Director of Public Prosecutions v Ballard (a pseudonym)
[2024] VCC 12
•23 January 2024
| IN THE COUNTY COURT OF VICTORIA AT BAIRNSDALE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN BALLARD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Bairnsdale | |
DATE OF HEARING: | 11–19 October 2023 (Trial) | |
DATE OF SENTENCE: | 23 January 2024 | |
CASE MAY BE CITED AS: | DPP v Ballard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 12 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Rape – Accused then husband of victim – Conviction of one charge after trial.
Legislation Cited: Sentencing Act 1991.
Cases Cited:R v De Simoni (1981) 147 CLR 383; Markovic v The Queen (2010) 30 VR 589; R v Verdins [2007] VSCA 102; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Wakim v The Queen [2016] VSCA 301; DPP v Cooper [2018] VSCA 21; DPP v Fellows [2002] VSCA 58; DPP v Sims [2004] VSCA 129; DPP v Moses [2009] VSCA 274; Mush v The Queen [2019] VSCA 307; DPP v Granata [2016] VSCA 190; DPP v MacArthur [2019] VSCA 71; DPP v Lian [2019] VSCA 75; Ivanov v The Queen [2019] VSCA 219; R v Nikodjevic [2004] VSCA 222.
Sentence: Convicted and sentenced to 5 years and 6 months imprisonment.
Non‑parole period of 3 years and 4 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr C. Oldham | Balmer and Associates |
HIS HONOUR:
Introduction
1Owen Ballard[1] you have been convicted by a jury of one charge of raping your then wife Ava Northfield[2] between June and July 2013. That charge was particularised as introducing your finger into her vagina whilst she was not consenting, and you had no reason to believe that she was, she was asleep at the time.
[1]A pseudonym.
[2]A pseudonym.
2You were acquitted of a second charge of rape of the same victim, where it was alleged you forcefully penetrated her against her will with your penis until you ejaculated in early 2017.
3You were 29 years old at the time of the offending and are now 39. Your victim (your then wife) was 31 at the time of the offending and is now 41.
4The offending is serious and a betrayal of the trust a spouse ought to enjoy with their partner.
5You reached middle age without offending in this precise fashion before, although there are facets of your makeup and history that speak of control and violence towards intimate partners. Those facets manifest in your prior criminal history, or more accurately put, mostly your post-offence subsequent criminal history.
6The only appropriate penalty in this instance is a term of imprisonment with a non‑parole period. The duration and structure of that sentence are explained in the reasons that I am about to read.
The offending
Charge 1 – Rape in 2013
7Ms Northfield said on a date between 25 June 2013 and 15 July 2013 (when your youngest child was approximately two weeks old), she was woken from sleep in the marital bedroom by you digitally penetrating her vagina.[3]
[3]Trial Transcript (12 October 2023) p 31 and following.
8She said in her evidence before the jury:[4]
Well, during the course of that incident, did you say anything to him?---Oh, I did, um, I did say, no. Um, and, um, sort of tried to move him away. But I, um, kept going with it.
All right. Is that something that you wanted to happen on that particular occasion, to be digitally penetrated in those circumstances?---No. I had just given birth. Um, so I wasn't comfortable with that.
[4]Ibid p 33.
9The jury verdict reflects the fact that not only was she not consenting, but you had either known or was aware she was not, or did not give any thought as to whether she was or was not or might not be consenting.
10Part of the Crown case at trial was that you had a tendency to act in a particular way with a particular state of mind, namely to engage in a pattern of sexual violence towards your wife by penetrating her when she was asleep, without her consent.[5] Activity of this kind was said to have occurred around 30 times during the course of the marriage, increasing in frequency towards end of the relationship.[6]
[5]Tendency Notice dated 27 November 2021.
[6]Trial transcript (12 October 2023) pp 28–34 inclusive.
11The tendency was said to not only be evidenced by the inter-relationship between the charges themselves but was also said to be bolstered by a number of uncharged acts of a similar nature to Charge 1. They were uncharged, principally because Ms Northfield said she could not tie those events to any particular date or period of time.
12I will return to this aspect of the evidence in due course.
End of the relationship and the complainant
13The marital relationship was terminated in December 2017.
14Ms Northfield commenced a new relationship in July 2018.8
15In August 2018 you had a conversation with her on the phone about a number of things, which included an apology of sorts to the way that you treated her during the marriage, but your counsel argued that this was not a genuine admission to the charge of rape, and given the verdict on Charge 2, I must accept that this is so.
Complaint to police
16On 4 May 2020, Ms Northfield disclosed to Senior Constable Boote that she had been previously ‘sexually assaulted’ by you (this disclosure was made during the course of an application being made for an intervention order).
17On 6 May 2020, she was contacted by Bairnsdale SOCIT investigators who arranged for a statement to be taken. She disclosed that she had been previously raped. She said at the committal (and trial) that she was reticent to talk to anyone about this as she considered it a very private matter.[7] She persisted with marriage counselling and the like because she wanted her marriage to you to work.[8]
[7]Ibid p 39.
[8]Ibid p 33.
18On 14 July and 29 July 2020, the complainant made a formal police statement disclosing the offences.
Intervention order[9]
[9]Not part of trial, but in Summary of Prosecution Opening and relevant for understanding of these proceedings and other sentences.
19On 28 January 2018, an intervention order was made against you where Ms Northfield was the affected family member. Several variations have subsequently been made to that order. At this stage, that is the making of the order, Ms Northfield had not disclosed the sexual assault because she stated she was ashamed.
20In May 2020, a new intervention order was made against you where Ms Northfield was the affected family member.
Arrest and charge
21On 16 October 2020, you were arrested after surrendering yourself at the Bairnsdale police station.
22A record of interview was conducted on that day. You denied committing any offence against your former wife (including both charges of rape).
23During the interview,[10] you stated:
[10]Exhibit B (Trial): Record of Interview dated 16 October 2020 (‘ROI’).
(a) That there were ongoing issues with sex during the relationship.
(b) That the complainant had ‘cheated’ on you.
(c) That all sexual acts between you were consensual.
(d) That you did not penetrate the complainant whilst she was asleep.
(e) That the complainant was making up the allegations because she wanted you ‘out of the picture’ (whilst she had a new life with a new partner and your two children).
(f) You did not force yourself upon the complainant during the marriage because that was wrong.
(g) You did not have sex with the complainant for about 12 months during the marital relationship.
(h) At some point in the relationship your ‘sex life’ just died.
(i) You did not persist with sexual activity if the complaint said ‘no’.
(j) You did not commit the rape as alleged in Charge 2.
(k) You did recall a phone conversation with the complainant in August 2018 where she accused you of rape and you apologised and cried because you thought you might have done it without realising it (however you stated you were very likely to have been intoxicated at the time).
(l) That you did apologise to the complainant during the phone conversation but was ‘pretty sure’ that you had not raped her.
(m) You ‘completely disagreed’ with the charges of rape.
24In an effort to emphasise to the police just how you would not have raped the complainant in the fashion alleged in Charge 1, you said at Questions 143 and 145:
It wouldn’t have happened. Not two weeks after [Isabel][11] was born. I mean, seriously, she spent 36 hours in labour with [Jasper],[12] [Isabel] just fell out of her. We couldn’t even get … to the hospital in time, yeah. And having just gone two plus years with having [Jasper] around, having absolutely no sex.
…
[11]A pseudonym.
[12]A pseudonym.
Yeah, I would - I would not be the sort of person to do that to someone that I loved, O.K. If she had told me no, that would have been the end of it, simple as that. I would not be forcing myself onto someone else, especially two weeks after giving birth, yeah. I can quite happily say that with a clear conscience, yeah, I would not do that to someone that I love - still love, yeah.
25It was submitted on your behalf that you co-operated with police and participated in a full record of interview. I cannot entirely agree with the proposition that you were co-operative.
26You made blanket denials to all allegations. I must proceed on the basis that at least in part those denials must have been considered to be in some way persuasive or relevant to the jury’s consideration of the charges, but this is not a case where you admitted to an aspect of the offending and/or consistently evidenced an intention to plead guilty on Charge 1 (or even did so in front of the jury), but was regrettably forced to run a contested hearing because the Crown refused to withdraw Charge 2, for instance.
27You maintain your innocence.
28You will not be punished for conducting a trial, I might add, but you are not the beneficiary either of any reduction of sentence on the basis of co-operation or the discount that flows form a plea of guilty, for instance.
Case history
29Having been charged on 16 October 2020, the matter has had a troubled history in coming to a conclusion.
30Whilst waiting for the matter to come on for trial on circuit, post pandemic, the case was adjourned at least twice as it could not be reached.[13]
[13]In both May 2022 and June 2023.
31The matter took a full three years to be determined in October 2023. I accept that this was difficult for you, as it would have been for your victim, but I am concerned that during the delay in having the matter finalised, you continued to re-offend.
Verdict and fact finding
32At trial the defence was that you did not engage in any sexual activity without consent. That is, I add, still your position.[14]
[14]Articulated as recently as in the report of Ms Rebecca Fakhri dated 27 November 2023 at [83].
33I was informed that you accept the verdict in a sense, but do not agree with it, and are actively investigating avenues to appeal it. No sensible argument was posited on this plea about remorse.
34In a way that reflected your interview, it was positively asserted that the victim had fabricated the offending in order to move on with your children and new partner without you.
35This was put to the complainant by Mr Oldham in cross-examination on 12 October as follows:[15]
And that you have not been truthful about these events because you are looking to move on with your life with your new family, is that right?---No.
And you’re motivated to be untruthful about these matters because you’ve subsequently gone on with a new partner and a new child, and you don’t want to have to deal with Mr [Ballard] moving forward, is that right?---No.
[15]Trial Transcript (12 October 2023) p 64, consistent with your ROI at Q84.
36The jury were not persuaded that both allegations that underpinned the charges were driven by such a motive at least.[16]
[16]The acquittal on the second charge can be attributable to a number of considerations, not least of all the rather significant difference in date estimate proffered by the complainant as to the occurrence of Charge 2 – see ibid p 46.
37What is in dispute is the extent to which I am entitled to take into account the full extent of approximately 30 uncharged acts that formed part of the Crown case, that is events said to be similar in nature to Charge 1.
38The Crown case was predicated, or at least in part, founded on the fact that the conduct making up Charge 1 did not come out of the blue but was rather the only incident in a long line of similar events that the complainant could particularise. Charge 1 was not a course of conduct charge.
39That the uncharged events were relied on by the Crown to contextualise the charged event does not mean the jury accepted that they occurred. I cannot be certainly satisfied in those circumstances that they did. A finding that events occurred 30 times is both contested by the accused and is fraught with the possibility of sentencing error. The charge is not a representative charge and the principles in De Simoni[17] would be transgressed, in my view, if I was to approach the task in any other way than to sentence Mr Ballard on the basis that Charge 1 was isolated.
[17]R v De Simoni (1981) 147 CLR 383 at [389] (‘De Simoni’).
Matters personal to Mr Ballard
Background
40You are now 39 years of age. The offending in this matter took place a decade ago.
41You were born overseas and emigrated to Australia with your parents and brother when you were about nine years of age. You are an Australian citizen.
42Both of your parents were working people who were functioning alcoholics. They did not treat you or your brother particularly well. You did not speak to them for seven years because of their alcoholism affecting your children.
43Moreover, you state you were sexually assaulted for four years from the age of five until you were nine.
44Your brother does not speak to you as he blames you for a significant motor vehicle accident in 2004 that I will come to in due course.
45There have certainly been aspects of disadvantage and adversity in your background. It is fair to say that there has been more than a small amount of conflict in your life, extending into your marriage[18] and beyond.
[18]ROI Q38 for example.
Education and employment
46You completed Year 12 and subsequently undertook trade-based apprenticeships.
47Your apprenticeship was disrupted by a serious motor vehicle accident in 2004 when you were 19. You were a passenger in the car. You had completed about 50 per cent of your apprenticeship at the time of the accident.
48After recovering sufficiently to recommence work, you obtained a forklift and truck licence and was able to use these licenses to obtain employment in logistics and manufacturing. You also worked as a trade assistant and a labourer.
49You were a storeman for five years and thereafter operated your own lawn mowing business and gardening business.
50Since the breakdown of your marriage, you have not had stable employment.
51You are currently the full-time carer for your fiancée, Ms Miranda Griffith,[19] who was diagnosed with Multiple Sclerosis. I will refer more to this relationship in due course. I should add, your work history, in part, gives me some comfort in terms of your prospects for reform.
[19]A pseudonym.
Relationships
52You and your former wife met in September 2005. You entered into a relationship before marrying in 2009.
53You were in a 13-year relationship with the victim, and your two children are now aged 13 and 10.
54You describe your relationship with the complainant to Dr Fakhri, whose report I will come to in due course,[20] as one where the complainant was controlling (stating ‘she was the boss’ at Question 48 of your record of interview), and she exhibited a number of behaviours that apparently caused conflict between you. In your description of the relationship was the fact that the levels of intimacy between you had slowed over time, to your frustration.[21]
[20]Exhibit 7 (Plea): Report of Rebecca Fakhri dated 27 November 2023 at [43].
[21]See ROI Q54, where your sex life was described by you as ‘non-existent’.
55You have not seen your children since May 2020 as a result of your offending and subsequent imposition of conditions of a family violence intervention order (FVIO). You found the Family Court difficult to navigate, and the process involved to see your children frustrating and upsetting.
56You are, as I said, engaged to Ms Griffith and have been in a relationship with her for the past three and a half to four years. She has three adult children from a previous relationship.
57As I said, you are her carer. The level of care she requires (and her dependence on you) was not put as amounting to third party hardship,[22] although understandably you will worry about her whilst in prison, increasing the burden on you.
[22]Markovic v The Queen (2010) 30 VR 589.
58Aside from the conflict in your relationship with Ms Northfield, your subsequent relationship with Ms Griffith has been marred by family violence. As one can see when I deal with your forensic history later, you have offended against her as well as your former wife.
59There is an intervention order in place in her favour (in the form of a ‘safe conduct’ order).
60You moved away from Gippsland in 2023, I am told, to Melbourne and I am informed that that brought a degree of stability in your life.
Substance use
61You were heavily medicated on pain killers after the accident, and used cannabis on an ongoing basis until 2018, when you ceased before succumbing to a relapse in 2020. You had stopped again by 2023.
62Between 2010 and 2015, you reported a period of abstinence from alcohol due to having an interlock device installed in your car. In 2018, your alcohol use increased and became problematic. You were in such a state that you were sleeping in your car, drinking constantly — a bottle of wine a day, I am told, or more if you had been able to afford it.
63Quite perceptively from my perspective, you understandably say that you used alcohol as a means of self-medicating depressive symptoms which were the result of the relationship breakdown and distance from your children. You reported to Ms Fakhri you last drank in October 2023, but were frank and insightful enough to acknowledge that your drinking remains problematic.[23]
[23]Exhibit 7 (Plea): Report of Rebecca Fakhri dated 27 November 2023 at [69].
64You claim, without further evidence, that you were introduced to methamphetamine by your wife. I am told that this introduction to methamphetamine resulted in a medication-induced psychosis due to the interplay between the drugs and prescription medication. You were voluntary admitted, in any event, to hospital in 2006 for mental health concerns. Upon your return from interstate where you once moved, you ceased using methamphetamine altogether.
65You recognise still that your substance use has been problematic and worsened your mental health rather than helping it.
66You also acknowledge for a substantial part of your prior criminal history you were intoxicated. More accurately, I will refer to that prior criminal history as matters post-dating this offence. You have never attended a detoxification or rehabilitation program. I note that it is not said to play a part in the offending I am dealing with, but it is still a troubling aspect of your makeup.
67I am encouraged that you attended four or five sessions of Alcohol and Other Drugs (AOD) counselling before your remand.
Forensic history
68You have a criminal history dating back to 2009.
69Although none of your criminal history is sexual in nature, it evidences a persistent pattern of behaviour characterised by conflict in interpersonal relationships with a degree, in my view, of coercive and controlling behaviour.[24]
[24]Relevant summaries of prior matters were tendered as Exhibit B (Plea).
70In 2009 you were charged with exceeding the prescribed concentration of alcohol within three hours and exceed speed limit, and you were placed on a nine-month CCO.
71In January 2019 you were charged with exceeding PCA within three hours, assault, contravention of family violence intervention order (x2), persistent contravention of family violence intervention order and contravening final family violence intervention order (x2), for which you received a 12-month CCO. This offending principally related to Ms Northfield.
72In 2020 you reoffended by committing an indictable offence on bail, intentionally damaging property, use or procure intimidation to a police officer, contravene family violence intervention order (x2), and use intimidation against a law enforcement officer (x3). This offending was truly terrifying. After an upsetting telephone call with Ms Northfield, you were abusive and threatening. You then engaged in frightening behaviour towards police. You barricaded the door and what followed is best described as a siege. You were armed and threatened police and threatened to blow up the house.[25]
[25]Police Summary (Informant Jensen) – part of Exhibit B (Plea).
73You told Ms Fakhri, at paragraph 44, you had spent five months in prison due to Ms Northfield ‘making up’ that you were going to kidnap the children, stating that you were drug and alcohol affected. Police attended your address and you 'lost [his] shit’, becoming extremely aggressive. You actually served five months in prison followed by a 12-month CCO with conditions designed to rehabilitate you.
74In June 2022 you were again charged with criminal damage — intent to destroy property (x2) and contravene final family violence intervention order.
75You had been drinking heavily for days and you had attended hospital for mental health reasons. You went into a rage when you could not locate Ms Griffith at your home when you returned. You caused significant damage (an offence in its own right and a breach of the FVIO in place in favour of Ms Griffith at that time).[26] You again received a CCO, this time 12 months.
[26]Police Summary (Informant Grimshaw) – part of Exhibit B (Plea).
76You breached that CCO in 2022 by again contravening the family violence intervention order protecting Ms Griffith and received another CCO.
77You breached this CCO yet again by assaulting Ms Griffith, resulting in charges including intentionally damage property (x2), behave in riotous manner in public place, contravene family violence intervention order, and commit indictable offence on bail. You were described as behaving erratically and drunk (the latter being a breach of the alcohol exclusion part of the CCO) in August 2022, you received one month imprisonment and a 12-month CCO for this offending.
78In August 2022 you viciously assaulted Ms Griffith, repeatedly kicking her to the head and upper body.[27]
[27]Police Summary (Informant Kymantas) – part of Exhibit B (Plea).
79In June 2023, the above matter was dealt with as a plea of guilty to charges including contravene family violence intervention order, criminal damage and assault. You received three months' imprisonment and were placed on a 15‑month CCO.
80This is part of a disturbing history of a man perpetually in a state of conflict with others, who is not averse to controlling or punishing or otherwise taking out frustration on his partners through intimidation, and at times violence or the destruction of property.
81Until very recently, there had been a history of scant regard to intervention orders or other curbs on problematic behaviour. Moreover, you have not always taken advantage of the sentences designed to assist you and promote your reform. Your progress on the current CCO gives one cautious optimism for change, as does the efforts you have made even in the brief time you have been remanded in this matter, which I will come to in a moment.
Physical and mental health
82As I said earlier, you were involved in a serious motor vehicle accident in 2004. Your brother was too. As a result of that accident, you underwent numerous operations to repair a shattered leg and to address internal injuries, one of which resulted in your spleen being removed. You suffered a broken nose and several hernias as a result of the accident.
83You underwent two years of rehabilitation to relearn motor skills, including walking. In the years since the accident, you have suffered chronic back pain and pain in your hips. You have been subject to a substantial medication regime since the accident.
84I pause to note the state of your physical health is not relied on as increasing the burden of imprisonment.
85Your medical expenses were covered by the TAC. During your recovery you were diagnosed with depression and anxiety.
86From a mental health perspective, you have a history that includes apparently tentative diagnoses of schizophrenia and post-traumatic stress disorder resulting from the motor vehicle accident. I add, the latter being a more firm diagnosis than that of schizophrenia. You instruct your counsel that the schizophrenia diagnosis arises as some of the medication you have been prescribed in the past, but this was not seriously pursued on the plea and does not appear to be supported by the report of Ms Fakhri.[28]
[28]Exhibit 7 (Plea): Report of Rebecca Fakhri dated 27 November 2023.
87The most recent versions of your psychiatric histories is set out in the following reports (the first two being prepared for previous offending):
(a) The report of Carla Ferrari dated 20 December 2018;[29]
(b) The report of Dr Sachin Jindal dated 1 September 2020;[30] and
(c) The report of Rebecca Fakhri dated 27 November 2023.
[29]Exhibit 3 (Plea).
[30]Exhibit 2 (Plea).
88The most current (and from my perspective most useful of the reports), is the last that I mentioned, the report of Ms Rebecca Fakhri dated 27 November 2023.[31]
[31]Exhibit 7 (Plea). Mr Cordy submits I ought to not give much weight at all to Ms Fakhri’s report balking at [73] not sexual history, drawing on it not being isolated. I have dealt with this.
89She says your psychometric results indicate:
(a) Severe depressive symptoms in the fortnight preceding the assessment, with self-report score indicating a major depressive disorder;
(b) Severe anxiety symptoms in the fortnight preceding the assessment and likely to meet the criteria for generalised anxiety disorder;
(c) Indication you do meet the clinical threshold for a diagnosis of complex PTSD;[32]
(d) And finally, you currently meet the criteria for alcohol use disorder.
[32]Ibid [104].
90You were assessed as a moderate risk of future reoffending.
91Relationship issues, low self-esteem and loneliness were assessed as contributing factors at the time of the offending, and potential future risk factors could start to be addressed by access to programs and treatment.
92There is no information regarding the immediate availability of those programs or the quality of the same, in or out of custody, but as I said, I am encouraged by the steps you have already taken whilst on remand waiting sentence.
Verdins principles[33]
[33]R v Verdins [2007] VSCA 102 (‘Verdins’).
93Ms Fakhri indicates there might be a basis for the engagement of the first and fifth limbs of Verdins.
94The Court might consider the causal connection between your mental illness and the offending conduct established by Ms Fakhri’s observations and opinions set out at paragraphs 133 and 136 to 139 inclusive.
95It was submitted on your behalf that the mental impairment arguably existed at the time of the offending and a fair reading of Ms Fakhri’s report establishes a realistic connection between that impairment and the offending and that your deteriorating mental state at the time was causally linked to this offending. Specifically, it is said at [139]:
Taking into consideration Mr [Ballard’s] history, the circumstances leading up to the alleged offences, and his functioning at the time of the offences, several factors likely contributed to his offending behaviour and impaired functioning. The main precipitants appear to be his C-PTSD and substance use, which has led to a deterioration in his mental health and contributed to impulsive, disinhibited, and reckless behaviour. His psychiatric profile, psychosocial adversity, limited coping skills, and lack of appropriate mental health support have also played a significant underlying role in the incidents and in perpetuating his attempts at self-medicating.[34]
[34]I note that this is not a complete explanation for your subsequent offending.
96It is difficult to apply Verdins when one is searching for explanations and causes for the rape of your ex-wife in circumstances where you continue to deny doing so. You have a constellation of mental health issues that are unquestionably of long‑standing duration. You appear to not have the skills to deal with frustration, irritation, depression or the like, and to the extent that these characteristics might have manifested themselves a decade ago when you sexually gratified yourself at your wife’s expense, a very modest reduction to your culpability will be granted.
97With regard to the fifth limb of Verdins, Ms Fakhri observes that imprisonment will weigh more heavily on you based on the combination of your mental health symptomology and the volatility of a prison environment. You have been imprisoned before, as I have noted, but never for an extended duration of the kind that I am about to impose. The point, that is the application of Verdins Limb 5, was conceded by the Crown and I intend on giving it due weight.
98Further, I am concerned that the interruption to current treatment and programs that you have undertaken (which may or may not be replaced by prison programs that are not quite so specifically designed for individual circumstances and conditions) is undesirable and regrettable.
Characteristics of the offending
Background
99The offending occurs during your marriage. The evidence suggests that the degree of physical intimacy between you and your then wife decreased over time and that was something that frustrated you, with your sex life slowing down over time.[35] As I have alluded to already about your ability to deal with frustration and adversity, it certainly appears that there was conflict about your sex life, and you were at pains in your record of interview to claim that you were somewhat emasculated in the marriage. Despite your protestations still that you are innocent, I infer that your frustration of a lack of sexual intimacy got the better of you and you acted on that frustration to satisfy your own needs in violation of Ms Northfield’s bodily autonomy.
[35]There is the suggestion of sex life slowing down at [43] of the Report of Rebecca Fakhri dated 27 November 2023.
Offending itself
100The offending itself is serious, and it is aggravated by it being family violence related.
101Rape must always be regarded as a very serious offence, as indicated by the maximum period of imprisonment available of 25 years.[36] There is no universal or inflexible sentencing principle for the offence of rape, which obviously encompasses a wide range of possible culpability depending on all the circumstances of the offence, and the offender for that matter.
[36]The standard sentence of 10 years came into effect for offence occurring after 1 February 2018. Rape was listed as a category 1 offence (requiring a term of imprisonment to be served unless certain factors in mitigation are present) in 2017.
102Offences that violate the bodily integrity and personal dignity of another person by means of sexual intrusion are serious. Again, at risk of repetition, this is reflected in the maximum penalty available.
103The gravity of a sexual offence depends on the circumstances, obviously, there is no hierarchy of penetration making one offence inherently more or less severe than another. Although digital rape does not involve some of the risks of penile rape, namely disease and pregnancy, that does not mean a particular instance is less serious than another. An assessment of gravity, as always, depends on the facts of the case.
104Moreover, I stress, there is no rule that a rape committed by a partner or former partner is intrinsically more or less serious than one committed by a stranger. In this case, I consider the fact that it occurs within your marriage to represent a grave breach of trust. Your victim was the mother of your children, who had only given birth to your daughter a fortnight before you raped her.
105In assessing the gravity of rape and culpability, the following factors are relevant. They are crude ways in which to determine the gravity of an instant offence, but nonetheless, I have to assess your overall criminality with the following factors in mind:
(a) I cannot discern any existence of premeditation or planning that would aggravate the conduct.
(b) The offending was not aggravated in the sense that it was in the company of another person.
(c) The precise duration of the offending is unclear, but it cannot be said to be prolonged. Persistent and prolonged offending is an aggravating feature likely to heighten the victim’s fear and harm. That is absent here.
(d) This was a single incident of offending absent the aggravating factor implicit in repeated violations over time or in the same episode.
(e) The rape was not accompanied by violence or threats of violence.
(f) No weapon was used, either to force compliance or as the means of raping the victim, but having said that, there was no need to given she was asleep when the offending commenced.
(g) The rape was not accompanied by physical harm, pain, or injury to the victim. That is different from the psychological harm of which I readily infer accompanied such a violation of Ms Northfield.
(h) The gravity of the offending might be moderated as it did not involve unprotected intercourse, carrying with it the risk of unwanted pregnancy.
(i) The offending was not accompanied by acts of degradation or deliberate humiliation.
(j) Taking advantage of a sleeping victim when she cannot protest or resist, is an aggravating, and in my view, a highly culpable act.
(k) The victim said no and moved, and you continued to penetrate her. Ignoring the signs to stop accentuates the gravity of, and your culpability for, the present offending.
(l) There is no principle that sexual offences committed in the context of a previous or existing relationship are more or less serious than offences committed by a stranger. The victim was your then wife, she was entitled to your love and affection, and if not that, she was certainly entitled to trust that you would not betray her by violating her in the way that you did.
(m) Further, this offending took place in your joint home where Ms Northfield was entitled to feel safe. This is another aspect of your breach of trust.
Current sentencing practices
106Sentences for serious sexual offences have increased in recent years; most significantly for rape following the decisions in Dalgliesh[37] which established that current sentencing practices were inadequate and that current sentencing practices are not a controlling consideration in the sentencing process.
[37]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428 (‘Dalgliesh’).
Harm
107The law recognises that sexual offences are crimes of violence that cause appalling, and often irreparable, psychological and physical harm to victims.
108Rape is an intensely personal crime. The effects on a victim are not just those that flow from any physical invasion of their person and security, but also from the more intangible loss of their rights and freedoms. This significant impact of rape on victims needs to be given proper weight in sentencing; it cannot be overlooked or undervalued. Even in the absence of a victim impact statement, which is the case here, I readily infer that your ex-wife suffered and acutely felt the violation and betrayal that your offending involved.
109At risk of labouring the point, sexual offences that involve a breach of trust,[38] or which occur in the victim’s home[39] where they have a right to feel safe are particularly egregious, and that is the case here.
[38]DPP v Coffey [1999] VSCA 146, [3], [29]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37, [48] (‘Heathcote’); Wakim v The Queen [2016] VSCA 301, [52]; DPP v Cooper [2018] VSCA 21, [71].
[39]See, eg, DPP v Fellows [2002] VSCA 58, [37]; DPP v Sims [2004] VSCA 129, [13] (Batt JA); DPP v Moses [2009] VSCA 274, [22] (‘Moses’); Heathcote [2014] VSCA 37 [48]; Mush v The Queen [2019] VSCA 307, [71] (‘Mush’).
Sentencing purposes
110The parties were in agreement that in sentencing for sexual offences of this kind, courts regularly emphasise the following:
(a) General deterrence;[40]
(b) Specific deterrence;[41]
(c) Just punishment;[42]
(d) Protection of the community;[43]
(e) Denunciation,[44] and
(f) Rehabilitation — especially in cases of historic offending might be a factor in mitigation but each case, of course, turns on its own circumstances.
[40]Moses [21]; DPP v Granata [2016] VSCA 190, [37]–[39], [122] (‘Granata’); DPP v MacArthur [2019] VSCA 71, [68] (‘MacArthur’); DPP v Lian [2019] VSCA 75, [59] (‘Lian’); Ivanov v The Queen [2019] VSCA 219, [153]–[154] (‘Ivanov’);
[41]Moses [2009] VSCA 274 [21], [59]; Granata [2016] VSCA 190 [37]–[39]; Lian [2019] VSCA 75 [59].
[42]Moses [2009] VSCA 274 [21], [59]; Lian [2019] VSCA 75 [59]; MacArthur [2019] VSCA 71 [69]; Ivanov [2019] VSCA 219 [153]–[154]; Mush [2019] VSCA 307 [93].
[43]Moses [2009] VSCA 274 [21], [59]; Granata [2016] VSCA 190 [37]–[39], [122]; MacArthur [2019] VSCA 71 [68]; Lian [2019] VSCA 75 [59].
[44]Granata [2016] VSCA 190 [37]–[39]; MacArthur [2019] VSCA 71 [68]; Lian [2019] VSCA 75 [59]; Ivanov [2019] VSCA 219 [153]–[154].
Post offence
Delay
111There were delays in the reporting and investigation of this matter beyond your control, though I add, they are not uncommon in cases of this kind where there is an obvious reluctance to complain on behalf of victims.
112The trial of the matter has not been reached on at least two occasions, and this was also beyond your control.
113There are two limbs to delay as a mitigating factor:[45]
(a) The first is the unfairness to you, in that the charge has been hanging over your head for a protracted period of time due to circumstances beyond your control; and
(b) Whether during the period of delay you have made progress towards rehabilitation and prospects of ongoing rehabilitation.
[45]R v Nikodjevic [2004] VSCA 222 at [22].
114It was submitted on your behalf that delays in this matter have resulted in the matter hanging over your head for a protracted period of time for reasons beyond your control.
115For clarity, the purpose of this submission by Mr Oldham was not to criticise the complainant, police, prosecution or the Court, it was submitted, though, that the pandemic and the excess workload of regional courts contributed to this delay in this matter and these issues are beyond your control. Accordingly, it is open to consider the first limb of delay in sentencing you, and I do so.
116Your acquittal on the second charge is demonstrably that you absolutely had an arguable case with reasonable prospects of success and your election to contest the matter was not unreasonable in the circumstances. Having said that, you did not plead guilty to the first charge, that is the one that you were convicted of.
117From a rehabilitation perspective, the intervening period between the rape of your wife and the time of sentence has been punctuated by other offending. I have dealt with elsewhere that other offending under the heading 'forensic history'.
118Up until your remand before Christmas, you were serving a CCO that was imposed in June of last year and will expire in September of this year. This is because the offending where the informant is Kymantas, where you breached the family violence intervention order, committed criminal damage and assault, resulted in that sentence.
119The CCO had the following conditions:
(a) Supervision;
(b) Mental health treatment;
(c) Alcohol counselling; and
(d) Programs designed to reduce the risk of reoffending.
120Ms Jessica Harris provided an email which was tendered on your behalf. She is from the Office of Corrections.[46] She indicates that:
[Mr Ballard] is currently complying well with this order and has incurred no absences. Mr [Ballard] engages well when he attends Supervision appointments and offence specific discussions are held along with ways in which he can reduce his risk of reoffending (specifically in relation to the offending on the Corrections order).
[46]Exhibit 4 (Plea): Correspondence of Jessica Harris dated 25 October 2023.
121I was further provided with a progress report about the CCO dated 21 November 2023,[47] which confirmed that your progress remained positive, and you remain positive and committed.
[47]Exhibit 5 (Plea): Updated CCO progress report dated 21 November 2023.
122You will not be able to complete the CCO given the sentence I am about to impose. I understand that Community Corrections Service will most likely make an application for the cancellation of that order with no further action to be taken by the magistrate. The offending in this matter does not contravene the CCO and there is no further offending that engages the cancellation and resentencing exercise in that jurisdiction.
123I have attached a degree of weight to this progress, without which I would take a very skeptical view of your prospects for reform. You have prospects for reform if you can avail yourself of the specialist services inside and outside of prison upon your release. I am encouraged that that process has commenced.
Matters of sentencing principal
Prospects of reform
124Dr Fakhri says:
The main risk factors increasing his risk profile relate to psychological adjustment issues, that is, the presence of a major mental disorder, relationship problems, employment problems, and minimisation/denial of offending. Relationship problems are a longstanding risk factor as it was rated present in the past and recent timeframes, though his present relationship problems relate more so to non-intimate relationships, as he remains in a stable relationship. Interventions should be targeted at these areas to reduce the risk of offending in the future.
In addition, Mr [Ballard’s] denial and avoidance of his offending increase his risk though in circumstances where an individual has consistently pled not guilty this can elevate their risk profile unduly and it is in fact the case that in one of the offences he was found not guilty.[48]
[48]Exhibit 7 (Plea): Report of Rebecca Fakhri dated 27 November 2023, [119]–[120].
125It is submitted that your progress on the CCO is indicative of positive prospects for reform.
126I remain somewhat concerned about the pattern of behaviour exhibited towards intimate partners, as I have detailed in your forensic history, but encouraged enough by recent progress. Even though your subsequent offending is not sexual in nature, it is exclusively confined to intimate relationships and terms of imprisonment have thus far not completely deterred you from abusing those close to you. The women in your life are not objects for you to treat as you like, whether it is by way of gratification or abuse in times of distress or upset. I consider specific deterrence has a very obvious role to play in the sentence I impose.
127Your prospects of reform are arguably enhanced by your motivation to maintain your current relationship, as well as the prospect of spending any time with your children in future.
128Yesterday I was provided with an email that I have exhibited from your counsel noting that:[49]
[49]Exhibit 8 (Plea): Email Update Regarding Courses dated 22 January 2024.
(a) You are currently housed at Karreenga, which is a protection prison. I note that it is not advanced on your behalf that that adds to the burden of imprisonment. You have completed induction and OH&S training and have also commenced employment in bakery in the prison from 15 January 2024.
(b) You are engaged in the following courses:
(i)Positive parenting program for children under and over the age of 13;
(ii)Raising competent children;
(iii)Raising resilient children;
(iv)Power of positive parenting;
(v)Atlas programme; and
(vi)Accredited domestic abuse prevention training.
(c) You have commenced other personal development courses namely:
(i)Alcohol and me;
(ii)Cannabis and me;
(iii)Changing gears;
(iv)Know the score; and
(v)Dual Diagnostic, which is a drug and alcohol group.
129You have engaged with AA and attend weekly meetings on Mondays via Zoom.
130Though you have not yet received psychological treatment or care since your remand, you are on the wait list for Psychology and Corrections Mental Health Services.
131You are awaiting ultrasound and physiotherapy to engage with further treatment for your long-term injuries.
132Ms Griffith continues to support you and you have daily telephone contact and weekly contact and Zoom visits.
133The foregoing suggests to me that you are willing to do all you can to improve your circumstances and ability to live in the community, offence-free, once released.
134Your prospects will be enhanced by the very sensible suggestions made by Ms Fakhri in her conclusions at paragraph 140(d), that is, following intensive, targeted and multi-disciplinary approach to treatment, specialised counselling to remain abstinent from substances, encouragement and scaffolding in the community related to activities that are meaningful, which is especially important now that you are not working, and appropriate, and I add, uncontentious notice of having ongoing supervision once you are released.
Deterrence, just punishment, denunciation and community protection
135At risk of repetition, deterrence, both specific and general, just punishment, denunciation and community protection are all key sentencing considerations in this matter.
Formulation of sentence
136In formulating an appropriate sentence in your case, I have had regard to current sentencing practices as one of the many factors I must have regard to. Neither your counsel, nor counsel for the Crown, referred me to any comparable cases, but I have nonetheless had regard to decisions of this court and the Court of Appeal in order to give appropriate weight to current sentencing practices.
137Sentences of other courts are not binding precedents but merely historical statements of what has happened in the past,[50] and current sentencing practices represents just one of the factors I need to be aware of. Clearly, sentences for the crime of rape, particularly in recent years, have involved significant sentences of imprisonment of some years’ duration.
[50]Dalgliesh (2017) 262 CLR 428 [83].
138In formulating an appropriate sentence in your case, I have had regard only to the purposes for which sentences must be imposed. Previous sentencing decisions have made it clear the importance of general deterrence and protection of the community in relation to sexual offences. I am satisfied in the circumstances of this case, the need for specific deterrence and the need for community protection is somewhat decreased, but not entirely. There is also a need for any sentence to facilitate your rehabilitation as appropriate. Ultimately, your serious offending must be denounced on behalf of the community and you must be justly punished for your crimes.
139Finally, in fixing appropriate sentence for you and allowing for a parole eligibility component, I have had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentence is imposed.
140The purpose of parole is to provide for mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Due to the constellation of matters raised in mitigation in your case, I have concluded it is appropriate to allow you a meaningful parole period in your sentence. Accordingly, the non-parole period, that is, the period of imprisonment to be served before you become eligible, will be somewhat shorter than might be considered usual, to take into account the mitigatory factors in your case and to facilitate your reintegration into the community and hopeful ultimate rehabilitation.
Sentence to be imposed
141I come now, Mr Ballard, to the portion of my sentencing remarks where I pass sentence. As I have said earlier, there is no alternative to me but to impose a head sentence and non-parole period to be served immediately.
142On Charge 1, rape, you are convicted and sentenced to five years and six months’ imprisonment.
143I order that you need to serve a period of three years and four months before becoming eligible for parole.
Pre-sentence detention
144Pursuant to s 18 of the Sentencing Act 1991, I declare a period of 39 days have already been served by way of pre-sentence detention and I will order this period be administratively deducted from your sentence.
145There are no other orders, Mr Cordy. Is there anything that requires clarification, gentlemen?
146COUNSEL: No, Your Honour.
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