Director of Public Prosecutions v Balcioglu

[2024] VCC 506

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-23-00229

DIRECTOR OF PUBLIC PROSECUTIONS

v

MURAT BALCIOGLU

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2024
DATE OF SENTENCE:	24 April 2024
CASE MAY BE CITED AS:	DPP v Balcioglu
MEDIUM NEUTRAL CITATION:	[2024] VCC 506

REASONS FOR SENTENCE
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Subject:Criminal law - sentence   

Catchwords:              Guilty plea – two charges of rape, one charge of attempted rape, false imprisonment and intentionally causing injury – victim was a vulnerable woman squatting in an abandoned house – held against her will for approximately eight hours – multiple acts of sexual penetration – rolled-up charges of rape – victim repeatedly assaulted – profound victim impact – utility of plea – absence of remorse – youth ­– no diagnosed psychiatric illness – attention deficits – burden of imprisonment – general and specific deterrence ­ – denunciation – moderate to high risk of future sexual offending – guarded prospects of rehabilitation – serious sex offender provisions – application for sex offender registration granted.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:R. v. Mills (1998) 4 VR 235; Azzopardi v. R. (2011) 35 VR 43; R. v. Verdins (2007) 16 VR 269; Brown v. R. (2019) 59 VR 462; Clarke (a pseudonym) v. The Queen [2022]VSCA 89; DPP v. Conos [2021] VSCA 367

Sentence:                  12 years’ imprisonment with a non-parole period of seven years, six months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Holly Baxter	Office of Public Prosecutions Victoria
For the Accused	Jo Swiney Glenn Cooper	Victoria Legal Aid

HER HONOUR:

1Murat Balcioglu, following a sentence indication hearing before me[1], you have pleaded guilty to the following offences:

(a) two rolled-up charges of rape contrary to s 38(1) of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 25 years’ imprisonment (Charges 1 and 3);

(b)   a charge of false imprisonment contrary to the common law, the maximum penalty for which is 10 years’ imprisonment (Charge 2) ;

(c) a charge of attempted rape contrary to s 38(1) and s 321M of the Act, the maximum penalty for which is 20 years’ imprisonment (Charge 4); and

(d) a charge of intentionally causing injury contrary to s 18 of the Act, the maximum penalty for which is 10 years’ imprisonment (Charge 5).

[1]Sentence indication hearing conducted on 15 November 2023

2You have also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977,  the maximum penalty for which is 30 penalty units or three months’ imprisonment.

3These charges arise from the events of 17 April 2022. On that date you entered an abandoned house in Railway Crescent, Broadmeadows where the victim, who was homeless, was squatting. You then detained the victim against her will over many hours, during which period you repeatedly raped and assaulted her. You were 20 years old, and on bail, at the time.

Circumstances of offending

4The circumstances of your offending are detailed in the Prosecution Opening for Plea dated 20 March 2024, which is the agreed basis upon which you are now to be sentenced.

5The victim was 47 years of age and had been living in a room of the abandoned house in Railway Crescent in Broadmeadows for some time prior to your offending.

6The victim first saw you in the kitchen of the house in early April 2022, and asked you not to take any of her belongings. She did not see you again that day.

7On 17 April 2022, at approximately 11.51am, CCTV from the Broadmeadows Railway Station captures footage of you entering the property of the abandoned house through a damaged fence that runs adjacent to the railway station.

8You entered the property and walked into the back room of the house, where the victim was sitting. You asked the victim to perform oral sex on you. She refused. You called the victim ‘a prostitute’ because she was homeless.

9The victim left the house at approximately 12.23pm, leaving you there. You left the house soon after, using the same gap in the fence. At 12.32pm, the victim sat on a platform of the railway station to charge her mobile phone. You approached and sat next to her. You continued to ask for the victim for her belongings, and she told you to leave her alone. You walked away from the victim at 1.00pm, and returned to the abandoned house.

10The victim returned to the house at 1.46pm, and went to the toilet. When she walked out of the bathroom, you approached her from behind and physically forced her into the back room. The room contained a bunk bed, a broken cupboard with a door missing, two chairs and a wooden desk. You then pulled the desk against the door to prevent the victim from leaving. The charge of false imprisonment (Charge 2), commences at this point in time.

11You turned to the victim and pulled your pants down, exposing your erect penis to her, stating “do you want to suck my dick?”. The victim refused, saying “No, I don’t want to do that”, and sat on the bed. You then grabbed the victim by the back of her head and forced her to perform oral sex on you, by penetrating her mouth with your penis, while repeatedly saying, “suck my cock”. This act of penile oral penetration is one of the incidents that is the subject of the rolled-up charge of rape that constitutes charge 1.

12You continued to force the victim to perform oral sex on you over the next 3-4 hours, during which you either slapped or punched the victim’s face every time she stopped, or said she did not want to do it. The victim started bleeding from the mouth, and at one point, you forced your penis so far into her mouth that it caused her to vomit. The victim says you held her head in such a way that she could not breathe.

13At one stage, the victim got up and attempted to leave the room, but you responded by kicking her to the left side of her head, causing her to fall against the top of the bunk bed.

14The injuries suffered by the victim are the subject of Charge 5 – intentionally causing injury. The extent of the injuries to the victim’s face are apparent from the photographs tendered at the plea hearing, and were subsequently assessed by a forensic clinician to include a “blow out fracture” of her left eye, ulceration of her upper and lower lips, extensive bruising to her face, neck, shoulder and arms, and abrasions to her jaw, scalp, and right shoulder blade.

15At some stage during her ordeal, you allowed the victim to lie down for around 30 minutes, during which she started to doze off. You woke her, saying words to the effect, “you can’t leave…no one knows you’re here, you’re my woman, you are a slut…suck my cock”.

16You forced the victim to kneel on the ground, and again penetrated her mouth with your penis. You permitted the victim to move to the bed when she complained this was hurting her knees. You continued to sexually penetrate the victim by inserting your penis into her mouth. This is a further instance of penile-oral penetration that is the subject of the rolled-up charge of rape that constitutes Charge 1.

17At this point, you produced a fruit knife and held it in your hand while you threatened the victim saying variously, “I am going to stab you in the calf muscle”, “I’m going to stab you in the head” and “if you go to the cops, I’m going to kill you”.[2]

[2]This is an uncharged act.

18It is in this context that you then demanded that the victim lie on her side, before you inserted your fingers and then your penis into her vagina, and began thrusting your penis in and out of her vagina. You then directed the victim to get off the bed and lie over the desk, where you continued to penetrate her vagina with your penis. These acts of digital-vaginal and penile-vaginal penetration are the subject of the rolled-up charge of rape that constitutes Charge 3

19You then attempted to insert your penis into the victim’s anus, but were unable to do so. This conduct is the subject of Charge 4 – attempted rape.

20You became angry when the victim could no longer perform oral sex due to her facial injuries, and after verbally abusing the victim stating, “you’re hopeless, you can’t even suck dick properly”, you then dressed, removed the desk in front of the door and left the premises at 9.52pm. This then ends the time during which the victim had been falsely imprisoned by you; a period of approximately eight hours.

21Exhausted, the victim then fell asleep, notwithstanding her injuries.

22The following morning, at around 4.30am, the victim walked to the Broadmeadows Police station and told police that she had been ‘bashed and raped all night’, and that she had been unable to leave. She was observed by police to have severe swelling to her left eye, bruising on her face and dry blood around her nose and mouth.

23The victim was transported to the Royal Melbourne Hospital for treatment and was subsequently assessed by a forensic medical officer at the Sunshine Hospital at 7.15pm. Photographs of her injuries were taken by police at that time.

24Your DNA was subsequently linked to the sperm fraction profile obtained on examination of the victim, and fingerprints matching yours were found at various locations in the premises, including inside the back room.

25On 19 April 2022, you were arrested by police and interviewed. You told the police that you had spoken to the victim for a short time at Broadmeadows Railway station, but denied ever going to the premises or having any physical contact with the victim. You denied raping her.

26You were on bail at the time of your offending for unrelated offending involving nine separate informants. These matters are yet to resolve.

Nature and gravity of the offending

27These are grave examples of the offence of rape, borne out by a number of aggravating features of your offending.

28This was prolonged sexual offending, accompanied by acts of violence, including threats of violence when you were in possession of a knife. The acts of sexual penetration occurred in the context of repeated verbal abuse, including derogatory and demeaning comments directed at the victim; a vulnerable woman living in precarious circumstances.

29You ignored the victim’s clear indication that she did not want to engage in any sexual activity with you. Appallingly, whenever the victim stopped performing oral sex or pleaded with you to stop, you would assault her. When she tried to leave the room, you kicked her with force to the head. You held her in such a way she could not breathe. You repeatedly prioritised your own sexual gratification by treating the victim as a person who was entitled to no respect, and no dignity.

30This was sexual and physical violence perpetrated by you over a period of eight hours. You had adequate time to stop, reflect on your conduct, and desist, but you did not.  You callously persisted despite the fact that the victim was vomiting, and bleeding from the mouth, as a result of your actions. The offending only ended when the victim could no longer comply with your demands due to her facial injuries.

31That the victim was unable to escape your sustained sexual violence due to the fact you had blocked her exit from the room, makes this a very serious example of the offence of false imprisonment. The victim’s inability to escape from your offending can only have added considerably to her fear throughout her ordeal.

32Parliament has fixed a maximum penalty of 25 years’ imprisonment for the offence of rape and 20 years’ for the offence of attempted rape. In addition, the crime of rape is a standard sentence offence, for which Parliament has prescribed a ten year standard sentence. These legislative provisions are an indication of the seriousness with which Parliament, on behalf of the community, views the offence of rape.

33There is no hierarchy of penetrative sexual offending. You raped your victim multiple times and in multiple ways. Here however, the repeated and sustained acts of penile-oral penetration, accompanied by overt violence and maltreatment of the victim every time she stopped or refused, makes Charge 1 a particularly serious example of this form of rape. It was deplorably cruel and degrading conduct.

34The fact you produced a knife and threatened the victim preceding the acts of vaginal penetration elevates the gravity of the acts of vaginal rape that constitute Charge 3. These acts also carried with them the risks inherent in vaginal penetration, including sexually transmitted disease.

35That this was a terrifying experience that has had far reaching consequences for the victim is reflected in her powerful victim impact statement.[3] For the victim, your offending has left her feeling over-whelmed and unable to cope with her day to day needs. The victim suffers from complex mental health problems and says her mental health has declined significantly as a result of your crimes, jeopardising her placement in residential care, due to her manic and disruptive behaviour. She is fearful of becoming homeless again.

[3]Exhibit B - Victim Impact Statement sworn 15 March 2024

36The victim experiences flashbacks of the incident and feelings of paranoia, believing that people are going to hurt her. This in turn, has undermined her ability to trust others, and sadly, has impacted on her ability to seek help for her mental health. The victim concludes her statement by saying that she does not “want to continue having to struggle through life” and that she wants to “feel normal and safe” once more.

37Mr Balcioglou, you can be in no doubt that your acts of sexual violence have profoundly impacted on almost every aspect of the victim’s life. It is of real concern that you were subject to bail for multiple pending matters at the time of your offending. This was shocking and egregious sexually violent offending for which you bear a high level of moral culpability.

Personal circumstances

38I turn now to your personal circumstances.

39You were born and raised in Melbourne to parents of Turkish descent, and are the youngest of five children. Your parents separated when you were between 2-3 years of age, and you lived with your mother and siblings, seeing little of your father until you were in your mid-teens. Your father now lives in Turkey.

40You completed secondary school up to Year 9, but repeated your last year due to poor attendance. You report long-standing difficulties with learning, including difficulties with concentration and poor literacy. You received speech therapy assistance during both primary and secondary school. You had no close friendships at school due to your aggressive behaviour towards other students.  You were suspended from school in April 2014 reportedly for ‘undesirable behaviour’.[4]

[4]Exhibit 4 – psychiatric report of Dr Pandurangi dated 15 March 2024 at page 9 [22]

41Childhood behavioural issues led to you being assessed by Professor Alistair Vance, a Consultant Child and Adolescent Psychiatrist with the Royal Children’s Hospital in February 2009, for ‘significant ongoing inattentive type ADHD symptoms along with rule-breaking behaviours’. As a child you were diagnosed with ADHD, an oppositional defiant disorder and conduct disorder.[5] In 2016, when you were in Year 9, you were assessed by psychologist, Ms Clare Robson, who assessed you with a low average range of intellectual functioning but concluded you did not meet the eligibility criteria for students with an intellectual disability. [6]

[5]Exhibit 1 – neuropsychological report of Dr Borg dated 22 December 2021 at page 13, [21]

[6]Exhibit 1 – ibid at page 14, [23]

42Since leaving school, you have had occasional employment in carpentry, brick laying and painting, but have no sustained history of employment and have largely been reliant on Centrelink benefits from the age of 18. Your mother obtained an intervention order against you due to incidents of family violence in the home, and you have been homeless for the past four years. You have no contact with your siblings and you have never had an intimate relationship. You last saw your mother one year prior to your arrest.

43It is apparent that your formative years were marred by neurodevelopmental delays leading to attention deficits, learning difficulties, behavioural problems, and after becoming homeless; a lack of stability or emotional support. These difficulties were exacerbated by illicit drug use from your mid-teens leading to poor mental health.

44Despite these challenges, you have a limited prior criminal history. On 28 November 2017 you were placed on a good behaviour bond by the Broadmeadows Childrens’ Court for offending that included unlicensed driving and failing to stop a motor vehicle on request. On 9 January 2021 you were fined $500 for possession or use of a prohibited weapon by the Parramatta Local Court in NSW. The offending for which you are now to be sentenced represents a very serious escalation in your offending behaviour. As stated you also have multiple pending criminal charges, including for contravening a family violence intervention order, property damage, unlawful assault and directing sexual activity at a person. However, as these matters have not concluded they have no relevance to my sentence.

45Following a brief admission to the Austin Hospital in September 2020, throughout 2021 you had multiple contacts with community mental health services, including Orygen Youth Health, North Western Mental Health and Inner West Mental Health Services, where you were assessed with ‘mental and behavioural disorders due to use of cannabinoids’.[7]

[7]Exhibit 2 – psychiatric report of Dr Pandurangi dated 16 April 2023, page 11 [39]

46You began using cannabis in your mid-teens and have regularly used cannabis since then; smoking approximately 2 grams of cannabis a day. When you were remanded you completed a psychiatric screen in which you also admitted using methylamphetamine ‘every few days’ - using up to 10 points per week, prior to your arrest.[8]

[8]Exhibit 2 -  psychiatric report of Dr Pandurangi dated 16 April 2023, page 5 [19]

47Following your remand, you have been reviewed by various consultant psychiatrists following reports that you were presenting with ‘psychotic symptoms, odd behaviours, paranoia…’, in addition to displays of sexualised behaviour, including masturbating or standing nude in the presence of female staff.[9]

[9]Exhibit 4 – psychiatric report of Dr Pandurangi dated 15 March 2024 at pages 10-14

48You were assessed by neuropsychologist, Dr Linda Borg on 13 December 2021 for the purpose of your criminal proceedings. In her report dated 22 December 2021, Dr Borg concludes that you do not have an intellectual disability, having assessed you with a Full-Scale IQ of 87 using the Wechsler Intelligence Scale for Children. Dr Borg expresses the opinion that, based on your history and presentation, that you most likely have ADHD, characterised by inattention, together with a possible speech disorder.

49Having considered your past history of engagement with mental health services, Dr Borg states this reveals a “pervasive pattern of aggressive disruptive and antisocial behaviours”, with a “possible childhood diagnosis of a conduct disorder”. Dr Borg’s report also states there is a potential that you are in the prodromal phase of a psychotic illness, such as schizophrenia.

50You were subsequently assessed by Dr Prashant Pandurangi, a forensic psychiatrist on 18 November 2022 for the purpose of determining your fitness to stand trial. In his reports dated 16 and 17 April 2023, Dr Pandurangi concluded you were fit to stand trial, but recommended that you be further assessed to determine whether your behavioural difficulties are attributable to an underlying personality disorder or reflective of neurodevelopmental difficulties, including your earlier diagnosed ADHD and speech disorder.

51Your plea hearing was adjourned for a further psychiatric assessment to be undertaken by Dr Pandurangi, which was completed on 16 February 2024.

52During the assessment you reported experiencing perceptual disturbances in the form of ‘voices’, ‘flashes’ but in his report dated 15 March 2024, Dr Pandurangi states that you struggled to elaborate on these.

53Dr Pandurangi also notes that you have provided various inconsistent accounts of your history of substance use. During your assessment on 16 February 2024, you admitted regular use of methamphetamines, heroin and Xanax in the weeks prior to your arrest, despite having denied any drug use in your earlier assessment with Dr Pandurangi in November 2022.

54You had previously told Dr Pandurangi that you only drank alcohol occasionally, but at the more recent assessment you said you were drinking up to six cans of premixed drinks daily prior to your arrest.

55Having reviewed your contact with community mental health services in the past, Dr Pandurangi agreed with previous assessments that your presentation was not indicative of an underlying mental illness, but rather, was most likely linked to your use of illicit drugs, notably cannabis. Dr Pandurangi also considered the reports of you presenting with disorganised and disinhibited behaviours, paranoid beliefs and perceptual disturbances whilst in custody. Ultimately, Dr Pandurangi concluded that you do not suffer from an ‘enduring psychiatric illness’, such as schizophrenia, particularly given that you do not present with any underlying delusional belief system, which he states usually characterises such a diagnosis.[10]

[10]Exhibit 4 – psychiatric report of Dr Pandurangi dated 15 March 2024, page 19 [72]

56Dr Pandurangi also states there is no evidence that you meet the diagnostic criteria for any depressive or bipolar mood disorder.

57However, Dr Pandurangi does not disregard your description of perceptual disturbances entirely, stating that these clearly indicate some form of underlying distress suffered by you, for which he notes you have repeatedly sought assistance in custody.

Matters in mitigation

58Having discussed the objective gravity of your offending, I turn now to the matters that were raised on your behalf in mitigation of your sentence.

Guilty Plea

59First and foremost, you have pleaded guilty to these serious offences. In doing so, you have acknowledged responsibility for your offending and facilitated the course of justice. There is utility in your plea, as it saves the court and the community the time and resources associated with a trial. Most significantly, your guilty plea spared the victim the trauma and distress of reliving this experience in court. In cases such as this, involving a particularly vulnerable victim, the practical or utilitarian value of your guilty plea is a matter of appreciable weight in mitigation of sentence.

60However, beyond the remorse inherent in your plea, there is little evidence that you are genuinely remorseful or have any insight into the motivation for your offending or the impact of your conduct on the victim.

61During your assessment with Dr Pandurangi, you provided an account of your offending, stating that you recalled the victim saying “no”, and so you had to “force it on her”. You stated that when the victim entered the room, you could see she was “naked’’ beneath her gown, and you “knew she was trying to impress you”. Dr Pandurangi states you could not explain the reason for persistently sexually and physically assaulting the victim, telling him you did not recall the rest of the events. You told Dr Pandurangi that you understood you had done the “wrong thing”, but you were unable to express any understanding of the impact your conduct would have had on the victim. I find that you have limited if any insight into the motivations for your offending.

62An offender whose guilty plea is accompanied by sincere remorse for their offending is entitled to have that fact taken into account in further mitigation of their sentence and in assessing their prospects of rehabilitation. No additional sentencing discount applies in your case in the absence of genuine remorse.

Youth

63Your youth is another factor that is relevant to your sentence. You were 20 years old at the time of the offending, and are now 22 years old. Your youth mitigates the sentence to be imposed in accordance with well-established sentencing principles.[11] Generally, greater emphasis is placed on the rehabilitation of youthful offenders as a paramount sentencing consideration, as the community more broadly benefits from a young person’s effective rehabilitation. Additionally, the law recognises that youthful offenders are more prone to ill-considered or rash decisions than older, and presumably more mature, individuals.

[11]R v Mills (1998) 4 VR 235; Azzopardi v R [2011] VSCA 372; (2011) 35 VR 43, 57 [44] (“Azzopardi”)

64Given your age, your youth means that the sentence should be structured to best support your prospects of rehabilitation and eventual re-integration into the community. However, the law also recognises that the weight to be attached to youth is reduced as the level of criminality involved in the offending increases.[12] Here, the gravity of your offending means I have paid less regard to your youth as a mitigating factor given the prominence to be given to the protection of the community and other sentencing considerations, including general deterrence and denunciation.

[12]Azzopardi, [44]

Mental health issues and burden of imprisonment

65I have had regard to your long-standing behavioural issues as outlined in the expert reports, including your diagnosed attention and speech deficits. While there is no evidence that you suffer from any diagnosed psychiatric illness, or that your persistent and problematic personality traits give rise to a diagnosed personality disorder, I have had regard to your long-standing neurological impairments and problematic behaviours in the broad sense.

66However, there is no evidentiary basis for me to conclude that you have any  mental health disorder that is causally linked to your offending or otherwise reduces your moral culpability for the offending to enliven limbs 1-4 of the principles enunciated in the case of Verdins.[13]  

[13]R v Verdins (2007) 16 VR 269 (“Verdins”)

67Nonetheless, I accept Dr Pandurangi’s opinion that your ‘underlying mental health difficulties’ make your time in custody more onerous than that experienced by others not affected by these conditions. This opinion is also evidenced by the Justice Health records referred to in his reports demonstrating your repeated presentation to custodial mental health services in some form of distress, seeking treatment. These matters enliven limb 5 of the decision in Verdins.

68I also note that you are a young person experiencing custody for the first time, without any family support, and that your experience of custody will be a difficult and isolating one.

69I have taken all these matters into account in further mitigation of your sentence.

Prospects of rehabilitation

70Both Dr Borg and Dr Pandurangi assessed the risk of you engaging in future acts of sexual violence.

71Dr Borg expressed the opinion that your ‘maladaptive personality’ traits elevate the risk of further offending, and states that your negative attitudes, behavioural impulsivity and aggression, combined with your impaired insight are likely to undermine your effective response to treatment. Nonetheless, Dr Borg recommends you engage in intensive psychological treatment as well as anger management with a forensic neuropsychologist to address the risk of future offending.

72Dr Pandurangi, having assessed you using the Static 99 risk assessment tool, concludes you are in the moderate to high risk of recidivism, which he says is a “somewhat higher risk than for an average sexual offender”. Having also administered the RSVP assessment tool, Dr Pandurangi similarly concludes that you pose a moderate to high risk of similar offending if the underlying risk factors are not addressed. Dr Pandurangi also recommends psychological therapy tailored to your cognitive needs to address identified risk factors, including developing insight into the motivation for your offending, such as deviant sexual interests.

73Dr Pandurangi also analysed the nature of your offending and your presentation in considering whether you suffer from a specific paraphilic disorder. He records that you display a pattern of unhealthy preoccupation with sex; presenting with repetitive and impulsive sexual behaviours. However, as you had not been forthcoming during the assessment regarding your underlying urges and fantasies, and had denied any deviant sexual arousal, Dr Pandurangi was unable to reach a definitive opinion about whether you suffer from a compulsive sexual behaviour disorder, although he considers this to be a possibility.

74Notwithstanding a lack of any significant prior criminal history, or a history of previous sexual offending, given the serious nature of this offending, your lack of insight or remorse into your crimes, and the opinions expressed by the expert regarding your elevated risk of future sexual offending, I remain extremely concerned about the risk you pose to the public going forward, and am guarded as to your prospects of rehabilitation, despite your youth. The sentence I impose must specifically deter you from future offending.

Other sentencing considerations

75The sentencing principles of general deterrence, just punishment and denunciation are to be given prominence in sentencing you for this offending. Others must also be deterred from committing acts of extreme sexual violence against vulnerable women in the knowledge that if they do so, a lengthy sentence of imprisonment will invariably follow.

76The offence of rape carries a standard sentence of 10 years’ imprisonment and I must apply the provisions governing the standard sentence scheme set out in s 5A and s 5B of the Sentencing Act 1991 when sentencing you for this offence.

77The standard sentence is intended to represent the sentence for an offence ‘in the middle of the range of seriousness’, taking into account only the objective features of the offence. The standard sentence scheme does not permit ‘two-stage’ sentencing and I am not required to separately classify the objective gravity of the offending. The seriousness of the offence must still be assessed in the conventional way, taking into account both objective gravity and moral culpability.[14] The standard sentence, like the maximum penalty, is one factor I must take into account.[15]

[14]Brown v R [2019] VSCA 286; (2019) 59 VR 462, 479 [55] (‘Brown’)

[15]Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27], citing McPherson v The Queen [2021] VSCA 43, 31 (Priest and T Forrest JJA)

78I am also obliged to disregard sentencing practices that existed prior to the introduction of standard sentencing,[16] although the principles found in those cases remain of relevance.[17]

[16]Sentencing Act 1991, s 5B(2)(b)

79When fixing a non-parole period, I must fix a period of at least 60% of the head sentence, unless it is in the ‘interests of justice’ not to do so. No submission was made in this case that a non-parole period of less than 60% should be fixed.

80The instinctive synthesis involved in sentencing still requires a balancing of many factors including the nature and objective seriousness of the offending, your moral culpability, as well as your personal circumstances and the matters to which I have referred in mitigation of sentence, including your age and guilty plea.

81Neither counsel referred me to any comparable cases imposed subsequent to the commencement of the standard sentencing scheme.

82In my view, your offending that is the subject of Charge 1, noting that it is a rolled-up charge representing multiple occasions of penile-oral penetration over a prolonged period makes this objectively more serious than a mid-range offence.

83While the one maximum penalty of 25 years’ imprisonment applies to charges of rape (Charges 1 and 3), the fact they are both rolled-up charges means the sentence I must impose should reflect the totality of your offending as represented by those charges. Other things being equal, a rolled-up charge is more serious than a single charge of that offence. The authorities establish that ‘a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence’.[18]

[18]DPP v Conos [2021] VSCA 367, [75]

84Upon being convicted and sentenced to a period of imprisonment on charges 1 and 3, you fall to be sentenced as a serious sexual offender on charge 4 pursuant to s 6B of the Sentencing Act 1991.

85By reason of s 6D of that Act, when sentencing you as a serious sexual offender in respect of Charge 4, I must regard the protection of the community as the principal purpose for which your sentence is imposed, when determining the length of your sentence. The prosecution does not seek, and I do not propose to impose, a disproportionate sentence to achieve this objective, in particular having regard to your youth.

86Section 6E of the Act requires that every term of imprisonment imposed on a serious sexual offender for a relevant offence (Charge 4, in this case) be served cumulatively upon any other sentences of imprisonment imposed on the offender, unless otherwise directed. While having regard to this legislative provision, I must also consider the sentencing principle of totality and also ensure that the sentence is not crushing, particularly given your age.

Sentence

87Balancing the matters to which I have referred, whilst having regard to the maximum penalty for each offence and the standard sentence for the offence of rape, I now sentence you as follows:

88On Charge 1 – a rolled up charge of oral-penile penetration – you are convicted and sentenced to nine years, six months’ imprisonment. This is the base sentence.

89On Charge 2 – false imprisonment, you are convicted and sentenced to three years’ imprisonment.

90On Charge 3 – a rolled up charge of digital-vaginal and penile-vaginal penetration – you are convicted and sentenced to seven years’ imprisonment.

91On Charge 4 – attempted penile-anal penetration – you are convicted and sentenced to three years’ imprisonment.

92On Charge 5 – intentionally causing injury, you are convicted and sentenced to three years’ imprisonment.

93On Related Summary Charge 9 – committing an indictable offence whilst on bail – having found the charge proved, I dismiss that charge.[19]

[19]In doing so, I have regard to the fact that the offence of committing an indictable offence whilst on bail has since been abolished.

94Although your offending arises from the one incident, it is appropriate that there be cumulation of the sentences imposed to reflect the separate criminality of your offending and having regard to s 6E of the Sentencing Act 1991 in respect of Charge 4. Accordingly, I make the following orders for cumulation:

(a)   Charge 2 –  false imprisonment - 10 months

(b)   Charge 3 – rolled up charge of vaginal penetration - 10 months

(c)   Charge 4 – attempted rape – four months

(d)   Charge 5 – intentionally cause injury - six months.

95This gives a total effective sentence of 12 years’ imprisonment. I fix a non-parole period of 7 years, six months before you are eligible for parole.

96Pursuant to s 18 of the Sentencing Act 1991,  I declare 736 days of presentence detention as served under the sentence I have imposed.

97Pursuant to s 6F of the Sentencing Act 1991, I declare that you are sentenced as a serious sexual offender in respect of Charge 4 and direct that this fact be entered into the record of the court.

98Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that the sentence I would otherwise have imposed had you not pleaded guilty is a sentence of 16 years’ imprisonment with a non-parole period of 12 years.

99Finally, I grant the application made by the prosecution that you comply with the reporting obligations imposed under the Sex Offenders Registration Act 2004 (‘SORA’).

100Pursuant to s 11 of the SORA, if a person is found guilty of a Class 3 offence, the Court may order that a person comply with reporting obligations if, after taking into account any matter it considers appropriate, it is satisfied beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community. Here, you have been convicted of three Class 3 offences, namely two charges of rape and one charge of attempted rape.

101The application was opposed by defence counsel, arguing that your cognitive limitations and behavioural issues, would pose a risk of non-compliance. However, the legislative test directs me to the issue of whether I am satisfied, to the requisite standard, that you pose a risk to the sexual safety of a person or persons or to the community, and not your capacity to comply with reporting obligations.

102Having regard to the matters raised in the expert reports, most particularly the risk assessments undertaken by Dr Pandurangi of you posing a moderate to high risk of sexual offending, combined with the serious nature of your offending, I am satisfied that you pose a risk to the sexual safety of other persons. I have also had regard to my assessment of your lack of remorse or insight into your offending behaviour.

103I am satisfied that the risk you pose to the sexual safety of a person or persons, or to the community, is established beyond reasonable doubt. In reaching this conclusion, I also accept and give weight to the opinion of Dr Borg that your “clinical risk factors” are “likely to impede therapeutic intervention and impact [on your] responsiveness to treatment”. Without doubt the specialist, intensive sex offender treatment recommended by Dr Pandurangi is warranted.

104Pursuant to s 34 of the SORA, you are a registrable offender and your reporting obligations operate for a period of 15 years, to commence within 7 days of your release from custody.