Director of Public Prosecutions v Barton (a pseudonym)
[2023] VCC 2205
•27 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CRAIG BARTON (A PSEUDONYM) |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2023 | |
DATE OF SENTENCE: | 27 November 2023 | |
CASE MAY BE CITED AS: | DPP v Barton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2205 | |
REASONS FOR SENTENCE
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Subject:Sentence --- Rape --- Indecent Assault --- Make Threat to Kill --- False Imprisonment --- Common Law Assault.
Catchwords: Intimate Partner Relationships --- Rape --- Indecent Assault --- Threat to Kill --- False Imprisonment --- Two female victims who were the accused’s fiancé and wife --- 11 charges of Rape --- 4 charges of Indecent Assault --- 2 charges of Make Threat to Kill --- 1 charge of False Imprisonment --- 1 charge of Common Law Assault --- Sexual offences involving restraint and devices --- Lengthy period of time --- Plea of Not Guilty --- Judge Alone Trial --- No remorse or insight --- Previous Good Character --- Moderate Risk of reoffending --- Serious Sexual Offender --- Sex Offender Registration.
Legislation Cited: Sentencing Act 1991 --- Sex Offender Registration Act 2004.
Cases Cited:DPP v Barton (a pseudonym) [2023] VCC 707 --- Pasinis v The Queen [2014] VSCA 97 --- Kalala v The Queen [2017] VSCA 223 --- Jurj v The Queen [2016] VSCA 57 --- DPP v Granata [2016] VSCA 190 --- DPP v Avalos (a pseudonym) [2023] VSCA 117 --- Patil (a pseudonym) v The Queen [2020] VSCA 337 --- Johns (a pseudonym) v The Queen [2016] VSCA 97 --- Mush v The Queen [2019] VSCA 307 --- R v Verdins (2007) 16 VR 269 --- R v Connell [1996] 1 VR 436 --- Matheas v The Queen [2017] VSCA 330 --- Hoare v R (1989) 167 CLR 348 --- DPP v Lian [2019] VSCA 75 --- DPP v Mokhtari [2020] VSCA 161 --- Bolton v The Queen [2019] VSCA 21 --- Matovic v The Queen [2021] VSCA 212 --- DPP v Jayadev Patil (a pseudonym) [2020] VCC 1674 --- Wheeldon v The Queen [2018] VSCA 344 --- Tscherepko v The Queen [2010] VSCA 299 --- Lord v The Queen [2017] VSCA 29 --- Nicholson (a pseudonym) v The Queen [2019] VSCA 177 --- Williams v R [2017] VSCA 130 --- Vella v The Queen [2018] VSCA 30 --- Shau v The Queen [2020] VSCA 252 --- DPP v DDJ (2009) 22 VR 444 --- Bowden v the Queen (2013) 44 VR 229 --- Sayer v The Queen [2018] VSCA 177.
Sentence: 24 years and 4 months imprisonment --- Non-parole period 17 years 8 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Ms S. Flynn KC | Doogue & George Criminal Lawyers |
HER HONOUR:
1Craig Barton[1], on 3 May 2023 following a Judge Alone Trial, I found you guilty of charges of sexual offending and violence committed against your former partner, Lara Vernick[2] and your former wife, Nicola Webb[3].
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
2You were involved in intimate relationships with each of those women and you have children with both of them. Your sexual relationships with each woman variously involved the use of restraints and sexual toys or devices. At times this was consensual. However, at other times you violated their consent, committing offences of rape and indecent assault against them. Those offences were committed in the broader context of your relationships where you were sexually demanding and at times degrading, abusive and threatening.
3Ms Vernick and Ms Webb gave evidence during the Trial which ran for 13 days from 31 January to 17 February 2023. I also heard from a number of other witnesses and heard your record of interview.
4After your Trial, I found you guilty of 11 charges of Rape, 4 charges of Indecent Assault, 2 charges of Make Threat to Kill, 1 charge of False Imprisonment and 1 charge of Common Law Assault.
5My task now is to sentence you for that offending.
6My reasons for the verdicts are outlined in detail in the verdict ruling,[4] along with a more fulsome outline of each offence, the immediate circumstances in which they were committed, and the broader context of your relationships with each victim.
[4] DPP v Barton (a pseudonym) [2023] VCC 707.
Background circumstances
7In summary form, the circumstances are as follows.
8You began your relationship with Ms Vernick in late 2006. You and she have a son together born in July 2011. You were aged between 30 and 37 years during that relationship, and Ms Vernick is seven years your junior. You and she were engaged for most of your relationship, however you did not marry.
9Four of the Rape charges, and the charge of Common Law Assault, relate to episodes of offending against Ms Vernick. They represent four separate incidents.
10Your relationship with Ms Vernick ended in January 2014.
11You then began a relationship with Ms Webb in February 2014, which continued until June 2017. During that relationship, you were between 35 and 37 years old and Ms Webb was aged between 32 and 34.
12You and Ms Webb had two sons, born in March 2015 and March 2016. You and she married just over a year before your separation in mid 2017.
13Seven of the Rape charges, as well as the False Imprisonment charge, the four Indecent Assaults, and the two Threats to Kill relate to offending against Ms Webb. They represent 9 separate incidents.
14You are now 46 years of age. You have no prior criminal history of any kind.
Summary of Offending
Offending against Lara Vernick
15You met Ms Vernick in December 2006 via a dating site, when she was 23 years old and you were 30. You lived together in various locations around Melbourne from March 2007 until you were accepted into the Australian Army late that year, at around which time you and she became engaged. You and Ms Vernick relocated to Wagga Wagga[5] in early 2008 and then Ipswich[6] in 2010.
[5] Location changed.
[6] Location changed.
16From the early period of your relationship with Ms Vernick, you showed an interest in sexual activity involving restraints, devices, and sex toys, and there is no dispute that you and she engaged in this activity consensually during your relationship.
17However, Ms Vernick gave evidence that your behaviour ‘started to deteriorate’ once you were interstate. She said you were extremely sexually demanding, in that you ‘would require sex every day, whether [she] wanted to participate or not.’ She also states in that period, sexual activity may have started consensually, and ‘then he’d want something else as well, whether it be anal sex ah, which I didn’t want to do, or he’d ask me to masturbate him or to give him oral sex’.
18Ms Vernick gave evidence about your fascination with “fisting”; that is, getting your entire fist into her vagina. At a later time, when she was pregnant, Ms Vernick said, ‘Craig would bring up fisting quite often. It was a fantasy of his ... that he wanted to do. He said once I'd had the baby that I would be … more stretched and he would be able to fist me then…. [it was] something he spoke about all the time, it was not invited conversation.’
19Ms Vernick also states that you would react angrily when she declined sex. On some occasions, she says that you ‘sort of [told her] – you know, ‘bad luck you have to learn your place, you know? You’ve got no choice. It has to happen’. Other times, she said, ‘he would just often insult me, you know, call me names, silent treatment if I had refused…’ On one such occasion after Ms Vernick refused sex, you spat in her face.
20On another occasion in Wagga Wagga, you told her to leave the bedroom, and then forced her to sleep in a spare room with the light and air conditioning on, and without bedding. You told her that she would not sleep if you weren’t sleeping, and that you couldn’t sleep without sex.
21That demanding behaviour as described by Ms Vernick, and your responses to her refusing sexual activity, is not led as evidence of other criminal offending. I do not treat it as such, and it does not aggravate your offending. It is relevant in that it sets the offences in their true context, and it provides an understanding of the nature of the relationship and the dynamics at play and, in particular, of Ms Vernick’s behaviour and state of mind, and your behaviour and state of mind, throughout this relationship.
22Ms Vernick also gave evidence about an occasion in Ipswich, where you had installed a bolt into the ceiling above your bed. You cajoled her to be tied up for the purpose of sexual activity. You took advantage of her state of restraint, first putting your finger into her vagina before then forcing in your fist. She was in tears and physically protested, eventually coming free of the ropes. She suffered bleeding and pain to her vagina which lasted some days. She said, ‘psychologically I felt destroyed. I was so scared of him.’
23That specific event is an uncharged act. It is relevant for the limited purposes I have described above.
Charge 1 – Common Law Assault
24Turning to the specific offences.
25You were honourably discharged from the army after failing your helicopter training, and you and Ms Vernick moved back to Melbourne in early 2011. By that stage, Ms Vernick was pregnant with your son, Gabriel[7]. He was born in July 2011.
[7] A pseudonym.
26On one occasion towards the end of 2011, Ms Vernick was holding Gabriel, then an infant, as she sat on the arm of a couch in the loungeroom of your home in Croydon[8]. You came home from work and were angry, though Ms Vernick was unsure as to what you were angry about. She felt scared of you.
[8] Location changed.
27Without warning, you grabbed the cordless phone and threw it at Ms Vernick and Gabriel. Ms Vernick said, ‘… he's grabbed the cordless phone … from near the kitchen bench and just launched it at Gabriel and I sitting on the corner of the couch. It's gone above my head and smashed into the wall above me.’ You then acted like nothing happened.
28The throwing of the phone forms the basis of Charge 1 – Common Law Assault.
29Your relationship was ongoing until early 2014. Your interest in and keenness for sexual devices and restraints continued, and included you making a “spreader bar”, namely, a long metal bar with two circular restraints at each end that attach to and spread the legs, and purchasing items such as sounding devices or urethra spreaders, and various gags including a metal “spider gag”.
Charge 4 – Rape
30In around April or May 2012, you and Ms Vernick moved into a caravan on your parents’ property in Emerald[9]. During this period, you continued to be sexually demanding of her. She said, ‘He would often laugh at me… if I had said no directly while we're lying next to each other in bed … he would tell me I would have to do it, and would keep nagging until I submitted. If we weren't in bed and I was saying I didn't want to have sex … I wouldn't be forced then and there to have sex, but I knew it was coming later.’
[9] Location changed.
31At a time before your son’s first birthday you tied Ms Vernick up to a pillar in the kitchenette of the caravan. She consented to that restraint, anticipating vaginal intercourse. She was restrained by her hands to the pillar which was in front of her. You were behind her. You were both naked. The baby was asleep in a cot beside the bed.
32Penile/vaginal penetration occurred consensually; however, she said you became frustrated by the difference in your heights and inability to fully penetrate her vagina. You withdrew your penis from her vagina and without warning forcefully penetrated her anus. You did not use any lubrication. She said it was painful and she felt distressed and violated. She started crying and saying ‘No’. Despite her state, you did not withdraw or in any way desist. You continued to the point of ejaculation, which she estimated took 2 minutes. That is the charge of Rape by way of your failure to withdraw your penis from her anus.
33After you ejaculated you left her tied up and went outside to urinate in the garden.
34She said the sudden and forceful anal penetration left her feeling ‘physically ill, violated… distressed.’
Charges 8 and 9 – Rape
35In your record of interview you describe Ms Vernick towards the end of your relationship (in January 2014) as ‘I suppose virtually on the verge of having a breakdown.’ Ms Vernick, in reference to that period, stated that although she was never formally diagnosed as having a breakdown, ‘I was very unwell emotionally and mentally at that stage and received treatment from my doctor and psychologist and counsellors.’
36After Christmas 2013, Ms Vernick told you she was feeling unwell and anxious and that she needed help. In January 2014 she was booked to have a colonoscopy and gastroscopy. She went to her parents’ house so that her mother could look after Gabriel while she had the procedure.
37On 7 January she underwent the medical procedures under a general anaesthetic and her mother collected her from the hospital.
38That evening, you arrived unexpectedly at her mother’s house. She described you as angry, demanding dinner and asking why there was no meal ready. You and Ms Vernick eventually went to bed. You were sleeping in the room next to her mother and Gabriel. It is clear from your record of interview and Ms Vernick’s evidence that sexual activity was not usual when staying at her parents’ address.
39Nonetheless, on this occasion she said you were angry, not really talking to her. She got her pyjamas on and lay facing the wall. She said, ‘… he turned around and he pulled my pants down, he just pulled – there was no communication, he pulled my pants down. I said, 'Listen I don't want to have sex', uh, 'Leave me alone'. And he said, 'Well you know it's going to happen'.
40She said she was not feeling well as a result of the medical procedure and that you were aware she had been under a general anaesthetic for the colonoscopy that day. She said, ‘ … So he's pulled my hips up and put me on my knees … and he just started having sex with me. There was no talking involved. … I was on all fours and he was behind me, penetrating me in my vagina. He then spat on my anus and started having anal sex with me.
I was crying, I wasn't saying anything but I was crying. … He could see I was crying, and I said to him, 'You know, how can you have sex with someone who's crying'. The shutters were – we had wooden Venetian blinds and he was being so rough that they were shaking and I was worried my mother was going to hear that. This lasted about five, six minutes when he came, and then he just… turned around and went to sleep silently.
41Penile penetration of Ms Vernick’s vagina is the basis of Charge 8 – Rape, and penile penetration of her anus is the basis of Charge 9 – Rape.
Charge 11 – Rape
42Ms Vernick described her state the following day as being upset and depressed. ‘I was really teary, I felt really depressed and just down about the situation. I couldn’t stop crying.’ Her brother and his girlfriend invited her to go to the Queen Victoria Night market. With the encouragement of her mother, she agreed to go along.
43While at the night market she received a phone call from you. You were asking where she was and said you were on your way to her parents’. She said, ‘… he told me that I better get home quickly ... I just remember being in absolute panic in the carpark of Queen Victoria Market trying to find my brother and now sister-in-law so they could take me home as quickly as possible … because Craig was going there … and he seemed really angry…. I was crying [in the car] … They weren’t sure why I was so upset or scared… I hadn’t told them anything before this.’
44She called her mother who reported that you were there. You and she spoke again and you complained that there was no meal ready. She said ‘I didn't know how to deal with him that night so I was just trying to keep the peace. I fed him. Sat there for a while and then we went to bed. He wasn't really talking to me.’
45Upon going to bed, you told her that you needed to have sex. She said, ‘I don’t want to.’ But you again said, ‘we’re going to have sex.’ You lay her on her stomach and took her pyjama pants down. She said, ‘I have not fought back or anything. I could hear my mum's TV going, so she was still awake.’ Ms Vernick was crying ‘because he was having sex with me against my will after I'd told him, 'I don't want to have sex, leave me alone'.
46She said, ‘…he's had sex with me … vaginal sex, and then he's finished, he's cum inside my vagina, he's finished, rolled over, and… thought he was going to go to sleep…’ That penile penetration of her vagina is the basis of Charge 11.
47Instead of going to sleep, you continued to knock her legs and kept waking her up. At one point you placed a piece of wooden dowel next to the bedside table. At another, you whacked your hand against the bedside table hard enough to startle her mother in the next room and cause her to come and see if anything was wrong.
48That incident marked the end of your relationship. Ms Vernick said, ‘I was so scared of Craig and what he might do that I fled to a motel with my mum. Mum didn't understand what the panic was, but I said, 'We need to just get out of here'. Cause I ended the relationship and he told me, 'No, that's not going to happen'. And I said, 'Don't come looking for me, leave me alone'.
49She and her mother and Gabriel went to a motel and she told her mother she didn’t want to return to live with you. Her mother gave evidence describing Ms Vernick as stressed and reluctant to stay at home. She said her daughter had ‘a bit of fear too.’
50Ms Vernick did not make any complaint to her mother, saying ‘I was … too ashamed, embarrassed to tell her what had been happening to me.’
51You and Ms Vernick attended family mediation, however she said the relationship was over as you had already moved to your relationship with Ms Webb.
52In early 2014, Ms Vernick went to visit Ms Webb at your house in Sandringham[10]. She said her intention was ‘just to let her know this man was very sexually demanding and sick and had some twisted ideas … I was very … nervous and stressed and didn't want to upset this woman. I purely was going there to just warn her of who she had met and to be mindful that she might get into trouble in the future, because I experienced quite a lot. But if I'm honest, I was relieved there was someone else he could focus on. … [I was] just warning her things would escalate, and that she may experience this too.’
[10] Location changed.
Offending against Nicola Webb
53You met Ms Webb shortly after your relationship ended with Ms Vernick via an online dating application. She moved into your rented residence in Sandringham in March 2014, around a month after you met her.
Charge 13 – Indecent Assault; Charge 14 – Rape
54On one occasion early in your relationship whilst living in Sandringham, after a walk along the beach which involved a conversation about sexual fantasies and Ms Webb’s willingness to explore bondage and dominant/submissive sexual practices, you and Ms Webb agreed to engage in sexual activity. She told you that although she was interested, she had never been tied up for sexual activity before.
55This incident took place in your loungeroom, with Ms Webb lying down on her back on a coffee table. You tied her by the wrists to the legs of the coffee table in a way that her arms were above her head and shoulder width apart. You then buckled her ankles to a metal “spreader bar” using the cuffs attached, which meant her legs were held open. You attached the straps from the bar to the architrave in the door frame so that her legs were held up. She was naked. Pornography was playing in the room.
56You put a facemask of Ms Webb’s eyes, before kissing her mouth, neck and breasts and touching her before then performing oral sex on her. You also tickled Ms Webb with a feather, before slapping her with the feather handle on her ribcage, thighs and feet. She told you that it hurt and asked you not to do it again, which you did not. You then engaged in penile vaginal sex. All of the sexual activity up until this point was consensual.
57You then stopped having sex with Ms Webb and stepped away. She heard you place a metal ball on top of the heater. After some more foreplay, you took the hot metal ball and placed it in Ms Webb’s belly button. She said, ‘I can't stress how hot it was. And I can remember just the – like, the tears streaming down my – just… out of my eyes, and screaming, and just telling him to stop. You know, 'Stop it'. You did not stop but instead rolled the hot metal ball onto her chest and breasts then down towards her pubic area. She feared you would place it into her vagina. She felt like she was being burned. She said, ‘my only memory of this is just of intense heat and pain’.
58She continued –
‘… my legs were restrained, my arms were restrained, and I could – you know, trying to wiggle away from this – from this hot ball. … I remember trying to buck my hips to get away from it. … There just didn't seem to be any escape from it. … I can remember I was crying, telling him to stop … you know, 'Please stop it’… 'Please stop’ ... I was just hysterical … just with the crying and the screaming … it was like an act of torture.’ That is an uncharged act.
59Despite her reaction, you then proceeded to pour hot liquid wax over her body, first over her breasts and onto her belly, then onto her vagina. She was still crying and asking you to stop and was trying to wriggle away. The pouring of the hot liquid wax onto her vagina forms the basis of Charge 13 – Indecent Assault.
60You did stop, but then proceeded to slip under the spreader bar and had penile-vaginal sex with Ms Webb. She was sobbing and crying, telling you to stop. She said, ‘I can remember just crying and just wanting it to absolutely one hundred per cent stop. … I knew at this point that I was … having sex against my will. … I thought in that moment that there's a chance here that I could potentially die … I was absolutely terrified.’
61You continued to have sex with her until you ejaculated. This forms the basis of Charge 14 – Rape, which is a charge of failure to withdraw.
62She was then untied and felt the ‘absolute shock of what had happened’. She described herself feeling ‘completely violated’.
Charge 15 – Rape
63In early 2015, you and Ms Webb moved to Hallam[11]. By this time, she was in the very late stages of her pregnancy with your first child together. Jonah[12] was born in March 2015.
[11] Location changed.
[12] A pseudonym.
64You and Ms Webb had an argument in relation to your three year old son Gabriel (with Ms Vernick), visiting over the weekend. It was early morning and you had come from the shower. Apart from a towel you were naked. Ms Webb expressed that she needed some quiet time and rest, and that if you wished to bring Gabriel home she would to go to her mother’s house. You started calling her names, belittling her – ‘making me feel like a really bad person for what I thought at the time was a reasonable request.’ You took her car keys, telling her she was not going anywhere and that she needed to stay and spend time with Gabriel. You then called her a ‘dirty whore or filthy slut’, or similar. She retaliated by pushing you.
65In response, you pushed her and she fell backwards onto the bed. She rolled to her side, attempting to stand back up, however you then pushed her back onto the bed and onto her stomach. You proceeded to lift her skirt and pull her underwear down and penetrate her vagina with your penis. She said, ‘Craig started to have sex with me… his hands were on my back pushing me down into the bed and I can remember saying to him, ‘Stop… Stop this is not good for the baby… Please stop, I don’t want to do this.’ You responded, saying ‘Don’t worry I’ve got lots of other children.’ She said the more she tried to stand up the more force you put into her back. You continued to penetrate her until you ejaculated.
66This conduct forms the basis of Charge 15 – Rape, and is a charge of failing to withdraw.
67After that incident you took her car keys and left. Taking her keys was a common occurrence around that time. She confirmed that '[e]very time I threatened to leave, he would hide the car keys, my phone, and purse. He would bar the doorway with his body and call me a dirty whore and I needed him because no one else would want me.’
Charge 16 – False Imprisonment; Charge 17 – Rape; Charges 18, 19 and 20 – Indecent Assault
68Around the time Ms Webb was pregnant with your son Jonah, you constructed a sex chair. It was three legged and had some padding as well as cuffs for the purpose of tying feet and hands to it. The legs are positioned in a tripod angle, in such a way that a person sitting on it has their legs spread open. The chair was found in your wardrobe when you were arrested in 2019.
69In early 2015, a few weeks after Ms Webb gave birth to your son Jonah via emergency c-section, you asked her if she wanted to be tied up to the sex chair. She said you were quite agitated. Though reluctant, it is apparent she agreed.
70You tied Ms Webb’s legs to the chair legs, with her hands tied behind her to the middle post of the sex chair. You also tied up Ms Webb’s breasts with ropes. She said that was painful due to the fact she was breastfeeding. She was naked.
71Once Ms Webb was tied up, and without warning, you proceeded to put your hand into her vagina. You put your entire fist into her vagina. You were masturbating at the same time. She was telling you to stop. She said, ‘I can remember that it was very painful.’She described herself as scared, with no control over the situation. The insertion of your hand into her vagina forms the basis of Charge 17 – Rape.
72After you removed your fist, you attached metal clamps to Ms Webb’s nipples. The clamps were attached to a powerpack, which you used to electrocute her nipples for a couple of minutes. Ms Webb was screaming and crying in pain and was trying to get out of the chair. The act of attaching the clamps to her nipples and electrocuting her forms the basis of Charge 18 – Indecent Assault.
73You then put the clamps onto her vulva and electrocuted Ms Webb’s vagina. She continued to cry and was bucking in the chair, trying to get away from you and the clamps. She said, ‘I can remember being very, very frightened. The pain was unimaginable. Unimaginable. … I had had a baby three weeks before this event had happened … I had a big Caesar scar and … I can remember just bucking in that chair trying to get away from it and I did manage to move the chair … I … managed to push it back cause it was … wooden floor boards, pushed it back into the bookcase where … we had photo frames on the bookcase where those photo frames have fallen on the floor and smashed. … I had got a piece … of glass in my foot.’
74The act of placing the clamps onto her vagina and electrocuting her forms the basis of Charge 19 – Indecent Assault.
75After taking the electrodes off her vulva, and at a point in time when she had moved the chair backwards into the bookcase, you then proceeded to hit Ms Webb in the face with your penis several times. Ms Webb was still crying, and was bleeding from her foot. The act of hitting her in the face with your penis forms the basis of Charge 20 – Indecent Assault. She described herself as ‘hysterical’ at that point.
76The ongoing restraint of Ms Webb as this episode of offending progressed forms the basis of Charge 16 – False Imprisonment. As I explained in my Verdict ruling,[13] although I could not be satisfied that the initial restraint of Ms Webb to the sex chair occurred without her consent and as such was unlawful, it soon became so. She communicated by her words and actions her lack of consent to ongoing restraint. That communication coincided with her distress at the fisting and various indecent assaults occurring. Therefore, the false imprisonment occurred during and as a backdrop to those events.
[13] DPP v Barton (a pseudonym) [2023] VCC 707, [1228] – [1233].
77Once untied, Ms Webb went straight to the bedroom and locked the door. She continued to cry and took the shard of glass from her foot. You bypassed the lock on the door to come into the bedroom. She took the baby and slept on the couch with him that night.
Charge 21 – Rape
78On one occasion in 2015, when Jonah was still a baby, you came into the toilet whilst Ms Webb was sitting on it. That was not an uncommon occurrence.
79You told Ms Webb that she was at the ‘right height now’ and tried to put your penis into her mouth. She told you she was ‘taking a shit’, but you responded, saying ‘I’ve got to take my opportunities when they arise.’ She then threatened to bite you if you put your penis into her mouth. Nonetheless, you did so against her wishes. That act forms the basis of Charge 21 – Rape. Ms Webb bit down on your penis and you withdrew.
Charge 23 – Make Threat to Kill
80In very early 2016, Ms Webb was about 7 months pregnant with her second child, who was born in March 2016. Jonah was about 9 months old and your daughter Georgia[14], from an earlier relationship, was living with you. She was a teenager.
[14] A pseudonym.
81Ms Webb said at that time you and she were struggling financially. She had a dispute with Georgia about some eggs she had saved for dinner. You had told Georgia that she could use the eggs and Ms Webb obviously perceived you to have undermined her. Ms Webb came outside, where you were at that time, to confront you. You and she had a heated argument before she went back inside. You followed her into the house where there was further arguing both in the baby’s bedroom and the hallway.
82At one point you told her that you wished she was dead. She said she was going to take Jonah and go. You told Ms Webb that if she left, you would kill her. You pushed Ms Webb up against a bookcase and put your hands around her throat and tried to choke her. The threat to kill her if she left you, accompanied by the act of choking her, forms the basis of Charge 23 – Make Threat to Kill.
83Following that incident, Ms Webb picked up Jonah, but you took him out of her hands. You then left with Georgia.
84After you had left the house Ms Webb made what she described as a ‘half hearted suicide attempt’. She took a number of pills and got into the bath. She was taken to Maroondah Hospital[15] by ambulance. She was assessed but later released. She had a small amount of bruising on her neck.
[15] Location changed.
85Ms Webb made a complaint about that incident to DHHS workers in mid 2017.
Charge 24 – Rape
86Ms Webb underwent a second emergency caesarean section in March 2016, giving birth to your son Lewis[16].
[16] A pseudonym.
87In the period following his birth, and at a time when she still had the Caesar scar, she was asleep but woke with you on top of her. You were starting to penetrate her vagina with your penis. She said this was ‘very, very painful’ to have the extra weight on top of her Caesar scar and that she told you that she did not want to have sex and told you to stop.
88You told her something along the lines of ‘give me a minute’ and continued to penetrate her. Lewis started to cry and Ms Webb told you that she wanted to feed him, but you continued to have sex with her until you ejaculated. Ms Webb was unable to physically resist due to her caesarean scar and your positioning.
89That act forms the basis of Charge 24 – Rape.
Charge 25 – Make Threat to Kill
90In April 2016, you and Ms Webb had an argument in relation to household duties and caring for the young babies and for your daughter Georgia. You were both sitting in bed at the time, as it was late at night.
91It was a heated argument and Ms Webb called you a bad husband, a terrible father and ‘an awful person who just doesn’t support someone who is crying out for support.’ She described you becoming ‘so angry’ and that you ‘pushed me back down on my back on the bed. He has put both of his hands around my neck and he has told me how much he hates me and … that he was going to kill me. He said, 'I'm going to kill you'. … I literally thought that I was going to die... I can remember that my hands were on his hands trying to get them off. I think that I wet the bed a little bit … it was awful. … I couldn't do anything. … I felt so powerless and I was. I was powerless. There was nothing I could do to stop … and then I can remember the look in Craig's eyes. It was just, it was just of someone who was completely out of control. And then … Lewis started … screaming at the top of his lungs and then the pressure was gone. He stopped… and I can remember just gasping for breath .... I thought I was gonna die.’ Those words and actions form the basis of Charge 25 – Make Threat to Kill.
92Ms Webb made a complaint to a DHHS worker about this incident in mid 2017.
93You and Ms Webb separated in the lead up to Christmas 2016. Police were involved and Ms Webb left to live with her mother. Some time after Christmas, you asked to see the children and the two of you met up for that purpose. She agreed to return to the house. You and she moved to Vermont South[17] in February or March 2017.
[17] Location changed.
Charge 26 – Rape
94In early 2017, once you were living at Vermont South, you and Ms Webb attended your boss’ house in Scoresby[18] for a get-together. You both drank a considerable amount of alcohol.
[18] Location changed.
95After returning home and going to bed, Ms Webb lay face down with her hands wrapped around the pillow, intending to go to sleep. You pulled her up onto her hands and knees. She said something along the lines of, ‘not tonight, I’m tired, I want to go to sleep.’ Nonetheless, you proceeded to insert your penis into her anus. You did not use any lubrication. She said it was painful and she was crying. She felt powerless and was begging you to stop. You ‘shushed’ her and continued to penetrate her until you ejaculated in her anus. This conduct forms the basis of Charge 26 – Rape, charged as a failure to withdraw.
96Ms Webb went to shower. She was in pain and observed blood, faeces and semen from her anus.
Charge 27 – Rape
97The final offence occurred just prior to the end of your relationship with Ms Webb, around late May or early June 2017 at the Vermont South house. She described herself in that period of time as ‘defeated’, constantly drunk and having ‘significant mental health issues.’ Around that time period she was taken to Maroondah Hospital after you and she argued, with you accusing her of killing her father. She made superficial cuts to her wrists and chest. She described herself to attending police as suffering from post natal depression.
98Ms Webb was unsure whether this incident occurred prior to or after the hospital visit, however it was within the same time frame.
99She said she was asleep in the morning. You rolled her over from her side onto her back, waking her in the process. You told Ms Webb you wanted to have sex, and she said no. You told her, ‘this is what people do who love each other’ but she responded saying she was not feeling very loved. You climbed on top of her and she said ‘I don’t want to have sex.’ You tried to kiss her and she turned her head away. You then proceeded to use spit as lubricant, penetrating her vagina with your penis. She said she was trying to make clear that she did not consent, telling you explicitly as you penetrated her that she was not consenting. She said ‘I had just given up all … hope of… struggling … and I just waited for him to finish, I suppose … waiting for him to ejaculate and get off me.’ You persisted until you ejaculated. That act forms the basis of Charge 27 – Rape.
100In that period around June 2017 Ms Webb said that she was tied up for sexual activity ‘so often… the restraints at that time were just permanently on the bed.’ Child protection became involved and a worker took photographs of the restraints on the bed, and Ms Webb made a comment to police about them. Ms Webb and her two sons went to live with her mother.
Complaint
101Ms Webb attended Diamond Creek Police Station to make her complaint in August 2017. Her statement was eventually finished at Dandenong SOCIT in December of that year. Ms Webb told police she had contacted Ms Vernick.
102Ms Vernick made contact with Brimbank SOCIT in March 2018 and made her statement of complaint.
103Statements were obtained from various complaint witnesses, including the mothers of both women, along with DHHS workers and various police officers.
Arrest and Interview
104Police attended your home and executed a search warrant on 14 February 2019. Various sexual devices and restraints, including the sex chair, were seized from your premises. You were arrested and participated in a record of interview, in which you denied all offending.
105You were not charged until May 2020.
Impact on the victims
106Ms Vernick and Ms Webb both prepared victim impact statements which were read out at the Plea. Both women describe the mental and physical effect of your offending both during their relationships with you and after.
107Ms Vernick writes that her everyday life continues to be affected. She withdrew from family, friends and social events, largely due to a fear of men which her experiences in your relationship instilled in her. She has difficulty engaging in society.
108Ms Vernick writes that she feels ongoing humiliation and confusion about her experiences with you, and that she continues to suffer from nausea, poor sleep, panic attacks and flashbacks – ‘I find it very hard to find joy and peace living with so much stress and fear… my confidence is shattered’. Further, she writes that she has not felt safe in Victoria since leaving you – ‘I… installed security shutters and cameras for safety… I feel lucky that I am still alive’. Quite simply, but eloquently, she says ‘I cannot escape the trauma of what’s happened… I miss the person I was before I met him and he did these things to me.’
109Ms Webb, when writing about the emotional impact of your offending against her, likewise describes herself as having been ‘destroyed as a person’ and writes that you manipulated her into thinking that she was ‘crazy’.
110She felt trapped and isolated from her family, unable to seek help for the abuse that you were putting her through both because of the shame and lack of respect that she felt for herself, but also because your offending against her was at a particularly vulnerable moment in her life when her father was dying and her family was overwhelmed with, and distracted by, their grief. She writes that the abuse ‘took a second seat’ and she was unable to seek the support she needed. She continues to suffer from anxiety, depression, and difficulty sleeping.
111Ms Webb has been unable to have another relationship due to the trauma she suffered in her relationship with you. She says the thought of having sex makes her extremely anxious. She laments that ‘many of the years [of her life] were stolen from [her] by [you]… I am allowing myself to grieve for the loss of my life’. She continues to try to find happiness, in particular for the sake of her two young sons.
112Like many situations involving intimate partner abuse, Ms Vernick and Ms Webb have also experienced financial hardship as a result of your offending. Ms Vernick’s capacity for work has been affected and she fears she will not regain the capacity for full time employment. She has had to take time away and bear the cost of medical expenses for psychological treatment. She lost possessions which she had acquired in her seven-year relationship with you spanning the majority of her early adult life, and which she left behind when she fled the relationship.
113Ms Webb works as a community services worker, working directly with women who have been displaced because of domestic violence and with men who have been recently released from prison. Unsurprisingly, many of those cases were triggers for her own trauma and she has also had to take significant periods of leave due to the stress of these proceedings, and has lost income as a result. Like Ms Vernick, she also lost her possessions, writing that when she left you with her children, they left ‘with literally the clothes that [they] had on [their] backs’.
114Both women were subject to a lengthy and difficult legal process. They were cross examined at the Committal and again at the Trial. Ms Webb in particular wrote of the mental drain that she experienced whilst navigating the very long legal process. I have no doubt those comments apply to Ms Vernick also. Both women gave their evidence at the Trial with courage and dignity.
115You are not to be additionally punished for the fact you took your matter to trial. Simply, that is part of the victims’ experience as a consequence of your offending against them.
116I take into account the impact of your offending on Ms Vernick and Ms Webb. I thank them for taking the additional time to put those experiences into words so that I could better understand what they have endured.
Sentencing Principles
General principles relating to intimate partner violence
117The principles of sentencing which apply to cases of sexual and violent or threatening offending within intimate relationships are now well understood. Sentences must deter other offenders, usually men, from taking advantage of their wife or partner for their own sexual gratification or from inflicting physical or psychological harm. Sentences must denounce the behaviour by reflecting the community’s disapproval of it, and sentences must work to protect women from being violated behind the closed doors of a relationship.
118In more recent times, higher Courts, like the community they represent, have looked more closely at intimate partner violence.[19] Higher Courts have universally stated that this type of offending warrants significant punishment. They have recognised that intimate partner violence has been a secret scourge on our community, and that it is crippling to the women abused. There is cumulative impact of intimate partner abuse with victims suffering self-doubt and often a range of mental health conditions including anxiety, depression, suicidal ideation, as well as alcohol and substance misuse.
[19] See e.g. Pasinis v The Queen [2014] VSCA 97; Kalala v The Queen [2017] VSCA 223 at [59].
119In Kalala v The Queen,[20] the Court of Appeal discussed the menace of domestic violence in the community, stating –
‘The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44’.’
[20] Kalala v The Queen [2017] VSCA 223 at [59].
120The sinister nature of intimate partner violence is exacerbated by the fact that it is often hidden, usually happening in private and most often with only two people present. Further, there is usually a reluctance on the part of a victim to seek help. That reluctance is often the result of psychological fragility as a result of being put down, degraded, or verbally abused, and the resultant feelings of shame, humiliation and embarrassment, all because of the exertion of control by the perpetrator.
121Sometimes, it is difficult to recognise the subtleties of an offender’s controlling behaviour when they are also a partner. It is often, as here, complicated by the presence of children and complicated by feelings of emotional attachment to the perpetrator.
122It is understood that, for these reasons, women are less likely to report offending by their intimate partners than an offence committed by a stranger.
123Any sentencing Court, therefore, must send a strong message to the offender and the community at large.
124Those are the general principles which apply in sentencing an offender for sexual or violent offending against their intimate partner. They are applicable in your case.
125I am conscious that your offending has some unique and distinct features when compared with many cases which come before this Court. Sadly, in this court we see many cases of intimate partner violence where the context is threatened or actual physical violence. It is often against a backdrop of drug or alcohol addiction. Sexual offences are often perpetrated in that setting and are often accompanied by additional acts of overt physical violence.
126Your case is somewhat different although the hallmarks of control, degradation, verbal abuse and sexual demands are all present. They are no less menacing simply because they are not accompanied by overt physical acts of violence. I accept that controlling and demanding behaviour takes its own psychological toll on victims. Whether it makes your offending more or less objectively serious is perhaps a moot point. It is simply different to a number of decided cases.
127Turning to the specific offences.
Jurj v The Queen
128Both parties acknowledge that rape is an inherently serious offence reflected in the maximum penalty of 25 years imprisonment.
129In making their submissions as to the assessment of gravity in particular of rape and the other sexual offences, Defence and Prosecution Counsel highlighted the features outlined in Jurj v The Queen[21] which are commonly understood to be pertinent to an assessment of objective gravity of a rape offence. These features are non-prescriptive, and include the level of premeditation involved, how long the attack lasted, whether the offending involved other violence or the threat of other violence, whether a weapon was used, whether the victim was physically injured, whether the victim was otherwise humiliated or degraded, whether the offender used a condom, whether the victim was particularly vulnerable, and whether the offender ignored warnings or protests by the victim.
[21] [2016] VSCA 57.
130As I indicated to Counsel during the Plea hearing, I do not consider Jurj to be particularly helpful when considering your case. Both that case and the cases that refer to it tend to be those which fall into a category of cases involving strangers or acquaintances. They are often isolated events or events which occur over shorter time frames, such as in the case of Granata[22]. Alternatively, when they are in an intimate partner setting they are often sexual offences which occur with more overt violence, such as in Avalos[23].
[22] DPP v Granata [2016] VSCA 190.
[23] DPP v Avalos (a pseudonym) [2023] VSCA 117.
131Jurj does not properly address particular issues that arise when considering sexual offences within an intimate partner setting. Factors such as pre-meditation, victim vulnerability, and the protests of victims being ignored look different in the context of a long-standing relationship. The existence of such factors may be less overt, but they may nevertheless be present and aggravating. This was not disputed by your Counsel.
132I also note that cases such as Jurj fail to reflect the extreme breach of trust your offending represents.[24] Both women who became your victims were your partners and the mothers of your children. You were engaged to Ms Vernick and married to Ms Webb. They were entitled to be loved, respected and treated with kindness. As the Court of Appeal has expressed in other cases, at times you treated each woman as your property, not as an equal or as a person worthy of your respect, but only concerned with your own sexual gratification, committing the gravest breach of the fundamental trust between spouses or partners.[25]
[24] Patil (a pseudonym) v The Queen [2020] VSCA 337.
[25] Patil (a pseudonym) v The Queen [2020] VSCA 337; Johns (a pseudonym) v The Queen [2016] VSCA 97.
133Both women described, and I accepted, that your behaviour within each relationship was demanding and controlling throughout. In particular, you were sexually demanding and persistent, and at times when they did not comply with your demands you were petulant. Your tendency to take advantage of situations where they were restricted in their capacity to resist your demands in order to inflict extreme, painful or humiliating sexual acts was a feature of your relationships.
Victim vulnerability
134Each woman experienced what appears to be increasing emotional distress through the course of your relationship with her. Although no doubt there were other life forces at play, your behaviour was a significant contributor to their deteriorating mental health.
135In that sense I do not accept your Counsel’s submissions that Ms Vernick and Ms Webb were not particularly vulnerable over the time of your offending period, or that any instances of vulnerability were “situational”, such as around the time Ms Webb was heavily pregnant.
Pre-Meditation
136Your Counsel submitted that a mitigating feature in relation to the episodes of sexual offending is that they were not pre-meditated, and further submitted that your offending, by and large, is to be properly understood as consensual activity going too far. In my view, that is too general.
137First, I do accept that I could not conclude at the outset of any of the sexual incidents you had pre-determined to commit sexual offences against either woman. I affirmatively reject that conclusion.
138Second, the submission that your sexual offending should be described as ‘consensual activity going too far’ can only relate to charges 4, 13 and 14 and 16-20. The other instances of rape in charges 8, 9, 11, 15, 21, 24, 26 and 27 do not fall into that category at all.
139Third, I accept those offences reflected in charges 4, 13, 14 and 16-20 have a different complexion because they start with the particular woman allowing herself to be restrained. I accept that is different to a scenario where a victim is forcibly restrained by the offender for the purpose of committing sexual or violent acts against them. At the start of those events each woman has variously agreed to a form of restraint and in that way she has placed herself in a position of physical vulnerability.
140However, I want to make clear that is not a criticism in any way of either woman here, because no doubt both Ms Vernick and Ms Webb put themselves in that position on trust. That is, they trusted that you would not abuse that trust, vitiate their consent, hurt them or do anything against their wishes. But that is what you did on each of those occasions. It is exactly as Ms Vernick explained, ‘I had to trust that he wasn't going to hurt me… I had mentioned to him previously … if you want to engage in these sorts of practices … you've got to have word, there's got to be communication. He wasn't interested in any of that. He would often laugh at me when I suggested that. … I was trying to navigate being with someone who was sexually demanding and aggressive….’
141Fourth, and as I outlined in my Verdict ruling, their lack of consent to ongoing sexual acts in each of those incidents was obvious, yet you persisted in the face of their tears, distress, protests and pleas for you to stop. For that reason I reject the comments made by Dr Davis that ‘ignorance’ played a part in your offences. I will return to those comments in due course.
142Turning to my assessment of the objective gravity of the individual offences.
Charge 1 – Throwing the Phone
143I accept that the example of common law assault here, by way of throwing the phone, is a lower end example of that offence for the following reasons.
144I cannot conclude that your state of anger in the lead up to throwing the phone was directed at Ms Vernick. The physical act does not involve actual force to or contact with her body, but instead the threat of an immediate application of force to her. It was a spontaneous act. Your state of mind was one of recklessness.
145Nonetheless, I take into account her vulnerability, given she was holding her young baby.
Charge 4 – The Caravan incident
146In relation to Charge 4, rape in the caravan, in my view that is at least a mid-level example of rape for the following reasons.
(a) The initial penetration was lawful. The charge is one of failure to withdraw.
(b) The offence happened at night and in a place where Ms Vernick felt isolated, being on your parents’ property in Emerald.
(c) The caravan nonetheless was her home and a place where she should have felt safe.
(d) She was restrained by her hands to the pillar, and thereby unable to free herself.
(e) Her infant baby was present and as such she felt limited in her capacity to react to what you were doing.
(f) I take into account Ms Vernick’s evidence that she did not particularly enjoy anal sex, but that it was something you enjoyed. You did not communicate with her about her wishes on this occasion but gave no thought to whether she was consenting.
(g) She was crying, distressed and in pain and saying ‘No’ to you during the penetration but you persisted to ejaculation.
(h) You further humiliated her by leaving her in that state, tied to the pillar, while you went outside to urinate.
Charges 8, 9 and 11 – Events at Ms Vernick’s parents’ house
147In relation to the events at her parents’ house which form the basis of charges 8, 9 and 11, I take into account that setting. Again, it was one which acted to limit her capacity to resist or react against your wishes because she was conscious of her mother’s presence.
148I take into account her parlous mental and psychological state towards the end of the relationship. You were well aware that she was suffering some form of ‘breakdown’ in that period. That fact of her vulnerability around that time increases your moral culpability for that offending.
149In relation to charges 8 and 9, those two acts of rape are serious examples of that offence for the following reasons;
(a) Both acts were committed on the day she had undergone a colonoscopy and gastroscopy. She had been under general anaesthetic and was feeling unwell, all matters you were aware of. She was in a fragile state. You ignored her situation, instead focusing on your own sexual needs.
(b) She told you she did not want to have sex and asked you to leave her alone. She reminded you of the colonoscopy.
(c) Your actions, while not pre-mediated in the usual sense, were not entirely spontaneous. They were determined and forceful. In other words, you were determined to proceed regardless.
(d) You ignored her specific requests and ignored her state of upset, with only your own gratification in mind.
(e) You committed two acts of rape against her. She described the vaginal sex as rough. The vaginal penetration from behind lasted three or four minutes.
(f) You then spat on her anus and without conversation penetrated her. That lasted 5 or 6 minutes until you ejaculated.
(g) She was crying and upset. After you finished you turned around and went to sleep.
150In my view those are serious examples of rape offences, the second worse than the first due to your persistence and the cumulative impact on Ms Vernick.[26]
[26] Mush v The Queen [2019] VSCA 307.
151Despite those events, you again demanded sex the following night. The rape committed on that second occasion is another example of at least a mid range offence for the following reasons:
(a) As you acknowledged in your record of interview, she was in a state of upset when she returned from the market.[27] You were angry and giving her the silent treatment.
(b) You told her you needed to have sex and after she said she did not want to you reiterated, ‘We’re going to have sex’. That demonstrates your awareness of her wishes and your complete disregard of them.
(c) You then ignored her tears and her request to leave her alone.
(d) On this occasion, like the night before, you positioned her and removed her clothing without any involvement from her. I repeat my finding that this was not premeditated in the usual sense, but nor was it spontaneous. You acted with entitlement.
(e) You penetrated her to the point of ejaculation.
(f) Not content, you then behaved in a petulant way, knocking her to wake her before finally slapping the bedside table. Those behaviours along with placing the dowel beside the bed were acts to demonstrate your control and your anger at her.
[27] ROI A156.
Charges 13 & 14 – The Coffee Table Incident
152Turning to your offending against Ms Webb and specifically the coffee table incident. You and Ms Webb had only recently met and moved in together. Regardless of any conversation about BDSM type sexual practices, you had an obligation to obtain her consent to each act. You did not do so. She told you that she had not been tied up before which was a reflection of her vulnerability to what would unfold. You were then in control of the unfolding events. You set up the scene and at each stage of this event determined to increase the intensity of acts against her.
153The indecent assault constituted by the pouring of hot wax on her vagina is a serious example of that offence for the following reasons:
(a) Obviously, the part of the body is most intimate and sensitive.
(b) The pouring of the wax caused her pain.
(c) That act came after you had already burned her with the hot metal ball. Her response of extreme distress, as she described with tears streaming from her eyes and bucking her hips to get away from the intense pain of the hot metal must have been apparent to you.
(d) Similarly, she responded with distress at the pouring of wax over her breasts and body, specifically saying no and asking you to stop. You ignored her pleas.
154Your decision to then penetrate her vagina in those same circumstances can only be described as a serious example of rape, despite the fact it is constituted by a failure to withdraw.
155Again, you ignored her sobbing and asking you to stop ‘the whole time’ you were penetrating her.
156That act did not last very long, but you continued until you ejaculated.
157In the context of this event it was extreme, painful and humiliating.
Charge 15 – Pregnant with Jonah
158In relation to Charge 15 of rape, in my view that is a serious example of this offence:
(a) Ms Webb was heavily pregnant.
(b) You committed that act after an argument where she expressed her feelings of exhaustion to you. Nonetheless you exerted your control over your heavily pregnant wife by confiscating her keys when she told you she wanted to go to her mother’s. She was vulnerable at that time and deserving of your care and kindness.
(c) Instead, you responded with physical violence to a woman who was in the final weeks of her first pregnancy with your child. You pushed her over and then held her down, pushing her harder when she tried to get up.
(d) You removed her clothing and penetrated her vagina from behind.
(e) You ignored her pleas for you to stop and her concern for her unborn child.
(f) Your moral culpability for that offence is very high.
Charges 16 – 20 – The Sex Chair Incident
159In a similar way, Ms Webb was vulnerable during the sex chair incident. She had not long given birth to her first baby and was dealing with the natural upheaval that was causing. She had undergone a caesarean section.
160You cajoled her to being tied to the chair.
161The offending which followed is shocking and very serious.
162You almost immediately raped her by pushing your fist into her vagina. This was your fantasy. You committed that act with no regard for her. You masturbated as you did it.
163She was telling you to stop and described herself as scared, with no control over the situation.
164The insertion of your fist in that way must have required some force. It caused her extreme pain.
165Undeterred, and taking advantage of her restraint, you then assaulted her by attaching the clamps to her nipples, then vagina.
166Those acts each built on the pain inflicted.
167In each case you ignored her distress and the fact she was ‘crying and screaming’ and trying to get out of the chair.
168To place clamps on and send electric shock through the nipples of a breastfeeding woman is almost incomprehensible. Her description of the excruciating pain was vivid.
169Similarly, electrocuting her vagina involved pain she described as ‘unimaginable.’ Her fear must have been palpable to you at that time, but you persisted for your own gratification.
170You ignored her bucking in the chair, even when it moved backwards, resulting in breaking glass which cut her foot. In a final act of humiliation you then slapped her to the face with your penis.
171Once she expressed her distress and was attempting to get out of the chair her restraint became unlawful which constitutes the false imprisonment.
172It was a reasonably short false imprisonment in the spectrum of that offence. However, it was an act of restraint committed in circumstances where you were otherwise offending against her in a graphic sexual way. You are not to be doubly punished for that fact. However, it forms a backdrop to the indecent assault charges in particular. Ongoing restraint for that purpose is serious.
Charges 21 – The Toilet Incident
173I can accept that this offence is a less serious example of rape. It was opportunistic and spontaneous. However, it was determined and forceful given she told you she would bite you if you persisted. You did so anyway. You took advantage of her position and the fact she was defecating.
174It was of reasonably short duration because Ms Webb followed through on her threat to bite you.
Charge 24 – A Morning after Lewis was born
175Soon after the birth of her second son you again took advantage of her for your own sexual satisfaction. This offence of rape in my view is a mid range example of that offence for the following reasons:
(a) Ms Webb had recently had her second caesarean and was suffering the soreness of that surgery.
(b) She was asleep when you started to penetrate her.
(c) You ignored her request to stop, telling her to ‘just give me a minute.’
(d) I accept the penetration was reasonably brief, interrupted by the crying baby.
Charge 26 – After the Scoresby gathering, post-reconciliation
176On the occasion after the Scoresby work gathering, Ms Webb was attempting to go to sleep. She was alcohol affected. You pursued sexual activity, ignoring her express wishes and her telling you she did not want sex. You physically positioned her on hands and knees.
177The rape charge relates to your failure to withdraw. The penetration was anal. You told police in your record of interview that Ms Webb did not enjoy anal sex.
178On this occasion, it was forceful and without lubrication. You told her to shush and pushed her into the mattress as she begged you to stop.
179She described ‘horrendous’ pain and the aftermath of blood, faeces and semen in the shower.
180For those reasons this is a reasonably serious example of rape.
Charge 27 – Near the end of the relationship
181Towards the end of your relationship Ms Webb was clearly in a parlous state of mental health. You were aware of that fact, calling the police on two occasions. You were aware she had been hospitalised in late 2016 and mid 2017 over mental health concerns.
182On this last occasion of rape, in that time frame, you woke her and took advantage of her lack of resistance to penetrate her vagina. Your acts were determined.
183By words and turning away she expressed her clear lack of consent, going as far as to tell you that she did not consent. Undeterred, you continued to the point of ejaculation.
184For those reasons this act too is a serious example of rape.
Charges 25 and 27 – Threat to Kill
185Turning to the two charges of making a threat to kill against Ms Webb, relevant features which elevate the seriousness of such an offence include who the threat was made against, and whether the offender had any apparent means to carry out the threat.
186I accept that it was not your intention to carry out either of the threats made.
187I accept they were both made in the context of heated argument and in that way your moral culpability is somewhat reduced.
188However, on both occasions when you made threats your threatening words were accompanied by the serious act of choking her. In that way you communicated your ability to carry out the threats made. In my view, the combination of your words with that action makes these serious examples of this offence.
189In particular, the event constituting Charge 25 is very serious. That act, occurring in your bed, involved you squeezing her throat to the point she could not breathe, and as she attempted to pull your hands away from her neck. Only the baby crying interrupted you. Clearly, your intention, though spontaneous, was to put her in fear that you indeed had the capacity to carry out your threat to take her life.
190Elevating the seriousness of those charges is the fact those threats were both made against your wife and mother of your children. The impact on her was clearly significant in that she reported those acts to the DHHS worker some time later.
191Considered globally, your offending is protracted, repetitive, and constitutes a serious breach of each relationship. Your moral culpability for those offences and the impact on those women is very high.
Personal Circumstances
192I now turn to your personal circumstances. I have been assisted by your Counsel’s submissions and a psychological report authored by Dr Michael Davis, Forensic Clinical Psychologist, dated 25 August 2023.
193You were born in Malaysia as the youngest of three children. Your father was an electrical engineer and a pilot in the Australian Air Force. He along with the rest of your family returned to Australia before your first birthday. You lived in Canberra until you moved to Wheelers Hill when you were around four years of age.
194You describe your childhood in very positive terms. You were close with both of your parents, who you say had a ‘perfect’ marriage. Your father died approximately 10 years ago as a result of ill health. Your mother died about two years ago, similarly as a result of ill health. You played a carer role in her last year, living with her three nights a week.
195You had positive relationships with your brothers, who are 11 and 13 years your senior. You describe them as part brother, part parent given the age difference. You lost contact with them after your mother passed away as a result of a dispute over money.
196You completed most of your schooling at Wesley College and did well academically, achieving a high tertiary entrance rank. You state that you enjoyed school, and that you had many friends and participated in sport.
197After successfully completing a year of an Engineering degree at Monash University, you went on to complete a Bachelor of Technology and Aviation at Swinburne University. You left home at age 22 and variously lived interstate.
Employment history
198You have a strong work history in various industries, working casually while at university before finding full-time employment in a department store and then a camper manufacturer. You subsequently worked as a hospital theatre technician for around three years.
199However, your ultimate career ambition was to follow in your father’s footsteps, and you eventually joined the Australian Army at the age of 30. You attended the Royal Military College, Duntroon for a Specialist Services Officers Course and served in the Army for three years interstate. You did not pass the helicopter conversion assessment and as a result you were ultimately honourably discharged.
200Following your return to Victoria, you were employed as a Store Manager at Repco Auto Parts for four years, and then Burson Auto Parts for another three.
201You then started a business in partnership with a friend, importing caravans from China. More recently, you were also involved in the designing of the caravans.
202This business is still operational but its future is fraught now that you are in custody and your business partner had a stroke in the weeks before your remand.
Relationship history
203In terms of your relationship history, your first serious relationship was with a woman who you met, two years your junior, whilst still at school. You were together for 12 years until you were 30, and had two daughters together, Georgia and Lily[28], who are now in their late teens to early 20s. You report to Dr Davis that the relationship ended because your partner was unfaithful, and that you have not had contact with each other for a number of years.
[28] A pseudonym.
204In relation to your two daughters, you last had contact with your eldest around a year and a half ago. You believe that you lost contact due to the charges against you. You report that you have not had contact with your younger daughter since she was around 12. I note that you have expressed a desire to make contact with your adult daughters after you are sentenced, should they also be interested in re-establishing the relationship.
205A few weeks after your split with your first partner, you met Ms Vernick online, and were in a relationship with her for seven years. Your son, Gabriel, is now 12 years old. Following your split with Ms Vernick, you state that your relationship remained cordial for some time, and that Gabriel would come over to your house every fortnight over the weekend. However, you have not had contact with him since the start of 2018.
206You met Ms Webb a few weeks after your split with Ms Vernick, and also quickly starting cohabitating. You had two sons with her, who are currently 7 and 8 years old. At the end of your relationship with Ms Webb in June 2017, the Department of Health and Human Services intervened and your sons were placed with Ms Webb’s mother, and following your separation with Ms Webb, you only had supervised visits with them. You state that you have not seen your sons since the end of 2019.
207You have had two relationships subsequent to those with the victims of your offending. The timelines you have provided seem inaccurate given you and Ms Webb only separated in July 2017. However, you report that your next relationship was with Michaela[29], and it lasted approximately five years.
[29] A pseudonym.
208That relationship commenced in the weeks after you split with Ms Webb, and you were cohabitating after eight weeks. Michaela is five years your junior and had three children of her own from a previous relationship. You and she had a son together who is now four years old.
209You and Michaela were engaged but ended up separating, which you attribute to the stress of this case. Two Intervention Orders were taken out against you by Michaela. You breached one of those orders and were charged and dealt with in the Magistrates’ Court where a non-conviction undertaking was imposed. The details of the basis for the imposition of the IVO and the circumstances of the breach are unclear to me and unnecessary for my purposes.
210You say you and Michaela have been separated for about two years. You indicate that your relationship remains friendly ‘at times’ and you had weekly contact with your son until your remand at which point that contact ceased.
211Following your split with Michaela, you entered into another relationship with a woman named Rebecca[30], who she says you met via an online dating site in February 2020. You report that, in contrast with your past relationships, which you acknowledge often commence soon after your separation from a previous partner, you met her 18 months after your separation with Michaela, and that you did not live together at any stage.
[30] A pseudonym.
212You describe her as ‘the perfect person’ and told Dr Davis that you fell in love with her. You did not tell Rebecca about these proceedings, your trial or your subsequent conviction. A friend of yours informed her once your verdict was delivered. You state that you are hopeful that you will remain friends, and that you spoke to her a couple of weeks after you were remanded.
Character References
213I have received a character reference from Rebecca, who states that you became close friends after a brief romantic relationship. She describes you as an important part of her life, stating that you are loyal, generous, and attentive and always had her best interests at heart. You were her “bubble buddy” during the COVID lockdowns and you spent a lot of time with her and her daughters, who she says miss you terribly. She also speaks highly of your care for your mother during her final years, which is a matter referred to in the report of Dr Davis.
214Rebecca states that she has read the verdict judgement, and that it was a shock to her to find out the extent and serious nature of your offending.
215I have also received another character reference from a close friend of yours, who is also aware of the nature and details of your offending. Like Rebecca, he describes your offending as shocking and out of character. You and he have spent a lot of time together with shared interests. He is aware of your sadness at the loss of your mother. He writes that you are a warm, attentive and caring close friend of his, and that you are very generous with your time and in assisting others, in particular with his teenage son.
Psychological Assessment
216Dr Davis conducted a psychological assessment of you to determine, among other things, whether you suffer from any diagnosable disorders, and to assess the level of risk you pose for further offending. You underwent a range of diagnostic testing for that purpose.
217Your testing results indicated active impression management at a level which was ‘markedly elevated.’ Dr Davis goes on to say, ‘Indeed, it was well above the suggested score that would suggest that other self-report testing was probably invalid.’ Although he says this does not invalidate the results of testing, and Dr Davis could not conclude you were engaging in impression management for the entire assessment, he says ‘it did suggest [your] self-report may under-represent the extent and degree of certain difficulties, particularly in regard to social and moral matters.’
218Further, he notes your continued ‘categoric’ denials of the offending. Although this compromises his assessment of your level of insight, again he states this does not invalidate testing results. Further, he says the literature demonstrates some dispute about whether denial itself is a pointer towards risk of reoffending. Lastly, Dr Davis states that ongoing denials do not mean you cannot or should not undergo therapeutic treatment to reduce your risk of reoffending.
219He assesses you informally as being of average intelligence.
220On examination of the results of testing using the recognised instruments for assessing sexual deviation he made the following conclusions which are relevant to my sentencing task.
221In relation to your sexual behaviour, and with specific reference to your interest in and offending in the context of BDSM practices, Dr Davis confirms that it raises a possibility of a paraphilic disorder, i.e., of sexual deviation. He concludes that you appear to have demonstrated hyper-sexual arousal in the past and may have met criteria for Compulsive Sexual Behaviour Disorder, which is a ‘persistent pattern of failure to control intense, repetitive sexual impulses or urges.’ However given your lack of more recent offending he concludes that diagnosis is not currently appropriate.
222It is apparently more difficult for Dr Davis to determine whether you have a Sexual Masochism Disorder, however he does diagnose you with Cordophilia related to your long-standing interest in restraint or restraining.
223Dr Davis also concludes that your offending raises the possibility of a Sexual Sadism Disorder. However, in his opinion it was not the suffering of your partner of itself which was the focus of your sexual arousal. As such, he determined that diagnosis is not appropriate. Rather, he concludes that your offending during the BDSM activity reflects what he described as ‘a selfishness and seeming indifference to, or ignorance of, the suffering of [your] partners during that activity.’
224Firstly, I reject the idea that your offending on those occasions was a result of any ignorance of the suffering, or lack of consent, of Ms Vernick or Ms Webb. Such a conclusion would controvert my findings in relation to the very obvious suffering of both women and in relation to your state of belief at the time. I also reject the idea that you, as an apparently intelligent man, had ‘little understanding’ of how to make such activities safe and consensual. Rather, you were not interested in doing so.
225Secondly, I have some difficulty in reconciling Dr Davis’ findings about your sexual motivations with the evidence of events such as the coffee table or sex chair incidents. You continued to inflict pain on Ms Webb despite her obvious suffering. Rhetorically, for what reason other than your own sexual arousal did you continue in those behaviours? There does not seem to be any other explanation explored with you or addressed by Dr Davis in his report. Given your marked impression management, that is somewhat concerning.
226However, the Prosecution did not take issue with Dr Davis’ report and as such I do not draw any adverse finding about a diagnosable sexual disorder.
227I accept Dr Davis’ conclusion that your behaviour on the occasions where BDSM practices were involved demonstrates your selfishness and indifference in relation to your partners’ wishes over your own sexual arousal. That accords with my findings outlined in my Verdict ruling. That behaviour and your apparently reduced capacity for empathy is also demonstrated in the sexual offending which did not involve BDSM type activity.
228In summary, there is no diagnosable condition which works to mitigate your sexual offending. To the extent that Dr Davis refers to those potential disorders as relevant to risk, I take his conclusions into account.
Risk of Reoffending and Prospects of Rehabilitation
229In relation to risk of reoffending, Dr Davis concludes that your risk of reoffending against an intimate partner is moderate, although he states this is a ‘conservative and cautious’ opinion, noting that you committed numerous sexual offences against two partners over several years. In that way, I understand his reference to ‘conservative’ to mean “generous”.
230In my view given the pattern of offending here and given my findings regarding your tendency to take advantage of your intimate partners, you are at least a moderate risk of re-offending. I draw that conclusion also given the ease with which you met women on line and very quickly entered relationships, including cohabiting. Your serious offending against Ms Webb started within months of meeting her and forming a relationship.
231In my view your prospects of rehabilitation will depend on your ability to confront your offending and to gain some insight into your motivations and behaviours. At this stage they are guarded, despite your positive period on bail and the protective factor of your history of employment.
232Ms Flynn submitted that your strong and consistent work history bodes well for your rehabilitation prospects. She submitted that fact indicates you are more likely to be able to find stability once you return to the community. She also relies on the fact your capacity for employment and contribution is demonstrated by the fact you are presently employed in custody and have completed two courses despite being a remand prisoner. I take those matters into account.
Plea of Not Guilty
233You pleaded not guilty to this offending and elected to put the Prosecution to its proof at Trial. That fact does not aggravate the offending or your personal circumstances. It does not work to increase sentence. It simply means you do not receive the benefits which flow from a plea of guilty in recognition of its utilitarian benefits and the fact it saves the victims from giving evidence at both a Committal hearing and at Trial.
Remorse
234In that same vein, your continued denials of your offending preclude me from being able to find that you have any empathy for your victims or are remorseful for your offending conduct.
235I do note, in relation to Ms Webb, you made admissions to Dr Davis that you did not treat her ‘properly’ throughout the relationship, saying that she ‘has a right to hate [you]’ for leaving her with two young children and for your lack of understanding around the death of her father.
236I also note you completed an Alcoholics Anonymous and a Men’s Behaviour Change Program after your split with Ms Webb, around the time that the Department of Health and Human Services became involved.
Time in Custody
237In relation to your current mental health, you were diagnosed by Dr Davis with late onset Persistent Depressive Disorder; that is, you were assessed by him to be suffering from a degree of depressed mood for a period of not less than two years, which is not quite at the magnitude of a major depressive episode. You are currently treated with an anti-depressant, Lexapro, which you report has been effective in alleviating your symptoms.
238Your Counsel submits that your ongoing need for monitoring, medication and treatment whilst you are in custody constitutes an additional burden which should work to moderate sentence. However, Ms Flynn concedes that it is a matter of degree, and that these circumstances may not be relevant for the whole of your time in custody, though should be taken into account in some way. The Prosecution, in the same vein, submits that if this principle is enlivened, it is only so to a limited extent.
239I accept that your current mental health, where you describe your mood as 3 out of 10 and an improvement from where you were before being medicated, is poor. As such I accept you are experiencing imprisonment in a more onerous way than a person without that condition.[31]
[31] R v Verdins (2007) 16 VR 269, limb 5.
240I also accept more generally that your experience of your first period of remand has been difficult. Although not at the height of the COVID-19 pandemic, there is an impact on the prison population which is ongoing to an extent. I take that into account.
241I also take into account that your prospects of any reunion with any of your six children is very much compromised by your status as a prisoner. I accept your lack of contact with them weighs heavily on you along with your now limited capacity to take any action in that regard.
242I accept that your time in custody is isolating. You have no parents, no relationship with your brothers, your children or their mothers, and only a small number of friends who remain supportive.
Delay
243I accept that there has been significant delay in relation to this matter.
244Delay is a relevant factor in sentencing in two ways; first, because of the uncertainty created for a person who has the prospect of criminal prosecution and its consequences hanging over them. That state of uncertainty not only affects a person’s ability to continue with their normal life, but of itself is anxiety provoking and potentially deleterious. Second, it is relevant where a person can demonstrate their rehabilitation, in your case by way of a lack of subsequent offending.
245There was a fifteen-month gap between your arrest and interview in February 2019 and being charged in May 2020. In addition, the evidence at Trial bears out that you were aware that allegations had been made against you by Ms Webb at least to DHHS in mid 2017. In that sense the prospect of criminal prosecution has hung over you since then.
246Your trial was adjourned on two occasions through no fault of your own, once due to the unavailability of Prosecution counsel and once in relation to your application for a Trial by Judge Alone and the subsequent successful Appeal. No doubt the general effect of the backlog caused by the COVID-19 pandemic also had an impact on your matter getting to Trial.
247Ultimately, more than four years passed between your arrest in February 2019 and your trial and verdict earlier this year.
248I take those matters into account. I accept that you have suffered the anxiety of the pending prosecution during that period of time, particularly in light of your diagnosis of Persistent Depressive Disorder.
249You are now being sentenced over 6 years since your last episode of offending, which ceased in June 2017. You have not reoffended in that time. I take that into account as a factor in mitigation when assessing the appropriate sentence.
Serious Offender Provisions
250The Serious Sexual Offender provisions also apply in your case, pursuant to Part 2A of the Sentencing Act 1991. What that means is that once I sentence you to a term of imprisonment on Charges 4 and 8 of Rape, I must then sentence you as a serious offender for all subsequent sexual and violent offences. Those provisions therefore apply to the remaining Rape charges, the Indecent Assault charges and the two charges of Make Threat to Kill.[32]
[32] Sentencing Act 1991, s 6D.
251Parliament has dictated in those circumstances that I am to consider the protection of the community as a principal purpose of sentencing, and cumulation rather than concurrency is presumed to achieve that end.[33]
[33] Sentencing Act 1991, s 6E.
252Those provisions do not eradicate the need for me to give consideration to principles of either proportionality or totality, although they may be moderated to an extent.[34]
[34] See e.g., R v Connell [1996] 1 VR 436; Matheas v The Queen [2017] VSCA 330.
253It is a well-established principle of sentencing that a sentence of imprisonment should not exceed that which can be justified as proportionate to the gravity of the crime, considered in light of its objective circumstances.[35]
[35] Hoare v R (1989) 167 CLR 348.
254It is equally well established that when sentencing an offender in relation to a series of or multiple offences, I must review the overall sentence and consider whether the aggregate is just and appropriate, and I must look at the totality of the criminal behaviour and decide what is the just and appropriate sentence for all offences.[36] That is the principle of totality.
[36] R v Connell [1996] 1 VR 436.
255The Prosecution here did not urge a disproportionate sentence.
256Your Counsel submitted that a consideration of totality should be significant in the sentencing synthesis.
257I must also take into account current sentencing practices. A number of cases have been referred to by Counsel and which are on the Judicial College website.[37] As always, there are differences between offenders and offending. As I stated earlier there are some unusual aspects in this case which are not present in others such as the consensual restraint on some occasions. Ultimately I am required to impose a just sentence in all the circumstances and that is what I have endeavoured to do.
[37] See e.g., DPP v Avalos (a pseudonym) [2023] VSCA 117; DPP v Lian [2019] VSCA 75; DPP v Mokhtari [2020] VSCA 161; Bolton v The Queen [2019] VSCA 21; DPP v Granata [2016] VSCA 190; Matovic v The Queen [2021] VSCA 212; DPP v Jayadev Patil (a Pseudonym) [2020] VCC 1674; Matheas v The Queen [2017] VSCA 330; Wheeldon v The Queen [2018] VSCA 344; Tscherepko v The Queen [2010] VSCA 299; Lord v The Queen [2017] VSCA 29; Nicholson (a pseudonym) v The Queen [2019] VSCA 177; Williams v R [2017] VSCA 130; Vella v The Queen [2018] VSCA 30; Shau v The Queen [2020] VSCA 252.
Submission as to Sentence
258There is no dispute that the only appropriate sentence here is a lengthy term of imprisonment with a non parole period.
259Your Counsel submitted that the range of sentences upheld by the Court of Appeal as appropriate in relation to the charge of Rape varies considerably, with some examples of the offence attracting terms of imprisonment of two years[38] and others six, seven or eight years. In some circumstances those have followed pleas of not guilty. In particular the analysis in DPP v Lian[39] was referred to. I have taken those matters into account.
[38] DPP v Lian [2019] VSCA 75.
[39] Ibid.
260The ultimate submission by your Counsel was that the term I impose should involve a lengthy parole period so as to facilitate your rehabilitation. Ms Flynn highlighted your previous good character, your past work history and lack of diagnosable sexual disorder to submit you are an attractive proposition for a lengthy parole term.
Maximum Penalties
261I take into account the maximum sentence for each charge of Rape is 25 years’ imprisonment, for each of the charges of Indecent Assault, False Imprisonment and Make Threat to Kill the maximum penalty is a term of 10 years’ imprisonment. For Common Law Assault it is 5 years’ imprisonment.
Cumulation
262In relation to orders for concurrency and cumulation, I accept it is appropriate to moderate orders for cumulation where offences are part of a single incident, though I am mindful of the comments by the Court of Appeal to the effect that ongoing acts of rape and indecent assault during a single episode reflect persistent disregard for the victim and can also have a cumulative impact on the victim.[40]
[40] DPP v DDJ (2009) 22 VR 444.
263Determining cumulation where there are multiple offences, and taking into account totality, is a difficult task in a matter such as this.
Sex Offender Registration
264Before I turn to sentence, I will deal with the Prosecution application pursuant to s 11 of the Sex Offender Registration Act 2004 (“SORA”) for a Sex Offender Registration order to be made against you. You are eligible for such an order given you have been found guilty of various Class 3 and Class 4 offences and you are a serious sexual offender within the meaning of the Act.[41]
[41] Sex Offender Registration Act 2004, s 11.
265That application is opposed by you.
266The relevant test for the making of such an order is contained in s 11(3) of the SORA, namely I may only make an order if, after taking into account any matter I consider appropriate, I am satisfied, beyond reasonable doubt, that you pose a risk to the sexual safety of one or more persons or of the community.
267The test is a two stage test.[42]
[42] Bowden v the Queen (2013) 44 VR 229; Sayer v The Queen [2018] VSCA 177.
268I must refuse to make an order if I am not satisfied beyond reasonable doubt that you will pose the relevant risk on your release from imprisonment, based on what is presently known. I must be satisfied that the risk is “real”.
269I am not required to identify a particular person or class of persons to whom you pose a risk.
270I am satisfied beyond reasonable doubt that upon your release from custody you will continue to pose a risk to the sexual safety of one or more persons, namely any future intimate partner. I reach that level of satisfaction for the following reasons:
(a) You started your intimate relationships with both Ms Vernick and Ms Webb within a very quick period of meeting them;
(b) You did so via the world of online dating which creates a very easy avenue for meeting potential partners, and for doing so at arm’s length – i.e., in a virtual way;
(c) You commenced cohabiting with each woman within a very short time frame of meeting;
(d) You offended against two separate women;
(e) You have committed 11 rape offences and 4 indecent assault offences;
(f) Your offending against Ms Webb started within weeks of cohabitation and was extreme;
(g) Your offending against each woman was repetitive;
(h) It occurred over a long period of time;
(i) It was committed in various different ways – some extreme, violent, painful and humiliating, including in circumstances where the relevant victim was restrained or in another way limited in her capacity to resist or defend herself against you;
(j) It was committed against a backdrop of persistent demand for sexual activity even at times when the particular victim was vulnerable;
(k) Your offending involved sexual violence and threats to kill;
(l) You are assessed as at least a moderate risk of sexual reoffending with the likely scenario being offending in the context of BDSM-type activities where you take advantage of circumstances of restraint and ignore the suffering of your partner, or where you simply disregard the wishes of your partner in preference to your own sexual gratification;
(m) You continue to deny the offending;
(n) You lack any remorse and have not demonstrated any insight; and
(o) Your motivation to engage in sex offender treatment is unclear.
271That is not the end of the matter. Having reached that level of satisfaction, I must then determine whether to exercise my discretion to make an order in all the relevant circumstances.
272I must balance the circumstances and my satisfaction of risk against the purpose of the SORA scheme and the onerous obligations it will impose upon you. In that assessment I must take into account the degree of likelihood of the risk eventuating, the magnitude of the risk should it eventuate, and the likely consequences for any victim.
273Largely for the reasons listed above regarding risk, I am satisfied that there is a significant degree of likelihood that the risk will eventuate in the context of an intimate relationship and may do so even in circumstances where a partner consents to some level of sexual activity. The potential for repetition of sexual offending in light of my findings of fact and where you are likely to have fulfilled diagnostic criteria of Compulsive Sexual Behaviour Disorder is clear.
274The gravity of harm and the impact on a victim is obvious and would likely reflect the contents of the victim impact statements provided by Ms Vernick and Ms Webb.
275For those reasons I intend to impose an Order that you be registered under the Sex Offenders Registration Act 2004.
276The duration of the order is in my discretion but must be of at least 15 years. I intend to impose a duration which will be in place for a number of years after your release from custody. The duration of that Order will be for 28 years.
Sentence
Mr Barton, the sentences I impose for your offending against Lara Vernick are as follows:
277On Charge 1 – Common law assault – you are convicted and sentenced to 3 months imprisonment;
278On Charge 4 – Rape [Caravan] – you are convicted and sentenced to 7 years imprisonment;
279On Charge 8 – Rape [Vaginal. Night of the gastroscopy/colonoscopy] – you are convicted and sentenced to 8 years and 8 months imprisonment;
280On Charge 9 – Rape [Anal. Night of the gastroscopy/colonoscopy] – you are convicted and sentenced to 10 years imprisonment;
281On Charge 11 – Rape [After the night market] – you are convicted and sentenced to 8 years imprisonment;
For your offending against Nicola Webb, I impose the following sentences:
282On Charge 13 – Indecent Assault [Hot wax onto vagina] – you are convicted and sentenced to 3 years imprisonment;
283On Charge 14 – Rape [Coffee table incident] – you are convicted and sentenced to 9 years imprisonment;
284On Charge 15 – Rape [Pregnant with Jonah] – you are convicted and sentenced to 10 years 6 months imprisonment;
285On Charge 16 – False Imprisonment [Sex chair incident] – you are convicted and sentenced to 3 years imprisonment;
286On Charge 17 – Rape [Fisting] – you are convicted and sentenced to 12 years imprisonment;
287On Charge 18 – Indecent Assault [Electrocuting nipples] – you are convicted and sentenced to 5 years 6 months imprisonment;
288On Charge 19 – Indecent Assault [Electrocuting vulva] – you are convicted and sentenced to 6 years imprisonment;
289On Charge 20 – Indecent Assault [Slapping face with penis] – you are convicted and sentenced to 2 years imprisonment;
290On Charge 21 – Rape [Toilet] – you are convicted and sentenced to 4 years imprisonment;
291On Charge 23 – Threat to Kill [Eggs argument] – you are convicted and sentenced to 3 years imprisonment;
292On Charge 24 – Rape [A morning after Lewis was born] – you are convicted and sentenced to 7 years and 3 months imprisonment;
293On Charge 25 – Threat to Kill [in bed] – you are convicted and sentenced to 4 years 8 months imprisonment;
294On Charge 26 – Rape [After the Scoresby gathering, post-reconciliation] – you are convicted and sentenced to 7 years 8 months imprisonment;
295On Charge 27– Rape [Near the end of the relationship] – you are convicted and sentenced to 10 years imprisonment.
Orders for Cumulation
296I declare that the sentence imposed on Charge 17 of 12 years is the base sentence.
297I make the following orders for cumulation: 6 months of the sentence imposed on Charge 4, 10 months of the sentence imposed on Charge 8, 16 months of the sentence imposed on Charge 9, 12 months of the sentence imposed on Charge 11, 6 months of the sentence imposed on Charge 13, 14 months of the sentence imposed on Charge 14, 20 months of the sentence imposed on Charge 15, 6 months of the sentence imposed on Charge 18, 10 months of the sentence imposed on Charge 19, 3 months of the sentence imposed on Charge 23, 12 months of the sentence imposed on Charge 24, 6 months of the sentence imposed on Charge 25, 12 months of the sentence imposed on Charge 26, and 15 months of the sentence imposed on Charge 27 are to be served cumulatively on each other and on the base sentence.
298The total effective sentence therefore is one of 24 years and 4 months imprisonment.
Non Parole Period
299I order that you are to serve a term of 17 years and 8 months imprisonment before becoming eligible for parole.
Pre-sentence Detention
300I declare that you have served 208 days on remand pending sentence and that that period is to be reckoned as having been served under this sentence.
Serious Offender
301I declare that you are a serious offender in relation to Charges 9, 11, 13, 14, 15, 17, 18, 19, 20, 21, 23, 24, 25, 26 and 27 and that that status should be noted in the records of the Court.
Ancillary orders
302The Prosecution has filed a draft Disposal Order which is not opposed by you. I therefore propose to make that order in the terms sought.
| Charge | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Common assault (contrary to common law) | 5 years | 3 months | None |
| 4 | Rape (contrary to s 38(2)(b), as amended by the Crimes (Rape) Act 1991) | 25 years | 7 years | 6 months |
| 8 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Rape) Act 2007) | 25 years | 8 years 8 months | 10 months |
| 9 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Rape) Act 2007) | 25 years | 10 years | 16 months |
| 11 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Rape) Act 2007) | 25 years | 8 years | 12 months |
| 13 | Indecent Assault (contrary to s 39, as amended by the Crimes Amendment (Rape) Act 2007) | 10 years | 3 years | 6 months |
| 14 | Rape (contrary to s 38(2)(b), as amended by the Crimes (Rape) Act 1991) | 25 years | 9 years | 14 months |
| 15 | Rape (contrary to s 38(2)(b), as amended by the Crimes (Rape) Act 1991) | 25 years | 10 years 6 months | 20 months |
| 16 | False imprisonment (contrary to common law) | 10 years | 3 years | None |
| 17 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Rape) Act 2007) | 25 years | 12 years | Base |
| 18 | Indecent Assault (contrary to s 39, as amended by the Crimes Amendment (Rape) Act 2007) | 10 years | 5 years 6 months | 6 months |
| 19 | Indecent Assault (contrary to s 39, as amended by the Crimes Amendment (Rape) Act 2007) | 10 years | 6 years | 10 months |
| 20 | Indecent Assault (contrary to s 39, as amended by the Crimes Amendment (Rape) Act 2007) | 10 years | 2 years | None |
| 21 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Rape) Act 2007) | 25 years | 4 years | None |
| 23 | Make threat to kill (contrary to s 20) | 25 years | 3 years | 3 months |
| 24 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014) | 25 years | 7 years 3 months | 12 months |
| 25 | Make threat to kill (contrary to s 20) | 25 years | 4 years 8 months | 6 months |
| 26 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014) | 25 years | 7 years 8 months | 12 months |
| 27 | Rape (contrary to s 38(1), as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014) | 25 years | 10 years | 15 months |
| Total Effective Sentence | 24 years 4 months | |||
| Non Parole Period | 17 years 8 months | |||
| Pre-Sentence Detention | 208 days declared | |||
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