Director of Public Prosecutions v Avalos (a pseudonym)
[2022] VCC 722
•26 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DILAN AVALOS (a pseudonym) |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2021, 10 December 2021 & 7 February 2022 | |
DATE OF SENTENCE: | 26 May 2022 | |
CASE MAY BE CITED AS: | DPP v AVALOS (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 722 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -- Sentence
Catchwords: Intimate Partner Violence -- Four victims -- Offending over two decades -- Offending in context of psychological, financial and other physical abuse and control -- Pleas of Not Guilty -- Two Trials -- 9 offences of Rape -- 10 offences of Intentionally Cause Injury -- 3 offences of Make Threat to Kill -- Common Law Assault -- False Imprisonment -- Offender’s history of Social Deprivation and Disadvantage – Bugmy v The Queen -- Serious Prior Criminal History -- Breach of previous Court orders including Bail, Community Correction Order, Intensive Correction Order, Suspended Sentence, Combined Custody and Treatment Order and Parole -- Negligible Prospects of Rehabilitation -- Mild Intellectual Disability and recent diagnosis of Schizophrenia –R v Verdins -- Serious Sexual and Serious Violent Offender -- Disproportionate Sentence -- Totality
Legislation Cited: Sentencing Act1991 -- Sentencing (Amendment) Act 1993 -- Disability Act2006 -- Mental Health Act2014 -- Sex Offenders’ Registration Act 2004
Cases Cited
or considered: Pasinis v The Queen [2014] VSCA 97 -- Kalala v The Queen [2017] VSCA 223 -- Jurj and Miftode v The Queen [2016] VSCA 57 -- DPP v DDJ (2009) 22 VR 444 -- Bugmy v The Queen [2013] HCA 37 -- Marrah v The Queen [2014] VSCA 119 -- DPP v Drake [2019] VSCA 293 -- Jawahiri v The Queen [2021] VSCA 287 -- Eser v The Queen [2021] VSCA 287 -- DPP v Hermann [2021] VSCA 160 -- Postiglione v the Queen (1997) 189 CLR 295 -- Wilson v R [2022] VSCA 2 -- R v Verdins (2007)16 VR 269 -- Brown v The Queen (2020) 62 VR 491 -- DPP v O’Neill (2015) 47 VR 395 -- R v Tsiaris [1996] 1 VR 398 -- R v Yaldiz [1998] 2 VR 376 -- Muldrock v The Queen (2011) 244 CLR 120 -- DPP v Patterson [2009] VSCA 222 -- DPP v Kao [2009] VSCA 273 -- DPP v Moore [2009] VSCA 264 -- Bowden v The Queen [2013] VSCA 382 -- Hoare v R (1989) 167 CLR 348 -- R v Connell [1996] 1 VR 436 -- Gordon v The Queen [2013] VSCA 343 -- R v Barnes [2003] VSCA 156 -- The Queen v Prowse [2005] VSCA 287 -- R v LD [2009] VSCA 311 -- Stalio v The Queen (2012) 46 VR 426 -- DPP v Lian [2019] VSCA 75 -- DPP v Mokhtari [2020] VSCA 161 -- Bolton v The Queen [2019] VSCA 21 -- DPP v Granata [2016] VSCA 190 -- Matovic v The Queen [2021] VSCA 212 -- DPP v Jayadev Patil(a Pseudonym) [2020] VCC 1674 -- Matheas v The Queen [2017] VSCA 330 -- Wheeldon v The Queen [2018] VSCA 344 -- Tscherepko v The Queen [2010] VSCA 299 -- Lord v The Queen [2017] VSCA 29 -- Nicholson (a pseudonym) v The Queen [2019] VSCA 17 -- Williams v R [2017] VSCA 130 -- Vella v The Queen [2018] VSCA 30 -- Shau v The Queen [2020] VSCA 252 -- Worboyes v R [2021] VSCA 169 -- Cotton (a pseudonym) v The Queen [2015] VSCA 103 -- RH McL v The Queen (2001) CLR 452
Sentence: Total Effective Sentence across two Indictments of 25 years and 5 months imprisonment – Non Parole Period of 20 years and 10 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms N Rogers SC & Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Mr P Chadwick QC & Ms K Rolfe | Robyn Greensill & Associates |
HER HONOUR:
1Dilan Avalos[1] the offending for which I am now to sentence you occurred over a 20 year period, starting when you were 16 or 17 years old and extending to your mid-30s. You are now 43 years of age. [2]
[1] Pseudonym used
[2] Date of Birth – 13 July 1978
2The offending relates to serious offences of violence and sexual violence committed against four different women, each of whom was your intimate partner. Those charged acts were committed in the context of your relentless and extreme violent, abusive and controlling behaviour against those women.
3In May and June of 2021 after two separate trials, separate juries found you guilty of 24 separate offences.
4On one Indictment you were found guilty of 5 charges of Rape, 5 charges of Intentionally Cause Injury, 2 charges of Make Threat to Kill, and 1 charge of False Imprisonment with respect to victims Jaime Marshall[3] and Michelle Marsden[4].[5]
[3] pseudonym used
[4] pseudonym used
[5] Indictment H11802169B.4A – Jury verdict on 4 May 2021
5On a separate Indictment you were found guilty of 4 charges of Rape, 5 charges of Intentionally Cause Injury, 1 charge of Make Threat to Kill, and 1 charge of Common Law Assault with respect to victims Adelle Coughlan[6] and Tracy Renee Sutcliffe[7].[8]
[6] pseudonym used
[7] pseudonym used
[8] Indictment H11802169C.2 – Jury verdict on 11 June 2021
6I will deal with the offending in chronological order.
Indictment C.2 – Jaime Marshall and Michelle Marsden
Jaime Marshall
7Jaime 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.
8At the time you met Ms Marshall you lived with your mother, Denise Ferguson[9] and step-father Brian Ferguson[10] in Footscray. Later you moved with them to live at Altona North.
[9] pseudonym used
[10] pseudonym used
9You 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.
10Soon 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.
11She 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.”
12You 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.”
13You 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.[11] 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.
[11] Uncharged act
14In 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
15On 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.
16You 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.
17During 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.”[12] Management called police and you and Ms Marshall were evicted.
[12] Uncharged act
Control
18During 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.”[13]
[13] Uncharged act
Charge 5 – Intentionally Cause Injury
19You 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
20On 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.
21She 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.
22You 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
23On 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.
24You 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.
25She 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...”
26She 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.
27As 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.
28After that incident she told her friend Barbara[14] what you had done to her.
[14] pseudonym used
29Ms 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.
30Ms 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
31Ms 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.
32Ms 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.
33At 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.
34You 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.
35As 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.
36After you fell asleep, Ms Marshall went to the bathroom and cleaned the blood off her face.
37The 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
38Those 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.
39Ms Marshall’s father, Jack Marshall,[15] 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.
[15] pseudonym used
40Clare Abbott[16] 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.
[16] pseudonym used
41On 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”.
42After 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.
43During 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.
44During 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…”
45Ms 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
46Michelle 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.
47In 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.
48A 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,[17] 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.”
[17] pseudonym used
49During 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.
50You 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
51Not 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.”
52What 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.”
53You 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.
54At 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.
55During 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.
56After 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.
57She did not tell anyone about these events, saying “I’m too private and I’m too embarrassed. It’s degrading.”
Ongoing Physical Abuse
58Ms 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.”
59You 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.”
60At times there would be discussions with your mother, and you would promise to start doing domestic violence or drug and alcohol counselling.
61In 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.”[18] 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.
[18] Uncharged act
Charge 16 – Make Threat to Kill
62You had a friend with a farm in the country. On an occasion while Ms Marsden was pregnant with Brandon,[19] 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.
[19] pseudonym used
63You 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
64Between 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.
65After 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.
66When 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.”
67You 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.
68When 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.
69Eventually 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.
70The following day, Ms Marsden sought refuge with her uncle Paul Donnelly.[20] 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.
[20] pseudonym used
71Later 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.
72Mr 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.
73Brandon 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.
74Ms 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.”[21]
[21] Uncharged act
Charge 18 – Intentionally Cause Injury
75On 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?”
76Without 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.
77Ms 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
78Your 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.
79About 3 months after Brandon was born in 2003 Ms Marsden became pregnant with your son Travis.[22] He was born in July 2004. You were again physically violent to her throughout that pregnancy, at times knocking her unconscious.
[22] pseudonym used
80Between October 2003 and February 2004, you, Ms Marsden, Heath and Brandon moved to Melton South.
81On 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.
82You 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.[23]
[23] Uncharged act
Charge 19 – Rape
83About 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.
84While 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.
85When 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.
86Ms 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
87Heath 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.
88He 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.”
89Heath 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.”
90He saw his mother regularly had injuries, bruises, often to the legs and arms and sometimes to the face.
91He 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.
92On 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
93On 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.
94Three 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.
95You eventually pleaded guilty to that offence and were sentenced in this Court in May 2008 to 8 months imprisonment.
96Ms 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.
97Turning 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
98Adelle 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.
99She 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.
100Instead, you took her first to an abandoned house and then to your sister-in-law, Lisa’s[24] 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.
[24] pseudonym used
101When you arrived, Ms Coughlan met your mother Denise, your step father Brian, and your 14 year old son Nicholas Marshall[25][26].
[25] pseudonym used
Charges 1 & 2 - Rape
102You 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.
103You 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.
104Ms 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.”
105She 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.”
106After 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
107After 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
108She 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.
109You hit, punched or kicked her and were verbally abusive to her numerous times “…every evening when he would get drunk.”
Psychological abuse
110You 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…”
111Throughout 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
112She 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.”
113You 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.”
114You 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.
115After 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.
116You left Lisa’s on that occasion to attend the Sunshine Magistrates’ Court.
Charge 6 – Intentionally Cause Injury
117After 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.
118She 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.
119Ms 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.
120You 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.
121She 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’.
122She 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.
123You 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.
124After 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
125Soon 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.
126During 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.”
127At 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.
128Throughout 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
129Tracy Sutcliffe, known as Renee was born in 1973 and was 39 years old when you met. You were 34, almost 35.
130Ms 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.
131In 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.
132You were residing at the bungalow at your mother's in Altona North.
133You were regularly drinking alcohol with a group of people at the bus stop near Sunshine station. Ms Sutcliffe lived nearby and you and 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.
134Ms 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.[27] After a short time Mr Lane collected his belongings and left.
[27] pseudonym used
135Ms 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.
136The 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.
137You continued to live at Ms Sutcliffe’s home as a friend. She said in the first week or so you were “kind and friendly.”
138In 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.
139Ms 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.” [28] You punched a hole in the wall of her unit.[29] You then continued drinking. As a result of that assault, she had soreness to her neck and head as well as a black eye.
[28] Uncharged act
[29] Uncharged act
140The 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.
141While 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.
142At some stage, you and Ms Sutcliffe began a sexual relationship.
Control
143Ms 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.”
144You 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.
145When 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
146Throughout 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
147You 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
148On 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
149Ms 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.
150In 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.
151During your 10 month relationship you stabbed her twice with those knives.
Charge 8 – Intentionally Cause Injury
152On 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.
153She 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
154On 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.
155She 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
156Ms 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.
157On 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.”
158After 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.
159Two 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.”
160On 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.[30]
[30] Uncharged act
161You 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
162About 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.
163After 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.”
164You 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.
165You 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.
166Ms 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.
167At 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
168In 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.
169Without 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.”
170The 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.
171She 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.
172Two 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.
173After 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.[31] She said “I was petrified.”
[31] Uncharged act
174She got out of the shower and dressed quickly. You went to the bottle shop and she cleaned up the broken glass.
175Ms 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.
176Ms 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.
177Ms Sutcliffe has a scar on her shin from that assault.
178Ms 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.”
179After 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.”
180You 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.
Sentencing Principles
181It is trite to say this is serious offending. It is difficult to find the words to adequately describe the nature and extent of your abusive behaviours. Your offending in each case is shocking and abhorrent. Overall, the extent of your criminality is at the uppermost range of seriousness.
182The strength and courage of these four women, not just in surviving your abuse, but in being willing to come forward and tell their stories is quite remarkable. They each maintained their dignity and composure against sustained cross examination they each endured over several days. Their personal flaws and limitations were exposed for the jury to examine. The jury in each case accepted them as witnesses of truth. They believed them. They accepted their evidence of each of these offences, and they did so beyond reasonable doubt.
183Each one of the four women at times in their evidence revealed their ongoing fear of you. That is even after years have passed. The impact on them is obvious.
184Your 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.
185In 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.
186Higher 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.
187There 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.
188There 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.
189It 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.
190For these reasons, any sentencing Court must send a strong message to offenders and the community at large.
191The Victorian Court of Appeal in Pasinis,[32] stated –
General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
[32] Pasinis v The Queen [2014] VSCA 97 at [57]
192In Kalala v The Queen,[33] the same Court discussed the scourge of domestic violence in the community stating –
The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.
[33] Kalala v The Queen [2017] VSCA 223 at [59]
193Put simply the community is sick of and sickened by the cowardice of men like you who perpetrate relentless violence on their innocent partners. This court must reflect that community sentiment when considering the appropriate sentence to impose.
Maximum Penalties
194Despite the change in time frame across the two Indictments, the maximum penalties have remained the same. For each Rape the maximum penalty is 25 years imprisonment. For each one of the remaining charges of Intentionally Cause Injury, Make Threat to Kill and False Imprisonment the maximum penalty is 10 years imprisonment. For common law assault the maximum penalty is 5 years imprisonment.
195In addition you will be sentenced as a Serious Sexual and Serious Violent offender on a number of these charges. That legislation has also been in place since the beginning of your offending period.[34]
[34] Sentencing (Amendment) Act 1993
Objective Gravity
196In assessing the objective gravity of your offences I have referred to the following principles which emerge from higher court authority.
197In relation to offences of rape, the Court of Appeal in Jurj and Miftode v The Queen[35] outlined a non-prescriptive list of features to be considered. They include the level of premeditation, how long the attack lasted, whether the offending involved other violence or the threat of other violence, whether a weapon was used, whether the victim was physically injured, whether the victim was otherwise humiliated or degraded, whether the offender used a condom, whether the victim was particularly vulnerable, and whether the offender ignored warnings or protests by the victim. It is clear that many of those features are present in ways which aggravate your offending. In addition here there is the context of the intimate relationship and the extreme breach of trust your offending represents.
[35] Jurj and Miftode v The Queen [2016] VSCA 57
198In relation to offences of intentionally causing injury the following features are relevant. Whether a weapon was used, how sustained the attack was, the level of premeditation, the level of vulnerability of the victim, the nature of the assault, whether the physical assault was accompanied by threats, and the type of injury sustained. Many of those features are present here in an aggravated form. Some of those matters are also relevant to my consideration of the Charge of common law assault against Ms Sutcliffe, though that Charge does not relate to a specific injury.
199In relation to making a threat to kill the following are features which elevate the seriousness of the offending; who the threat was made against and whether the offender had any apparent means to carry out the threat.
200In relation to false imprisonment, the way in which the victim was detained, the length of the false imprisonment, any threats made and any physical violence committed during the imprisonment are relevant features to consider and are obviously applicable features of aggravation in your offence against Ms Marsden.
201With the exception of the False Imprisonment of Ms Marsden, your offences are more accurately described as spontaneous than premeditated. That is somewhat mitigating, although sudden, unprovoked violence in a relationship has its own kind of menace. In addition, where the offence begins spontaneously but becomes protracted and or is followed by further offences, a lack of premeditation ultimately cannot be called in aid.[36]
[36] See for example DPP v DDJ (2009) 22 VR 444 as referred to in Jurj and Miftode v The Queen [2016] VSCA 57
Uncharged acts and Controlling Behaviours
202Almost 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.
203In 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.
204Neither 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.
Specific Offences
205In relation to specific offences here I note the following.
Jaime Marshall
206The 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.
207You 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.
208That combination of circumstances must have been challenging for two young people. I take that into account when I am considering your offending against her.
209Nonetheless, 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.
210Ms 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.
211In 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).
212Charge 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.
213Although 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.
214You 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.
215After 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.
216In 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.
217The use of the weapon elevates the seriousness. Fortunately, the cut was superficial. It is a moderately serious example of intentionally causing injury.
218The 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.
219When 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.
220In 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.
221The 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.
222She suffered physical injury by way of bleeding from her vagina after that rape.
223In my view that is a serious example of the offence of rape.
224Charge 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.
225She 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.
226You and Ms Marshall had a child together in December 1995. The rape at Ashburton occurred after the birth of your son.
227Although 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.
228The jury accepted her evidence beyond reasonable doubt on each of those charges.
Michelle Marsden
229In 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.
230Charges 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.
231Charge 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.
232Charge 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.
233Those 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.
234In 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.
235Finally, 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.
236Your 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.
237She 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.
238The 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.
239The 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.
240You 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.
241You 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.
242Charge 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.
435A mild intellectual disability was said not to be inconsequential.
436Muldrock does not alter the principles in Verdins. It does not remove the necessity for evidence of the impact of that condition on the offender. Indeed, in Muldrock there was an abundance of unchallenged evidence as to the impact of that condition on the offender to which the Court referred. He had difficulty managing his impulses and controlling his behaviour, he had difficulty with language, communication, daily living skills and empathy. There were cognitive distortions directly relevant to his understanding of the offending and only a superficial awareness of the wrongfulness of his offending.
437It is hardly surprising given that evidence that the High Court reached a view that the community may agree he was not a suitable person to be held up as an example to others. It was hardly surprising that his limitations in understanding wrongfulness of his actions meant specific deterrence considerations were limited.
438In contrast, there is no evidence before me to suggest you cannot or do not understand the concepts of consequences for your actions and of deterrence. There is nothing to suggest you are unable to appreciate the seriousness or wrongfulness of your offending behaviour.
439Equally, in circumstances where your psychiatric condition is well managed and likely to continue to be so, I do not think the community would expect anything less than the full measure be given to general deterrence.
440In relation to specific deterrence, in my view, and somewhat ironically it is of little consideration in this sentencing task. A lifetime in the criminal justice system including intermittently or even simultaneously with the offending here, has not served to deter you from committing more and more serious offences. You continue to deny all of the offending. For those reasons specific deterrence has little work to do, however as a corollary those considerations feed into the increasing need for community protection.
441As higher courts have said, even where those considerations do apply, deterrence is not eliminated because a person has a mental impairment. Matters which may point in one direction for moderation may also point to the need for a more significant sentence to achieve community protection. In the face of very serious offending, concepts of general and specific deterrence become more important and in that way, pull against a reduction in sentence. That is so where the cognitive limitations of a person make them significantly more dangerous and unpredictable.[69]
[69] See for example DPP v Patterson [2009] VSCA 222; DPP v Kao [2009] VSCA 273; DPP v Moore [2009] VSCA 264.
Verdins Limb 5
442I do take into account your diagnoses when considering limb 5 of Verdins. That is, 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. I heard evidence for example regarding the classification options for a person with psychiatric illness and the limitations which result.
443To 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.
Verdins – Limb 6
444There is no evidence that your mental impairment will worsen in the custodial setting. You are likely to be regularly reviewed and your medication will be well managed. In the last two years your medication regime has meant your mental state has been largely stable. That situation is likely to continue. I do not accept limb 6 applies.
Risk Assessment
445Part of my request directed to Forensicare was that a formal risk assessment be conducted in relation to your ongoing risk of violence and your ongoing risk of sexual reoffending. Those assessments were particularly important given the Prosecution here are seeking a disproportionate sentence. That requires me to be satisfied that you will still be a risk even after release from what will clearly be a lengthy sentence.
446According to the risk assessment conducted by Dr Hughes you are at the highest risk stratification possible for violent recidivism[70], and a ‘significantly higher risk of violent recidivism when compared with other violent offenders.’
[70] VRAG-R Category 9
447The risk assessment regarding sexual recidivism was complicated by your ongoing specific denials of any sexual offending. Dr Hughes concluded on the Static-99 actuarial tool that you are ‘above average risk of sexual recidivism’. He did not use a structured professional judgment tool. In my view his assessment understates the level of your risk of sexual reoffending. I would expect a full clinical assessment to result in a higher risk categorisation.[71]
[71] See discussion regarding findings in the absence of an expert risk assessment in Bowden v The Queen [2013] VSCA 382
448On the basis of the evidence before me, including his assessment, I am satisfied to the requisite standard that you are a high risk of sexual recidivism. The likely risk is to any woman who forms a relationship with you.
449According to Dr Hughes, the risk of sexual offending tends to see some reduction in an offender when they reach the age of 60. That is not the case for risk of serious violent offending which does not have a correlation to age.
Prospects of Rehabilitation
450Hand in glove with my consideration of risk is my consideration of your prospects of rehabilitation.
451The Prosecution here submit on the basis of all the material that you have no prospects of rehabilitation. Your Counsel did not seek to make written or oral submissions regarding your prospects.
452I accept the risk assessment places you at the very highest risk for future violence, and on my view you are a high risk for future sexual offending. I take those matters into account in considering your prospects of rehabilitation.
453I take into account the fact that you have repeatedly been offered therapeutic intervention in the past via various court orders, including with a justice plan. You have consistently breached such orders. You continue to deny your offending and lack any insight.
454However, there are several matters which perhaps provide some hope with regard to future risk and your prospects of rehabilitation. The first is that you will be drug and alcohol free for the very significant period of time reflected in the sentence I am about to impose.
455Second, now having a diagnosed psychiatric illness you will need to link to services for management of that condition. That is likely to include area mental health services. It may include application under the NDIS. That may expose you to general support services for management of life in the community, and importantly it may expose you to psychological intervention. You have acknowledged the benefit of antipsychotic medication and indicate your intention to continue taking them indefinitely.
456The third, is that having never really engaged in psychological treatment historically, you did voluntarily undergo 4 sessions of grief counselling after the death of your mother in 2020. Although only for a limited period it may be a marker of some change.
457Fourth, this is the first time you have been sentenced for sexual offending. You will be mandated to undertake sex offender programs in the custodial setting.
458I accept that my conclusions contain some speculation, however it is a significant matter to find a person is beyond all hope of rehabilitation. I do not reach that conclusion, however I am of the view that your prospects of rehabilitation are negligible.
Serious Offender
459You are to be sentenced as a Serious Offender for a number of charges before me.
460The 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.
461First, 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.
462Once 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.
463Once 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.
464Further, 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.
465That 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.
Disproportionate Sentence
466The Prosecution urge me to impose a disproportionate sentence on the seven Rape offences and the three Make Threat to Kill offences where you are to be sentenced as a serious offender. They make that application pursuant to s.6D(b) of the Sentencing Act 1991.
467While accepting that a disproportionate sentence is rare, the Prosecution submit your case is one where it is necessary to protect the community, even if the result is a crushing sentence. They base those submissions on the nature and extent of your offending, on the fact there are few mitigating factors, on your lack of steps towards or prospects of rehabilitation, your complete absence of remorse and the gravity of the risk you pose to any woman. They submit you will continue to pose such a risk for the rest of your life.
468That submission is objected to by your Counsel. Mr Chadwick and Ms Rolfe relied on the following factors in mitigation – the applicability of Bugmy, Verdins (or they submit, Muldrock), the fact that your dual diagnoses of intellectual disability and Schizophrenia which were not known at all times during your offending and the fact your Schizophrenia is now being treated, and you will remain drug and alcohol free for the duration of your sentence. They submit given the lengthy period of a proportionate sentence you will be a considerably older man on any release.
Analysis
469The 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.[72]
[72] Second Reading Speech of the Sentencing Amendment Bill 29 April 1993 – Attorney General Wade MP
470It 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.[73]
[73] Hoare v R (1989) 167 CLR 348
471It 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.[74] That is the principle of totality.
[74] R v Connell [1996] 1 VR 436
472Section 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.[75] 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.
[75] Ibid and see eg. Matheas v The Queen [2017] VSCA 330
473In Gordon v The Queen[76] 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.
[76] Gordon v The Queen [2013] VSCA 343
474A disproportionate sentence is very rare indeed.[77] 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.[78]
[77] R v Connell [1996] 1 VR 436; R v Barnes [2003] VSCA 156
[78] The Queen v Prowse [2005] VSCA 287
475According to the Court of Appeal in R v LD[79], 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.
[79] R v LD [2009] VSCA 311
476The 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.
477You 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.
478Various 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.
479Your 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.
480It 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.
481I 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.
482You 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.
483Almost 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
484I 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.
485However, in my view a proportionate sentence here can adequately address all sentencing principles, including the paramountcy of community protection.
486In 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.
487In 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.
488In 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.
489For those reasons I will not impose a disproportionate sentence.
Current Sentencing Practices
490I am required to take into account current sentencing practices. That includes consideration of sentences imposed during the earlier period of your offending. While I accept some sentences were lower in the 1990s, I am required to apply the current state of the law.[80] That takes into account the greater understanding now of the seriousness and impact of intimate partner violence.
[80] Stalio v The Queen (2012) 46 VR 426
491I have taken into account a range of cases referred to by Counsel and available through the Judicial College summaries. There are always similarities and differences, however other cases tend to reflect offending which you have committed against one of these women.[81] It has not been possible to find a case where four victims were offended against in this way over this period of time.
[81] See for example – DPP v Lian [2019] VSCA 75; DPP v Mokhtari [2020] VSCA 161; Bolton v The Queen [2019] VSCA 21; DPP v Granata [2016] VSCA 190; Matovic v The Queen [2021] VSCA 212; DPP v Jayadev Patil(a Pseudonym) [2020] VCC 1674; Matheas v The Queen [2017] VSCA 330; Wheeldon v The Queen [2018] VSCA 344; Tscherepko v The Queen [2010] VSCA 299; Lord v The Queen [2017] VSCA 29; Nicholson (a pseudonym) v The Queen [2019] VSCA 177; Williams v R [2017] VSCA 130; Vella v The Queen [2018] VSCA 30; Shau v The Queen [2020] VSCA 252
492Ultimately I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
Covid-19 Pandemic
493I take into account that a portion of your remand has covered the entirety of the Covid-19 pandemic. That has been a most difficult time for prisoners in Victoria with greater restrictions, increased lockdowns and less access to services. I take into account that each time you were brought to court in 2020 and 2021 you were required to undertake 14 days of quarantine.
494Higher Courts have stated that time served during that period must result in a reduction in sentence.[82]
[82] Worboyes v R [2021] VSCA 169
495I also take into account that your Trials were to commence in March 2020 however were interrupted by the pandemic. Another year passed before your trials could be completed. I take into account that delay.
Other Sentence
496I take into account that you have 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 29 April 2016 in relation to your offending against Ms Jackson.
Totality
497In making my assessment as to totality I have considered the following.
498You 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.
499For the offences where you are to be sentenced as a serious offender, all sentences must be served cumulatively unless I direct otherwise.
500Charges 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.
501Finally I have also given consideration to the analysis by the Court of Appeal in Cotton v The Queen[83] 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.
[83] Cotton (a pseudonym) v The Queen [2015] VSCA 103
502The Court referred to an earlier decision of R H McL v The Queen[84] 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.
[84] RH McL v The Queen (2001) CLR 452
503There 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.
Two Indictments
504I 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.
Sentence
505The sentences I impose are as follows:
Indictment C.2
506The following offences were committed against Jaime Marshall
507On Charge 1 – Intentionally Cause Injury [hit with butt of the firearm] – you are convicted and sentenced to 6 months imprisonment;
508On Charge 5 – Intentionally Cause Injury [cut to stomach] – you are convicted and sentenced to 9 months imprisonment;
509On Charge 6 – Rape [unconscious] – you are convicted and sentenced to 3 years and 10 months imprisonment;
510On Charge 7 – Rape [railway tracks] – you are convicted and sentenced to 5 years imprisonment;
511On Charge 8 – Rape [Ashburton] – you are convicted and sentenced to 6 years imprisonment;
512The following offences were committed against Michelle Marsden.
513On Charge 12 – Intentionally Cause Injury [told she might be pregnant] – you are convicted and sentenced to 1 year and 6 months imprisonment;
514On Charge 13 – Make Threat to Kill her son – you are convicted and sentenced to 2 years and 2 months imprisonment;
515On Charge 14 – Intentionally Cause Injury [choking] – you are convicted and sentenced to 2 years and 8 months imprisonment;
516On Charge 15 – Rape [same occasion as charges 12, 13 and 14] – you are convicted and sentenced to 8 years and 2 months imprisonment.
517On Charge 16 – Make Threat to Kill her and her son – you are convicted and sentenced to 3 years imprisonment;
518On Charge 17 – False Imprisonment – you are convicted and sentenced to 6 years and 4 months imprisonment;
519On Charge 18 – Intentionally Cause Injury [stabbed to the stomach] – you are convicted and sentenced to 2 years and 8 months imprisonment;
520On Charge 19 – Rape [anal] – you are convicted and sentenced to 6 years and 3 months imprisonment.
Cumulation
521I make the following orders for cumulation. I direct that the sentence of 8 years and 2 months on Charge 15 rape is the base sentence. I direct that 2 months of Charge 2, 8 months of Charge 6, 10 months of Charge 7, 1 year of Charge 8, 1 year of Charge 13, 4 months of Charge 14, 1 year and 4 months of charge 16, 2 years of Charge 17, 10 months of Charge 18 and 2 years and 6 months of Charge 19 be served cumulatively on the base sentence and on each other.
522The total effective sentence on Indictment C.2 is therefore 18 years and 10 months imprisonment.
Indictment B.4A
523Turning to Indictment B.4A.
524The following offences were committed against Adelle Coughlan.
525On Charge 1 – Rape [digital] – you are convicted and sentenced to 3 years and 4 months imprisonment;
526On Charge 2 –Rape [penile, same occasion as Charge 1] – you are convicted and sentenced to 6 years imprisonment;
527On Charge 5 – Intentionally Cause Injury [first occasion she attempted to escape] – you are convicted and sentenced to 2 years imprisonment;
528On Charge 6 – Intentionally Cause Injury [second occasion she attempted to escape] – you are convicted and sentenced to 2 years and 8 months imprisonment;
529On Charge 7 – Make Threat to Kill her – you are convicted and sentenced to 2 years imprisonment;
530The following offences were committed against Tracy Renee Sutcliffe.
531On Charge 8 – Intentionally Cause Injury [stab to arm] – you are convicted and sentenced to 1 year and 8 months imprisonment;
532On Charge 9 – Intentionally Cause Injury [stabbed her to arm] – you are convicted and sentenced to 1 year and 8 months imprisonment;
533On Charge 10 – Rape [after going to bed without permission] – you are convicted and sentenced to 7 years imprisonment;
534On Charge 11 – Rape [after she was dragged out of bed] – you are convicted and sentenced to 8 years imprisonment;
535On Charge 12 – Intentionally Cause Injury [claw hammer] – you are convicted and sentenced to 3 years imprisonment;
536On Charge 13 – Common Law Assault [choking] – you are convicted and sentenced to 1 year and 6 months months imprisonment.
Cumulation
537I make the following orders for cumulation. I direct that the sentence of 8 years on Charge 11 Rape is the base sentence. I direct that 1 year of Charge 1, 2 years of Charge 2, 8 months of Charge 6, 1 year of Charge 7, 4 months of Charge 8, 4 months of Charge 9, 2 years of Charge 10, 1 year of Charge 12 and 3 months of Charge 13 are to be served cumulatively on the base sentence and on each other.
538The total effective sentence on Indictment B.4A is therefore 16 years and 7 months imprisonment.
539I further direct that 6 years and 7 months of the sentence imposed on Indictment B.4A be served cumulatively on the total effective sentence of 18 years and 10 months imposed on Indictment C.2 making an overall total sentence of 25 years and 5 months imprisonment.
Non-Parole Period
540I direct that you must serve a period of 20 years and 10 months imprisonment before becoming eligible for parole.
Pre-Sentence Detention
541I declare you have served 1821 days of pre-sentence detention and that that period should be reckoned as having been served as part of this sentence.
Serious Offender
542I direct that the fact you are sentenced as a Serious Sexual offender on Charges 8, 15 and 19 on the first Indictment[85], and on Charges 1, 2, 10 and 11 on the second Indictment[86], and as a Serious Violent Offender on charges 13 and 16 on the first Indictment[87]and charge 7 on the second Indictment[88] be entered in the records of the Court pursuant to s.6F Sentencing Act 1991.
[85] Indictment H11802169C.2
[86] Indictment H11802169B.4A
[87] Indictment H11802169C.2
[88] Indictment H11802169B.4A
Sex Offender Registration
543Given the nature of your offending, you are eligible for registration under the Sex Offenders’ Registration Act 2004. The Prosecution makes application pursuant to s.11(1) of that Act.
544Although registration is discretionary, given the nature and repetition of serious sexual offending over a period of decades against four separate women, and given your high risk of sexual reoffending I am satisfied beyond reasonable doubt that you will continue to pose a risk to the sexual safety of one or more persons upon your release from custody. I make that finding particularly in relation to the safety of any future female partner. I find that it is reasonably necessary to impose registration on you.
545You will now be a registered sex offender. The term of the registration is at my discretion. I intend to make that order for the period of your life.
546Given your decision to leave this hearing prior to me finishing delivering my reasons, I will not seek an Acknowledgment that the requisite paperwork has been provided to you.
Disposal Order
547Finally, I make the order for Disposal of a shifting spanner in the terms sought by the Prosecution.
[26] Son of Jaime Marshall
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