’s seat of the complainant’s car. You were arrested and taken to a suburban police station.
43You were interviewed on 2 February 2022 by police with the assistance of an Arabic interpreter.
44You said that you and the complainant were in an intimate relationship. You said that when you arrived at the house on 14 January 2022 you and the complainant engaged in sexual activity. You said during sex you and the complainant used different positions, watched pornographic movies, and used sex toys.
45You said that during sex you also communicated with one another throughout, and you had never had sex in front of the children.
46You said that you sometimes video recorded yourselves having sex and then deleted it. You denied ever having sex with the complainant while she was asleep. You said that if she was asleep, you would wake her up with kissing and touching.
47You admitted that the youngest child slept in the same bedroom and sometimes woke up while you and the complainant were having sex. However, if this occurred you said you would push blankets to block your child's view.
48You said that the last time that you and the complainant recorded yourselves having sex was about a week earlier. You said on this occasion the sex finished with oral sex and you ejaculated. You said that after you did this on this occasion the complainant felt disgusting.
49You said that sometimes when you ejaculated in the complainant's mouth, she did not like this, and you said that you and the complainant smoked methylamphetamine together before sex as it helped you last longer.
50On the occasion of the offending before me you said the complainant was interacting and responding, that she was talking 'dirty' and actively engaging.
51You said that the complainant always wanted you to have sex with her and she had never said 'no'. You said that the last occasion when sex was filmed was the first time you had filmed it yourself and the recording went for one hour and 30 minutes. You said that on this occasion the complainant was awake.
52Therefore, at the time you were speaking to police you gave an untruthful account as to what had occurred on the occasion in question.
53Mr Anderson (pseudonym), your offending is serious and deserving of a punishment which is just in all of the relevant circumstances. Your conduct must be appropriately denounced.
54As the learned prosecutor, Ms Burnett, submitted, the offending occurred in the context of an intimate relationship, albeit that it was on and off, and therefore your offending constituted a breach of trust – that is, the complainant was trusting of you to sleep beside her whilst she was asleep and not to offend against her. Whether the relationship was on or off, that is the case.
55Further, the offending occurred over a substantial period of time, being approximately an hour and a half. The offending occurred when the complainant was asleep and therefore vulnerable. Also, the offending occurred at the complainant’s home where she was entitled to feel safe.
56I have factored in that you ejaculated in the complainant’s mouth causing her to vomit, as an uncharged act, as this did not give rise to either of the charges on the indictment. I do not sentence you in respect of this conduct, it is part of the context in which the other offending occurred.
57I have factored in the number and types of penetrations that are included in relation to each of the rape charges. Charge 2 comprises three acts of penetration of the complainant’s vagina and one act of penetration of the complainant’s anus. You penetrated the complainant’s vagina with your tongue, with your penis and with your fingers and you penetrated her anus with your penis.
58In relation to Charge 3, this comprises three separate penetrations. The first involving you penetrating the complainant’s vagina with a penis-shaped implement, the second involving insertion of a vibrator into the complainant's vagina, and the third involving you penetrating the complainant’s anus with a penis-shaped implement.
59Over and above these occasions evidence was led of a number of uncharged acts in the course of the offending, which I factor in as such, and you are not to be sentenced in relation to any uncharged conduct.
60Further, I have factored in that you are heard to be making some rather debasing utterances to the complainant whilst offending against her.
61In all the relevant circumstances, I regard the rape offences that you committed as serious, albeit that I accept there are more serious examples of such offences. I do not accept that they are at the higher end of the scale as submitted by the learned prosecutor. However, they are serious enough.
62You engaged in these acts in circumstances where you did not reasonably believe that the complainant was consenting. Indeed, you should not even have been at her house, ignoring the Family Violence Intervention Orders that were in place. You committed the offences of rape in circumstances where you were subject to a community corrections order for previously offending against the complainant by way of unlawful assault and contravening Family Violence Intervention Orders, receiving the community corrections order on 27 August 2021.
Criminal History
63In sentencing you I take into account your criminal history, noting that you have never committed the offence of rape before.
64You first appeared in the Magistrates Court on 31 July 2006 for a number of driving offences, including drive whilst disqualified; two charges of exceed prescribed concentration of alcohol and driving over the speed limit. In relation to the charge of drive whilst disqualified you were sentenced to two months’ imprisonment which was wholly suspended.
65On 5 March 2008 you were dealt with at a suburban Magistrates’ Court for four charges of driving whilst disqualified and one charge of exceed prescribed concentration of alcohol, as well as some other offences. You were sentenced to an aggregate term of four months’ imprisonment and the suspended sentence previously imposed was wholly restored.
66You appealed to this court on 30 May 2008 and in relation to the four charges of drive whilst disqualified, the appeal was allowed, and you were sentenced to an aggregate term of four months’ imprisonment with two months suspended for 12 months.
67In relation exceed prescribed concentration of alcohol, the appeal was allowed, and you were sentenced to one month concurrent which was suspended for 12 months.
68In relation to the breach of suspended sentence which had been imposed on 31 July 2006, the sentence of two months was reinstated with a declaration that you had already served 23 days.
69On 10 January 2011 you were dealt with for drive whilst disqualified, drive under the influence of intoxicating liquor, exceeding prescribed concentration of alcohol, two charges of failing to answer bail and unlicensed driving.
70In relation to the drive whilst disqualified you were sentenced to six months’ imprisonment which was wholly suspended for 12 months. In relation to the remaining charges, you were convicted and ordered to undergo a 24-month community-based order with treatment conditions for alcohol and/or drug addiction, as well as appropriate assessment and treatment for medical, psychological and psychiatric issues.
71On 17 July 2015 you were convicted of stalking; two charges of unlicensed driving; one charge each of unlawful assault and fail to stop vehicle on police request, reckless conduct endangering serious injury, fail to stop vehicle after an accident, fail to answer bail, drive whilst exceeding prescribed concentration of alcohol, exceeding speed limit and not wearing a properly fastened seatbelt.
72In relation to all of the offences, save the last mentioned, you were sentenced to an aggregate term of 66 days’ imprisonment with time declared as already served. You were also fined, and your licences were cancelled, and you were disqualified from driving for 32 months.
73The victim of the stalking was not the complainant in the matter before me.
74On that same occasion you were dealt with for breaching the community-based order previously imposed. The community-based order was cancelled, and you were convicted and fined in relation to offences which were the subject of it.
75On 18 August 2017 you were convicted and fined in relation to assaulting a police officer, a number of driving offences including drive in a manner dangerous, and unlicensed driving, as well as refusing a preliminary breath test.
76On 1 August 2019 you were convicted of unlawful assault and possess cannabis. You were fined $1,000 in relation to the offending. I understand that the victim of this offending was the complainant in the matter before me.
77Finally, on 27 August 2021 in the Magistrates Court, you were convicted of two charges of contravening a Family Violence Intervention Order, one charge of contravening a conduct condition of bail, two charges of contravening a Family Violence Final Intervention Order, wilfully injuring property, and unlawful assault. The victim in the matter before me was also the victim in relation to the unlawful assault and the subject of the Family Violence Intervention Orders.
78You were ordered to undergo a community corrections order for a period of 12 months with treatment and rehabilitation conditions attached, including for drug abuse or dependency, alcohol abuse or dependency, mental health assessment and treatment as directed, as well as offending behaviour programs as directed.
79It is concerning that notwithstanding these convictions, in August 2021 you contravened an intervention order on a number of occasions from 14 January 2022 onwards.
80Your counsel told me that you understood there to be an agreement with the complainant that the Family Violence Intervention Order did not apply if you were in contact for the purposes of discussing the children or seeing them. Your counsel pointed to some answers in the complainant’s committal evidence in this regard. On the other hand, on occasion you asked the complainant if you could attend her premises, which appears to reflect a knowledge on your part that you were prohibited from doing so. In any event you have pleaded guilty to all of the elements constituting Charge 1.
81Despite the complainant’s apparent attitude towards you attending the premises, you well knew that you were not to do so and appeared to have little regard to the fact that the orders were in place. Having said this, I have factored in that you had some sort of ad hoc understanding with the complainant, and it was in these circumstances that apparently you felt justified in contacting her or attending the premises.
82In relation to your criminal history, it is relevant that you have previously committed offences in respect of breaching intervention orders and assaulting the victim in this matter. You also have prior convictions for licence-related offences, which is relevant to the summary offence of driving whilst unlicensed on this occasion. However, as I have said, you do not have any history of committing sexual offences which is a matter that I also take into account.
83At the plea hearing there was no victim impact statement. However, by agreement the prosecution advised at that time that their instructions which were recorded at the sentence indication hearing that the complainant had said she had mixed emotions in relation to the offending. She was affected by it and also the children were affected by it but that the children wanted to see you and she wanted them to be able to see you. She had said that she just wanted it all finished.
84The victim was observing the plea hearing, and a message came through during the course of it that the victim did wish to make a victim impact statement. I heard the most part of the plea but adjourned the matter for further plea and sentence pending reception of the victim impact statement, which is now to hand.
85I had discussions with counsel at the commencement of today's proceedings and indicated the inadmissible parts of the victim impact statement, and having done so I had the prosecution read the victim impact statement aloud in terms of the admissible parts of it. I have factored in what the complainant has said in relation to the impact of your offending upon her. The impact upon her has been significant and she has ongoing wellbeing issues because of it.
86In sentencing you I take into account the stage at which you pleaded guilty. This was not at the earliest opportunity. However, Ms Burnett fairly conceded at the sentence indication hearing that discussions commenced at an early stage at the committal hearing and had been ongoing.
87There was a contested committal hearing, and the complainant gave evidence. The central issue was your state of mind at the relevant time and whether the complainant had implicitly given you consent to behave as you did in the context of your previous sexual relations with one another.
88You entered pleas of guilty after the sentence indication hearing in this court, but in circumstances where a trial date was yet to be set. Therefore, in all the relevant circumstances, I allow for a fairly substantial discount in the sentence you would otherwise receive.
89In taking the course that you did you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial.
90I make it clear that you are not to be punished for running a committal hearing, as this is your right, it is just that you are not entitled to as great a discount as might otherwise be the case because you did so. However, as I have said, I have also factored in other relevant circumstances in arriving at an appropriate discount in your case.
91Further, you entered pleas of guilty at a stage where the courts were still enduring a backlog of trials and your trial was yet to be listed. Therefore, you are to be given a palpable allowance in your favour for contributing to reduction in the backlog of trials caused by the pandemic.
92In assessing the seriousness of the recklessly cause injury, I must say this was rather nasty offending in circumstances where the complainant was trying to help you. Having said this, the injury sustained by her was not the most serious of injuries the courts have seen in respect of this particular offence.
93Your counsel, Mr Ranjit, submitted that I ought to find on the balance of probabilities that the rape offences were not in a bid to exert control over the victim but rather the offending occurred 'over routine sexual pattern and on this occasion the complainant was not consenting, and Mr Anderson did not reasonably believe the complainant was consenting' – quoting from written submissions in that regard.
94I must say I have difficulty with this submission in that it is to be hoped that it was not routine for you to sexually penetrate the complainant whilst she was asleep or not in a position to consent. Having said this, I factor in the history of your relationship in terms of having taken methamphetamine together on other occasions and engaging in consensual sexual practices. I am not prepared to make a finding on the balance of probabilities that the rapes that you perpetrated were not bids to exert control over the complainant. The fact is that you did exert control over her as she was asleep or not able to provide consent on the occasion of your offending.
95As I have said, I sentence you on the basis of your state of mind at the time of the offending, that is, that you did not reasonably believe that the complainant was consenting.
Remorse
96It was submitted that you have remorse for your offending. You told Warren Simmons, psychologist, on 25 November 2023 that what you did was 'the worst thing (you had) done in (your) life' – paragraph 22.
97I was told that you acknowledged the impact that your offending has had on the complainant and children.
98When speaking with Mr Simmons you did not try to justify your behaviour, according to him, and to quote him, 'but appeared to be able to see the nexus between (your) offending behaviour and the fact that (you) had been smoking methamphetamine heavily for some time'. Mr Simmons went on to say:
'Nevertheless, he said that the actions were his and acknowledged that was one of the worst things he has ever done and may very well have had significant impact on the victim, although he is not certain about this.' Paragraph 28.
99On the other hand you told lies to the police about the circumstances of the alleged sexual offending and the complainant was subjected to cross-examination at the committal hearing where it is clear from the iPad recording that she was asleep and not capable of giving consent when you offended against her, and I understand that she maintained and gave evidence at the committal hearing that she did not consent to your sexual activity.
100Mr Ranjit submitted that your answers in the record of interview ought to be seen in the context of someone who was still suffering from the effects of stimulant and alcohol use disorders, as diagnosed by Mr Simmons. However, it was not submitted that you were in the grips of this disorder as at November 2022 when the complainant was cross-examined. I have also factored in your behaviour toward the complainant on previous occasions which has given rise to prior offending and your behaviour toward her not long after these rapes were committed, albeit that apparently you did not appreciate that this is what you had done insofar as the rape allegations were concerned.
101It was not until a sentence indication hearing in this court that you were prepared to take responsibility for your offending, so your expressions of remorse to Mr Simmons on 25 November this year ought also to be seen in that light.
102Further, I note that when giving an account to Mr Simmons in November this year you said that you and the complainant had smoked methamphetamine 'and engaged in a sexual behaviour after which she went to sleep.' This is not in accordance with the complainant’s account, nor is it contained in the agreed summary of facts, and when I had my associate check with the parties, I was told that it was not what the complainant said had occurred.
103In the end I am prepared to accept that you are somewhat remorseful for your behaviour. In particular, you are remorseful for how the consequences of it have affected you. In your case heartfelt remorse for the victim and insight into the seriousness of your offending is a work in progress in my view.
Background and Bugmy
104I take into account your background as set out in the report of Mr Simmons and referred to in your counsel’s submissions made at the sentence indication hearing.
105According to your counsel’s submissions, your childhood and memories were marred by the Kuwait war. I was told by your counsel that you recalled witnessing murders, civilians being killed by armoured vehicles and regular bombings. I was told that you would often see disfigured bodies on walkways and on the road following the bombings. You did not detail such occurrences in Mr Simmons’ report although he said that it would appear that after Iraq invaded Kuwait that this was a very difficult time for you and many others in Kuwait.
106According to Mr Simmons’ report you were raised in a small town approximately one hour from the capital of Kuwait. This was a farming area but there was also a military base there. Your father was in the army.
107You are the oldest of nine children, with your youngest sibling being 30 years old.
108Your parents separated approximately 15 years ago.
109According to Mr Ranjit’s submissions, during your childhood you witnessed and experienced severe physical assaults perpetrated by your father against you, your mother and siblings. You were subjected to corporal punishment for any bad behaviour or if you under performed at school.
110You told Mr Simmons that your father would frequently assault you and although your mother would try to protect you this only resulted in her being assaulted too. You told Mr Simmons the violence occurred every few weeks, saying that it was also directed towards your mother. Your father consumed alcohol and became intoxicated at times which generally resulted in him becoming more aggressive and violent. You told Mr Simmons that there was a great deal of trafficking and alcohol in the area where you lived in Kuwait.
111You told him that although your family was always provided for, none of you had a great deal as your father was a gambler who would play cards with his friends. You told Mr Simmons that you would help look after your siblings and you were not given the chance to socialise. You were expected to be at home when not at school and would be in trouble if you wanted to go outside once you were home. Your lifestyle was restricted. You had contact with your extended family approximately every two months. They lived about an hour away.
112You were closer to your mother who you described as a beautiful woman who looked after the family. You told Mr Simmons that she was much more open and you could talk with her, in contrast to your relationship with your father. Your mother was in court at the sentence indication hearing and the plea hearing in support of you, as was another family member.
113In 1990 after Iraq invaded Kuwait your father left due to his role in the army. You were left to look after the family who struggled for food and water, and you spent a great deal of time trying to find these for your family.
114Academically you struggled. Your parents were illiterate and could not provide you with any help with your schoolwork. In combination with the violence of your father you experienced no academic support, however, you told Mr Simmons that you are literate. You completed the equivalent of Year 10. Your teachers used physical discipline to address any perceived failures such as not completing homework correctly. You recall receiving the strap for the first time when you were seven years old, and this occurred quite frequently at the school thereafter. If you made a mistake in your homework when you returned home your father would beat you. However, you told Mr Simmons you generally had positive relationships with peers, although you did engage in truancy. You left school when the war began.
115When the war ended your father was sacked from the army as he was Iraqi by birth. Your father left for Iraq but ended up in Jordan where he remained until 1998 when he migrated to Australia as a refugee. During that time the family struggled. When you were 17 years old you found work as a taxi driver and later as a bus driver. Ultimately, your family sold all that they had in order to purchase a ticket to Australia, arriving at the end of 1999 after being sponsored by your father.
116When speaking with Mr Simmons you told him that you experienced 'some of the privations of war', although you said that you lived about one and a half hours from the Iraqi/Kuwaiti border.
117In accordance with Bugmy principles and adopting the general approach in this regard, I give full effect to your background, which is significantly deprived in some ways, however, in all the relevant circumstances I allow for a marginal reduction in your moral culpability in relation to the offending before me and the weight that would otherwise attach to just punishment and general deterrence.
Mental Health
118I take into account the report of Mr Simmons in a general way in terms of your mental health. He found that you would have met the criteria for stimulant and alcohol use disorder at the time of your remand with your stimulant use disorder being more significant than that related to your alcohol use. He found that you would benefit from a mental health assessment as there was evidence of a depressive disorder at the time he interviewed you, noting that you had been prescribed medication in the past, although he could not ascertain the exact nature or reason for this. He said that it was also difficult to know whether your current depressed mood was reactive to finding yourself in custody or representative of a more long-term disorder. He recommended ongoing monitoring in this regard, and I ask that the authorities note this. However, no Verdins considerations are relied upon.
119Mr Simmons conducted assessment tests in relation to your risk of re-offending, whilst noting that the instruments used were not generally validated on people and populations similar to those with your background. However, with these caveats he found that you were in the average category relative to other adult male sex offenders with respect to re-offending.
120In the sentence indication submissions, your counsel said that you had been previously diagnosed with post-traumatic stress disorder and that you are currently taking medication for anxiety and depression whilst in custody. I have had further discussions with your counsel as I was unable to find anything supporting such a diagnosis, including in Mr Simmons report. Mr Ranjit has now clarified that those were his instructions at the time of the sentence indication hearing, however, he has accepted that the report of Mr Simmons does not support such a diagnosis and he has effectively withdrawn the submission in that regard.
121As I say, I have taken into account the report of Mr Simmons in a general way in sentencing you.
Drug and Alcohol History
122In terms of your drug and alcohol history you told Mr Simmons that you had consumed some alcohol in Syria before coming to Australia, however, this was not of any significance. In 2001 after arriving in Australia you would drink with friends on weekends, often becoming intoxicated. You continued this pattern until 2004, increasing your alcohol intake to daily. You found alcohol made you relaxed and helped with feelings of boredom. You were drinking up to a bottle of whiskey a day and although you admitted you still continue to consume alcohol daily, you would generally consume no more than two cans a day. And that was the position up to the time of your remand.
123You told Mr Simmons that friends introduced you to cannabis in 2007 and that you would smoke the drug on weekends, saying that you would have a small amount of a drug every couple of weeks. Your cannabis use increased to daily in 2009. You continued to smoke cannabis until you commenced smoking methamphetamine in 2021.
124You told Mr Simmons that it was the victim who introduced you to methamphetamine which you initially declined. However, you commenced using this at the beginning of 2021. You told him that you loved the drug saying that it gave you energy and you did not sleep and had more fun. You were smoking up to a gram per day which continued until you were remanded. There were apparently no periods of abstinence until that time. You admitted to using Ketamine on a few occasions. You told Mr Simmons that you had not been involved in any drug and alcohol treatment programs in the past. In this regard I note that you had the opportunity to do so by virtue of the community corrections order you were subject to as at the time of the offending before me.
125Mr Ranjit appeared to submit that your intake of alcohol and substances was a form of self-medication in response to your deprived upbringing. This is not apparent from Mr Simmons report. Mr Simmons said, 'There is no doubt that Mr Anderson’s (pseudonym) substance use has led to his offending in the past in that there are drinking and drug driving offences'. He was of the view that you would benefit from a referral for drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. Certainly, your introduction to methamphetamine saw you enjoying the substance for various reasons, which I have previously set out, and your offending against the victim occurred in the context of being affected by methamphetamine.
Work History
126I understand that you have a rather solid work history. Upon arriving in Australia, you obtained employment as a truck driver, maintaining this position with various companies until 2008. In 2008 you lost your licence for 22 months and had to stop this form of employment. However, you had obtained a truck drivers licence after leaving school and you had worked in that industry for a substantial period.
127After ceasing that employment, you obtained a position with various companies as a cleaner for short periods. You found it hard to work in a team due to language barriers and difficulties with English. You have been unable to communicate with co-workers and your employer.
Relationships and Family
128You were previously married and have five children. You separated from your wife in 2009 but you have kept in regular contact with your children. You have an amicable relationship with your ex-wife.
129After your first marriage you met the complainant and were in a relationship with her for about 14 years as previously stated.
130You and the complainant share the three children to whom I have previously referred. The relationship became unstable in 2018 but despite this you had a third child and continued the relationship. I was told that you intend to seek legal advice in the future and seek parenting orders upon your release from gaol as you wish to maintain contact with these children.
Remand and Plans After Release
131I was told that whilst on remand at Port Phillip you were in the mainstream unit and had obtained employment in welding. You had maintained regular contact with your family whilst being in custody, I was told. I have taken into account the various certificates in relation to programs you have completed whilst on remand.
132When released you intend to live with your mother who is unwell and who has mental health conditions and mobility issues.
133You have the support of your mother and other family members. You intend to care for your mother and seek employment as a truck driver upon release when you are able to do so.
Hardship Due to Covid Restrictions
134I have also allowed for the fact that your time in custody has been and might well be harder from time to time due to the restrictions in gaol because of the pandemic.
135In all the relevant circumstances I find that your prospects of rehabilitation are guardedly fair. Much will depend on your ability to successfully combat your drug addiction issues. In saying this, I was told that whilst in gaol you have been abstinent from drugs. I was not provided with any urine screens in support of this at the plea hearing, but I have now received an email from a senior prison officer who indicates that you had a urine screen on 18 July 2022 which produced a negative result. In all the circumstances I accept that you have abstained from drug use whilst being in gaol, as well as abstaining from alcohol use.
136I place more than moderate weight on specific deterrence and protection of the community in your case and I place fairly strong weight on general deterrence in a bid to deter others from offending as you have. I would have placed strong weight on this consideration but for Bugmy considerations. I have made marginal reduction in relation to the weight attaching to just punishment. I make the assessment as your prospects of rehabilitation in relation to offending in general rather than sexual re-offending, accepting that this is the first time you have engaged in such conduct and having had regard to Mr Simmons findings in this respect.
137In sentencing you I have also had regard to the standard sentence for the offence of rape being 10 years’ imprisonment which is a relevant consideration. I am required to impose a non-parole period of not less than 60 per cent of the total effective sentence imposed unless I am of the view that it is not in the interests of justice to do so. In sentencing you I have had regard to the standard sentence and the relevant provisions pertaining to this noting that the standard sentence is not a starting point, but it is one factor to be considered in my instinctive synthesis. I am required to explain how the sentences that I impose for the rape offences relate to the standard sentence, but I must not engage in two-stage sentencing, and I have not.
138At the sentence indication hearing I indicated that if you were to plead guilty to the offences now before me that the maximum total effective sentence, I would impose would be six and a half years. I said that you might receive a lesser sentence than this, but it was not to say that you would. You pleaded guilty to the charges on that basis.
139In all the relevant circumstances I have arrived at a sentence which in my view does justice to the weight which ought to attach to all relevant sentencing considerations.
140Your counsel submitted that a degree of concurrency was warranted as between the two rape sentences in view of the fact that this constituted a series of offences within the same period of time. I have taken this aspect into account, and there will be a degree of concurrency, but I have also factored in that the rape charges are rolled up and comprise a number of sexual penetrations which you chose to perpetrate upon the complainant over a fairly protracted period of time. In my view it is appropriate to direct some cumulation in respect of some of the offences to reflect the fact that you have engaged in the relevant and separate offending conduct.
141In sentencing you I have also applied the principles of proportionality and totality.
142You are convicted of each of the offences including the summary offences.
Ancillary Orders
143I make the disposal order sought by the crown, which is not opposed by you.
144In relation to the charges on the indictment, you are sentenced to the following periods of imprisonment:
145Charge 1, eight months;
146Charge 2, five years, which will be the base sentence.
147Charge 3, four years;
148Charge 4, nine months.
149In relation to the summary offences, you are convicted also and sentenced to:
150Three months in relation to unlicensed driving;
151And two months' imprisonment in relation to contravene bail conditions.
152I direct that 10 months from the sentence on Charge 3 and one month from the sentences on Charges 1 and 4 be served cumulatively with each other and with the base sentence, producing a total effective sentence of six years' imprisonment, and I direct that you serve three years seven months before becoming eligible for parole, as I do not consider that it is in the interests of justice to impose a lesser non-parole period than 60 per cent.
153The sentences imposed in respect of the rape charges relate to the standard sentence by being five years in the case of Charge 2 and six years in the case of Charge 3, below the standard sentence. Although your offending in this regard is serious, I consider that the rape offences that you have committed are objectively below mid-range, and also there are matters to which I have referred in my sentencing remarks which have resulted in the sentences imposed in each case in accordance with my instinctive synthesis.
154I declare that you have already served 677 days by way of pre-sentence detention.
6AAA
155If not for your pleas of guilty I would have sentenced, you to a total effective sentence of nine years' imprisonment with a non-parole period of six years.
156Now, Ms Burnett, it just struck me when I was reading out the facts giving rise to the offending that the times of some of the recordings perhaps were not accurate. I wasn't sure about that.
157MS BURNETT: It was a counter, Your Honour.
158HER HONOUR: It was a counter, wasn't it. So, I shouldn't put the am's and pm's, it's actually the counter.
159MS BURNETT: Yes, that's right, Your Honour.
160HER HONOUR: I will amend my remarks to reflect that, I do recall that that was the case.
161MS BURNETT: Your Honour, in relation to the date on which the complainant avoided the accused for the rest of the day, that was 17 January 2022 – it's a small matter, Your Honour.
162HER HONOUR: Yes, on the 17th.
163MS BURNETT: And also, in relation to the contravene bail conditions charge, as to the time it was between 10.00pm and 6.00am. That's just another small matter, Your Honour, I noted in the sentence.
164HER HONOUR: Right. Yes, very well, I will amend my – I don't know that anything really arises from that of a material nature - - -
165MS BURNETT: Nothing turns on that, Your Honour, they're small matters. I thought I should raise them.
166HER HONOUR: Yes, thank you. Do you agree with that Mr Ranjit?
167MR RANJIT: Yes, Your Honour, I have the same – thank you, if Your Honour pleases.
168HER HONOUR: Thank you. I don't know how much time we have on the link because we started so late and unfortunately, we didn't have – well the prisons didn't have the arrangements in place that we wished to have in place but I'm just wondering how much longer we have, Mr Ranjit, for you to perhaps speak with your client. Mr Ranjit, did you wish to have a word with your client with the help of the interpreter?
169MR RANJIT: I'd be very grateful, Your Honour.
170HER HONOUR: Very well. Yes, thank you, we'll adjourn and if you could let my tipstaff know when you need to terminate the transmission. Thank you, counsel, and thank you for your assistance, Ms Zaba. If you wouldn't mind staying online just so that Mr Ranjit can have a quick word with his client, please.
171INTERPRETER: I will. Thank you.
172HER HONOUR: Thank you. Yes, we will now adjourn.
- - -
0
2
0