Director of Public Prosecutions v Avalos (a pseudonym)
[2023] VSCA 117
•17 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0078 |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DILAN AVALOS (A PSEUDONYM)[1] | Respondent |
[1]To ensure that here is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the respondent and witnesses.
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| JUDGES: | FERGUSON CJ, PRIEST AP and T FORREST JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March 2023 |
| DATE OF JUDGMENT: | 17 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 117 |
| JUDGMENT APPEALED FROM: | [2022] VCC 722 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Sentence – Rape – Causing injury intentionally – Make threat to kill – Assault – Whether individual sentences, orders for cumulation and total effective sentence are manifestly inadequate – Whether sentencing judge erred by failing to properly apply Part 2A of the Sentencing Act 1991 – Whether sentencing judge erred by failing to exercise the discretion in s 6D(b) of the Sentencing Act 1991 – Appeal dismissed.
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| Counsel | |||
| Appellant: | Ms RJ Sharp SC with Ms S Clancy | ||
| Respondent: | Mr PA Chadwick KC with Mr MD Stanton | ||
Solicitors | |||
| Appellant: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Respondent: | Robyn Greensill & Associates | ||
FERGUSON CJ
PRIEST AP
T FORREST JA:
The respondent was tried in the County Court on two indictments which charged him with multiple rapes and other serious offences.
On 4 May 2021, after a 14 day jury trial, the jury convicted the respondent on the first indictment[2] of four charges of rape, five charges of intentionally causing injury, one charge of making a threat to kill and one charge of common law assault. He was sentenced on this indictment to a total effective sentence of 16 years and 7 months’ imprisonment.
[2]Indictment No H11802169B.4A (‘the first indictment’).
On 11 June 2021, after a 21 day jury trial, the jury convicted the respondent on the second indictment[3] of five charges of rape, five charges of intentionally causing injury, two charges of making a threat to kill and one charge of false imprisonment. He was sentenced on this indictment to a total effective sentence of 18 years and 10 months’ imprisonment.
[3]Indictment No H11802169C.2 (‘the second indictment’).
Six years and 7 months of the sentence imposed on the first indictment was ordered to be served cumulatively upon the sentence of 18 years and 10 months on the second indictment. The total effective sentence on both indictments was thus 25 years and 5 months’ imprisonment. A minimum non-parole period of 20 years and 10 months’ imprisonment was set.[4]
[4]DPP v Dilan Avalos (a pseudonym) [2022] VCC 722 (‘Reasons’).
The table below sets out a more detailed account of the sentences imposed.
Charge
Offence
Max Penalty
Sentence
Cumulation
Indictment Number H11802169B.4A 1 Rape (contrary to s 38(1) of the Crimes Act 1958) 25 years 3 years 4 months 1 year 2 Rape 25 years 6 years 2 years 5 Causing injury intentionally (contrary to s 18 of the Crimes Act) 10 years 2 years 6 Causing injury intentionally 10 years 2 years 8 months 8 months 7 Make threat to kill (contrary to s 20 of the Crimes Act) 10 years 2 years 1 year 8 Causing injury intentionally 10 years 1 year 8 months 4 months 9 Causing injury intentionally 10 years 1 year 8 months 4 months 10 Rape 25 years 7 years 2 years 11 Rape 25 years 8 years Base 12 Causing injury intentionally 10 years 3 years 1 year 13 Common assault (contrary to common law) 5 years 1 year 6 months 3 months Total Effective Sentence on Indictment Number H11802169B.4A 16 years 7 months Indictment Number H11802169C.2 1 Causing injury intentionally 10 years 6 months 5 Causing injury intentionally 10 years 9 months 2 months 6 Rape 25 years 3 years 10 months 8 months 7 Rape 25 years 5 years 10 months 8 Rape 25 years 6 years 1 year 12 Causing injury intentionally 10 years 1 year 6 months 13 Make threat to kill 10 years 2 years 2 months 1 year 14 Causing injury intentionally 10 years 2 years 6 months 4 months 15 Rape 25 years 8 years 2 months Base 16 Make threat to kill 10 years 3 years 1 year 4 months 17 False imprisonment (contrary to common law) 10 years 6 years 4 months 2 years 18 Causing injury intentionally 10 years 2 years 8 months 10 months 19 Rape 25 years 6 years 3 months 2 years 6 months Total Effective Sentence on Indictment Number H11802169C.2: 18 years 10 months Sentence imposed on Indictment Number H11802169B.4A to be served cumulatively upon the sentence imposed on Indictment Number H11802169C.2: 6 years 7 months Total Effective Sentence:
Non-Parole Period:
25 years 5 months
20 years 10 months
Pre-sentence Detention Declared: 1821 days Other Orders Forfeiture order and sex offender registration order
Pursuant to s 287 of the Criminal Procedure Act 2009 (‘CPA’), the Director of Public Prosecutions (‘DPP’) appeals against the respondent’s sentence on the following grounds:
Ground 1 – The individual sentences on each of the rape charges, four charges of intentionally causing injury, and each of the threats to kill, the orders for cumulation and the total effective sentence are manifestly inadequate.
Ground 2 – The learned sentencing judge erred by failing to properly apply Part 2A of the Sentencing Act 1991, in particular, s 6E.
Ground 3 – The learned sentencing judge erred by failing to exercise the discretion in s 6D(b) of the Sentencing Act 1991.
For the reasons that follow, we are of the view that the appeal should be dismissed. In so doing, we observe that we have had the benefit of the judge’s reasons for sentence. They are careful and comprehensive. We will refer to, and quote from, those reasons at length throughout our consideration of the appeal.
Background
The charges span a period of approximately 20 years and involve four complainants, all of whom were at material times intimate partners of the respondent. The respondent was violent and controlling towards each of those intimate partners. His depravity was extreme. He raped them all repeatedly. He struck them with weapons and his fists. He made threats to kill, including threatening a mother that he would kill her child. The fear that he generated in them was immense. For this he was held to account by the sentencing judge. At the time of sentence, the respondent had been imprisoned or on remand for these offences for a few days short of five years. Under the present sentence he will not be released for many years. He was 43 at the time of sentence. Under the sentence he has lost or will lose (to imprisonment) the last years of his 30s, all of his 40s, all of his 50s, and the first years of his 60s.[5] The question raised on this appeal is whether this sentence is manifestly too low.[6] Is it wholly beneath the sentencing range available to the judge in the reasonable exercise of her sentencing discretion?[7]
Factual background
[5]We have assumed, as we must, that he must serve his head sentence in full.
[6]Director of Public Prosecutions v Johnston (2004) 10 VR 85, 96 [28] (Ormiston, Batt and Chernov JJA).
[7]Director of Public Prosecutions v Karazisis (2010) 31 VR 634, 662–663 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
We repeat in full the sentencing judge’s description of the factual background which sets out the offending in chronological order.[8]
[8]Citations have been removed from the Reasons.
Indictment C.2 – Jaime Marshall and Michelle Marsden
Jaime Marshall
7.Jaime Marshall was born in 1978. She was approximately 16 years old when she met you in April 1994. You were 16 years old and turned 17 in July 1994. You and she started a relationship around that time, which lasted on and off until 2001. You and Ms Marshall have a son together, who was born in December 1995, when you were both 17.
8.At the time you met Ms Marshall you lived with your mother, Denise Ferguson and step-father Brian Ferguson in Footscray. Later you moved with them to live at Altona North.
9.You met Ms Marshall when she and a sometime-girlfriend of yours escaped from Youth Training Centre. You and she began a relationship soon after. You invited her to stay at your mother’s address. After about a week, you and Ms Marshall moved to live at the Footscray Caravan Park.
10.Soon after, Ms Marshall handed herself in and returned to the Youth Training Centre. You visited her and when she was released in September 1994, you and she moved into the Sunshine Caravan Park.
11.She said at the beginning of your relationship you were “really good to [her] … I wasn’t from the West … and I was scared and he protected me … he was nice.” Around the time she was released from Youth Training Centre in September 1994 you had started using heroin. She said your behaviour changed “dramatically … It was after he started using heroin, he started to get frustrated and angry very easily … and he became violent.”
12.You had also become ‘gun happy’, storing guns under the bed at the caravan. She said they were loaded all of the time “… if they weren’t loaded he’d be upset.”
13.You were often critical of Ms Marshall’s weight. After an argument about her weight, she took off to Sunshine and used heroin for the first time. She overdosed and was brought back to the caravan park by a third party. You carried her to your caravan where you became angry at her for using heroin without you. You started slapping her, hitting her, and punching her mainly to the face with enough force to split the skin on her cheek. You grabbed her by the hair. Her nose was bleeding. She was still overdosing and ‘woozy’ and fell asleep. When she woke up, she went to the toilet block and saw her eye was full of blood. You helped her clean the blood off her face.
14.In the period after that assault, you would regularly punch her in the kidneys while she was asleep. She would wake up crying, and you would then console her.
Charge 1 – Intentionally Cause Injury
15.On an occasion between April 1994 and December 1995 you and Ms Marshall had another argument about heroin. She was sitting on the side of the bed. You picked up a gun and you proceeded to swing it around. You hit her in the head with the butt of the gun, hitting her just above her left eye, splitting her skin open. That act is the basis of Charge 1 – Intentionally Cause Injury. Ms Marshall has a scar from that assault.
16.You continued to hit and slap her and “he dragged me by the hair from one end of the caravan to the other.” At some point she lost consciousness. Eventually you said to her “Look what [you] made me do.” You told her to go and clean herself up.
17.During another argument, you were waving the gun around and it discharged, putting a bullet through the wall of the caravan. On that day Ms Marshall said you had been ‘bashing’ her all day. “I had black eyes … I suspected a broken nose. It was on for young and old that day.” Management called police and you and Ms Marshall were evicted.
Control
18.During your relationship with Ms Marshall, you were jealous and controlling. On public transport, you instructed her to stare at the ground or look out the window to avoid looking at other men. At times you slapped her in the face or hit her when you believed she had looked at another man. On one occasion, after slapping her on the train she said when you and she got off “I didn’t even make it to the gate … He just punched me straight in the nose.” She started crying and you said to her “Look what you’ve made me do for being a slut.”
Charge 5 – Intentionally Cause Injury
19.You were at your mother’s house in Footscray at some time in 1995 when Ms Marshall told you she was pregnant. You didn’t believe her and said you didn’t think the baby was yours. You got “really, really angry and upset”. During the ensuing fight you pushed her over, so she was lying down. You then cut her to the stomach with a knife. The cut was superficial but started to bleed, and she remembered crawling to another part of the room. That is Charge 5 – Intentionally Cause Injury. You later behaved as if nothing happened.
Charge 6 – Rape
20.On another occasion in the period between 1994 and 1995 you and Ms Marshall were at your mother’s. You were in the dining room and started to have sex. She was on top of you as you sat on a chair. Ms Marshall said you became upset with her. You then turned her around and she sat on the chair. You pinned her arms down and started pushing her back into the chair. She said it was hurting.
21.She managed to stand up and you spun her around and held her hands onto the chair. You penetrated her from behind with your penis. You were forcefully penetrating her. She was in pain and crying and saying “Why are you doing this? It’s hurting.” You responded by slapping her to the back of the head and yelling at her.
22.You then threw her to the ground. She hit her head on the floor and was unconscious for some period of time. When she woke up, she was on her back, and you were on top of her sexually penetrating her vagina with your penis. Your mother walked into the dining room, and you told her to get out. The sexual penetration after Ms Marshall had been thrown to the floor and was unconscious is the basis for Charge 6 – Rape.
Charge 7 – Rape
23.On an occasion between April 1994 and December 1995 you and Ms Marshall were walking alongside the train tracks, between West Footscray and Middle Footscray train stations. You had jumped a fence to take a short cut. Along the way you were asking her questions. When the answers weren’t what you wanted you became angry with her.
24.You and she stopped and began kissing. Without warning you threw Ms Marshall to the ground. She was on her back, and you started to sexually penetrate her vagina with your penis.
25.She could not say specifically whether you started to hit her before or after the penetration had begun. She agreed that in her statement to police she had said “I am just not sure if we had started having consensual sex or if he went crazy before we started having sex.” I cannot make a finding one way or another. What I do find to the requisite standard is that you assaulted her during the penetration. She said It just got real bad, I was crying a lot; he just started going crazy. I remember him throwing me on the ground, slapping me around, slapping my face and he punched me which got me so hard on my right cheek that it just blew up … He hit that hard that it split my skin and was bleeding. I was crying a lot, it lasted a while. He was having sex with me for a good five to ten minutes. The top I had on afterwards was ripped ...”
26.She recalled two people walking past and they said something. You yelled out to them “It’s all good, it’s just my missus.” They kept going. She said she was crying and asking you “What have I done wrong?” Those events constitute Charge 7 – Rape.
27.As a result of your physical assault on that occasion she had a black eye and sore nose. She also had bleeding from her vagina for several days afterwards.
28.After that incident she told her friend Barbara what you had done to her.
29.Ms Marshall’s family sent her to Queensland when she was approximately 22 weeks pregnant in approximately mid-1995. You contacted her, and she returned to Melbourne to be in a relationship with you.
30.Ms Marshall gave birth to her son in December 1995. She had no support and struggled to take care of him. She went to a refuge however the baby was removed and taken to her father’s. Her father could not take care of him, and he was placed into foster care before Ms Marshall asked your mother to take him. He remained living with you and your mother.
Charge 8 – Rape
31.Ms Marshall moved into a Ministry of Housing unit in Ashwood on 11 February 1996. You were still living at your mother’s, but you would contact and visit Ms Marshall, at times staying with her. Your relationship was on and off until 2001.
32.Ms Marshall had been awarded a $20,000 Crimes Compensation payout in relation to an unrelated offence committed against her prior to meeting you. The compensation was paid into her bank account when she turned 18 in June 1996. You became aware of that payout.
33.At some time in the months following, you attended at her unit. Ms Marshall was asleep in bed. She remembered waking up and you were in the house. You were on top of her yelling at her for the money. You started hitting her and choking her saying “I know you’ve got money, where’s the money?” She pointed towards $2,000 cash which she had hidden in the room.
34.You took that money, and you took heroin which she also had in the house. You told her that’s all she had to do, tell you where the money was.
35.As a result of your assault of her she had cuts to her face and her cheek was swollen. She had blood on her. Regardless, you then told her you wanted to have sex. She asked to go to the bathroom to clean her face. You followed her before returning to the bedroom. You proceeded to have sex with her, putting your penis into her vagina. You were on top of her. You fell asleep. That act is Charge 8 – Rape.
36.After you fell asleep, Ms Marshall went to the bathroom and cleaned the blood off her face.
37.The following day, you forced her to go to the bank and withdraw more cash from her bank account. She withdrew $3,000 which she gave to you “[I] didn’t have a choice.”
Context Evidence
38.Those offences against Ms Marshall occurred in the broader context of your abuse and control of her. She reported frequently being assaulted by you. Other witnesses attested to seeing her injuries during the course of the relationship or hearing the abuse.
39.Ms Marshall’s father, Jack Marshall, observed her to have severe injuries while she was in a relationship with you, including to her face and back. Mr Marshall confronted his daughter about the injuries and eventually she disclosed that you had abused her.
40.Clare Abbott was Ms Marshall’s neighbour in Ashwood. She gave evidence that she observed many injuries on Ms Marshall while you lived with her. On a couple of occasions, Ms Marshall arrived at her doorstep in an injured and distressed state and would stay with Ms Abbott until you passed out or it was safe for her to go home.
41.On one occasion, Ms Marshall came to Ms Abbott’s unit and was hysterical and crying. She disclosed that you had been pushing down on her chest and covering her mouth and nose so she could not scream. You pursued her to Ms Abbott’s unit and banged on her door screaming, “I’ll kill her, I’ll kill her”.
42.After a while, you would assault Ms Marshall in a different room while Ms Abbott was in the same house. Ms Abbott could hear Ms Marshall being hit.
43.During your relationship you frequently criticised Ms Marshall about her weight. You told her “You’re too fat but you’ve got a pretty face.” You controlled what she ate, at times instructing your mother not to feed her. If you found her eating, you’d hit her.
44.During the period at the caravan, you told her to dress in long sleeves and jumpers because “He didn’t want people to see the bruises …”
45.Ms Marshall explained at various times why she had not told anyone or reported your offending. She said the police never believed her. She said “I was scared of Dilan and petrified of him, he’d kill me. I’m still scared of him.”
Michelle Marsden
46.Michelle Marsden was born in 1978 and was aged between 24 and 27 during the time of your offending against her. You were the same age.
47.In mid-2002, Ms Marsden visited her brother and his girlfriend. Her brother’s girlfriend was Jaime Marshall. It was through that association that you met Michelle Marsden. At that time, she was in a long-term Aboriginal rehabilitation program.
48.A month or two later, after she had left rehabilitation, Ms Marsden ran into you and helped you move some furniture from hard rubbish back to your home in Coburg. By that time she told you she was out of rehabilitation. Ms Marsden had a 7 year old son Heath, born in 1995. He was in Prep. She was unemployed and struggling to find accommodation. You invited her and her son to stay in two spare rooms at your house. She said she accepted the offer “Oh yeah, I did, of course ... My son needed a room.”
49.During the first few weeks she stayed with you, Ms Marsden described you as “very nice, he was very lovely, sweet, charming, play with your hair, massage you, make you feel good about yourself, give you lots of [compliments] … I thought he was a gentleman.” You helped her with Heath, at times walking him to school. You told her she was different from other girlfriends who had cheated on you.
50.You and Ms Marsden began your relationship in late September 2002.
Charge 12 – Intentionally Cause Injury, Charge 13 – Make Threat to Kill, Charge 14 – Intentionally Cause Injury and Charge 15 – Rape
51.Not long after your relationship commenced Ms Marsden told you that she might be pregnant. You believed the baby was her former partner’s. You responded with aggression, telling her you were “gonna punch it out of [her] guts and … gonna put a coat hanger up there to get rid of it.”
52.What followed was a vicious assault which lasted for hours. You physically assaulted Ms Marsden first by punching her in the nose and cheeks. “I got hit in the face a lot at the start.” She described the assault moving between rooms as she tried to defend herself “and keep my noise down because Heath was asleep in the lounge.”
53.You ended up in the hallway where you hit her in the ribs and “then he’s dragged me back to the bedroom by my hair and he’s spitting at me, he’s calling me a dog, a black snake.” She said her nose and cheeks were swollen and her nose bled. She thought it was broken. You continued to punch her while you dragged her by the hair. She had pain in her ribs and gave evidence that “I couldn’t take a proper deep breath without having … pain, I thought my ribs were broken or cracked.” When asked what force you used to hit her, she said “Very hard … I used to box … but he hit me like he would have hit a man …” Those events constitute Charge 12 – Intentionally Cause Injury.
54.At one point during this assault, you threatened that if she ever left you that you would kill Heath. You told her that you would shoot him with a .22 rifle. She had seen you with a .22 rifle a few times by that stage. She said you had been ‘flashing it’ and leaving it around in the kitchen, lounge and bedroom. That threat is the basis for Charge 13 – Make Threat to Kill.
55.During the ongoing assault, Ms Marsden lost consciousness at various times. She said you stripped her naked and as she came to you would offer her the chance to leave you. When she said that she wanted to leave, you then gave her back her clothes and were ‘being nice’ saying ‘you can go if you want to’, “but then when I did say I wanted to go ... then he’d just turn … and he’d start taking the clothes off and I’d end up held up on the wall by my throat and getting choked and spat at and I passed out so many times.” This happened repeatedly. She was 50kg at the time. You grabbed her by the throat, squeezing her voice box until she couldn’t breathe. “And I’m on the wall naked and I’d just pass out. And I’d wake up on the ground, the carpet.” Those events continued until about 5am. The act of choking constitutes Charge 14 – Intentionally Cause Injury.
56.After assaulting her in that way over that period of hours you then raped her. Despite her injured state and state of exhaustion, you inserted your penis into Ms Marsden’s vagina. She allowed you to do that “Because it was the only way I was … gonna be able to get some rest. I was exhausted. I was mentally and physically exhausted.” During that penetration you accused Ms Marsden of “not getting into it” and hit her in the ribs. You persisted until ejaculation. That act is Charge 15 – Rape.
57.She did not tell anyone about these events, saying “I’m too private and I’m too embarrassed. It’s degrading.”
Ongoing Physical Abuse
58.Ms Marsden remained in a relationship with you as she said “I didn’t want another baby with no dad.” You moved with her and Heath to a unit in Braybrook. You continued to verbally abuse and physically assault her, regularly punching her in the ribs and saying that the baby was not yours. She described the pregnancy as “nine months of hell.”
59.You had taken your gun to Braybrook and used to hit her with the butt of the gun to the top of the head, the ribs, back or leg. Assaults occurred three to four times a week. She said “I think he’s hit me in nearly every part of my body … over time.” If she had visible injuries, you would make her cover up or not let her out of the house. “He … didn’t want to be classed as a woman and child basher.”
60.At times there would be discussions with your mother, and you would promise to start doing domestic violence or drug and alcohol counselling.
61.In February 2003, when she was pregnant you assaulted Ms Marsden for an extended period of time, punching her repeatedly. Ms Marsden experienced severe pain in her ribs. She became emotional in the witness box, saying “That [was] a bad day, yes. Very bad day.” You allowed her to go to the hospital, but she had to make up a story to explain her injuries. She told staff she had been nightclubbing and got in a fight. She hoped the hospital staff would doubt that story given she was pregnant, and would ring the Department of Human Services (“DHS”) and she would receive help. That did not occur.
Charge 16 – Make Threat to Kill
62.You had a friend with a farm in the country. On an occasion while Ms Marsden was pregnant with Brandon, you told her that you were going to “take her out” and that the farm was where she’d end up. She knew you had another gun stored at the farm. She said she believed you would kill her.
63.You also told her that you were going to put Heath in with her which she understood to mean bury her and her son in a hole on the farm. She said she believed you were going to kill Heath and said “… that’s what scared me … the most. I mean kill me, don’t kill [my] kid.” That threat to kill her and her son constitutes Charge 16 – Make Threat to Kill.
Charge 17 – False Imprisonment
64.Between March and April 2003, when she was six or seven months pregnant with Brandon you started behaving badly towards Heath. She told you she wanted to leave you. She said you were “acting calm and sweet” and told her that you would drop Heath off so you and she could talk.
65.After picking Heath up from school on a Friday afternoon, you and Ms Marsden left him at your mother’s. She thought you were going to go out somewhere to discuss things, but you went to the unit in Braybrook. Over the next few days, you falsely imprisoned her in that unit and repeatedly assaulted her. She was unable to leave because the door was deadlocked, and you had the key. She was also conscious that your mother had her son Heath.
66.When you got to the unit you threw her in the door. You said “What you want to fuckin’ leave me? You’re the mother of my fuckin’ kid. You’re not goin’ anywhere unless you’re in the grave … with your kid.”
67.You punched her in the face, the ribs and the head. You kicked her when she was on the ground. You moved between different rooms of the house, including the bathroom and bedroom. You repeatedly asked her if she wanted to leave you. You then grabbed her around the neck, squeezing her voice box until she could not breathe and she passed out.
68.When Ms Marsden woke up, she was naked except for her bra. You were slapping her. She described you playing mind games where you would then behave kindly to her, giving her back her clothing and telling her that she could leave you if she really wanted to. Each time she told you told you that she did want to leave the relationship you would then respond violently, stripping her naked and choking her to unconsciousness. She says she lost count of how many times that occurred.
69.Eventually Ms Marsden promised that she wouldn’t leave you. You left the unit to go and get Heath. She believes that was the Sunday night. Those events occurring over approximately 48 hours constitute Charge 17 – False Imprisonment.
70.The following day, Ms Marsden sought refuge with her uncle Paul Donnelly. She arrived at his house with Heath. Mr Donnelly gave evidence. He observed that Ms Marsden had yellowing around her eye as if getting over a black eye.
71.Later that evening you attended Mr Donnelly’s house. You started banging and yelling loudly at the front door, “I know you’re in there Michelle, I know you’re in there. I know you're in there with another man” until you were let in.
72.Mr Donnelly observed Ms Marsden was terrified of you. You were permitted into the house on the promise of doing partner counselling and anger management. Mr Donnelly said Ms Marsden did not want to go with you the next day. She was “shaking and terrified”, but she agreed to move back in with you.
73.Brandon was born in June 2003. For a month Ms Marsden said your behaviour changed in a positive way. She said you were being a dad, looking after her and helping with the baby.
74.Ms Marsden however was suffering from post-natal depression and was having suicidal thoughts. You found her in the bathroom while she was contemplating overdosing on her heart medication. You became angry and very upset and told her that if she really wanted to kill herself then do it. You waved a screwdriver at her. You used to carry the screwdriver on your hip in your pants. You told her “if you’re gonna do it, do it properly.”
Charge 18 – Intentionally Cause Injury
75.On another occasion, you and Ms Marsden were having an argument in the kitchen. You were “yelling and screaming that you were going to kill her and stab her.” She said this went on for hours. A friend of yours was present and he told you to leave Ms Marsden alone. He said “C’mon mate, that’s enough. You know you’ve gone overboard, she hasn’t done [anything] wrong.” To which you responded “What, are you fucking her?”
76.Without warning, you grabbed a knife and stabbed Ms Marsden to the right side of her stomach. She said she felt “sharp, stabbing pain … and burn … like the feel like burnt.” She was asked how far the knife penetrated her and she stated, “All the way, I had to pull it out.” She said she could see “flesh and meat” and the wound was bleeding. She grabbed a towel. That act constitutes Charge 18 – Intentionally Cause Injury. She said the friend was crying.
77.Ms Marsden was worried about internal damage and wanted to go to the hospital, but you did not let her. You were apologetic and attentive to her. The following day you again refused her request to go to the hospital. She still has a scar from that injury to the right side of her abdomen.
Controlling Behaviour
78.Your controlling behaviour of Ms Marsden throughout the relationship included limiting her contact with her mother. It included only allowing her to leave the house for about an hour or so. She said you knew her bus route “by the minute”. You accompanied her to any medical appointments.
79.About 3 months after Brandon was born in 2003 Ms Marsden became pregnant with your son Travis. He was born in July 2004. You were again physically violent to her throughout that pregnancy, at times knocking her unconscious.
80.Between October 2003 and February 2004, you, Ms Marsden, Heath and Brandon moved to Melton South.
81.On an occasion when you were at the Melton home you and Ms Marsden were having consensual oral sex. Ms Marsden was performing fellatio on you. She told you not to ejaculate into her mouth. Against her explicit request you ejaculated into her mouth. Feeling disgusted she ran to the toilet and threw up.
82.You became angry at her reaction. You grabbed her by the hair and dragged her from the toilet into the bathroom where you repeatedly punched her to the face, head and ribs. You spat at her and called her names.
Charge 19 – Rape
83.About a month after that event you and Ms Marsden were having consensual sex. She was in the early stages of her pregnancy with Travis. For some time, you had been asking Ms Marsden to have anal intercourse with you. She had repeatedly told you that she was not interested in anal sex.
84.While you were having intercourse, your penis came out of her vagina. You put it into her anus. She said “I was screaming, ‘Get it out, it’s hurting me …’ He just told me to fucking cop it, it’ll get better and feel better, it won’t hurt as much if I relaxed.” You then flipped her over from her back so that she was lying face down on her stomach “… he was holding me like an animal … He had my hair … He had his penis back in [my] anus and he’s holding my hair, and he was fucking me like a dog … . It went on for about ten minutes and I’m just screaming ‘Get it out, get it out’… And he didn’t listen. He didn’t care.” That event constitutes Charge 19 - Rape.
85.When you withdrew your penis, she ran to the bathroom and “just bawled my eyes out.” You responded by telling her she was a sook “and just cop it.” She said “I told him that that wasn’t meant to happen, right from the start I said no. From the first time he ever, ever brang it up. I just didn’t want to do it. And he didn’t listen.” In response you hit her. You hit her to the head, the face, the ribs, the legs and to the arms.
86.Ms Marsden was in pain and was bleeding from her anus and had blood in her faeces for about a week. She did not tell anyone because she said she was too proud. She said “I was totally embarrassed and humiliated.”
Heath Marsden
87.Heath Marsden gave evidence. He is now 21 years old. He heard the arguments and saw you assault his mother on numerous occasions. He said verbal arguments could quickly escalate “if wrong things were said”. He said you regularly accused his mother of being unfaithful, and that Brandon and Travis were not yours.
88.He said you regularly drank Jim Beam, and that after drinking “he’d become more paranoid and he used to express his fears a lot more when he used to get drunk … . He used to keep on bringing up the cheating that he believed my mum to be doing.”
89.Heath Marsden saw you with a gun in the house and recalled you regularly carried a screwdriver. He heard you threaten to kill his mother and him, “That was his threat for if my mum ever decided to leave.”
90.He saw his mother regularly had injuries, bruises, often to the legs and arms and sometimes to the face.
91.He described a particular occasion when he heard arguing and then the arguing stopped. He came out and saw his mother was unconscious. He recalled helping you drag her into the shower recess so that cold water could be put on her face.
92.On one occasion when he was in Grade 2, he jumped on your back when you were assaulting his mother. She told him afterwards not to intervene because she didn’t want him to get hurt.
Other evidence of violence, jealousy, and control in the relationship
93.On the morning of 24 June 2005, you had threatened to kill Ms Marsden multiple times. She reached a point where she could not take the threats anymore. She grabbed the .22 rifle from you and pointed it at you. A struggle ensued and the gun discharged. A bullet lodged in the wall. You then took possession of the gun and struck Ms Marsden on the head with the butt of the gun, causing her head to bleed.
94.Three days after that event, Ms Marsden told you she was going to go and buy you some painkillers as a ruse to leave the house. Instead, she went to Melton police station and reported that assault. Police searched your property and located a sawn-off .22 rifle in the roof cavity. You were arrested and charged but later released.
95.You eventually pleaded guilty to that offence and were sentenced in this Court in May 2008 to 8 months imprisonment.
96.Ms Marsden did not want to return to the unit. She ended up in a women’s refuge with her three young sons where they stayed for about 3 months before finding somewhere to live.
97.Turning to the offending against Ms Coughlan and Ms Sutcliffe heard in a separate Trial.
Indictment B.4A – Adelle Coughlan and Tracy Renee Sutcliffe
Adelle Coughlan
98.Adelle Coughlan was a 16 year old girl when you met her in April 2010. You were 31. She describes you as “a big boy, muscley …” She told you she was 18. You had recently been released from custody.
99.She was a vulnerable young woman having moved from her native Western Australia only to find herself evicted by her Melbourne Grandmother. She was homeless and unemployed when you met her on the streets of Footscray. You flattered her, telling her she was pretty and inviting her to a party.
100.Instead, you took her first to an abandoned house and then to your sister-in-law, Lisa’s house where you and she slept the night in the lounge. She says you were ‘nice and sweet’. The following morning you invited her to go to your mother’s house in Altona North. You were living at that time in the bungalow in the backyard.
101.When you arrived, Ms Coughlan met your mother Denise, your step father Brian, and your 14 year old son Nicholas Marshall.
Charges 1 & 2 - Rape
102.You and Ms Coughlan went to your bungalow. She said you had been drinking from midday until evening. “Everything was fine until we got to the evening.” She described your behaviour changing. You became volatile and began accusing her of looking at another man on the train and of cheating on you. She says she laughed because you had only just met, and the allegation was absurd.
103.You immediately punched her to the face, hard enough to knock her from the couch where she was sitting. You then picked her up by the throat, squeezing her neck and continuing to punch her to the face. You moved her to the bed where she was lying on her back, and as you held her forcibly by the throat with one hand, you put your other hand in between her legs. She was wearing a skirt. You proceeded to force your fingers into her vagina. That is Charge 1 – Rape.
104.Ms Coughlan gave evidence that she was crying and wanted to scream but you had moved your hand from her throat to cover her mouth. She says your fingers inside her vagina were causing her pain. She said “At this point I was scared and it was hurting … . It was very sore.”
105.She went on “Next thing I know I’m being flipped on my front … and then he’s put his penis inside me … all the way.” You were not wearing a condom. You put your penis into her vagina and continued to penetrate her for about 5 minutes before ejaculating onto her back. That is Charge 2 – Rape. She said “I was traumatised at this stage. I’d never actually had so much force happen in one short amount of time.”
106.After ejaculating, you then left the bungalow, locking the door. Ms Coughlan lay on the bed crying. She said “I felt dirty, I felt ashamed ...” She said “I felt very scared and very vulnerable at that time.” She eventually fell asleep. When you later returned to the bungalow, you acted as if nothing had happened.
Control
107.After that first night you kept Ms Coughlan locked in the bungalow for about a week. Ms Coughlan described her time with you then and in the weeks following. You would not allow her to leave you, even following her if she went to the toilet in the main house. She had no access to money and knew no one other than her grandmother who had just thrown her out. “I had nowhere to go.”
Physical abuse and threats
108.She described your behaviour as “very vicious and malicious … He would threaten often, a daily basis, but he would threaten me with a knife [he] called Excalibur saying that if I ever left him or cheated on him that he would kill me or slit my throat …” You had that knife on your belt every day. At times you would wave it around toward her.
109.You hit, punched or kicked her and were verbally abusive to her numerous times “… every evening when he would get drunk.”
Psychological abuse
110.You were also psychologically abusive to her, using derogatory names, putting her down and telling her that she was worthless and calling her “a cunt and a whore.” You told her she made you angry, as a reason for hitting her, and that she deserved it, frequently accusing her of cheating on you. She described you as “a quite jealous, insecure guy …”
111.Throughout the time you were together you were regularly reporting on bail. You made her accompany you. When asked if she was ever left alone, she said “No, he was like my shadow.” She said “I wasn’t able to leave his side … He made it very clear that I was his property.”
Charge 5 – Intentionally Cause Injury
112.She decided to try and escape. One day you went to the main house to use the toilet. She tried to leave via the side driveway but as she walked towards the street your 14 year old son called out to you “Dad, she’s trying to get away.”
113.You chased after her. As she tried to run you caught her. She said “the next thing I know I’ve been thrown onto the ground like a spear tackle … and then I’ve been picked up ... he’s got one hand over my mouth because I was trying to scream.”
114.You took her back to your bungalow where you threw her to the ground. She tried to get up but said you ‘king hit’ her to the side of her head, knocking her unconscious. She described the force as “pretty extravagant.” That incident is reflected in Charge 5 – Intentionally Cause Injury.
115.After her first attempt to get away, you and Ms Coughlan stayed some nights with your sister-in-law Lisa and her children. On one occasion a boyfriend of one of Lisa’s daughters made a comment to you that you were “lucky to have a pretty missus.” You tried to hit him and immediately accused Ms Coughlan of being unfaithful with him. She stepped between you and you slapped her to the face.
116.You left Lisa’s on that occasion to attend the Sunshine Magistrates’ Court.
Charge 6 – Intentionally Cause Injury
117.After being at Court you and Ms Coughlan caught the train back to your mother’s. You started consuming alcohol. You again accused her of cheating because she interacted with another male on the train. You slapped her to the face. She tried to calm you down by apologising, but you continued to call her derogatory names.
118.She described you ‘passing out early’ that night from drinking, around 9pm. She made her second attempt to leave you. She walked out of the bungalow. You obviously woke up and discovered that she had gone.
119.Ms Coughlan was approximately three or four houses away when you caught up with her, grabbed her by the arm and hit her to the head as you tried to drag her back towards the bungalow. She started screaming and clawing at you. You grabbed hold of her with one hand and lifted her off the ground while you used your other hand to cover her mouth.
120.You then carried her back to the bungalow where you threw her to the ground. She told you you were “a fucking junkie.” You proceeded to hit her with your fist multiple times to the face, mainly the eyes. You put her on the bed and then left to go into the house.
121.She said “I couldn’t see properly because my eyes had swelled up ... but I knew he had come back into the [bungalow].” You told her that if you were a junkie, she was going to be a junkie too. You put your weight on her, held out her arms and held ice cubes to the inside bend of her elbows, holding it there until it dissolved. You called her ‘a cunt’.
122.She told you that you should never have been born. You became very angry and proceeded to punch her “it moved from my face to my body.” You punched her to the face with such force that she was bleeding from her nose and ears. You then took your belt and tied her ankles together before getting gaffer tape which you put over her mouth to stop her screaming. You punched her to the stomach with your fists.
123.You eventually stopped assaulting her and told her to clean herself up. When she got up she said “my vagina was leaking blood …” She used a t-shirt to hold to her groin area. The following day she was still bleeding from her vagina, and her face was swollen and bruised. Those assaults are reflected in Charge 6 – Intentionally Cause Injury.
124.After that incident she said “I’d had enough. I’d had enough from the very first part of it. I had just finally gotten the [bravery] to try and get away.”
Charge 7 – Make Threat to Kill
125.Soon after, on Mother's Day (9 May 2010) Ms Coughlan said you were in a good mood. She began crying and told you that she wanted to see her grandmother. You agreed and the two of you caught a bus.
126.During the journey a male got on the bus. You believed that you saw her look towards him. You told her that if she cheated on you or if she left you, you would slit her throat. That threat constitutes Charge 7 – Make Threat to Kill. She said she was “absolutely scared but I’d heard it a number of times.”
127.At the next bus stop, she quickly jumped off the bus and made her way to her grandmother’s house. Her grandmother took her to a women’s refuge. She was assisted to obtain an Intervention Order against you at Heidelberg Magistrates’ Court on 14 May 2010. Soon after, she left Victoria. She received medical treatment for ongoing bleeding from her vagina.
128.Throughout the course of your short relationship, you controlled, intimidated, threatened and assaulted Ms Coughlan causing her to fear for her own safety. She was isolated and vulnerable. She said she could not complain to anyone because “I was scared. I was in a volatile situation and I felt like I was alone. I didn’t think that anyone would believe me.”
Tracy Renee Sutcliffe
129.Tracy Sutcliffe, known as Renee was born in 1973 and was 39 years old when you met. You were 34, almost 35.
130.Ms Sutcliffe was residing with her partner in transitional housing in Sunshine. She was having regular visits with her daughter who had been placed into foster care by the DHS. The Victorian Aboriginal Child Care Agency (“VACCA”) was facilitating contact and the plan towards reunification.
131.In mid-2012 Ms Sutcliffe had been hospitalised for schizophrenia. She also has an acquired brain injury. She was under the care of a Medical Clinic in Sunshine where she attended for fortnightly injections of her anti-psychotic medication.
132.You were residing at the bungalow at your mother's in Altona North.
133.You were regularly drinking alcohol with a group of people at the bus stop near Sunshine station. Ms Sutcliffe lived nearby and you met her through that group. She described you physically as “very big and muscly in his physique.” She initially ignored your requests for her address as the involvement of DHS and VACCA meant she was unable to have visitors at home.
134.Ms Sutcliffe had been seeing you at the bus stop on a regular basis for about six weeks, when you missed the last train home after drinking all day. She offered for you to stay the night. She took you back to her home and introduced you to her partner, Mr Lane. After a short time Mr Lane collected his belongings and left.
135.Ms Sutcliffe went to bed on a mattress in the lounge room and expected you to sleep on the couch. However, you got into bed with her and went to sleep.
136.The following morning, you told her that you had to report on bail and go to your mother’s house. She went with you and at your bungalow you collected a bag of clothes. On return to her unit and without any invitation from Ms Sutcliffe, you essentially moved yourself in to her premises.
137.You continued to live at Ms Sutcliffe’s home as a friend. She said in the first week or so you were “kind and friendly.”
138.In early to mid-2013, after you had been staying with her for about a week, she went to visit her daughter. When she returned, you became angry at her and accused her of being 30 minutes late. You started to yell and scream, calling her “a conniving dog” and a “deceitful cunt” and asking who she’d been with and where she had been. You were not in a relationship at this stage.
139.Ms Sutcliffe told you that she had only been visiting her daughter. She was seated on the couch. You punched her with a fist to the face. She said the punch “was with great force.” She curled into a ball and started crying. You stood over her and punched her to the back of her head and neck. You continued to verbally abuse her. That assault lasted “quite some time.” You punched a hole in the wall of her unit. You then continued drinking. As a result of that assault, she had soreness to her neck and head as well as a black eye.
140.The following morning, you told her that the assault was her fault because she had lied to you. That day, she attended an appointment at the Medical Clinic. You refused to let her go alone and made her wear sunglasses so that no one would see her black eye.
141.While in private with her Case Manager, she was asked how she had received the black eye, and if she wanted to report the matter. She felt she could not disclose what had happened because she was scared of repercussions from you.
142.At some stage, you and Ms Sutcliffe began a sexual relationship.
Control
143.Ms Sutcliffe described your relationship with her. She said you were “controlling and aggressive.” She described the regular routine of your days together. They involved you starting drinking when you got up in the morning, and then going to various appointments. Throughout your relationship you were required to report on bail. She had to accompany you. Ms Sutcliffe stated “He’d present me at cop shops when he had to sign in on bail … He didn’t care, even about doing that, parading me around even though he had given me a black eye.”
144.You controlled her money, often taking it to buy alcohol. You drank at least two six packs [of beer] per day, up to three if you could afford it. She needed to arrange advance payments from Centrelink on several occasions. You told her to tell Centrelink that she had bills to pay. She was also forced to borrow money from Mr Lane.
145.When travelling on public transport you accused her of looking at other men. She was not permitted to interact with your friends. You regularly called her derogatory names.
Physical Abuse
146.Throughout the relationship Ms Sutcliffe said you would kick her with a roundhouse kick to the stomach and ribs, and you would hit her on a daily basis to the face or upper body. She described those hits as being “with great force.” She had black eyes and sore ribs making it hard to move.
Choking
147.You also choked Ms Sutcliffe multiple times. She stated that most times you would get her on the floor, wrap your legs around her waist, put one arm in front of her throat and the other arm behind her neck and pull up until she lost consciousness. She said there was “great pressure … . I felt like I was going to die. I can’t breathe.” You choked her to unconsciousness at least half a dozen times, if not more.
Charge 13 – Common Law Assault
148.On one occasion a few months into your relationship, you were choking her from the front with both hands. She could not breathe and so she lunged at your face and scratched and pinched your face. You laughed and told her “I don’t care, it turns me on.” You then called her a “dumb, stupid cunt.” That is Charge 13 – Common Law Assault.
Threats with Knife
149.Ms Sutcliffe said you carried a knife on you at all times. It was about 20cm long and you kept it at your hip bone, concealed in the front of your pants. You would place it beside the bed at night. At times you would pull the knife out and hold it against her neck and threaten to kill her with it.
150.In addition, you had another knife which was about 15cm long and had a serrated blade and blue tape around the handle which you kept on the television cabinet.
151.During your 10 month relationship you stabbed her twice with those knives.
Charge 8 – Intentionally Cause Injury
152.On one occasion Ms Sutcliffe was on the couch in her loungeroom. You grabbed the knife from the TV cabinet and without warning stabbed her in her upper right arm. The knife pierced her skin by about a centimetre. She was bleeding and crying but you refused to let her clean the wound. You would not let her move. After about 10 minutes you allowed her to clean the wound in the bathroom.
153.She said she felt like ringing the police after this but “I was too scared to do that …. Because of repercussions from Dilan.” She has a scar from that stab wound. That incident is reflected in Charge 8 – Intentionally Cause Injury.
Charge 9 – Intentionally Cause Injury
154.On another occasion you and Ms Sutcliffe were travelling on a train. You accused her of looking at another man. When you returned to her unit, you pulled out the knife from the front of your pants. You were yelling at her, calling her a ‘conniving slut’ and that she deserved what she got. You then stabbed her in the upper left arm near her shoulder. You held the knife near the tip preventing it from going in too deep. It penetrated about a centimetre.
155.She asked your permission to clean the wound which was bleeding. That incident is reflected in Charge 9 – Intentionally Cause Injury. She has a scar from that stab wound.
Charge 10 – Rape
156.Ms Sutcliffe had an issue with hoarding. Her bedroom was full of boxes and clothing and as a result she slept on a mattress in the loungeroom. For about the first three to four months of your relationship that is where you slept together.
157.On an occasion after you and Ms Sutcliffe had been in a relationship for some time, she went to go to bed without asking your permission. As she tried to get off the couch you hit her several times to the face. She says you used “great force.” She was crying and covering up. You gave her a black eye and her face was sore and swollen. She said you stopped hitting her “after a while.” She said “I was petrified of him.”
158.After assaulting her in that way she got into bed on the mattress. You turned off the lights and “proceeded to hop on top of me and have vaginal penile sex with me.” You did not wear a condom. She did not consent to that penetration. She said she let you sexually penetrate her because “I was scared if I didn’t I’d cop another bashing.” Afterwards you told her that the assault was her fault, “That I made him do it.” That is Charge 10 – Rape.
159.Two of her workers from VACCA saw her black eye after that assault. They asked her how she got it, but she made up a false story. She did that because “they said that if it kept happening and I kept seeing Dilan that I wouldn’t be able to see my daughter anymore.”
160.On another occasion you and Ms Sutcliffe were waiting at a bus stop in Newport. A man with dark skin laughed at something. You thought Ms Sutcliffe laughed along with him and you became angry. You grabbed her by the hair and dragged her down the street to the next bus stop.
161.You caught a bus to your mother’s house. You started abusing Ms Sutcliffe in front of your mother saying “Tell Mum what you are … He said I laughed at the same time as a black man and I was a ‘nigger loving slut’.” Once back at her unit you hit her.
Charge 11 – Rape
162.About 4 months into your relationship with Ms Sutcliffe she had cleaned up the boxes from the bedroom and you and she started sleeping in that room.
163.After that time, on another occasion Ms Sutcliffe said “it was one night and I went … to bed without asking his permission …” She was lying on the bed. You came into the bedroom, sat on top of her and started punching her to the head, neck and back area. She said “It lasted for ages … 10-15 minutes … I was crying for him to stop. Rolled up in a ball.” She said this assault was “Terrifying.”
164.You then grabbed her by the hair and dragged her out of bed and back into the loungeroom. You shoved her onto the couch and told her to stay there “until he told me to move … . I was black and blue. I was beaten. I was sore. I was petrified … I felt helpless.” Both of her eyes were black.
165.You continued to verbally abuse her. After about an hour you allowed her to go to bed. You followed and proceeded to get on top of her and sexually penetrate her vagina with your penis. Ms Sutcliffe did not consent to the sexual penetration. She said she allowed it “Because I just didn’t want to be hurt anymore.” That is Charge 11 – Rape.
166.Ms Sutcliffe’s VACCA worker noticed her black eyes the next day. Ms Sutcliffe was again told if the black eyes didn’t stop she would not be permitted to see her daughter. The worker offered help to have you removed from Ms Sutcliffe’s unit. Ms Sutcliffe declined help and told her that you had already left. You had told her to lie so that she could see her daughter.
167.At times you threatened Ms Sutcliffe that if she didn’t do what you told her you would ring DHS and make her sound “like the worst person ever so that I never got my daughter back again.”
Charge 12 – Intentionally Cause Injury
168.In June 2013, you and Ms Sutcliffe were at some shops when an unknown person said something that angered you. When you returned to her unit you were in a bad mood and she asked you what was wrong. You then punched her at least three or four times to the face. She was on a mattress, half sitting, half lying down. She proceeded to cover her face to protect herself.
169.Without warning, you obtained a hammer and struck her in the leg with the claw part of the hammer’s head. She said she felt a sharp pain to her shin. When she looked, you were holding the “head of the hammer ... with the claw part in my direction … I felt a severe sharp pain and then sort of numbing of the leg.”
170.The hammer’s claw cut into her shin causing an injury. She pulled up her pants and saw a large gash, about 10cm long. She said “there was a lot of blood everywhere.” She began to cry and pleaded with you to stop hurting her. That is the basis of Charge 12 – Intentionally Cause Injury.
171.She asked your permission and went to the bathroom to clean up her leg and apply a bandage. She was too scared to call police. You would not let her seek medical treatment for the injury to her leg.
172.Two days after you had hit Ms Sutcliffe with the hammer, you became angry at her because she had not had a shower that day. You told her to go and have a shower. The shower recess had glass panels.
173.After she had been in the shower for a couple of minutes, you entered the bathroom. You had a spanner with you which you then used to smash two panels of the shower door, leaving her standing naked and surrounded by broken glass. She said “I was petrified.”
174.She got out of the shower and dressed quickly. You went to the bottle shop and she cleaned up the broken glass.
175.Ms Sutcliffe’s housing worker attended the unit about a week to 10 days after you had assaulted her with the hammer and after the shower incident. Ms Sutcliffe showed her the injury to her leg. The worker took her for medical treatment and then to a women’s refuge.
176.Ms Sutcliffe received medical treatment at a Medical Centre. The injury was described by medical witnesses as infected and oozing fluid. She required ongoing treatment for approximately a month which involved repeated re-dressing of the wound and a course of antibiotics.
177.Ms Sutcliffe has a scar on her shin from that assault.
178.Ms Sutcliffe stayed at the refuge for about 10 days to two weeks. She returned home thinking you would be gone. About 15 minutes after she returned however you appeared at the front door. You were apologetic, telling her you wanted to talk. You told her “It would never happen again, and he seemed fine at the time.”
179.After a couple of days however, your behaviour reverted to what it had been before. Two days later, while you were both at her flat, you yelled out to Ms Sutcliffe who was in the kitchen. She was not able to hear what you had said and yelled back to you. She finished what she was doing and went into the lounge room. As soon as she entered you punched her in the face. “He told me not to be a loud mouth, because I got away the other day and [that] would never happen again.”
180.You continued to be physically, mentally and emotionally abusive to her to the point that she was planning a way to leave you. Before that occurred however on 2 October 2013 you were arrested and remanded for unrelated matters. Ms Sutcliffe managed to move to new accommodation and conceal her location. That was the end of your relationship.
Reasons for sentence
The sentencing judge remarked that the courage of the four women, in surviving the abuse and coming forward to tell their stories, ‘is quite remarkable’. With respect, we agree. They were the subject of sustained cross-examination, each occupying several days, yet each retained their dignity and composure throughout. The judge noted that each woman, at times in evidence, revealed ongoing fear of the respondent.
The judge then observed:
184.Your treatment of each one of them is deserving of condign punishment. The sentence I impose must announce to you the community’s denunciation of your treatment of them. It must signal to others the community’s absolute disdain of such violence behind the closed doors of a relationship. It must deter others and particularly other men from committing such acts and it must seek to protect the community. That includes specifically any other woman who may come into contact with you, as well as sending a message to any other man prone to such violent abuse against a partner.
185.In more recent times, higher Courts, like the community they represent, have looked more closely at intimate partner violence. They have recognised that it has been a secret scourge on our community, that it is crippling to the women abused and traumatic for any children, that it carries a risk of more and more serious injury and death.
186.Higher Courts have universally stated that this type of offending warrants significant punishment. The sinister nature of intimate partner violence is exacerbated by the fact that it is often hidden, usually happening in private most often with only two people present. According to the expert evidence of Professor Kelsey Hegarty, given during these trials, research has shown women are less likely to report the violence of their intimate partners than an offence committed by a stranger. The capacity to report it can be complicated by feelings of emotional attachment to the perpetrator.
187.There is usually a reluctance on the part of victim to seek help – either because of threats, or fear of repercussions, or fear of not being believed, or a concern that the authorities will not be able to contain the offender. That reluctance is often the result of psychological abuse. It is often due to the feelings of shame, humiliation and embarrassment caused to a victim.
188.There is cumulative impact of intimate partner abuse. Due to the ongoing and repeated nature of violence victims often suffer from self-loathing and survivors are afflicted with a range of mental health conditions including anxiety, depression, suicidal ideation, as well as alcohol and substance misuse.
189.It is often, as here, complicated by the presence of children. It is exacerbated when the victim has limited resources or other supports or means of escape. And it is often because those victims are told the abuse is their fault. The complexity of escaping such a relationship and seeking help cannot be underestimated.
190.For these reasons, any sentencing Court must send a strong message to offenders and the community at large.
These statements of principle are entirely apposite. The judge then emphasised the importance of the sentencing principle of general deterrence in domestic violence type cases and referenced the statements of this Court[9] in Pasinis[10] and Kalala.[11]
[9]Reasons, [191] and [192].
[10]Pasinis v The Queen [2014] VSCA 97 (‘Pasinis’).
[11]Kalala v The Queen [2017] VSCA 223 (‘Kalala’).
Under the heading of Objective Gravity the judge set out the factors considered relevant to this assessment in respect of the offences of rape, intentionally causing injury, making a threat to kill and false imprisonment. The judge noted that with the exception of the false imprisonment charge, the offences were more accurately described as spontaneous than premeditated. Whilst that may be ‘somewhat mitigating’ the judge correctly observed that sudden unprovoked violence in a relationship has its own kind of menace.
We agree with these observations. Sudden unprovoked eruptions of violence in this case were usually against a background of physical, verbal and often financial control over the victims. The judge said:
202.Almost without exception each charged act here is accompanied by other physical and or verbal violence. That immediate setting is an aggravating feature of those offences.
203.In addition to the charged offences and their immediate setting, I also take into account the broader context of the relationship and the nature of a number of uncharged acts.
204.Neither of those matters are aggravating features of the individual offences for which you will be sentenced. The relevance of those other acts of violence as well as the aspects of psychological, at times financial and physical control you exerted over each woman, including the intimidating feature of your frequent possession of weapons, as context is that it places your offences in their true setting. It demonstrates that your offences are not isolated examples but are committed against a backdrop of your extreme jealousy and control.
The judge then considered the features of offending as it concerned the four women:
Jaime Marshall
206.The offending against Ms Marshall occurred when you were under 18 years old. She was also a child. To an extent, I take into account the delay in having these matters dealt with. Delay in reporting is better understood, and here is complicated by your repetitive threats to harm her, and of her limited means to seek help. Nonetheless I am dealing with offences which are almost 30 years old.
207.You and Ms Marshall were living alone for periods. Although you both had involvement of Youth Justice and similar organisations there was little practical support. You both developed an addiction to heroin during your relationship.
208.That combination of circumstances must have been challenging for two young people. I take that into account when I am considering your offending against her.
209.Nonetheless, you were inexcusably violent and abusive to her. Despite your young age there is nothing to suggest you were not aware of the serious nature of your offending against her. In fact, by then you had had a significant level of intervention to try to address your offending behaviours. I will come back to those matters when outlining your personal circumstances.
210.Ms Marshall was your partner, and after 1995 she was the mother of your child. She was entitled to be loved, respected and treated with kindness. You showed very little of those qualities. Your offending breached that relationship and was a betrayal of her trust.
211.In relation to each and every charge, you committed violence against Ms Marshall despite her protests and while completely ignoring her distress and her state of injury (which you had inflicted).
212.Charge 1 involves you hitting her to the head with the butt of the gun. I take into account that this was an impromptu act committed by you when you were a 16 or 17 year old.
213.Although I cannot draw any conclusion regarding whether the gun was loaded at the time, Ms Marshall was aware you usually kept your guns loaded. That fact is likely to have increased her fear during this assault.
214.You wielded that weapon in a threatening way during the preceding argument. The hit was hard enough to cut her skin and caused her an injury above her eye. She still bears the scar. She says scars remind her still of your violence.
215.After hitting her you dragged her by the hair and at one point she lost consciousness. Even though the Charge is particularised to reflect the hit with the butt of the rifle which is a lower end assault, and the injury a lower end example, the broader circumstances of violence are aggravating. Even after hitting her you showed no remorse or desire to desist.
216.In relation to Charge 5 of Intentionally Cause Injury you were responding to your girlfriend telling you she was pregnant. She was a young, vulnerable woman in that moment. You responded with violence, pushing her down and then cutting her to the stomach with a knife.
217.The use of the weapon elevates the seriousness. Fortunately, the cut was superficial. It is a moderately serious example of intentionally causing injury.
218.The first rape in Charge 6, committed against her in the dining room at your mother’s occurred after you had assaulted her and knocked her unconscious. The precursor sexual behaviour was aggressive and forceful. You became that way for no apparent reason. Despite her efforts to stop you and her pleas for you to stop, you responded with more violence, throwing her to the floor.
219.When you penetrated her as she lay on the ground she was most vulnerable given her state of unconsciousness. You had no regard for her injured state, which you had caused. You persisted even when interrupted by your mother entering the room. You were not wearing a condom. It is a serious example of rape.
220.In relation to Charge 7 you raped Ms Marshall in the public area beside the train tracks. Again, your sexual violence towards her was accompanied by other violence. It was sudden and unprompted. You threw her to the ground. You repeatedly slapped and punched her to the head area causing her right cheek to immediately swell. At least one punch to the cheek split her skin. She was crying and asking you what she had done wrong, but you ignored her state of distress.
221.The penetration lasted for 5-10 minutes and despite two members of the public appearing, you did not desist. That public setting and visibility to passers-by adds to the level of humiliation Ms Marshall must have experienced.
222.She suffered physical injury by way of bleeding from her vagina after that rape.
223.In my view that is a serious example of the offence of rape.
224.Charge 8 of rape occurred when you attended her unit in Ashburton. You entered while she was asleep. Your purpose in attending was to demand money from her. You assaulted her as she woke. You choked her. She had a split to her cheek from where you punched her. She relinquished $2,000 and heroin to you.
225.She was injured and bloodied but you demanded sexual intercourse with her. You did not permit her to clean the blood from her face. I agree with the Prosecution submission that you demonstrated callous indifference to her injured state and her wellbeing when you raped her. It is a very serious example of that serious offence.
226.You and Ms Marshall had a child together in December 1995. The rape at Ashburton occurred after the birth of your son.
227.Although I cannot conclude whether the rapes reflected in charges 6 and 7 occurred while she was pregnant or after the birth of your son, your overall violence towards her was unabated. Instead of treating her with love, kindness and care, you abused her.
228.The jury accepted her evidence beyond reasonable doubt on each of those charges.
Michelle Marsden
229.In relation to Ms Marsden, she too was vulnerable. She had recently exited drug rehabilitation, she had a young son and she was homeless. You knew all of those facts.
230.Charges 12, 13, 14 and 15 all occurred on the one occasion. There will be a greater degree of concurrency for that reason. The prompt for your extreme violence on that occasion was that Ms Marsden telling you she was pregnant with your child. Your jealousy and mistrust erupted. You threatened her and viciously assaulted her over hours.
231.Charge 12 reflects your assault by way of repetitively punching her, in particular to the head. Targeting the head, which carries an obvious risk of more serious injury is more serious. It is a moderately serious example of that offence.
232.Charge 14 reflects your action of choking her. You did that repeatedly, holding her naked body by the neck against the wall and choking her to the point of unconsciousness. Choking is a particularly serious form of violence. Strangulation to the point of unconsciousness has potentially life threatening consequences. That is a particularly serious example of this offence.
233.Those acts of physical violence occurred with her son in the house. Her comment that she had to be quiet as you violently assaulted her so that she would not wake her child demonstrates how absolutely trapped she was. Her ability to fight back, to cry for help or to try to leave was virtually non-existent.
234.In the setting of that physical violence you made a threat to kill her 7 year old son if she ever left you or cheated on you. That is Charge 13. She gave evidence about her deep love for her son. That must have been obvious to you even at the early stage of your relationship. Your threat, while spontaneous, was targeted at the most important thing in her life – her child. Having seen you with a.22 rifle in the house, she took that threat to shoot him very seriously. It is a serious example of making a threat to kill.
235.Finally, after hours of that physical and psychological abuse you raped her. She was physically injured and emotionally exhausted. She relented not because she consented to that act, but because that was the only way to stop your other physical violence towards her. Not satisfied, you then accused her of not participating in the sexual acts and further assaulted her. That is Charge 15. In my view it is an extremely serious example of rape.
236.Your threat to kill Ms Marsden reflected by Charge 16, by taking her to a friend’s farm and digging a hole, which she understood to be her grave, is particularly disturbing. The additional feature of that Charge is your threat towards her young son, namely that you would ‘chuck him in with her’. She understood the gravity of that threat.
237.She understood you had a friend with a farm, and that you kept a gun there in addition to the one you had at home. I agree with the Prosecution submission that this threat is particularly chilling. It is a serious example of making a threat to kill.
238.The offence of false imprisonment against Ms Marsden in Charge 17 is one of the most serious offences on this Indictment. Unlike almost all of your other offending, I am satisfied on the evidence that there was premeditation. You deliberately proposed to go somewhere and talk about your relationship, but instead took her to your unit with a clear intention to perpetrate violence and detain her. You deceived her.
239.The physical assault commenced immediately. During that offence she was 6-7 months pregnant with your child. The offence happened in her home where she was entitled to feel safe. It was prompted by your extreme insecurity due to her expressed desire to leave the violent relationship and protect her son. I agree with the Prosecution submission that women must be able to leave a relationship without violent retribution.
240.You must have known her ability to fight back or to escape was hampered not only by her pregnant state, by her small stature and by the locked doors, but also by the fact that her son Heath was in the custody of your mother.
241.You locked her in the unit for a period of days. You viciously physically assaulted her. You psychologically tormented her and repeatedly stripped her naked and humiliated her. The prompt was your extreme insecurity that she wanted to leave you. She thought she was going to die. She only agreed to stay after hours of your physical abuse and mental torment of her. It is an extremely serious example of that offence.
242.Charge 18 of causing injury intentionally is a serious example of that offence. It involved you stabbing her with a knife to her abdomen. The penetration was deep. You refused to take her for medical treatment. She still bears a scar. That assault occurred unexpectedly in the course of an argument. She said you shocked yourself. The other man present was in tears. You refused to let her seek medical attention. It is only good luck which meant she was not seriously injured.
243.Finally charge 19 of rape in relation to Ms Marsden relates to your anal penetration of her. She had made clear her disinterest in participating in anal sex. You ignored her feelings and her right to choose and took the opportunity to penetrate her knowing those feelings. You then ignored her screams of pain and her pleas for you to stop.
244.You penetrated her in that way twice, the second time after you had flipped her face down on the bed and while you held her hair to restrain her.
245.Even after the offence was complete you responded violently to her state of distress. You showed absolutely no repentance.
246.She suffered an injury as a result of your sustained penetration. She suffered embarrassment and was degraded by you. Even years later, as she gave evidence, the distress and trauma you inflicted on her during that offence was palpable. That is an extremely serious example of that serious offence.
247.Your offending against Ms Marsden occurred over a period of two years. In that time she bore you two children. You showed little regard for that fact. You showed little care, concern, love or respect for her. You breached the relationship of trust between partners, and breached your responsibilities to her as the mother of your children.
248.The jury obviously found her evidence compelling. You were found guilty of each charge in relation to her.
Adelle Coughlan
249.The offending against Adelle Coughlan is of similar nature to your other offending, but the relationship has a different complexion. You had just been released from a month in prison on the day or days before you met Ms Coughlan on the streets of Sunshine. That period of remand related to acts of intimate partner violence.
250.Ms Coughlan was a 16 year old, though told you she was 18. Nonetheless she was clearly much younger than you at 31 years. That age gap is an aggravating feature of your offending against her.
251.Ms Coughlan was vulnerable because of her age, but also because she was homeless and had no support in Victoria.
252.Your rapes of Ms Coughlan occurred on the second night after you met her. To use her word, they were prompted by your ‘absurd’ jealousy. They occurred in the setting of the locked bungalow. The occurred after you had physically assaulted her to the face and forcibly carried her to the bed.
253.They were forceful penetrations, first with your fingers and then with your penis after you had flipped her over and as you held her face down on the bed and grabbed her by the hair. She was protesting and distraught. You did not wear a condom. You persisted to ejaculation.
254.You showed absolutely no remorse, locking her in the bungalow as you left and then acting as if nothing had happened. Although of a spontaneous nature, they are both very serious examples of rapes.
255.There will be a greater degree of concurrency given they occur on the one occasion.
256.You kept Ms Coughlan locked in the bungalow for days. Such were her memories, in evidence she refused to say the word ‘bungalow’, calling it your shed. Over the course of her month with you she twice tried to escape. Both times you pursued her and violently assaulted her.
257.The first time reflected in Charge 5 involved you spear tackling her then punching her to the face and returning her to the bungalow. The circumstances of restraint and the level of violence by blunt trauma to her head knocking her unconscious make this a serious example of that offence.
258.The second time reflected in Charge 6 is even more serious. It involved you picking her up in the street, carrying her back to the bungalow as she protested and physically fought against you.
259.The intentionally cause injury is reflected in the events which then followed. In the context of physically restraining her with your belt and covering her mouth with gaffer tape, you held ice to her arms, and you repeatedly punched her to the stomach to the point of causing bleeding from her vagina. The force was significant. That bleeding continued for some days. You left her in an injured state and again showed no remorse. That is an extremely serious example of that offence.
260.Not long after, in a fit of jealousy on the bus, you threatened to slit her throat. Like the other women, she said you always carried a knife. The threat to slit her throat and your demonstrated capacity for violence must have left her in no doubt of your capacity to follow through. That threat reflected in Charge 7 was a serious offence. It was the final straw for Ms Coughlan. That brave young woman escaped from you by jumping off the bus and making her way to her grandmother’s.
261.Despite the brevity of your relationship with Ms Coughlan, the impact was clear. She says your relationship with her has caused her ongoing trauma throughout her life.
Tracy Renee Sutcliffe
262.Ms Sutcliffe was another vulnerable woman who you took advantage of. She had a child and was under the eye of the Department of Human Services, working towards reunification. Those circumstances were known to you. You employed them in your threats towards her and your control over her.
263.She was a person with Schizophrenia. You were well aware of that fact given you insisted on accompanying her to her regular appointments for depot injections and treatment. You were aware she had a history of drug addiction.
264.Your twice stabbed Ms Sutcliffe in unprovoked attacks. They are reflected in the offence of causing injury intentionally in Charges 8 and 9. The use of a knife clearly elevates the seriousness of that offending. Both assaults caused injuries which although of a more minor nature, have left her with lifelong scars. They are moderately serious examples of that offence.
265.The third offence of causing injury intentionally against Ms Sutcliffe and reflected in Charge 12 involved the unprovoked attack on her with the hammer. She had already been assaulted and was covering her face. As such she had no forewarning or ability to resist you or get away.
266.You used the claw part of the head to assault her in the shin, causing her a gash wound. She described blood everywhere. Your complete lack of remorse is demonstrated by your refusal to allow her to seek medical attention. The resulting injury became infected. She required regular medical treatment and antibiotics and has a resulting scar. It is a serious example of that offence.
267.In addition to those offences, you repeatedly choked her. Charge 13 of common law assault reflects an occasion when you choked her and she fought back. Your retort to her that it turned you on demonstrates your absolute disregard for what you were doing. I do not have any other details of that offence, however choking of itself is a serious assault.
268.You committed two offences of rape against her. They both occurred when she dared not ask your permission to move about her own house freely. I note all the offending against her happened in her own unit where you, at least initially, ingratiated yourself.
269.The rape offence in Charge 10 occurred when she did not ask your permission to go to bed. The level of control is extraordinary. The act of penetration was preceded by your violence prompted by that fact. It involved your assault of her and telling her not to move. After that humiliation she did not consent in any way to sexual penetration with you. You did not wear a condom. It is a very serious example of rape.
270.Similarly, the rape offence in Charge 11 occurred when she went to bed early. You sat on her and assaulted her violently to the face before dragging her to the mattress in the lounge. You assaulted her causing her visible injuries. You gave no regard to those things or the fact that she was in no position to consent to you sexually penetrating her. The precursor violence was protracted. She described her state of extreme fear of you on that occasion. She was crying and distraught. Your sexual penetration of her without her consent after such an episode in my view constitutes an extremely serious example of rape.
271.Ms Sutcliffe’s vulnerabilities were ventilated in front of the jury. She spoke in a disarmingly matter of fact way about your extreme violence and abuse. Like the other women, she maintained a dignity in answering lengthy cross examination. The jury accepted her evidence on each and every Charge beyond reasonable doubt.
272.Overall, I accept the Prosecution submission that your offending against these women over the course of two decades and in the context of broader control and abuse must be viewed as an outlier example of this type of offending. I accept it is at the upper category of seriousness and objectively it is approaching a worst case example.
Her Honour then turned to the conduct of the respondent’s police interview and his trials.
Records of Interview and Trials
273.You did not participate in any records of interview in relation to this offending.
274.You have exercised your right to plead not guilty. You did not give evidence at either Trial.
275.In relation to some charges for Ms Marshall and Ms Coughlan the jury entertained a reasonable doubt and found you not guilty.
276.You are not to be penalised for exercising your right to have a Trial. It does not aggravate your offending or your personal circumstances. It is not an aggravating feature in sentencing. It simply means you do not receive the benefits which flow from an acceptance of responsibility for your offending behaviour, and from a plea of guilty, or from a show of remorse.
277.More broadly, you have shown absolutely no remorse in relation to any of your offending. You continue to deny any violence and to accuse each of these women of fabricating stories against you. Your lack of insight even in the face of separate jury verdicts after contested trials is most concerning.
These statements were undisputed on this appeal and are undoubtedly correct.
The judge then reviewed the Victim Impact Statements from two of the victims. In short, they revealed the profound and enduring damage caused by the respondent. Suicidal ideations, diminished self-worth, persistent nightmares, anger, isolation and alcoholism feature prominently. Michelle Marsden was ‘trying to drink away the pain … trying to forget …’. She said ‘… I call myself a survivor … but … I knew that … I still haven’t recovered from what he did to me, I’m still suffering, I’m broken, I’ve never really recovered’.
Two of the complainants did not make victim impact statements. In that circumstance, as she was entitled to do, the judge took into account comments made by the two women in their police statements.
The judge then turned to the respondent’s personal history. We will summarise her Honour’s comprehensive analysis:
•The respondent was born in Melbourne and was the youngest of four children. He identifies as an Indigenous Australian.
•He experienced little love or care, nor supervision or guidance in the family home. His father died when he was nine months old from cirrhosis of the liver.
•His mother re-partnered when the respondent was four or five. Alcohol abuse and violence were a frequent feature of family life.
•When the respondent was 11 his brother, himself a some-time ward of the state, told him that his stepfather was not his real father. A range of behavioural problems began at about that time including stealing and staying out overnight.
•He was involved in an accident in a stolen car at about that time. There were differing reports about whether he sustained a head injury as a result. His attendance at school was minimal and he did not attend school beyond Year 7. By late primary school he was drinking, smoking cannabis and stealing. Her Honour said:
319.What is most shocking about the records of your childhood is that you first entered a pseudo-detention setting at the extremely young age of 11. You were placed in Baltara in May 1990 in relation to 26 offences of dishonesty.
320.A later Supervision Order with conditions to attend school, utilise support services and community agencies, and not be away from your home without permission had little effect.
321.You were again sent to Baltara at age 12 and a half after being apprehended in a high-speed pursuit with older teens. You absconded. Accommodation with your sister was unsuccessful. You ran away and were missing for some months.
322.There were reports of Brian Ferguson being intoxicated and of your mother wanting you to be made a Ward of the State. You were reported to have learning difficulties and to need intensive support. You expressed feelings of abandonment and a desire to jump off the Westgate Bridge.
323.You spent most of your adolescent years in foster care or in Baltara, Turana and Malmsbury Youth Justice facilities.
324.A 1992 report indicates you showed little regret for your offending behaviour and an intention to continue your illegal activity. A considerable number and range of supports were introduced to try and assist you. A Youth Residential Order was recommended with various supports. You breached a number of Probation Orders and were eventually placed on a Supervision Order. You breached youth parole.
325.You were described as a young man with “poor self esteem and poor self image.” Your ‘whole life’ revolved around drinking alcohol, chroming and stealing. You had a lack of interest in recreational activities. You did not continue your involvement with Nunawading youth residential centre, Turana. By age 15 you had spent over 12 months in detention.
326.In March 1994 you were released on parole and legally free for the first time since September 1991. Unsurprisingly you found life outside an institution difficult. You are recorded as having ‘generally failed at most things he has attempted in his life’.
327.Your family life was described at that time as characterised by separations and conflicts, resulting in you never having belonged to a stable group. You were reported to have seen ‘an enormous’ amount of counsellors, doctors, social workers, psychologists apparently with little change to your behaviour
•The judge noted that it was against this background that he met Jaime Marshall, the first of his four victims. He was then aged 16.
•Her Honour recited the respondent’s polysubstance abuse, commencing at the age of 10 with the daily consumption of cannabis; chroming on paint, glue and petrol by the age of 13; this escalated to heroin (at 16 years old) amphetamines, benzodiazepines and methamphetamines not long after.
•The respondent had no real employment history.
•The judge summarised the respondent’s lengthy criminal history which started in the Children’s Court. Once in the adult jurisdiction he was dealt with almost every year from 1995 to his remand in 2013. His prior offending included offences of dishonesty, drug use, violence and weapons offences. He was dealt with on multiple occasions for assault, assault with a weapon, wilfully or intentionally damaging property, carrying or possessing regulated weapons, assaulting or resisting police, numerous dishonesty offences including burglary, robbery, theft, handling stolen goods, deception and various driving matters including dangerous driving and conduct endangering life.
•The judge noted that the respondent had been afforded multiple opportunities to undertake orders directed at his rehabilitation, and ‘had repeatedly breached each of those orders’.
•By 2007 the respondent’s criminal behaviour had escalated. He was sentenced in this Court[12] to 3 years and 9 months’ imprisonment for armed robbery and reckless conduct placing other people in danger of death. In 2008, in the County Court, he was sentenced for the offending which ended his relationship with Michelle Marsden — prohibited person in possession of an unregistered firearm, making a threat to kill and common assault.
[12]On appeal from the County Court.
•The judge noted that in 2010 the respondent was dealt with for 31 charges including resisting police, possession of weapons, dishonesty and driving offences. The judge noted that not all of those convictions were prior matters for the purpose of sentencing.
•The judge further noted that all of the offending against Adelle Coughlan and Tracy Sutcliffe occurred while the respondent was on bail. She observed, correctly, that this was an aggravating feature of that offending. The offending against Adelle Coughlan commenced within a day or two of his release from custody and within less than two weeks from being released on bail for charges of recklessly causing injury and unlawful assault against another partner.
•In December 2010 the respondent was sentenced to a suspended term of imprisonment for assisting in the stabbing of a fellow prisoner in Barwon Prison. The Tracy Sutcliffe offending in 2013 occurred just after the respondent was released from prison.
•The judge noted that the respondent’s compliance with orders to undergo anger management counselling, and to engage with services for mental health and drug and alcohol abuse, was either ‘superficial or non-existent.’
•Subsequent offending involving brutal assaults on other intimate partners (in addition to the four women the subject of the trial indictments). Brenda Jackson was ‘the victim of [the respondent’s] brutality’ in December 2014 and January 2013.
351.That offending is chilling in its similarity to the offending before me. Ms Jackson was a vulnerable woman who you met on the streets of Footscray and offered accommodation in your bungalow. Within days and in the context of broader threatening and aggressive behaviour, you committed an extremely serious assault on her over a period of days between December 2014 and January 2015.
352.You were on bail at the time of that offending. Footage from the Altona Police station where you were required to report, showed her with progressively worsening injuries which she attempted to cover up. She escaped when you forced her to attend Medicare to obtain money and a staff member alerted security.
353.Your violence left Ms Jackson with significant injuries including fractures to her nose, jaw and ribs, a perforated ear drum and bleeding around her kidney. She was hospitalised for over a week.
354.You denied causing those injuries when interviewed but eventually pleaded guilty in this Court in 2016 to intentionally cause serious injury against Ms Jackson and you were sentenced to 729 days imprisonment plus a 2 year CCO.
The judge correctly observed that the respondent was not to be resentenced for his prior or subsequent offending, but that it was relevant to the need for specific deterrence, community protection and to his prospects for rehabilitation.
The judge then turned to the complex issue of the respondent’s mental health. It is necessary only to summarise her Honour’s conclusions as none have been disputed on this appeal.
•The respondent has a mild intellectual disability. This is an organic disorder which pre-existed all offending.[13]
•The respondent reported having a history of depression, for which he had occasionally been prescribed antidepressants. He took his medication irregularly.
•The respondent suffers from schizophrenia first diagnosed in 2019, and recently confirmed by Forensicare psychiatric registrar Dr Nicholas Hughes under the supervision of consultant psychiatrist Dr David Thomas.
•The judge could not ‘draw any firm conclusion as to when that condition developed’.
•The judge could not conclude that there was any connection between the charged offending and the respondent’s mild intellectual disability and/or a psychiatric illness. Specifically she could not attribute his extreme violent behaviour to schizophrenia. Thus the first limb of Verdins[14] was not engaged.[15]
•The judge noted, however, that the respondent’s intellectual disability remained relevant. In combination with his childhood deprivation it impacted his moral culpability for the offending. The judge referred to passages in Marrah v The Queen[16] and DPP v Drake.[17]
•Her Honour concluded that:
425.Your childhood was marred by transience, violence, addiction, poverty and poor access to education. I accept that the experiences of your childhood reflect a background of considerable social deprivation such as to enliven the principles enunciated in The Queen v Bugmy. That is, those early life experiences have left their mark on you, and to a real extent have been entrenched by the ongoing pattern of your life.
426.I accept that that is a mitigating factor which reduces your moral culpability. Further, in your case I take into account the principles outlined in Bugmy specifically viewed through the additional prism of your mild intellectual disability. I undertake that consideration with the comments of the Court of appeal in Eser v The Queen in mind.
[13]There was some evidence that the respondent’s IQ had been variously reported at between 67 and 73.
[14]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[15]In Verdins the Court of Appeal stated that impaired mental functioning can be relevant to sentencing in at least six ways. These six ways are known as the ‘Verdins limbs.’ The first Verdins limb is that the impairment may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
[16][2014] VSCA 119.
[17][2019] VSCA 293.
The judge correctly noted that the third and fourth limbs of Verdins permitted moderation of the sentencing principles of general and specific deterrence and did not require a specific causal connection to the offending. The judge concluded that the evidence did not establish that the respondent, as a consequence of his mild intellectual disability, failed to understand the concepts of crime and punishment or that he was not a suitable vehicle for general deterrence. Insofar as specific deterrence was concerned the judge concluded that his criminal history demonstrated that thus far specifically deterring him from a criminal life had comprehensively failed. In the event, the aspect of specific deterrence was thought to be overtaken by the need for the ‘increasing community protection’. Thus there was little if any work for Verdins limbs 3 and 4 to do. There is no error in any of these conclusions.
Contrastingly, the judge considered that the respondent’s mental condition engaged the fifth limb of Verdins.[18] Thus the judge considered that the burden of a prison sentence on a person with a mild intellectual disability and a serious psychiatric condition is likely to be more onerous than for a person without such mental impairment. But the judge remarked:
443.To an extent that is offset by the fact that you report finding life in prison to be easier than life in the community. That is a sad reflection on your level of institutionalisation, but that is your reality.
[18]The fifth Verdins limb is that the existence of the impairment at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
There was no evidence that the respondent’s mental impairment would deteriorate in the custodial setting.
Part of the material before the sentencing judge was the product of a request made by the court to Forensicare for a formal risk assessment. According to the risk assessment conducted by Dr Nicholas Hughes, the respondent is at the highest risk stratification possible for violent recidivism and at ‘a significantly higher risk of violent recidivism when compared with other violent offenders’ and at an ‘above average risk of sexual recidivism’. The judge noted that for this latter risk Dr Hughes did not use a ‘structured professional judgment tool’.[19] The judge concluded that this evaluation of risk was likely understated and that, on all the evidence, the respondent’s true risk of sexual recidivism was high.
[19]The static-99 actuarial tool.
The judge considered the associated prospects for rehabilitation to be negligible, although the respondent was ‘not beyond all hope of rehabilitation’. This assessment was made on the basis that when released, the respondent will be drug and alcohol free for a very long period; his schizophrenia has been diagnosed and he is compliant with his medication; given his psychiatric condition he may well qualify for psychological therapy which so far has not been sought by him; and finally that he will be required to undergo sex offender programs while in custody.
The judge observed that the respondent was to be sentenced as a serious offender for a number of the charges on the two indictments. The respondent fell to be sentenced as a serious violent offender on each of the threat to kill charges, and as a serious sexual offender on seven of the nine rapes. This aspect of the exercise of her Honour’s sentencing discretion is central to both grounds 1 and 2 of this appeal. We will set out the judge’s reasons in dealing with these serious offender provisions:[20]
[20]Italicised passages as in original.
Serious Offender
459.You are to be sentenced as a Serious Offender for a number of charges before me.
460.The Serious Offender regime under the Sentencing Act 1991 is triggered when a person has been sentenced to imprisonment for one relevant offence of serious violence or two relevant offences of sexual offending. You fall into both the Serious Violent and Serious Sexual offender categories.
461.First, you have previously been sentenced to a term of imprisonment for the offences of make threat to kill and for intentionally cause serious injury. Therefore, on charges 13 and 16 of make threat to kill against Ms Marsden, and on Charge 7 of make threat to kill Ms Coughlan, you fall to be sentenced by me as a serious violent offender.
462.Once I sentence you to a term of imprisonment on charges 6 and 7 of rape against Jaime Marshall, which I will do, you will fall to be sentenced as a serious sexual offender on all remaining rape charges. That is, charges 8 against Ms Marshall and charges 15 and 19 against Ms Marsden and charges 1 and 2 against Ms Coughlan and charges 10 and 11 against Ms Sutcliffe.
463.Once you are classified as a serious offender, the legislative scheme mandates that I must regard the protection of the community as the principal purpose of sentencing you pursuant to s.6D of the Sentencing Act 1991 which states –
s.6D – Factors relevant to the length of prison sentence
If under section 5 the … County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence—
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
464.Further, s.6E of the Sentencing Act 1991 is in the following terms
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
465.That means, that I am obliged to impose entirely cumulative sentences on you for each of the charges where you are a serious offender, unless I direct otherwise.
The judge then set out her reasons for declining to impose a disproportionate sentence under s 6D(b) of the Sentencing Act 1991 (‘the Act’). In substance her Honour considered that such a course was unnecessary, because the sentence to be imposed ‘will be considerable and will consume a considerable portion of the rest of [the respondent’s] life.’
The judge then reviewed current sentencing practices, the additional burden COVID-19 has placed on those imprisoned during the continuing pandemic and stated that she took into account that the respondent has ‘served a term of imprisonment where I cannot make any order for concurrency. That is the sentence of 1 year and 364 days imprisonment imposed on 24 April 2016 in relation to your offending against Ms Jackson’. In this remark her Honour was effectively stating that had the respondent been sentenced for this 2016 offence (committed during the span of offending covered by the trial charges) at the same time as those 24 charges, he would have had the opportunity to receive some concurrency in the 2016 sentence with the other charges. By the court dealing with the 2016 matter separately, the respondent was denied this opportunity. Her Honour took this matter into account in the respondent’s favour when sentencing him on the charges before her. There is no error in this approach.
The principle of totality obviously required careful consideration in this matter and there were strong arguments both for and against its compressive effect. Her Honour said:
497.In making my assessment as to totality I have considered the following.
498.You were on bail at the time of all offences against Ms Coughlan and Ms Sutcliffe. That means your sentences are to be served cumulatively unless I direct otherwise.
499.For the offences where you are to be sentenced as a serious offender, all sentences must be served cumulatively unless I direct otherwise.
500.Charges 12-15 against Ms Marsden were part of a single episode. Charges 1 and 2 against Ms Coughlan were part of a single episode. Despite a number of those being serious offences, I have determined to increase the amount of concurrency.
501.Finally I have also given consideration to the analysis by the Court of Appeal in Cotton v The Queen regarding totality and its interplay with s.6E. The Court in dismissing an appeal against sentence stated –
That principle [of totality] requires that, where a court sentences an offender for multiple offences, the overall sentence must be a ‘just and appropriate measure of the total criminality involved’. The authorities also recognise that the total effective sentence should not be ‘crushing’ in the sense that it would destroy any reasonable expectation of a useful life after release. However, the subjective effect of a total effective sentence upon the offender must be put in perspective, and should not be regarded as of paramount importance. Thus, a richly deserved sentence need not be reduced because the offender may feel crushed by it.
502.The Court referred to an earlier decision of R H McL v The Queen where the High Court held that “the need for judges to avoid compressing sentences was especially important where the accused person was a ‘serious sexual offender’…” The High Court stated that the object of s.6E would be compromised and probably defeated if sentencing judges determined the level of cumulation and concurrency according to the ordinary application of the totality principle.
503.There is little other guidance for the interplay of s.6E and totality. It is not yet in Australia current practice to order entire cumulation. I have not done so on the serious offender offences as the total sentence would not pay due regard to other sentencing principles. I will direct otherwise.
The judge then set out how she would structure the two indictments:
Two Indictments
504.I am required to sentence you across two indictments. I will sentence you for each offence, make orders for cumulation and then proceed to set the head sentence on each indictment. I will then order cumulation of the sentence for one indictment on the other to achieve an overall head sentence before setting a non-parole period.
There is no complaint taken with this approach. The judge then sentenced the respondent in line with the table reproduced at para [5] of these reasons.
This Appeal
As we have said, after considerable reflection we have determined to dismiss this appeal. We will explain our reasons.
Grounds 1 and 2
Under s 289(1)(a) of the CPA, in order to succeed in an appeal of this nature, the DPP must establish that ‘there is an error in the sentence first imposed’. In the absence of an identifiable error, this demonstration turns upon an inferred error of the type identified in House v The King:[21]
[T]he judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[22]
[21](1936) 55 CLR 499 (‘House’).
[22]House, 504–5 (Dixon, Evatt and McTiernan JJ).
In Karazisis, an appeal brought by the Director under s 289(1)(a), this Court observed that a ground of appeal alleging that a sentence was manifestly inadequate was stringent indeed:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.
The Court will be astute to enforce the stringency of this test.[23]
[23]Karazisis, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA).
In this appeal the appellant contended, in substance, that the objective gravity of the individual offences, including the circumstances of aggravation, the background against which each offence was committed, the limited factors in mitigation, the respondent’s criminal history, and his negligible prospects for rehabilitation in combination led to the conclusion that the individual sentences, the cumulation ordered and the total effective sentence were wholly beneath the range of sentences available to the judge in the reasonable exercise of her sentencing discretion.
The appellant noted that the judge characterised the rapes as either serious, very serious, or extremely serious and:
(a)‘serious’ examples of rape attracted a sentence of 3 years and 10 months or 5 years.[24]
(b)‘very serious’ examples of rape attracted sentences of 6 years, 3 years and 4 months, 6 years and 7 years’ imprisonment.[25]
(c)‘extremely serious’ examples of rape attracted sentences of 8 years 2 months, 6 years 3 months and 8 years’ imprisonment.[26]
[24]Charges 6 and 7 on the second indictment (Ms Marshall): Reasons, [20]–[30].
[25]Charge 8 on the second indictment (Ms Marshall): Reasons [31]–[37]; Charges 1 and 2 on the first indictment (Ms Coughlan): Reasons, [102]–[106]; Charge 10 on the First Indictment, (Ms Sutcliffe): Reasons, [156]–[161].
[26]Charge 15 on the second indictment (Ms Marsden): Reasons, [56], Charge 19 on the second indictment (Ms Marsden); Reasons, [83]–[86], and Charge 11 on the first indictment, (Ms Sutcliffe): Reasons, [162]–[167].
The appellant contended that none of these individual sentences for rape adequately reflected the objective gravity of the offending and were disproportionate to both the objective gravity of the offending and the overall blend of factors in the sentencing mix.
Insofar as the charges of intentionally causing injury were concerned, the appellant made similar submissions. Charges 12 and 14 on the second indictment, involving assaults on the pregnant victim Michelle Marsden, were characterised as ‘moderately serious’ and ‘particularly serious’.[27] Sentences of 1 year and 6 months and 2 years and 6 months respectively, were said to be wholly outside the range.
[27]See Reasons, [51]–[57] for the detail of this offending.
Charges 5 and 6 on the first indictment were characterised by the judge as ‘serious’ and ‘extremely serious’ examples of the offence. Both charges involved the respondent preventing Adelle Coughlan from leaving his bungalow; and violently assaulting her in the process.[28] The respondent was on bail at the time of the offending. Sentences of imprisonment for 2 years, and 2 years and 8 months, respectively were submitted to be wholly inadequate.
[28]See Reasons, [112]–[124] for the detail of this offending.
Similar submissions were made concerning the three charges of making a threat to kill. Charge 13 on the second indictment concerned a threat to kill Michelle Marsden’s son Heath during a prolonged assault on her, and charge 16 involved a similar vicious threat directed both at Michelle Marsden and Heath.[29] It was submitted that sentences of 2 years and 2 months, and 3 years, were manifestly inadequate. The sentence on charge 7 on the first indictment was also the subject of a manifest inadequacy submission. The respondent threatened to cut Ms Coughlan’s throat while travelling on a bus together. The sentence said to be manifestly inadequate was 2 years’ imprisonment.
[29]See Reasons, [54]–[63] for the detail of this offending.
The appellant then turned to the issue of cumulation. In short compass it was submitted:
•The ‘serious offender’ provisions of the Act limited the scope for applying the principle of totality.[30]
•Sentencing judges need to be astute not to undermine the legislative policy by applying the totality principle as if s 6E was not in the statute book.
•Given the findings as to objective gravity the sentencing judge appears to have misapplied the principle of totality to avoid imposing what might have been described as a crushing sentence, and in so doing ignored or undervalued the operation of s 6E.
•Section 6E of the Act has a further purpose — specifically to denunciate separate offending particularly where there are distinct victims.[31]
•In this case significant concurrency as between the offending conduct on each indictment was ordered. This was then compounded by further ordered concurrency as between the total effective sentences on each indictment.
•This level of concurrency has resulted in a total effective sentence which, whilst lengthy, fails to reflect the true extent of [the respondent’s] relentless and extreme violence.
[30]See DPP v Hum (a pseudonym) [2022] VSCA 57.
[31]DPP v Bales [2015] VSCA 261, [44] (Osborn, Kaye and McLeish JJA).
Analysis
Grounds 1 and 2
Considered individually the sentences for rape, especially the rapes committed as the respondent became an adult in our view are lenient, as are the sentences for intentionally causing injury. The orders for cumulation are also lenient, especially given the fact that the respondent was both a serious violent offender and a serious sexual offender for many of the offences.
This was an extraordinarily difficult sentencing exercise. The objective gravity of the overall offending was very high. Protection of the community had to assume primacy in the sentencing calculus, regardless of s 6D, and the judge needed to give earnest consideration to cumulation as required by s 6E. This does not mean, however, that this sentencing exercise was reduced to an exercise of simple arithmetic. The compressive effect of totality still had a role to play. In her reasons the judge noted the tension between ss 6D and 6E of the Act on the one hand and the principle of totality on the other:
469.The Serious Offender scheme was introduced to better reflect the sentiment in the community that certain types of offences and certain types of offenders should be the subject of increased periods of imprisonment.
470.It is a well-established principle of sentencing that a sentence of imprisonment should not exceed that which can be justified as proportionate to the gravity of the crime, considered in light of its objective circumstances.
471.It is equally well established that when sentencing an offender in relation to a series of or multiple offences, I must review the overall sentence and consider whether the aggregate is just and appropriate, and I must look at the totality of the criminal behaviour and decide what is the just and appropriate sentence for all offences. That is the principle of totality.
472.Section 6D does not eradicate the need for me to give consideration to either proportionality or totality, however higher courts have made clear that it moderates those principles. That is, I cannot and must not ignore the legislative intention that people who are serious violent and serious sexual offenders are to be treated differently in sentencing.
473.In Gordon v The Queen Redlich JA observed the tension between totality and s.6E. He said –
A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.
It is plain that the judge gave conscientious attention to the totality principle and the impact of ss 6D and 6E. Totality is not obliterated by those provisions; it simply has more limited scope for operation. Its impact on the total effective sentence is moderated. That said, the judge was obliged to assess the respondent’s overall criminality, and fix a sentence that was just and proper, but which also took account of the impact of the statutory provisions.
In this case the judge was dealing with a middle aged man who had spent most of his life from the age of 11 in some form of custody. He was thoroughly institutionalised and the subject of dreadful childhood neglect and deprivation. His future imprisonment will be made more burdensome by his recent diagnosis of schizophrenia.
The appellant contended that this case was an ‘outlier’ and that the sentence needed to reflect this given the extreme objective gravity of the offending and the impact of Part 2A of the Act.
As we have said, we consider the individual sentences to be lenient. It might also be accepted that the respondent has been favoured by the effect of the 10 years’ concurrency of the sentences on the two indictments. This is in addition to the concurrency of the sentences for offences within each indictment. A consequence is that the total effective sentence is also lenient.
Nevertheless, the total effective sentence of 25 years and 5 months’ imprisonment is, by any measure, a substantial sentence. As we have said, through his imprisonment, the respondent will lose a very significant part of his life. In our view this lengthy sentence adequately reflects all sentencing considerations including the effect of Part 2A of the Act, the objective gravity of what can only be described as vile and horrific offending and the denunciation of that offending perpetrated against four intimate partners on multiple occasions spread over two decades.
In all the circumstances, we are not persuaded that the individual sentences or total effective sentence are so lenient as to be wholly outside the range available to the judge. As was observed in Lowndes:
A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[32]
[32]Lowndes v The Queen (1999) 195 CLR 665, 671-2 [15] (Gleeson CJ, Gaudron, McHugh, Kirby, Hayne and Callinan JJ) (citation omitted).
It follows that, in the absence of identifiable error, we are unable to infer from the sentences and orders imposed, any underlying error in the sentencing process. We are fortified in this conclusion by the meticulous reasons provided by the sentencing judge which explain with clarity and in careful detail every step taken in this very difficult sentencing exercise.
Grounds 1 and 2 of the appeal must fail.
Ground 3
This ground complains that the learned sentencing judge erred by failing to exercise the discretion granted in s 6D(b) of the Act. Section 6D(b) provides that in sentencing a serious offender for a relevant offence the judge may impose a sentence that is longer than proportionate to the gravity of the offence in order to achieve the object of protection of the community.
On this issue the judge stated the following:
474.A disproportionate sentence is very rare indeed. In order to take that step I must be satisfied beyond reasonable doubt that you will remain a danger to the community even after serving a proportionate sentence.
475.According to the Court of Appeal in R v LD, what is required is an assessment of the risk posed to the community to determine how long the prison term needs to be to achieve protection of the community, and a consideration of whether a disproportionate sentence is required to achieve that aim.
476.The overall criminality here makes plain that you are an extremely serious risk to the community. Your offending against 4 different women in these trials, and the two other women, all your intimate partners spans two decades. It was extreme. It was constant and unrelenting degradation, control and manipulation punctuated by extreme acts of violence and sexual aggression.
477.You met and matched up with those women quickly. They were each vulnerable and your violence began either immediately or very soon after those relationships were formed.
478.Various terms of imprisonment, court orders and contact with authorities apparently bounced off you. That is, it seemed to have almost no impact because you continued to offend and to do so in very violent ways.
479.Your flagrant disregard for the law is perhaps best demonstrated by the fact you did parade various of these women at police stations when you reported on bail, even when they were showing injuries which you had caused. You behaved with impunity.
480.It is demonstrated by the fact that despite various attempts to have therapeutic intervention, either imposed on you or promised by you, that was apparently of no impact. The only thing which has stopped your offending has been imprisonment.
481.I accept now that you have a formal psychiatric diagnosis and a medication regime. However, given my findings in relation to Verdins limb 1 that fact does not reduce your risk.
482.You are still a reasonably young man, now only 43 years of age. You have served just shy of 5 years on remand for this offending.
483.Almost all of the offences reflect serious or very serious examples of serious offences. The objective gravity is very high. The need to impose individual sentences which adequately protect the community, punish and deter you and denounce your conduct, is such that each sentence I impose for the serious offender offences will be of considerable length, even taking into account the mitigating effect of your personal circumstances.
Conclusion
484.I have no hesitation in being satisfied beyond reasonable doubt that you will continue to pose a serious risk of violent and sexually violent reoffending into the foreseeable future.
485.However, in my view a proportionate sentence here can adequately address all sentencing principles, including the paramountcy of community protection.
486.In my view, an example of where a disproportionate sentence might arise is where a sentencing court is dealing with a serious offender but for a small number of serious offences. The history and personal circumstances of the offender may be such that they will pose a serious risk of reoffending on release from a proportionate sentence. In the face of a limited number of charges where there is therefore limited scope for cumulation it may be necessary for the sentencing Judge to increase the overall sentence to achieve community protection.
487.In contrast, I am to sentence you for 24 offences. The gravity of your offending is such that the individual sentences I impose will be long. Further, given there are four separate victims, and almost all of the charged offences occurred on separate occasions, there is considerable scope for cumulation. Where you are to be sentenced as a serious offender the presumption is for entire cumulation.
488.In my view it is unnecessary in those circumstances to impose a disproportionate sentence to reflect all sentencing principles. The sentence I impose will be considerable and will consume a significant portion of the rest of your life. It will have at its heart community protection and in particular the protection of any other woman who may come into contact with you.
489.For those reasons I will not impose a disproportionate sentence.
In contending that a disproportionate sentence was required to protect the community, the appellant relied on the findings made by the judge that the respondent:
•is an ‘extremely serious risk to the community’;
•will continue to pose a serious risk of reoffending into the foreseeable future;
•has negligible prospects of rehabilitation; and
•has not taken advantage of therapeutic intervention with such interventions having had no impact.
The appellant submitted that the judge was in error by limiting the application of the discretion in s 6D(b) to situations where an individual faces a ‘limited number of charges’ and impermissibly constrained the application of the discretion. In our view, the judge did not limit the application of the discretion in the way suggested. Rather, the judge simply gave that situation as an example of when the provision may have more work to do than in the present case.
The respondent will be 64 years of age on the expiration of his sentence. The appellant relied on the expert evidence that while the risk of sexual re-offending tends to see some reduction when an offender is over 60, that is not the case in respect of serious violent offending. There is no error in the judge taking the view that the lengthy term of imprisonment in this case would adequately address the risk of reoffending and the need for community protection. As the judge said, there is some hope with regard to future risk including because the respondent will be drug and alcohol free for a very significant period; there will be more directed opportunities to address his diagnosed psychiatric illness with the respondent having been amenable to treatment in more recent times; and he will be mandated to undertake sex offender programs while in prison.
The appellant has failed to demonstrate that the judge erred in concluding that a disproportionate sentence was not required. Nor has the appellant demonstrated that the judge took into account any irrelevant consideration or failed to take into account any relevant consideration. Further, we cannot infer from the sentence imposed or the orders made that there was any error made by the judge in the exercise of her discretion.
Ground 3 cannot be upheld.
The appeal must be dismissed.
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