Director of Public Prosecutions v Baumann (a pseudonym)
[2025] VCC 50
•3 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK BAUMANN (A PSEUDONYM) |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2024 | |
DATE OF SENTENCE: | 3 February 2025 | |
CASE MAY BE CITED AS: | DPP v Baumann (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 50 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty plea – Rolled up offence of rape, distribute intimate image, threat to kill, common law assault - Assault with a weapon and contravention of intervention order – Serious example of rape involving multiple aggravating factors – Standard sentence - Relevant prior convictions including a previous offence of rape and family violence offences – Application of Muldrock principles – Application of Bugmy principles including intergenerational disadvantage.
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958.
Cases Cited:DPP v Reynolds [2022] VSCA 263; Pasinis v The Queen [2014] VSCA 97; Mercer (a pseudonym) v The Queen [2015] VSCA 257; Kalala v The Queen [2017] VSCA 223; DPP v Evans [2019] VSCA 239; DPP v Mokhtari [2020] VSCA 161; Bugmy v The Queen [2013] HCA 37; Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120; Eastern Maar People v State of Victoria [2023] FCA 237 (Federal Court).
Sentence: 10 years’ and 4 months’ imprisonment with a non-parole period of 7 years and 2 months imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Lekamge | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr G. Chisholm (plea) Ms M. Cananzi (sentence) | Victoria Legal Aid |
HIS HONOUR:
1Mark Baumann,[1] you have pleaded guilty to one charge of common law assault, a charge of rape and a charge of making a threat to kill. You have also pleaded guilty to summary offences of distributing an intimate image, assault with a weapon and contravening a Family Violence Intervention Order. The maximum penalty for rape is 25 years' imprisonment. Rape is a category 1 offence under the Sentencing Act 1991 (Vic) (‘the Act’) and therefore under s.5(2G) of the Act, a custodial sentence is mandatory for an adult offender. Rape has a standard sentence of 10 years' imprisonment.
[1] A pseudonym.
2The maximum penalty for threat to kill is 10 years' imprisonment; and, for common law assault, it is five years' imprisonment. The maximum penalty for each of the summary offences is two years' imprisonment.
3The facts of your offences are comprehensively described in the Prosecution Opening which was tendered as an exhibit on the plea and which I will summarise.
4You were in an intimate relationship with the victim in this matter for between four to six months prior to the date of the offending, 16 July 2023. She was 23 weeks pregnant at that time.
5In April 2023, the victim moved in to live with you at your unit in Moe. You had an active consensual sexual relationship which included recording consensual sexual acts together on the victim's phone.
6As the relationship went on, you became increasingly jealous of her speaking to other people. You would go through her phone to try and find evidence of her cheating on you and evidence you were not the father of the unborn child.
7In July 2023, you travelled to Albury for a funeral. The victim went with you. You arrived back in Moe at around 6 pm on 15 July 2023. When you got off the train you had an argument with a man named Peter Plunkett.[2] The victim went to the carpark where her mother was waiting for her. She said to her mother that you were drunk and that she had had enough. She was upset and in tears. You then arrived at the car and got in.
[2] A pseudonym.
8You went to the Coles, where the victim and her mother went inside. You waited at the car. The victim's mother asked her what had been happening and rather than directly tell her mother, she sent her a series of text messages indicating you had been assaulting her when you were drunk. The victim deleted the messages on her phone so you would not see them.
9You and the victim returned home. You used methamphetamine. The victim went to sleep at around 1 am to 2 am. She woke up to find you talking to yourself while holding her phone. You were writing something on a piece of paper.
10At 10 am that morning, you gave the victim the piece of paper on which you had been writing. It contained a list of male names; some were friends of hers and others were her family members. You suggested that any of these people could be the father of her unborn child. The victim said to you that some of the names were her family, and you said, 'you probably fuck them even if they are your cousins'.
11Later that day in the early afternoon, you were again looking at the victim's phone and reading her messages. You made Google searches about how to get DNA from a baby in the womb and how much a DNA test would cost.
12You started to become angry. You put a bandana on your head which the victim said is something you would do when you become angry. You picked up a glass bong and threw it on the floor near the door of the bedroom. You told her to 'clean this up, you bitch'. She did, cutting her toe in the process.
13You then stood up and pushed her onto the corner of the bed. You were standing in front of her. You held her head up and put your face against hers. You then let her go and she began vacuuming up the rest of the glass. You said to her words to the effect of 'hurry up so I can do what I want to do'. She took this to mean something sexual.
14She went to the bedroom to get changed and you went to the toilet. From there you asked her to come to the toilet, telling her to 'come here and suck my dick'. She went to the toilet, and you stood up and grabbed her by the hair before pushing her head towards your penis. You slapped her to the face multiple times. She received a bruise to her left eye. This is the basis of Charge 1, common law assault. She then performed oral sex on you because she was scared of being further assaulted. This is the first occasion of rape covered by Charge 2, which is a rolled-up count. While the victim was performing oral sex on you, you held her hair with one hand and her phone with the other. You pushed your penis into her mouth with enough force to push her head back against the wall. When she tried to stop or slow down, you used your grip on her hair to push her head closer to you. She was crying.
15You recorded this activity on her phone. Videos and photos showed this incident to have occurred between 3.54 pm to 4 pm. You recorded four videos, all between 3.51 pm and 3.54 pm. The content of these videos is described in the Crown Opening. The videos show her performing oral sex on you. You call her a rat and you say 'suck the cum, you dirty fucking white cunt'. You also say to her 'just move, white slut. Fuck you and your mum, you dirty slut'. The victim can be heard crying and whimpering.
16You sent the first three videos to a man named Simon Blunt[3] via Facebook Messenger. You then sent the fourth video to a person named Kyle Wright,[4] again via the victim's Facebook Messenger.
[3] A pseudonym.
[4] A pseudonym.
17Eventually you stopped and sat back down on the toilet. You told the victim to go to the bedroom. You went to the bedroom and lay down on the bed with no pants on. You told the victim to kneel between your legs. You made her perform oral sex on you again. Whenever she would attempt to slow down or stop, you would grab her head and push it harder onto your penis. This is the second occasion, part of Charge 2.
18You recorded three more videos of the victim. You could be heard saying 'this is for you, [Peter].’ The victim was crying. On these videos, you can be heard abusing the victim.
19At least one of these videos was sent to Peter Plunkett, although he was not able to confirm anything other than that he received a video of a sexual nature. He deleted that video.
20You stopped recording. You held the victim's head with both hands and pushed her head into your groin, forcing your penis into her mouth again. She resisted and tried to pull her head away from you. This is occasion three of Charge 2. She tried to resist, and you became angry. You picked up a knife from the floor. You said to her 'I'm going to stab you if you don't'. You slapped her arms with the flat side of the knife before pointing it at her and saying, 'you don't do it, I'll kill you and the baby'. This is the basis of Charge 3, threat to kill.
21The victim then complied and performed oral sex on you. You slapped the knife on your legs beside her head several times to further intimidate her. This is the fourth occasion of rape, part of Charge 2.
22In an attempt to get away from you, at around 4 pm, the victim told you she needed to call her mother to bring the two of you food. You told the victim she could call her mother in about half an hour but had to continue performing oral sex on you. She did this. This is occasion five relating to Charge 2.
23After about half an hour, the victim was allowed to go and call her mother. In that phone call, she said 'help' to her mother and hung up the phone. She called her mother again soon after, but she was crying during that phone call. You became angry and you approached her holding an extendable back scratcher. Out of fear, she hung up the phone. You then struck her with the back scratcher to her back, leaving a red mark on her back. This is the basis of summary offence 5, assault with a weapon. She was crying; you told her to stop crying and get over it.
24A short time later, the victim's mother arrived and knocked on the door. You thought it was the police, so you told the victim to answer the door. She opened the door and went out to the car with her mother where her stepfather was on the phone to the police. Police arrived at your address at around 4.55 pm.
25You were arrested and interviewed soon after. You were in possession of the victim's mobile phone, which police seized. The contents of the phone were later downloaded, revealing the videos of some of the offending.
26You denied the majority of the allegations, saying you had never done anything sexual with the victim that was not consensual. You admitted slapping her a couple of times. You admitted sending intimate images of yourself and the victim to men that she knew.
27You were charged and remanded in custody. A Family Violence Intervention Order was served on you which precluded you from contacting the victim or getting anyone else to do so.
28On 26 July 2023, the victim reported breaches of the Family Violence Intervention Order to police. She had received a Facebook message from Pamela Burrows[5] on 25 July that read '[Marky] is asking for your phone number'. Marky is your nickname. The victim spoke to Burrows, who told her that her boyfriend was in Port Phillip Prison with you and that you had asked her boyfriend to ask Burrows to get the victim's phone number. This is the basis of summary Charge 18, contravening a Family Violence Intervention Order. Police spoke with Burrows, who confirmed the above details. Phone calls between Burrows and her boyfriend from Port Phillip Prison were obtained. On those calls, you can be heard in the background asking that messages be passed on to Burrows and that a message be sent to the victim that you wanted her phone number.
[5] A pseudonym.
29You were on bail at the time of the offending in this case, which is an aggravating factor.
30You pleaded guilty to the charges in this case on 17 May 2024, once negotiations had taken place between your legal representatives and the prosecution. The matter proceeded by way of hand-up brief at a committal mention proceeding. Therefore, your plea of guilty was entered at the earliest reasonable opportunity. Your guilty plea is a significant matter in mitigation. It indicates a willingness to facilitate the course of justice. It is consistent with some remorse although there is no other evidence of genuine remorse and insight in this case. The utilitarian value of your plea is significant. You have saved the court and the prosecution the use of the resources required for a trial, and you have spared the witnesses the ordeal of having to give evidence about the offending, which is particularly important for the victim. It must be observed that the prosecution case here was very strong, given they were in possession of videos of some of the offending.
31The victim in this case has chosen not to provide a victim impact statement but it can be inferred from the gravity of the offending that the impact on her would have been substantial.
Gravity
32Turning then to the sentencing principles that apply to the offences in this case. In the case of DPP v Reynolds,[6] the Court of Appeal reviewed the sentencing authorities in relation to offences of family violence or intimate partner violence. The offences in this case fall into that category.
[6] DPP v Reynolds [2022] VSCA 263.
33In Reynolds, the court referred to the cases of Pasinis, Mercer, Kalala and Evans, which are just some of the authorities which deal with sentencing principles for family violence.[7]
[7] Ibid; Pasinis v The Queen [2014] VSCA 97; Mercer (a pseudonym) v The Queen [2015] VSCA 257; Kalala v The Queen [2017] VSCA 223; DPP v Evans [2019] VSCA 239.
34In Reynolds, the court adopted the following passage from the decision of Kalala:
The trial courts of this State are imposing sentences for family violence offences with increasing frequency. The courts have repeatedly emphasised the need to condemn family violence, in line with community expectations.[8]
[8] DPP v Reynolds [2022] VSCA 263 at [75].
35The court then concluded:
As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending.[9]
[9] Ibid at [77].
36In the case of Meyers the Court of Appeal said:
… Those who engage, or contemplate engaging, in such violence — in whatever context —should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.[10]
[10] DPP v Meyers [2014] VSCA 314.
37Those authorities apply to the offending in this case.
38Turning then to the rape offences and the sentencing principles. In the case of Mokhtari,[11] the Court of Appeal said this about such offences:
The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.
[11] DPP v Mokhtari [2020] VSCA 161 at [41].
39The seriousness of any rape offence is reflected in the maximum penalty of 25 years and the standard sentence of 10 years. It is also a category 1 offence indicative of its seriousness. This was a serious example of a very serious crime.
40In this case, the rape offence is a rolled-up charge incorporating five incidents of oral penetration. A rolled-up charge is a single charge but in sentencing I must consider all the circumstances, and the total criminality involved. All other things being equal a rolled-up charge is more serious than a charge involving one act.
41Your offending was motivated by your unhinged jealousy, and it was calculated to exert control and domination over the victim. The penetrations were achieved by coercion and force. The acts constituting the rape offences were highly degrading and demeaning, as was your language towards her. Adding to the humiliation for the victim you took videos of the offending to send to men about whom you entertained some suspicion (probably deluded and drug inspired).
42You transmitted the videos, which is the basis of a separate charge, and it is a serious example of a distribute intimate image offence, given the videos were of non-consensual acts; they were sent to several different men; and the motive was to show your domination and ownership of the victim.
43The common law assault offence was serious but so closely connected to the first of the penetrations I will impose a concurrent sentence. The same can be said for the threat to kill which was a nasty threat made to compel further oral penetration. The assault with a weapon involving a back scratcher was a separate act of gratuitous violence although occurring within the same period as the rape and other offences. The intervention order breach occurred after you had been remanded in custody and the order had been made to protect the victim. You have prior convictions for intervention order breaches.
44It can be observed that this was very serious offending indeed and the principles set out in the cases to which I have referred have application to sentencing in this case.
Personal circumstances
45
Mr Chisholm relied on a neuropsychological report from Dr Catherine Prado dated 15 November 2024, a psychological report from Mr Simon Candlish dated
31 August 2024 and a Federal Court decision.
46Your personal circumstances are set out in the psychological reports. Reference is made in those reports to a 2021 report of Dr Aaron Cunningham
47You are 45 years old. You were born in March 1979. You are a Gunditjmara Kurnai Gunai man. Your father's family come from the Western District. Your mother's family are from Lake Tyers. Your parents met in Warragul. One of your aunties on your father's side was the lead plaintiff in a native title determination in the Federal Court, which Mr Chisholm relied on. The judgment outlines the history of your family and is relevant in a consideration of intergenerational trauma and its connection to the Bugmy principles.[12]
[12] See Bugmy v The Queen [2013] HCA 37.
48You are the youngest child in your family. You have two older half-brothers and an older brother and sister. Only one of your half-brothers remains alive.
49Your parents separated when you were young, under the age of five. Your father moved to New South Wales. You were raised by your mother and grandmother. Other members of your extended family also lived with your maternal grandmother.
50Your mother moved away with her new partner but returned sometime after having been assaulted in that relationship. You say your mother and father then resumed their relationship and moved out of your grandmother's home.
51You left home in your mid-teens to live with your partner.
52You describe being in trouble from an early age. Your mother had issues with alcohol and cannabis. Your grandparents were alcoholics, and your father also abused drugs and alcohol.
53You describe witnessing domestic violence growing up between your mother and your father.
54You detail a history of significant sexual abuse against you by one of your uncles between the ages of six and 10.
55Your parents died within 12 months of each other. You describe a strong emotional impact from their deaths.
56You completed Year 7 at school. Your education was affected by drugs and drinking, and you left school part way through Year 8. Your family relocated often, and you attended many different primary schools. You were often suspended for fighting. You describe being subjected to racism at school which was the cause of your aggressive behaviour.
57It is not surprising given the psychological material in this case, that you struggled academically, and you are not able to read and write adequately although you have improved in these areas in recent years.
58You completed a ‘Work for the Dole’ scheme in your late adolescence, and you worked in a factory for two years in your early twenties. You also worked at a caravan repair company for eight months and I am told you were engaged in surveying land for Koori artefacts at some point. Your employment history has been marred by conflict with others in the workplace and your past periods of imprisonment.
59
You have a lengthy history of drug and alcohol consumption starting in your
mid-teens. Your abuse of alcohol has been extreme. You have also abused methamphetamine, heroin and other drugs and you describe abusing the prescription medication Lyrica since 2004.
60
You were with your long-term partner, Kylie Summers,[13] for a period of 25 years. You had your first child with her when you were 17 years old. You were in prison when that child was born. You and Ms Summers have seven children together who are between the ages 10 to 27 years old. That relationship was a violent one and some of your prior convictions relate to your former partner. I was told by
Mr Chisolm that the victim in this matter also subsequently had a child, about whom you have no information.
[13] A pseudonym.
61You told Mr Candlish you had your suspicions of the victim in this matter having sex with other people and you became jealous. This occurred when you were substance affected. You agree you have issues with jealously.
62You separated from Ms Summers in 2021. There are intervention orders against you, and you were not able to return home.
63You have a history of depression. In 2021, Dr Aaron Cunningham diagnosed you as presenting with symptoms consistent with a major depressive disorder. You have been prescribed the antidepressant Avanza since 2018.
64Psychological testing administered by Mr Candlish suggested a person with a history of polysubstance abuse including alcohol. Mr Candlish said that substance abuse has probably caused severe disruptions in your social relationships and work performance. He says you have other problematic personality traits. You appear uncertain about major life issues, and you have little sense of direction or purpose. You are impulsive and prone to behaviours likely to be self-destructive. You are distrusting and suspicious. You are prone to extreme displays of anger including property damage and threatening to assault others.
65Mr Candlish conducted an actuarial risk assessment and what is termed a structured professional judgement of risk. In his opinion, further sexual offending is most likely to occur as a forced sexual act against an intimate partner which could include acts of physical violence. Such offending is most likely to occur because of jealousy and distrust in the context of substance abuse and relationship instability.
66He described you as having alcohol and stimulant use disorders and a moderate personality disorder. He referred to your cognitive deficits which he said 'quite possibly reach the threshold of intellectual disability'.
67
Mr Candlish said that at the time of the offending, you were drug-affected by methamphetamines and likely sleep deprived which undermined your capacity to emotionally regulate yourself and apply sound judgment. He said your personality disorder affects your coping ability and leads to emotional dysregulation and
self-destructive behaviour. You are prone to impulsivity and poor consequential thinking, particularly when drug affected. He also said your personality impairment creates a heightened sensitivity to feelings of rejection and abandonment and contributes to disproportionate reactions in the context of relationship issues. Your drug-affected state undermined your impaired capacities. He said you are likely to continue to experience problems in your interpersonal functioning. You are vulnerable to substance relapse and worsening depressive symptoms. You are likely to experience social isolation and a sense of alienation which is relevant to your risk of further offending.
68The neuropsychological report from Dr Catherine Prado summarised your childhood as being characterised by instability during your formative years. You were exposed to multiple adverse childhood experiences, including episodes of sexual abuse over several years, as well as witnessing extensive family violence and substance use in the family home. Your education was severely disrupted. You had limited opportunities to form close connections with peers and your community and you disengaged from formal education in Year 8.
69Dr Prado said that the features of your cognitive profile are not consistent with an acquired brain injury, and, in her opinion, your cognitive difficulties are most likely longstanding and developmental in nature rather than acquired. She said your cognitive limitations are not severe enough to impair your ability to understand the wrongfulness of your actions. She said your mild intellectual disability alone cannot account for the serious sexual offending behaviour evidenced by these offences.
70She suggested you may benefit from participating in a structured longitudinal intervention with a forensic psychologist so you can learn adaptive coping, impulse control and problem-solving strategies. You do have the capacity to learn and remember new information and ways of behaving, although at a reduced level compared to your age-matched peers. You also need tailored drug and alcohol counselling.
71Dr Prado said that from a cognitive perspective, you do not present with impairments that would be expected to significantly increase the burden of your incarceration. A custodial environment provides some stability and reduces your access to substances. However, you would benefit from psychological intervention from a forensic psychologist to mitigate the risk of a worsening mood and depressive symptoms. She said she does not get the impression your condition is likely to significantly deteriorate as a result of being in prison. You were assessed you as having a full-scale IQ of 68 which is consistent with a mild intellectual disability.
Criminal history
72You have a lengthy criminal history. You have a prior conviction for rape in 1997. You were 18 years old at the time you were sentenced for that offending. You were 16 when that earlier rape occurred. You received a sentence of four years with a non-parole period of three years. It was conceded by your counsel that this prior conviction is relevant to sentencing but Mr Chisholm emphasised your age at the time and that 27 years passed between sexual offences. These are matters which I have taken into account.
73You have prior convictions for assault, and you have many prior convictions for contravening family violence intervention orders starting in 2010. You have a prior conviction for contravening a family violence intervention order in 2017, which seems to have been coupled with damage and assault offences. You received a sentence of imprisonment with a Community Correction Order for that offending. In 2018, there were further offences of assault and contravening family violence intervention orders, for which you received a prison sentence. In 2021, you were convicted again of multiple family violence offences and received further periods of imprisonment. In April 2022, for persistent contravention of family violence intervention order offences, you received a sentence of 60 days' imprisonment, followed by a Community Correction Order for a period of 12 months. This offending occurred approximately three months after the expiration of that correction order. You are not to be punished again for your prior convictions, but they are obviously relevant to the need for community protection.
74It is also obvious from your prior convictions that you are a high risk to re-offend, particularly against women who are your intimate partners. This offending falls into the category of intimate-partner violence and therefore your prior convictions relating to the same type of offending are highly relevant. Your prior convictions are relevant to community protection, specific deterrence, the assessment of your prospects of rehabilitation and your moral culpability for the offending.
Bugmy
75Mr Chisholm submitted that your personal history and intergenerational trauma are relevant to the assessment of your moral culpability and require a moderation of punishment, deterrence and denunciation. He submitted there is a link between your disadvantage and your substance-abuse history and that this offending occurred in the context of substance abuse. He outlined your instructions of the lead up to this offending, which involved you attending a funeral for your cousin, to whom you were close. After the funeral, you and other relatives were together. You began drinking. You were grieving. You then began using ice. You initially had no ticket to get back from the funeral but in the context of alcohol and methamphetamine use, these offences took place.
76Mr Chisholm argued that there is a causal connection between your background and your substance abuse and although a causal connection is not required to apply the Bugmy principles, he submitted that such a connection did exist.
77He submitted that the psychological material establishes you have a personality disorder, and that the Verdins’ principles (given the decision of Brown) also have some application.
78The prosecution conceded the application of the Bugmy principles having regard to your background.
79In my opinion it appropriate to allow for some reduction in the assessment of your moral culpability and some consequent moderation of punishment and deterrence because of your deprived upbringing including the impact of inter-generational trauma. You are the product of the circumstances of your own history which in your case has contributed to your personality deficits and ongoing substance abuse. In your case domestic violence was normalised, as was substance abuse and of course you were the subject of sexual abuse yourself. Therefore, I apply the Bugmy principles in assessing your moral culpability and the requirements of punishment and deterrence.
80On the other hand, some of these factors accentuate the need for my sentence to address community protection. There is a significant risk you will further offend particularly against future intimate partners.
81In my opinion, a further reduction in moral culpability based on your personality disorder is not justified and in applying the Bugmy principles. I have had regard to your personality factors as set out in the psychological material and that they have been contributed to by your background. I am not of the view that the case of Brown has application to the sort of personality disorder described in this case via the Verdins principles, but I have taken it into account in applying the Bugmy principles.
Muldrock
82Mr Chisholm further submitted that you have significant cognitive limitations. He referred to the evidence of Dr Prado and he emphasised your intellectual disability is developmental in nature and longstanding. He referred to the decision of Muldrock[14] that dictates cognitive limitations are relevant to the assessment of moral culpability and the weight to be given to deterrence, both general and specific.
[14]Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120.
83Again, the prosecution accepted the application of the Muldrock principles. It is surprising to me that your intellectual disability does not seem to have been a feature in previous sentencing, but the assessment is unchallenged and is relevant to your moral culpability and is a moderating factor in deciding the appropriate sentences. I note though the view of Dr Prado that 'your cognitive limitations are not severe enough to impair your ability to understand the wrongfulness of your actions'.
84I am of the view that even taking the Bugmy principles and Muldrock principles into account, your culpability for the offending remains significant.
Standard sentence
85As I have already observed, the standard sentence for rape is 10 years. The standard sentence applies to an offence in the middle range of seriousness, based only on its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentence for rape in this case. It is a legislative guidepost. It is not a mandatory sentence, nor is it the starting point from which to add or subtract time. In fixing a sentence in this matter, I have had regard to the standard sentence amongst all the other matters which I must have regard to in deciding the appropriate sentence. As will be seen, the sentence I will impose for rape is marginally lower than the standard sentence.
86In assessing current sentencing practices, I have only had regard to sentences imposed for standard sentence rape offences.
87In sentencing you, I must give weight to general deterrence, just punishment and through the sentence I impose, I must denounce, on behalf of the community, this serious example of rape and intimate partner violence. Specific deterrence and community protection are also important sentencing purposes given the seriousness of this offending and because of your criminal history. Furthermore, it is impossible to take an optimistic view of your prospects of rehabilitation given your criminal record and personality issues. In my opinion, your prosects are poor or guarded at best.
88The totality principle requires that the overall sentence I impose must be just and proportionate to the total criminality of your offending. There is overlapping criminality for the offences in this case, most of which arose during the course of one episode. It is necessary that there be significant concurrency between the charges in this case.
89The non-parole period is the minimum period justice requires before you become eligible for release. The non-parole period mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offending.
90Mr Baumann, in this matter I sentence you to the following periods of imprisonment.
1For Charge 1, of Common Law Assault, you are convicted and sentenced to 12 months' imprisonment.
2For Charge 2, of Rape, you are convicted and sentenced to nine years and six months' imprisonment.
3For Charge 3, of Threat to kill, you are convicted and sentenced to 12 months' imprisonment.
4For the Summary offence of distributing an intimate image, which I regard as a very serious example of such offence, you are convicted and sentenced to 14 months' imprisonment.
5For the Summary offence, of Assault with a weapon, you are convicted and sentenced to nine months' imprisonment.
6For Breaching an intervention order you are convicted and sentenced to 6 months' imprisonment.
7The following periods in respect of the summary offence charges are cumulative on each other and on the base sentence for Charge 2. Seven months on the charge of distributing an intimate image is cumulative on the base sentence and the other summary offences. Two months of the sentence for the assault with a weapon is to be served cumulatively. And one month on the breach of intervention order offence is to be served cumulatively on the base sentence and on the other summary offences.
8Now that should make a maximum sentence of 10 years and four months. So it is nine months' cumulation on a base of nine and a half.
9I fix a minimum non-parole period of seven years and two months.
10I allow 568 days of pre-sentence detention which will be deducted from the sentence that I have imposed.
11Pursuant to s6AAA, I indicate that but for your plea of guilty the sentence imposed would have been 13 years and nine months with a minimum non-parole period of 11 years.
12Are there any other orders required in this matter?
13MS LEKAMGE : No, Your Honour.
14HIS HONOUR: No other orders?
15COUNSEL: No.
16HIS HONOUR: No, all right. So I will just repeat that. It is nine and a half on the rape, seven, two and one cumulative on the summary offences, making a total of 10 years and four months with a minimum of seven years and two months.
- - -
11
0