Director of Public Prosecutions v Bangoura
[2023] VCC 521
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01207
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD SOULEYMANE BANGOURA |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2022 | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Bangoura | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 521 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence - Aggravated Burglary – Rape – Threat to inflict serious injury – Stalking – pleas of not guilty – risk of deportation – delay – serious sexual offender – Verdins principles 5 and 6.
Legislation Cited: Migration Act 1958 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Zhao v The Queen [2018] VSCA 267; Hague v The Queen [2022] VSCA 17; DPP v Salvaggio [2022] VSCA 88; Stafford v The Queen [2022] VSCA 229; The Queen v Verdins (2007) 16 VR 269; DPP v Todd [2019] VSC 585; Jurj & Miftode v The Queen [2016] VSCA 57.
Sentence: 11 years and 6 months’ imprisonment with a non-parole period of 8 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | C. Foot | Office of Public Prosecutions |
| For the Accused | C. Morgan | Stary Norton Halphen |
HIS HONOUR:
1Richard Souleymane Bangoura, on 1 August 2022, you were found guilty by a jury of the following offences.
·Charge 1, threat to inflict serious injury;
·Charge 2, aggravated burglary with the intention of committing an assault;
·Charge 3, rape;
·Charge 4, rape;
·Charge 5, threat to inflict serious injury; and
·Charge 6, stalking.
2The victim of each of your offences was a then 71 year old woman, whom I shall identify only by the initials ES, so as to protect her anonymity.
3Charges 1 to 5 arise out of an incident that took place at the unit of ES on 2 November 2018. Charge 6 occurred over the period 2 November 2018 to 7 December 2018.
Circumstances of offending
4The factual basis upon which you fall to be sentenced is based on the evidence led by the prosecution at trial.
5At approximately 11:40pm on 1 November 2018, ES attended a hotel near where she lived. While there she played the poker machines.
6You also attended the same venue, arriving at approximately 12:33am on 2 November 2018. You stayed until 2:01am when you were seen on CCTV recordings to walk to your car and drive off in a northbound direction.
7At 2:39am on 2 November, ES left the venue and walked to her home, some five minutes away. ES was in the process of putting her key into the front door lock when you approached her from behind. You were wearing a high visibility top and had some netting material covering your face. You were holding a black handled knife with a blade measuring approximately 30 centimetres in length.
8You put the blade to ES’s ribs and said, “Don’t scream or I will stab you.” You then moved the knife and placed it against ES’s throat, and with your other hand you covered her mouth. This conduct forms the basis of Charge 1.
9You then moved ES inside her unit and told her to get undressed. This conduct is the basis of Charge 2. You stood there with the knife as you watched her undress.
10You asked ES where the bedroom was. She pointed to her bedroom. You both went to the bedroom and you told her to get onto the bed. You told her to open her legs which she did.
11You had also undressed, removed the mask you were wearing, and got onto the bed where she lay. You then penetrated her vagina with your penis. You had difficulty inserting your penis fully into her vagina and your action caused her pain. She told you that you were hurting her but you kept pushing. This is an uncharged act. You do not fall to be sentenced for this conduct.
12After approximately two or three minutes, ES told you that she needed to go to the toilet and asked if she could put on her nightgown. You said ‘No’. ES then walked to the toilet and you followed. She asked if she could close the door and you told her she could not. You watched her while she was in the toilet. When she finished, you told her to get back onto the bed which she did.
13When back in the bedroom, you told ES to open her legs and you tried to penetrate her. You were not able to do so and you asked her whether she had any cream. ES stated she had hand cream and you reached over picking up the cream that was on a bedside table, rubbing it onto your penis and around ES’s vagina. You again tried to penetrate ES’s vagina with your penis and this time you were able to do so, although not fully. ES told you that you were hurting her. You removed your penis from her vagina saying that you were nearly ready to ejaculate. You then again penetrated her vagina with your penis. This went on for approximately 3 to 4 minutes before you withdrew. These two acts of penetration form the basis of charges 3 and 4.
14In order to get away from you, ES said that she again needed to go to the toilet. You again followed her into the toilet. After she finished you told her to get back onto the bed. You both then lay on the bed for a period of time before ES asked if she could put on her nightgown. You said she could. After she dressed, you both went into the lounge room as you had asked her for a cigarette. You put your clothes on and then had a cigarette.
15In the lounge room, you asked ES her name, which she told you. You said your name was Michael. You then left her premises but before doing so, you told her that if she called the police you will come back and cut her up. This threat forms the basis of Charge 5.
16Although ES said that the entire incident lasted between one and a half to two hours, and that is how it felt to her, I will sentence on the basis accepted by both counsel, and this assumes the correctness of the clock inside her unit, that the incident lasted between 25 to 35 minutes.
17The charge of stalking is based on you attending at ES’s unit on the evening of 2 November, 3 November, 5 November, and the early morning of 7 December 2018.
Victim Impact Statement
18In her victim impact statement, ES states that your offending has had a significant mental and emotional impact. Even to this day she remains hypervigilant, constantly looking behind her and checking. If she sees anyone that reminds her of you, her stomach turns and the memory of what you did comes flooding back. She continues to experience flashbacks, her sleep is disrupted and she is sensitive to any noise in her apartment. She keeps a knife in her bedroom for protection. Your offending has also impacted her social life, which before your offending she described as good. ES states that she now spends more time at home than what she did before you offended against her. She has lost her trust in others.
Personal Circumstances and Background
19You were born in Guinea in March 1983. You are the eldest child in a sib-ship of four. Your parents separated when you were 11 years of age.
20You told, Simon Candlish, consultant psychologist, that you were raised in abject poverty. As the firstborn child, you said you took responsibility for the care of your younger siblings. You said that your father was physically abusive towards your mother and you witnessed “beatings and yelling”. At times you tried to intervene only to be thrown aside by your father.
21You said you often attended school hungry due to your mother being financially dependent on your father. Following your parents’ separation, your mother re-partnered and had two more daughters. You described your stepfather as “a beautiful man”.
22You completed your primary and secondary education in Guinea. You reported being bullied at school, but you also acknowledged having been a bully towards some of your peers. On completing your secondary schooling, you moved to France for the purpose of study, and completed a Bachelor of Computer Science degree. Since then you have held a number of jobs including, in a helpdesk support role for a period of five years. You also worked for 14 months in Guinea at the Department of Foreign Affairs.
23You came to Australia in 2014 to attend a HIV/AIDS conference. You did this at the request of your cousin who could not attend due to poor health and difficulties speaking English. Although not having any desire to live in Australia, you applied for permanent residency as you wanted the opportunity to develop your English language skills. While in Australia you have variously worked in a factory, in a sales position, and as a field technician for an IT company from 2016 until the date of your arrest. You also worked in an asset analyst position for 18 months from 2016.
24You reported having been in five long term intimate relationships and you have a daughter who is now nine years of age. She lives in France with her mother. You have not seen her since she was eight or nine months of age.
25You have not used illicit drugs but have engaged in heavy alcohol drinking since approximately 2014. Importantly, you have no previous criminal convictions.
Psychological Report
26A comprehensive psychological report, dated 9 October 2022, was prepared by Simon Candlish. He assessed you over four days in late September and early October 2022.
27You maintained your denial of the offending, suggesting to Mr Candlish that he read the evidence you gave in court and “let the facts speak for themselves.” You said you had known the victim since 2014 and denied any sexual attraction towards her. You said that your intimate partner from late 2015 until 2019 had even met the victim. This is contrary to the evidence of the victim, which evidence I accept, that she did not know you.
28You acknowledged to Mr Candlish having alcohol issues and depression, as well as gambling problems. You described a history of depression. You have never before been admitted into psychiatric care or prescribed antidepressant medication. You told Mr Candlish that you had twice attempted suicide in prison.
29In Mr Candlish’s opinion you meet the criteria for Alcohol Use Disorder (moderate severity, in remission, controlled environment), Persistent Depressive Disorder (mild severity), Gambling Disorder, and a mild Personality Disorder, with prominent features of disinhibition. Mr Candlish stated that the relevant personality disorder trait domains include irresponsibility and impulsivity, some signs of impaired empathy and some evidence of dishonest disclosures. Your index offending also reveals callousness and disregard. As for your risk of reoffending, you are considered to fall into the “moderate-high” risk category for sexual offending, assuming being released into the community with no further interventions designed to increase your ability to manage your risk. Your denial of your offending has relevance, he said, as it limits your self-awareness and your capacity to engage in discussions about effective risk management.
30At paragraph 131 of his report Mr Candlish stated:
Mr Bangoura’s destabilised lifestyle has contributed to a sense of alienation, disenfranchisement and potential underlying anger. He has experienced ongoing stress associated with the effects of alcohol and gambling and his distorted attitudes about his situation. His personality-based issues reduced his capacity for self-awareness and effective coping. He might have pursued sexual offending as a form of emotional release, stimulation, and soothing in this context. His depressed state has likely led to deterioration in his state of mind, with increased egocentricity, impaired empathy and a compromised thought process.
31Mr Candlish considered you to be more vulnerable in prison due to your social and emotional underdevelopment. Your depression and personality impairment render you prone to suicidal ideation. You appear to struggle with coping and effective planning regarding the management of your mental health. Furthermore, he considers that your depression is likely to deteriorate in the context of a lengthy term of imprisonment.
Submissions
32Mr Morgan, who appeared on your behalf, conceded that the objective gravity of your offending and your moral culpability are both high.
33In written submissions, he relied on the following matters in mitigation of penalty:
i)your inevitable deportation, at the conclusion of any sentence;
ii)you have no prior criminal history;
iii)your prospects for rehabilitation;
iv)the harsh conditions of your remand since 7 December 2018;
v)the delay between your arrest and sentencing;
vi)your vulnerability in prison based on your social and emotional underdevelopment;
vii)Mr Candlish’s opinion that your depressive illness is likely to deteriorate in the context of a lengthy prison sentence; and
viii) the principle of totality.
34In oral submissions, Mr Morgan submitted that on the assumption that you will be sentenced to at least 12 months’ imprisonment, your visa will automatically be cancelled by operation of s 501(3A) Migration Act 1958 (Cth). You, it would seem, do not plan to appeal any decision to revoke your visa, as you hope to return to Guinea to reunite with your mother and daughter. Mr Morgan submitted, however, that I should have regard to your knowledge that you may not get parole as a factor that will weigh heavily on you. Mr Morgan submitted that it appears to be the policy of the Parole Board to not grant parole to prisoners facing deportation on the basis of the difficulty in monitoring such persons placed in immigration centres or overseas. Mr Morgan referred to the Court of Appeal’s decisions in Zhao v The Queen[1] and Hague v The Queen[2]. Whether such a consideration is a factor that will mitigate sentence was not decided by either case. However, in Hague, the Court stated:
… it is unnecessary to consider the ‘vexed question[s]’ of whether an allowance ought be made for any reduced prospects of being granted parole[24] (which was not directly advanced by the applicant), or whether the applicant’s perception of these reduced prospects ought merit some allowance as adding to the burden of his incarceration (which was directly advanced). Without deciding this, the former question at least would seem to confront the obstacle of s 5(2AA)(a) of the Sentencing Act, and the latter question is subsumed by the other more prominent factors that add to the applicant’s custodial burden.[3]
[1] [2018] VSCA 267
[2] [2022] VSCA 17
[3] Ibid [32]
35With regard to your prospects of rehabilitation, Mr Morgan relied on the fact that you have no prior convictions; you have tertiary qualifications; have had a steady work history; have some family support; and you have maintained healthy relationships in the past. He also pointed to Mr Candlish’s assessment that you appear interested in addressing some of your issues and “could be receptive to treatment.”
36Mr Morgan submitted that the totality principle looms large as a sentencing consideration. In particular, he said that the entire incident involving charges 1 to 5, occurred over a 25 to 35 minute period. The offending in charges 1 to 5 represented a “single transaction” and the two charged acts of rape occurred in short succession, with no significant break in conduct.
37While Mr Morgan acknowledged that the crime of rape is inherently violent, he submitted there was no overt act of violence and the victim was not physically injured. However, Mr Morgan conceded that the presence of the knife was also relevant to the rape charges. He also submitted there was no separate acts of humiliation, and that you acted alone.
38Regarding the stalking charges, Mr Morgan accepted the prosecution submission that they fell in the mid-range level of seriousness.
39In written submissions, Ms Foot, who appeared on behalf of the Director of Public Prosecutions, noted that rape is a category one offence under the Sentencing Act 1991. It is also a standard sentence offence for which the standard sentence is imprisonment for 10 years. She noted, correctly, that the standard sentence is a guidepost and does not affect the obligation of the court to engage in the process of instinctive synthesis sentencing, having regard to a number of considerations including the gravity of your offending and your level of moral culpability.
40In relation to the “serious sexual offender” provisions of the Sentencing Act, Ms Foot submitted that under the Act, charge 1 of threatening to inflict a serious injury, is a “violent offence”, and charge 3 of rape, is a “sexual offence”. Ms Foot submitted that charges 1 and 3 arise out of the one course of conduct, and hence, pursuant to section 6B(2) of the Act, if you are sentenced to a term of imprisonment on charges 1 and 3, you fall to be sentenced as a “serious sexual offender” in relation to charge 4. Accordingly, should that occur, when sentencing you on charge 4, I must apply sections 6D and 6E of the Sentencing Act.
41Ms Foot submitted where the victim was threatened and accosted in her own home, and was undoubtedly “entirely consumed by the fear that she may be hurt unless she complied,” the rape charges fall at the most serious end of the spectrum.
42Ms Foot set out a list of factors that reflect the gravity of your sexual offending. I set out those factors in brief form as follows:
i)your offending was premeditated, planned and brazen;
ii)you were armed with a knife and had a face covering which you removed once inside the victim’s apartment;
iii)following the incidents on 2 November, you returned to the victim’s apartment on a further four occasions in an attempt to ensure that she took your threats seriously;
iv)you acted alone;
v)your attack upon the victim was protracted, lasting from approximately 2:45am to 3:20am;
vi)the sexual component of your offending was predicated on the threat of the use of violence against the victim (although you fall to be sentenced separately in relation to charges 1 and 5);
vii)a knife was produced in order to force your way into the victim’s apartment and to ensure she complied with your sexual demands;
viii) the victim did not suffer any injuries of significance, but described the intense pain she felt each time you penetrated her vagina;
ix)the entirety of your conduct against the victim was, by its very nature, exceptionally humiliating and degrading;
x)you did not use a condom, and thus exposed the victim to the risk of disease;
xi)the victim was highly vulnerable, given her age, small stature, and lived alone; and
xii)you ignored the victim’s protests that you were causing her pain. Instead of ceasing your conduct, you attempted to lubricate her vagina using hand cream.
43Ms Foot also submitted that the charge of aggravated burglary has a number of aggravating features. You committed the offence using a weapon, a knife, for the purpose of perpetrating a serious sexual assault upon a vulnerable victim. You were disguised and you physically confronted the victim in her own home. There was a level of planning and premeditation to your offending.
44The two charges of threatening to inflict serious injury, it was submitted, are also particularly serious examples of this offence. They instilled terror in the victim, and were done to facilitate your sexual offending and to prevent ES from reporting the matter to police. In relation to the charge of stalking, Ms Foot submitted that it fell within the “mid-range” of seriousness. You attended at the victim’s front door and instilled a real fear in her.
45Ms Foot submitted that your moral culpability is high. The offending, she said, was predatory, protracted and committed entirely for your own sexual gratification. There is nothing, she submitted, that reduces your moral culpability.
46Ms Foot also pointed to your lack of remorse and insight into your offending.
47Ms Foot accepted that regard is to be had to the fact you have no prior criminal convictions, the significant delay due primarily to the COVID-19 pandemic, that this is your first sentence of imprisonment, and the impact of the pandemic on prisoners.
48Ms Foot emphasised the importance of general deterrence, denunciation and just punishment. She also submitted that specific deterrence plays an important role given your denial of your offending and the absence of remorse. Protection of the community is also an important sentencing consideration, particularly given that the serious offender provisions are enlivened in relation to charge 4.
49As for your prospects of rehabilitation, Ms Foot submitted that given Mr Candlish is of the opinion you represent a moderate to high risk of reoffending, coupled with your denial of the offending, your prospects must be viewed as “guarded”.
50Ms Foot submitted that notwithstanding section 6E Sentencing Act 1991, the principles of proportionality and totality will require a degree of concurrency between the sentence imposed on each of the charges.
51Ms Foot provided a table of comparative cases since the standard sentencing regime commenced operation in relation to the offence of rape.
Sentencing Considerations
Nature and Gravity of Offending
52The maximum penalties that may be imposed in respect of offences of rape and aggravated burglary show, with unmistakable clarity, the seriousness with which Parliament views these types of offences. The maximum penalty for rape and for aggravated burglary is 25 years’ imprisonment.
53The offence of making a threat to inflict serious injury carries a maximum penalty of 5 years and the offence of stalking has a maximum penalty of 10 years’ imprisonment.
54It is frequently said by courts that rape is an inherently serious crime. It represents an invasion of the integrity of the victim’s body without her consent. It is an act of violence whether or not it is accompanied by other violent conduct.
55In my opinion, the rapes of ES are serious and fall within the higher end of the range of seriousness. This is so for a number of reasons.
56You deliberately targeted a vulnerable, defenceless, 71 year old woman. The rapes occurred in her own home, on her own bed. Your offending was not spontaneous. It is not clear whether you followed ES home from the hotel or whether you were already at her unit waiting for her to return. Either way, your offending against her was pre-meditated and involved some planning. You armed yourself with a knife and had a mask of some sort to conceal your identity. After gaining entry to ES’s unit, by forcing her a knife point, you told her to undress, and show you the bedroom.
57The offending occurred in the small hours of the morning. It occurred over a not insignificant period of time. You were in ES’s unit between approximately 2:45am and 3:10 or 3:20am. Understandably, it felt much longer to her.
58You twice raped ES. These rapes occurred in relatively quick succession. You did not wear a condom and you thus exposed her to the risk of disease. ES complained to you several times that you were hurting her but this did not cause you to stop your conduct. She experienced a lot of pain but you kept forcing yourself on her. You ignored her pleas.
59When ES asked if she could dress before going to the toilet, you refused her that dignity. You then followed her into the toilet. She asked if she could close the door but you refused, and you watched her. You did that twice. You humiliated ES over and above that necessarily involved in the very act of rape.
60While it is not clear what you did with the knife while you were raping ES, I accept that your earlier production of the knife and your threats of violence to gain her compliance, must have operated as a continuing threat of harm in her mind.
61Many of the factors outlined in Jurj & Miftode v The Queen[4] that mark the gravity of the offence of rape are here present.
[4] Jurj & Miftode v The Queen; DPP v Jurj & Miftode [2016] VSCA 57
62I take into account that you acted alone and apart from the pain caused to ES, there was no physical injury caused to her.
63The aggravated home burglary is also a serious instance of a serious crime. Your intention at the point of entry, I find, was to commit a sexual assault upon ES. This is apparent from your demand, just after gaining access to her unit, that ES undress and that she show you the bedroom. You were armed with the knife which you first held to ES’s ribs and then her throat to gain entry. The use of the knife is an aggravating feature of charge 2.
64Your threats to inflict serious injury to ES, by stabbing and by cutting her up, were all the more real given the production and use of the knife. I accept the prosecution submission that your threats were designed to facilitate your sexual offending and to instil terror in ES so that she would not report your crimes. You followed up on those threats by stalking her. Your knocking on her door late at night or in the small hours of the morning, and her seeing you through the peep-hole and recognising you as her assailant, filled her with terror. You did this on four occasions over the course of the following month. Your behaviour in stalking ES is serious because you intended to arouse fear or apprehension in ES for her physical safety.
65Your conduct overall was calculated, predatory, and brazen. ES was left terrified. The removal of your mask before raping ES further reflects the brazenness of your conduct. I accept that you committed these offences entirely for your own sexual gratification. Your moral culpability for the entirety of your offending was high.
66In sentencing you I am mindful of the need to avoid double punishment. The production of the knife is an aggravating feature of charge 2, although its presence no doubt operated to effect compliance with your demands in respect of the rapes and the threats to inflict serious injury. The aggravated burglary was committed so that you could commit sexual assaults, as was the initial threat to inflict serious injury.
67As was the case in DPP v Salvaggio, there is “an obvious overlap across the offences.”[5] This consideration is relevant to the issues of totality and proportionality.
[5] DPP v Salvaggio [2022] VSCA 88, [120]
Victim Impact
68Your offending has had a significant and devastating impact upon ES. She continues to suffer psychologically and emotionally as a result of the offences you committed. You not only violated her physically but you also violated her right to feel safe, in the community and in her own home. You have robbed her of the independence and freedoms she once enjoyed.
69As was submitted by Ms Foot, the significant impact of rape upon victims must be given proper weight in sentencing.
Rehabilitation Prospects
70You pleaded not guilty to the charges, as was your right. ES was required to give evidence at both a committal hearing and at trial. You are not entitled to any of the benefits that follow pleas of guilty.
71Notwithstanding the evidence, you maintain that you did not commit the offences of which you were found guilty. As stated by Mr Candlish, your denial is relevant as it limits your self-awareness and your capacity to engage in discussions about effective risk management.
72Your denial of offending also demonstrates an absence of remorse for your conduct and a lack of insight into your offending and its impact on the victim.
73While your pleas of ‘not guilty’ do not aggravate the sentence to be imposed, I may have regard to those pleas in my assessment of your prospects of rehabilitation.
74As to your prospects, and notwithstanding the matters put on your behalf, including the fact that you have never before been in trouble with the law, I consider that unless and until you undertake the treatment and interventions recommended by Mr Candlish, your prospects are no better than “guarded”. Mr Candlish’s opinion that you fall in the moderate to high risk category for sexual offending provides little cause for optimism.
Deportation and Parole
75With regard to Mr Morgan’s submission concerning the uncertainty of whether you will be granted parole at the expiry of the non-parole period I intend to impose, I can readily accept that such a state of uncertainty, based on your immigration status, will add to your anxiety and the burden of your incarceration. While I do not necessarily accept that this is the policy of the Parole Board, I accept that there is a basis for such a perception and that this is how you perceive the Board’s policy to be.
76I am prepared to make some allowance in the sentence to be imposed for this uncertainty and the anxiety it will produce.
Delay
77You have been on remand since the 7 December 2018. There has been a significant delay between the date of your arrest and your sentencing, brought about by the pandemic. It is not suggested that the delay is in any way attributable to you.
78In Stafford v The Queen[6] the Court considered that the delay of over 4 years between the commission of the offences and sentencing, none of which was attributable to the appellant, imposed a heavy burden on all parties, including the appellant.
[6][2022] VSCA 229
79The Court in Stafford stated:
“… an unresolved plea of not guilty over an extended period over and above that which might reasonably be required to bring a matter to trial is a burden that must be acknowledged and taken into account by a sentencing judge as appropriate. … and the burden of a delay in trial is not to be ignored merely because the accused person is ultimately found guilty.”[7]
[7]At paragraph [28]
80Your sentence will be moderated by reason of the delay in having the charges against you finalised. I accept that this uncertainty as to your fate has constituted a source of anxiety over an extended period of time.
Burden of Imprisonment
81You have never before been in trouble with the law. This is your first time in custody. I have regard to the fact that your time on remand has been rendered more onerous because of the COVID-19 pandemic and the restrictions that have necessarily been put in place by the authorities to minimise the health risks to prisoners and staff. These restrictions have varied over the course of the pandemic and have included lockdowns, periods of quarantine, and limited access to visitors and educational courses. Your sentence will be moderated recognising your time in custody to date has been more onerous than it would otherwise have been but for the pandemic.
Mental Health
82I accept the application of Verdins principles 5 and 6 in your case call for some moderation in sentence. That is, by reason of your mental health conditions, notably your depression and personality impairment, your experience in custody will be rendered more onerous than a person not suffering such conditions. Mr Candlish considers that your conditions render you more prone to suicidal ideation and potential attempts, and that your depression is likely to deteriorate in the context of a lengthy term of imprisonment.
Deterrence, Denunciation and Just Punishment
83In my opinion, general deterrence and denunciation are the paramount sentencing considerations. The sentence to be imposed must mark this Court’s and the community’s denunciation of your behaviour, which on any view was truly reprehensible. The sentence must also serve to put on notice others in the community who may be minded to engage in similar behaviour that if they do they will face stern punishment.
84Given your continued denial of the offences, in my opinion, the sentence to be imposed must also serve to deter you from future offending.
Protection of the Community
85As I have already mentioned, Mr Candlish is of the opinion that you fall in the moderate to high risk category for sexual offending. The sentence to be imposed must also have significant regard to the protection of the community from you.
86The serious offender provisions are enlivened in relation to charge 4. Pursuant to s 6D of the Sentencing Act, in determining the length of the sentence to be imposed on charge 4, I must regard the protection of the community from you as the principal purpose for which the sentence on that charge is to be imposed. A disproportionate sentence has not been sought by the prosecution and I do not consider it necessary to impose such a sentence in order to achieve that aim.
Proportionality and Totality
87I accept the prosecution submission that while section 6E of the Sentencing Act imposes a presumption of cumulation for a relevant offence, unless I direct otherwise, the principles of proportionality and totality will require a degree of concurrency.
88The principle of proportionality requires that there be no disproportion between the totality of the criminality and the total effective sentence imposed. In Zhao v The Queen[8] the Court held “that s 6E and totality both apply, but that the full effect of totality is to be somewhat reduced, in order to give proper effect to the legislative intent manifested in the section.” [9]
[8] [2018] VSCA 267
[9] Ibid [94]
89Both counsel properly acknowledged that five of the six offences arose out of a single incident. All six offences involved the same victim.
Standard Sentence
90The offence of rape is subject to the standard sentence scheme in the Sentencing Act 1991. The standard sentence for rape is 10 years’ imprisonment.
91Section 5A(1) of the Sentencing Act provides that the standard sentence, specified by statute for the offence is the sentence that, taking into account only the ‘objective factors’ affecting the relative seriousness of that offence, is in the ‘middle of the range’ of seriousness of the offence. Section 5A(3) provides that the ‘objective factors affecting the relative seriousness of an offence’ are to be determined without reference to matters personal to you, and wholly by reference to the nature of your offending.
92In DPP v Todd[10] Kaye JA stated that the “standard sentencing regime does not alter the established principles by which a particular sentence is arrived at by a determination of the facts, and the application of legal principles to those facts. Ultimately, the sentence is the result of the instinctive synthesis by a judge of the facts, legal principles, and other factors relevant to the case, in the exercise of the judge’s sentencing discretion.”[11]
[10] [2019] VSC 585
[11] [2019] VSC 585
Current Sentencing Practice
93I have had regard to current sentencing practice, as best I am able, for each of the offences to which you were found guilty.
94Section 5B(2)(b) of the Sentencing Act requires that I only have regard to sentences previously imposed for the offence of rape as a standard offence. I have had regard to each of the cases to which I was referred, as well as other sentencing cases involving aggravated burglary, threats to inflict serious injury and stalking.[12] There were not many relevant recent cases concerning the latter two offence categories.
[12] In addition to the cases listed in the prosecution table, DPP v Cartwright [2015]VSCA 11; Nguyen v The Queen [2015] VSCA 283; Cox v The Queen [2016] VSCA 124; DPP v Bulduk [2017] VCC 324; DPP v Salvaggio [2022] VSCA 88; DPP v Ali [2019] VCC 49; DPP v Ramsay [2021] VCC 785; Wasif v The Queen [2022] VSCA 182.
95The cases to which I have referred provide guidance only as to current sentencing practice. Current sentencing practice is but one of a number of factors to which I must have regard.
Sentence
96Balancing each of the sentencing considerations, and having regard to the respective submissions of both counsel, you are to be sentenced as follows:
Charge 1 – Convicted and sentenced to 12 months’ imprisonment.
Charge 2 – Convicted and sentenced to 6 years and 6 months’ imprisonment.
Charge 3 – Convicted and sentenced to 8 years’ imprisonment.
Charge 4 – Convicted and sentenced to 8 years’ imprisonment.
Charge 5 – Convicted and sentenced to 15 months’ imprisonment.
Charge 6 – Convicted and sentenced to 18 months’ imprisonment.
97The sentence imposed on charge 3 is the base sentence. I direct that 4 months of the sentence imposed on charge1, 12 months of the sentence imposed on charge 2, 16 months of the sentence imposed on charge 4, 4 months of the sentence imposed on charge 5, and 6 months of the sentence imposed on charge 6 be served cumulatively on each other and on the base sentence. This makes a total effective sentence of 11 years and 6 months. I set a non-parole period of 8 years. I consider this to be the minimum period that justice requires you to serve having regard to all of the circumstances, particularly that you have never before been in trouble with the law.
98The sentences imposed in respect to the two rape charges are below the standard sentence. I have imposed those sentences having regard to each of the matters in mitigation, and in particular the fact that you are a first time offender, the delay between your offending and sentence, and your mental health issues.
99The period of 1579 days, not including today, is to be reckoned as a period of imprisonment already served under the sentence.
100I propose to make an order pursuant to the Sex Offenders Registration Act 2004 notwithstanding your likely deportation at the conclusion of your sentence, I do so on the basis of the risk assessment of Mr Candlish and the serious nature of the offences before me.
101The period of the order will be 15 years.
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