Director of Public Prosecutions v Ballard (a pseudonym)
[2025] VCC 119
•13 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN BALLARD (A PSEUDONYM) |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 December 2024 | |
DATE OF SENTENCE: | 13 February 2025 | |
CASE MAY BE CITED AS: | DPP v Ballard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 119 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally causing injury – Recklessly causing injury – Recklessly causing serious injury – Rape – Stalking – Theft – Related summary offences – Multiple indictments – Sentence after jury verdict – Guilty pleas – Family violence – Oral rape – High moral culpability – Lack of remorse – Extensive criminal history – Moderate risk of future violent offending – High risk of future violent offending – Substance abuse – Verdins Limb 1 – Delay
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Bail Act 1977 (Vic); Road Safety Act 1986 (Vic)
Cases Cited:Thomas v Campbell (2003) 9 VR 136; Cheung v The Queen (2001) 209 CLR; R v Verdins [2007] VSCA 102
Sentence: Total effective sentence – 12 years and 1 month’s imprisonment with a non-parole period of 8 years and 4 months’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Pillai | Office of Public Prosecutions |
| For the Accused Trial 1 and 2 Trial 3 and Plea | Mr L Richter Mr M Allen | Stary Norton Halphen Stary Norton Halphen |
HIS HONOUR:
Introduction
1Hayden Ballard,[1] you are to be sentenced on the following charges.
[1] A pseudonym.
2On Indictment L11708111A.1 (‘Indictment 1’) you pleaded guilty to:
(a) One charge of Intentionally Causing Injury contrary to section 18 of the Crimes Act 1958 (Vic) (‘Crimes Act’) which carries a maximum sentence of 10 years’ imprisonment (charge 4 – complainant: KA[2]);
(b) One charge of Recklessly Causing Injury contrary to section 18 of the Crimes Act which carries a maximum sentence of 5 years’ imprisonment (charge 3 – complainant: BBW[3]).
[2] A pseudonym.
[3] A pseudonym.
3Further, on the same indictment and after a trial before me, a jury of 12 found you guilty of:
(a) One charge of Recklessly Causing Serious Injury contrary to section 17 of the Crimes Act which carries a maximum sentence of 15 years’ imprisonment (Charge 7 – complainant: KA); and
(b) One charge of Rape contrary to section 38 of the Crimes Act which carries a maximum sentence of 25 years’ imprisonment (Charge 8 – complainant: KA).
4In a second trial before me, on Indictment L11708111C (‘Indictment 2’), the jury found you guilty of:
(a) One charge of Stalking contrary to section 21A of the Crimes Act which carries a maximum sentence of 10 years’ imprisonment (Charge 1 – complainant: KA).
5On Indictment L11708111B (‘Indictment 3’), you pleaded guilty to:
(a) Two charges of Theft contrary to section 74 of the Crimes Act, each of which carries a maximum penalty of 10 years’ imprisonment (Charges 1 and 2 – complainants: Andrew Randall and James Baker, respectively).
6There were also two related summary offences to which, having accepted the jurisdiction of this court, you pleaded guilty. They are:
(a) A charge of failing to notify a change of address contrary to section 30A of the Bail Act 1977 (Vic) which carries a maximum penalty of 3 months’ imprisonment; and
(b) A charge of driving while disqualified contrary to section 30(1) of the Road Safety Act 1986 (Vic) which carries a maximum penalty of 2 years’ imprisonment.
7Finally, on Indictment N11849673 (‘Indictment 4’), you have pleaded guilty to:
(a) Three charges of Common Assault contrary to common law, each of which carries a maximum penalty of 5 years’ imprisonment (Charges 1, 2 and 3 – complainant: Nasra Mohamad).
The Sentencing Task
8The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[4]
[4] Cheung v The Queen (2001) 209 CLR 1, 19 [38].
9Further, any aggravating circumstances must be established beyond reasonable doubt.[5]
[5] Cheung v The Queen (2001) 209 CLR 1, 19.
10In relation to the charges to which you have pleaded guilty, the court sentences you on the basis of the various factual summaries prepared by the prosecution where those summaries are agreed by Mr Allen, counsel who appeared on your behalf at the sentencing hearing.
Indictment One – 2016 and 2018 Offending
The 2016 Offending
11You were born in August 1967. Between 2015 and 2018 you were in an intimate relationship with KA. During this period you were between the ages of 48 and 51. KA was born in 1978 and was between the ages of 37 and 40 during this period.
12The relationship between the two of you was volatile and at times you were violent.
13On 28 August 2016, KA was staying with friends of hers in a flat in Cheltenham. She was hiding from you as she feared being harmed by you. The people who lived at the flat were BBW and his partner, SB[6]. KA was sleeping on the couch in the loungeroom.
[6] A pseudonym.
14During the evening you went to the Cheltenham flat and demanded to see KA. You entered the flat and walked towards BBW who you had met previously in the company of KA. BBW had come into the loungeroom after hearing an altercation between yourself and KA.
15You punched BBW to the face hitting his mouth. This was an unprovoked attack. As a result, BBW fell backwards but did not remonstrate. His tooth was chipped and his lip was swollen (charge 3 – recklessly causing injury).
16At your request, and reluctantly, KA accompanied you outside the flat. You then made her walk towards Charman Road. She was scared by what you were saying and did not want to get into your car.
17KA at one point tried to run away from you. You chased her and when you caught her you punched her to the face breaking her nose. She was bleeding heavily (charge 4 – intentionally causing injury).
18KA once again ran away from you and after hiding in a sand bunker at the golf course and in a clothing bin at a Salvation Army store, she eventually made her way back to the flat where her friends lived. SB attended to KA’s injuries and helped clean her up.
The 2018 Offending
19In May 2018, KA was living at an address in Seaford which she shared with two male flatmates.
20On 15 May 2018, you were staying at the Seaford house with KA. In the morning one of KA’s housemates was home.
21Sometime in the morning, KA woke up to hear you talking on a mobile phone saying you were sad. You were speaking to a friend of KA’s and saying that you had seen a video on KA’s lap top of her ‘giving a guy a head job’. You were mistaken.
22KA became angry and slapped you to the side of the head. You retaliated by pushing KA and calling her a ‘slut’.
23KA had an appointment with her Corrections Officer at 11:00 am. At 11:30 am, the officer called KA to inquire about her whereabouts. The appointment was rescheduled for 4:00 pm.
24At approximately 11.30 am KA went to the bathroom to have a shower. The shower was over the bath. She locked the door.
25KA’s housemate left the house and she was concerned about being alone with you. Shortly after the housemate left, you started banging on the bathroom door insisting to be allowed in. KA unlocked the door as she was concerned you were going to kick it open.
26After you entered the bathroom you moved towards KA while she was standing in the bath and punched her violently to the left side of her chest. The force of the punch caused a pneumothorax (collapsed lung) which required KA to be hospitalised for five days. Initially the treatment was provided at the Sandringham hospital before KA was transferred to the Alfred hospital. A tube was inserted to drain excess fluid from her chest. Fortunately, there are no long term complications.
27KA fell to her knees while you continued to punch her. She was pleading with you to stop, telling you that she loved you and could not breathe.
28Your response was to say ‘If you love me, you’ll suck my dick’. You proceeded to pull your erect penis out of your pants.
29KA was prepared to suck your penis as you had demanded because she did not want to be hit anymore. She was crying and, because of your punch, was having difficulty breathing. As she was sucking your penis, she was pleading with you: ‘I can’t, I’m sorry, I can’t breathe, I can’t do it, I can’t breathe’.
30You orally raped KA shortly after punching her in the ribs with sufficient force to cause the pneumothorax (charge 8 – rape).
31As the punch is the subject of a separate charge of which you have been found guilty, it is not to be considered as an aggravating factor in respect of the rape. However, it remains relevant to the circumstances in which the rape occurred.
32This is an egregious instance of the very serious crime of rape. You and KA were in an intimate relationship; your offending occurred in what should have been the sanctuary of her home. As a result of your violent punch, KA was weakened and unable to resist. You were well aware of her condition and raped her nonetheless.
Indictment Two – 2019-2020 Offending (Stalking)
33After a trial in which you faced four charges, a jury convicted you of a single charge of stalking KA between 17 September 2019 and 12 July 2020. As noted earlier, your relationship with KA concluded in 2018. By September 2019, she had been in a new relationship with LM[7] for about 3 months.
[7] A pseudonym.
34In September 2019, KA and LM were living together in a unit in Malvern East.
35The conduct that you engaged in that was found by the jury to be a course of conduct was as follows:
(a) On 17 September 2019, you had been calling KA and she had blocked your number but you were still able to leave messages;
(b) On 22 and 23 September 2019, you sent KA a number of skype messages that included the following:
(i)At 6.04 am on 23 September 2019: ‘Hey what you doing? How come you don’t say hi?’
(ii)At 10.37 am on that day: ‘I’m not sure how this latest shit go is going to play out? I’d bet that it will end up with me standing in front of you …
Along with your latest victim/boyfriend in the worst situation he could have got stooged into by you…’
(iii)At 11.48 am: ‘Don’t let things turn ugly [smiley emoji].’
(c) On 8 October 2019, you were still continuing to contact KA even though she had blocked your number;
(d) On 6 December 2019, you sent KA a text message threatening to kill her if you saw her on the streets;
(e) On 8 December 2019, you were located by police sleeping in a car in Malvern East (opposite where KA lived) at about 11.15 am;
(f) On 20 December 2019, you were at KA’s address;
(g) On an unidentified date between 20 December 2019 and 12 July 2020 you were near KA’s address and threatened KA that if she removed the muzzle from her dog, she and the dog were dead;
(h) At approximately 1.30 am on 12 July 2020, a neighbour of KA’s heard a motor cycle revving and a person saying ‘[KA’s partner]’, ‘come out’ and ‘bring your dog’.
36I take the jury’s verdict to be an acceptance of the prosecution case that you engaged in a ‘course of conduct’ during the period specified in the charge.[8]
[8] The jury was directed to apply the approach to ‘course of conduct’ as requiring a ‘continuity of purpose’ – see Thomas v Campbell (2003) 9 VR 136, [42]-[43].
37I also accept that the jury found that in engaging in this course of conduct, you intended to harm KA – either physically or mentally, or both – or intended to cause KA to be frightened or apprehensive about her own safety, or about the safety of someone else.
38This was a serious example of the crime of stalking. You engaged in this conduct after the violent and sexual offending directed at KA in 2016 and 2018. She was well aware that your threats were not idle and that you were both capable and prepared to act on them. Your offending was both protracted and menacing.
Victim Impact
39KA prepared a Victim Impact Statement dated 12 December 2024. It was read to the court by the prosecutor.
40It reads in part:
Your Honor
The trauma I have endured from the abuse has left me with emotional and psychological scars that I fear will never fully heal. The violence I experienced was not just physical – it tore apart my sense of self, my confidence and my ability to live without fear. The psychological damage haunts me every day, and it has deeply affected every part of my life.
…
This trauma not only affects me, it impacts my entire family, especially my children, who are now young adults. I miss out on so much with them – simple joys like spending quality time together and sharing life experiences. They deserve a parent who is present and engaged, but I often find myself retreating, unable to fully participate in their lives because I am consumed by fear and anxiety. The pain of missing those moments with them is unbearable, and I can see the effects it has on our relationship.
…
I am here today to ask for justice, not just for the physical pain I endured, but for the emotional and psychological damage that has taken over my life and affected those I love. I don’t know if I will every truly heal and I hope this court understands the depth of the pain I carry with me every single day. Thank you Your Honor, for allowing me to share my story and for considering the long-lasting impact this trauma has had on me and my family.
41I have taken into account the impact of your offending as so eloquently described in KA’s victim impact statement.[9]
[9] Sentencing Act 1991 (Vic), s 5(2)(daa) (‘Sentencing Act’).
Indictment Three - 2020 Offending - Thefts[10]
[10] Summary based on Summary of Prosecution Opening for Trial dated 22 March 2023 (CR-22-00605).
42On Thursday 16 July 2020, surveillance was conducted by police on you at an address in Oak Park. At 3:03 pm you left the address on a black Triumph motorcycle bearing stolen number plate JD567.
43Later that day you were arrested in respect of unrelated offending. Police seized the motorcycle which was subsequently identified as a stolen orange 2010 Triumph Speed Triple motorcycle which had been reported stolen on 17 September 2018 from outside the workplace of the owner, Andrew Randle.
44The registration plate was stolen in February 2011 from St Kilda Road Melbourne while affixed to a Kawasaki motorcycle owned by James Baker.
45It is not alleged that you stole the motorcycle in 2018; nor is it alleged that you stole the number plate. You were charged in each case on the basis of your assumption of a right of ownership.
46You pleaded guilty to both charges on arraignment shortly before the matter was due for trial. By your pleas of guilty you saved both court and witness time. You are to receive a discount to reflect the utilitarian value of your guilty pleas.
Related summary offences
47On 16 July 2020 you were not the holder of a motorcycle licence. You had been disqualified on 14 May 2019 from holding or obtaining any licence or permit under the Road Safety Act 1986 (Vic) for a period of 4 years.
48You were on bail on 16 July 2020 and one of the conduct conditions of your bail was that you notify an informant of any change of residential address within 24 hours. You failed to comply with that condition when you moved from an address at Grandview Terrace Mount Martha.
Indictment Four - 2020 Offending (Nasra Mohamad)
49The factual circumstances of this offending are detailed in the Summary of Prosecution Opening for Plea dated 17 December 2024[11] which is an agreed document. The following is a further summary of that document.
[11] Indictment N11849673 (CR-23-01457).
50You met Ms Mohamad through a mutual friend who gave you the keys to the rented house where Ms Mohamad was living in January 2020. It appears that you moved into a room at the house and a dispute arose when Ms Mohamad asked you to contribute to the rent.
51On 30 January 2020, you became angry and assaulted Ms Mohamad by punching, slapping, kicking and throwing items at her. She sustained bruising. You then told her not to call the police because you had outstanding matters, and she did not report the assault at that time.
52You continued to live at Ms Mohamad’s house and she confronted you once more about this on 3 March 2020, again provoking a violent response which involved you spitting at Ms Mohamad’s face before repeatedly punching her to the face and body, causing her to once again suffer bruising.
53Ms Mohamad reported the first and second assaults to police on 16 March 2020.
54Through her community mental health worker, Ms Mohamad organised for the locks to the house to be changed.
55On 17 April 2020 at about midday, Ms Mohamad collected the new keys and returned to the house by herself. When she tried to open the door you opened it from the inside. You took hold of Ms Mohamad by her neck and pulled her into the house. You punched and kicked her to the body and head while asking ‘where’s my stuff?’. You covered her mouth.
56Ms Mohamad was screaming in fear, and her screams were heard by her neighbour Mr Finlay who called 000 at 12:03 pm.
57When you heard a knock on the door, you told Ms Mohamad to be quiet and dragged her into a bedroom where you pushed her over and she struck her head on the corner of the fireplace causing her head to bleed freely. Blood was subsequently found on her shoes and on the carpet.
58Police arrived at the house at 12:18 pm but received no response to their knocks on the door. In the meantime you contacted a friend of yours, Simone Frilay, who came to the house. Police spoke to her outside the house and she said she was there to visit a friend who had mental health issues. Police then left the house.
59Later that day you left the house with Ms Mohamad and Ms Frilay. Ms Mohamad subsequently spent some time living at an address in Ascot Vale with Robert Nestor. Mr Nestor was concerned about Ms Mohamad’s health and took her to the Royal Melbourne Hospital on 19 April 2020. After receiving some treatment, Ms Mohamad was discharged the next day.
60As a result of the 3rd assault on 17 April 2020, Ms Mohamad suffered the following injuries:
(a) A 4 cm laceration to the forehead;
(b) Bruising and swelling around the left eye socket;
(c) Tenderness of the chest wall; and
(d) Pain.
61You ran a contested committal in August 2023 at which four witnesses including Ms Mohamad were cross-examined. The matter then proceeded in this court as a not guilty plea.
62However, you pleaded guilty to these charges on 3 October 2024 on arraignment, before the matter was due for trial on 15 October 2024. By your pleas of guilty you saved the time of both the court and the witnesses who would have been called. You are to receive a modest discount to reflect the utilitarian value of your late guilty pleas.
Personal circumstances
63You were born in August 1967 and are now aged 57.
64You grew up in Melbourne and your parents separated when you were 13. Your childhood was unremarkable.
65You completed year 10 and commenced working at the age of 16. Although you have worked in a number of jobs you experienced considerable instability in employment.
66You have been a long term substance abuser having commenced using alcohol and cannabis while at school. By the age of 18 you were using heroin and by 30 this had become a daily habit.
67While you were in the relationship with KA you used methylamphetamine.
68You have an extensive and relevant criminal history. Your earliest offending was in 1985 as an 18 year old. You have numerous convictions for violent offending, armed robbery and drug trafficking. In 2007 you were sentenced in this court to imprisonment for eight years with a non-parole period of 6 years for intentionally causing serious injury. In 2019 you were sentenced in this court to 6 months’ imprisonment for assaulting an emergency worker on duty.
69You have no history of sexual offending.
Moral culpability / Verdins Limb 1
70For the purposes of your sentencing hearing, your solicitors had you examined by Mr Simon Candlish, psychologist. Mr Candlish’s detailed report dated 12 December 2024 is before the court.[12]
[12] Exhibit D1 (‘Candlish Report’).
71Mr Candlish conducted two clinical interviews with you and conducted a number of psychometric tests. He diagnosed you with a severe personality impairment and a substance use disorder. He notes that you have ‘experienced chronic instability in [your] life’ that has led you to be involved chronically with ‘anti-social behaviour including offending’.[13]
[13] Ibid, [3]-[4].
72Mr Candlish was asked to express an opinion about whether any mental illness from which you suffered at the time of your offending ‘had a realistic connection’ to that offending in the various ways identified in the case of Verdins[14] and subsequent authorities. Mr Candlish’s responses set out in his report are quoted below.
[14] R v Verdins [2007] VSCA 102.
73Regarding your ability to exercise appropriate judgement:[15]
Mr Ballard’s personality disorder which includes impulsivity and poor consequential thinking affects his ability to appropriately judge situations, particularly when emotionally heightened.
[15] Ibid, [144].
74Regarding your ability to make calm and rational choices, or to think clearly:[16]
Mr Ballard has an impaired capacity to make calm and rational choices due to the nature of his personality impairment. He has distorted beliefs and attitudes regarding himself and others and lacks insight into this. He is easily angered and upset which affects his capacity for rational thought.
[16] Ibid, [145].
75Regarding disinhibition:[17]
A prominent feature of Mr Ballard’s personality is his disinhibition. In times of conflict, he has much less ability to inhibit his behaviour and engage in self-control.
[17] Ibid, [146].
76Regarding your ability to appreciate the wrongfulness of your conduct:[18]
Mr Ballard appears to have an understanding of the wrongfulness of his actions. He certainly has desensitised and distorted views regarding violence and other problematic behaviours which are excused or justified in his mind.
[18] Ibid, [147].
77Regarding whether your intent to commit the offences was obscured:[19]
Mr Ballard’s behaviour appears intentional and related to a desire to punish and achieve his anti-social goals.
[19] Ibid, [148].
78On mental impairment contributing (causally) to the commission of the offences:[20]
Mr Ballard’s offending is related to problematic and distorted attitudes as well as risk-taking, recklessness as well as desensitisation and detachment. His violence has been related to his underlying agitation and irritability, impulsivity, desensitisation to aggression, attitudes of entitlement and a desire to be perceived as strong. It has been related to cognitive distortions related to a need to punish for perceived wrongs and thinking that he is unable to control himself. These issues appear to be related to the nature of his personality impairment.
[20] Ibid, [149].
79Based on the above opinions, your counsel submits that Verdins limb 1 is enlivened. I accept this submission but as I said to your counsel during the hearing of your plea, your lack of insight and inability to respond appropriately and non-violently to stressful situations are relevant to your future risk of offending, to which I now turn.
80It is appropriate to start with the section of Mr Candlish’s report headed ‘Self-report of offending’. Mr Candlish reports that:[21]
Mr Ballard reported that he did not engage in any sexual assaults of his partner, [KA]. He provided a slightly convoluted account of how [KA] had bitten off the nose of her new partner’s ex-girlfriend and “they reckon I shot her new boyfriend.” He stated that [KA] had been in prison numerous times and had “learned that you get a payment” referring to financial compensation for being the victim of a sexual assault.
Mr Ballard explained that [KA] was a “vindictive cunt of a fucking thing.” He commented that he had “fucked about three of her girlfriends” after she had cheated on him and “left me for another bloke.” He alluded to [KA] accusing him of rape out of spite.
Mr Ballard admitted to punching the victim to the ribcage. Further information regarding the nature of Mr Ballard and [KA’s] relationship is contained within the intimate relationship history section of this report.
Mr Ballard was vague about the assault of [KA’s] male friend and he seemed to distance himself from any wrongdoing. He did not discuss his offence against the female victim in 2020.
Overall, Mr Ballard displayed limited self-reflection as well as denial and minimisation of his offences. He revealed a hostility towards his ex-partner.
[21] Ibid, [19-23].
81At paragraph 137 writes as follows:
Mr Ballard’s violence against his intimate partner appears related to chronic conflict and a negative view of his partner. He appears to have regarded her in detached terms, and as unharmed or unaffected by his aggressivity. It appears that this relationship was very unhealthy and might have included bi-directional violence. His sexual offence appears related to entitlement to sex, a desire to degrade or punish and possible increased arousal in the context of anger and aggression. There might have previously been some normalisation of sexual activity during or after conflict given Mr Ballard’s description of chronic conflict and frequent sexual activity in this relationship.
82The manner in which you refer to the primary victim of your offending, KA, is deeply disturbing. It indicates a lack of any insight into, or remorse about, the most serious aspect of your offending – the rape in 2018.
83Mr Candlish assesses you as a moderate risk for future sexual offending and a high risk for future violent offending.[22] He notes in relation to the former that your risk for sexual offending ‘might be perpetuated by remaining in a conflictual and unstable intimate relationship and developing hostile attitudes to [your] partner’.[23]
[22] Ibid, [130]-[131].
[23] Ibid, [139].
84I accept these assessments. As discussed further later in these reasons, this emphasises the importance of both specific deterrence and community protection in the sentencing task.
Matters of Mitigation
85Mr Allen, who appeared on your behalf at the plea, put every available argument in terms of mitigation to the court on your behalf.
86The earliest offending for which you are to be sentenced occurred in 2016. Eight and one half years have passed since that time. This delay has not occurred through any fault of yours, and is on any view very significant.
87While you cannot point to a period free of offending since that time, it is relevant that the matters have been hanging over you for a lengthy period and I have taken that into account in sentencing you.
88Your counsel placed no reliance on remorse as a mitigating factor. I have taken into account that you pleaded guilty to some of the offending and have discounted the sentences I have imposed to reflect this.
89I have already made reference to the application of the Verdins principles.
Consideration
90This is a complex sentencing exercise.
91The sentencing purposes that are relevant are firstly general deterrence. Violence perpetrated by men on their intimate partners is a scourge on our society. Men inclined to behave violently towards their partners must understand that there will be severe consequences.
92Specific deterrence is also very important given your history of offending, lack of support in the community, lack of remorse and insight and the resulting risks assessments before the court.
93Protection of the community especially any future intimate partners you may have is also very important.
94Finally, you must be appropriately punished for your reprehensible conduct.
95In determining the appropriate sentences to impose, I will commence with the offence of rape which was the subject of a jury verdict in your first trial. The maximum penalty that the court may impose is 25 years’ imprisonment, which demonstrates the seriousness with which the offence is viewed by parliament.
96The ‘standard sentence’ is 10 years’ imprisonment. This is the period specified for an offence that is ‘in the middle range of seriousness’ . . . ‘taking into account only the objective factors affecting the relative seriousness of that offence’.[24] Those factors are to be determined ‘without reference to matters personal to a particular offender’ and ‘wholly by reference to the nature of offending’.[25]
[24] Sentencing Act 1991 (Vic), s 5A.
[25] Ibid, s 5A(3).
97The standard sentence, like the maximum penalty, is but one of a number of factors relevant to sentencing and does not affect the ‘instinctive synthesis’ approach to sentencing.[26] In sentencing you for the offence of rape, I must explain how the sentence I impose ‘relates to’ the standard sentence.[27]
[26] Ibid, s 5B(3).
[27] Ibid, s 5b(5).
98I assess the objective gravity of the rape as within the category of mid-level seriousness when considering only the objective circumstances. The relevant circumstances are:
(a) That you and KA were in an intimate relationship at the time;
(b) You raped KA in her own home;
(c) You raped KA after violently assaulting her; and
(d) Orally raping her while she made it clear that she could not breathe was particularly degrading and humiliating.
99The charge relating to causing KA’s pneumothorax is also a serious example of the offence. Your moral culpability for this offending is very high indeed.
100The offending concerning Ms Mohamad is also particularly concerning. On three separate occasions over a period of four months you physically attacked her in a vicious manner while she was alone and defenceless. You are a tall, imposing and strong man. There is no explanation for these attacks before the court other than the general observation by Simon Candlish that ‘a prominent feature of [your] personality is [your] disinhibition. In times of conflict, [you have] much less ability to inhibit [your] behaviour and engage in self-control’.[28]
[28] Candlish Report [146].
101The difficulty with this explanation is that what precipitated your first two attacks on Ms Mohamad was no more than a request by her that you contribute to the rent. It is unclear what precipitated the third and most serious attack which appears to have been pre-meditated, as you lay in wait for her to return after she had taken the precaution of changing the locks.
102The maximum penalty for each charge of common assault contrary to common law is 5 years’ imprisonment.[29] I consider that the three offences make up ‘a series of offences of the same or a similar character’ and I am thus able to impose an aggregate sentence of imprisonment.[30]
[29] Crimes Act 1958 (Vic) s 320.
[30] Sentencing Act 1991 (Vic) s 9.
103I consider the objective gravity of this offending to be mid-range considering the injuries sustained by your victim and the circumstances including the duration of the offending.
104The offending in 2016 directed at KA is serious. Your removal of her from the flat where she had sought refuge from you was controlling behaviour. You punched her to the face with sufficient force to break her nose.
105Turning then to BBW. This offending is clearly less serious. It is limited to one day and one punch. Nonetheless it was an entirely unprovoked attack on a man who was in his own flat and doing no more than giving KA a place to stay for the night at a time when she was trying to escape you. BBW suffered some minor injuries.
106The thefts are low level examples of that offence.
107I have sought to impose an appropriate sentence in respect of each individual charge and then considered concurrency and cumulation one indictment at a time. I have then taken one last look at the individual sentences and applied the principle of totality in respect of your offending as a whole so as to reach an appropriate total effective sentence and non-parole period.
Orders
Indictment One
108On the charge of intentionally causing injury to KA (charge 4), you are convicted and sentenced to 12 months’ imprisonment.
109On the charge of recklessly causing injury to BBW (charge 3), you are convicted and sentenced to 6 months’ imprisonment.
110On the charge of recklessly causing serious injury to KA (charge 7), you are convicted and sentenced to 4 years’ imprisonment.
111On the charge of raping KA (charge 8), you are convicted and sentenced to nine years’ imprisonment.
Indictment Two
112On the charge of stalking, you are convicted and sentenced to two years and nine months’ imprisonment.
Indictment Three
113On the charge of theft of the motorcycle, you are convicted and sentenced to six months’ imprisonment.
114On the related summary offence of breach conduct condition of bail, you are sentenced to imprisonment for 2 weeks.
115On the charge of the driving the motorcycle, you are convicted and sentenced to imprisonment for two weeks.
116On the charge of theft of the registration plate, you are convicted and sentenced to four months’ imprisonment.
Indictment Four
117On the three charges of common assault of Ms Mohamad, you are convicted and sentenced to an aggregate term of two years’ imprisonment.
118The sentence in respect of charge 8 on indictment one is the base sentence.
119I order that:
(a) 3 months of the sentence imposed in respect of charge 4 on indictment one;
(b) 2 months of the sentence imposed in respect of charge 3 on indictment one;
(c) 12 months of the sentence imposed in respect of charge 7 on indictment one;
(d) 6 months of the sentence imposed in respect of charge 1 on indictment two;
(e) 1 month of the sentence imposed in respect of charge 1 on indictment three;
(f) 1 month of the sentence imposed in respect of charge 2 on indictment three; and
(g) 12 months of the sentence imposed in respect of charges 1-3 on indictment four;
be served cumulatively on the base sentence and on the other sentences I have imposed.
120The remaining sentences are to be served concurrently.
121The total effective sentence is 12 years and 1 month.
122You will be eligible for parole after you have served 8 years and 4 months in custody.
123Pursuant to section 18 of the Sentencing Act, I declare that the 1,673 days you have served on remand is the period to be reckoned as a period of imprisonment already served under the sentence imposed by the court today. This is to be noted in the records of the court.
124I make the disposal and forfeiture orders sought by the prosecution.
125Any drivers licences you hold are cancelled, and you are prohibited from applying for any further licences for a period of three months.
126Finally, pursuant to s 6AAA of the Sentencing Act, but for your pleas of guilty I would have imposed the following sentences:
(a) Charge 4 on indictment one – 15 months’ imprisonment;
(b) Charge 3 on indictment one – 8 months’ imprisonment;
(c) Charge 1 on indictment three – 8 months’ imprisonment;
(d) Charge 2 on indictment three – 5 months’ imprisonment;
(e) Charges 1-3 on indictment four – an aggregate sentence of 2 years and 4 months’ imprisonment.
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