Director of Public Prosecutions v Bayley
[2015] VCC 698
•28 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-13-00786, CR-13-00788 and CR-13-00789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADRIAN ERNEST BAYLEY |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2015 | |
DATE OF SENTENCE: | 28 May 2015 | |
CASE MAY BE CITED AS: | DPP v Bayley | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 698 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. Rose QC with Ms D. Mandie | Office of Public Prosecutions |
| For the Accused | Mr S. Holt SC with Mr P. Smallwood | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the victims
HER HONOUR:
1 Adrian Bayley, you have been found guilty on Indictment C1309028.4 of two charges of assault, one of false imprisonment, three charges of rape and one of threat to kill. You have also been found guilty on Indictment C1309028.2 on one charge of false imprisonment and one charge of rape. You have also been found guilty by majority verdict on Indictment C1309028.3 of one charge of false imprisonment, two charges of indecent assault, one charge of assault and one charge of rape.
2 The maximum penalty applicable to the charge of assault is five years' imprisonment, false imprisonment ten years' imprisonment, rape 25 years' imprisonment, threat to kill ten years' imprisonment and indecent assault ten years' imprisonment.
3 You are currently in custody serving another sentence. You have not spent any time in custody pursuant to s18(4) Sentencing Act 1991 relevant to this offending.
4 The victim of your offending in Indictment C1309028.4 is Maggie Shelby Simpson, and your offending occurred between 31 October 2000 and 1 December 2000.
5 The victim of your offending in Indictment C1309028.2 is Jenna Donaldson, and your offending occurred on 5 April 2012.
6 The victim of your offending in Indictment C1309028.3 is Courtney Jessica Burns, and your offending occurred on 15 July 2012.
7 It is not necessary for me to recount in great detail the facts of these matters as they are on transcript, the evidence having been examined in detail by both counsel during the course of your trials. I proceed to sentence you on the evidence from the respective trials and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in these three trials relevant to each of your victims are, to say the least, very serious and disturbing. You already had a concerning and relevant criminal history reflected in one prior court appearance, at the time of your offending against Maggie Shelby Simpson in October to December 2000.
8 I turn to a summary of your offending involving Maggie Shelby Simpson.
9 Maggie Shelby Simpson was working on the day of this offending between 31 October and 1 December 2000 as a sex worker in St Kilda. On Grey Street a car driven by you pulled up and Maggie Shelby Simpson got into that car after discussing prices for sexual services. In the car she was reading a pamphlet from the Prostitutes’ Collective, the “Ugly Mugs” literature. She said to you that there are so many bad men out there. You punched her to the side of the face and said, “You know what, I'm one of them bad men” (Charge 1). She said the punch did not hurt her but adrenalin kicked in and she was frozen. She had never felt that fear in her life before. You drove away from the city with her in the front passenger seat.
10 You took her to a laneway, approximately five minutes from Grey Street. Maggie Shelby Simpson described the alleyway as really narrow, it backed onto houses and was so narrow that when you parked your car, she was unable to get out the passenger side door. She said she thought she was going to die in your car (Charge 2).
11 After you parked the car, you taunted her calling her a junkie slut and saying no one was going to miss her when she was gone. You put your fingers into her vagina (Charge 3), called her a slut and said that she was getting off on this. You kept putting your fingers into her vagina, then dragged her from the front seat into the back seat of the car.
12 In the back seat you put your penis into her vagina having, as she described, violent sex with her (Charge 4). Maggie Shelby Simpson pleaded for her life, saying “let me go, let me go”. You would not let her go, rather you taunted her even more.
13 She started smashing on the rear window of the car when another car came into the alleyway. You anally raped her. Maggie Shelby Simpson described it as really bad anal sex. She was horrified and in agony. She said, “Please stop because I feel like I am going to diarrhoea.” Your reply was, “If you shit in my car I'm going to kill you now” (Charge 5, rape). When Maggie Shelby Simpson smashed on the window of the car she thought people in the car who had come into the laneway would have been able to help her. You called her a “junkie slut” and put your fingers down her mouth and into her throat. You told Maggie Shelby Simpson if she did not stop crying, screaming and hitting the back of the window you were going to kill her (Charge 6).
14 Maggie Shelby Simpson promised she would not yell, as she believed you were going to kill her. A short time later she started smashing the window again and you put your fingers down her throat (Charge 7).
15 Mr Rose QC, who appeared on behalf of the prosecution at trial, submitted that in that trial there was no dispute that offending had occurred, and Mr Holt SC, who appeared on your behalf, agreed it was not in dispute that the offending described by Maggie Shelby Simpson occurred. Mr Holt conceded before the jury there was no dispute Maggie Shelby Simpson was the subject of “a vicious and awful abduction and rape”. The issue at trial was whether the prosecution had proven beyond reasonable doubt the offender was you. The sole issue in that trial related to the identity of the offender and that this was the issue was confirmed by Mr Holt in his closing address. Had the prosecution proven beyond reasonable doubt the man who attacked Maggie Shelby Simpson was you? He submitted the answer was “no”.
16 By their jury verdicts the jury was satisfied beyond reasonable doubt you were the offender involving Maggie Shelby Simpson.
17 I turn to a brief summary of your offending involving Jenna Donaldson.
18 In the early hours of 5 April 2012, Jenna Donaldson was working as a sex worker. You drove up to her in a white Holden Astra motor vehicle. She got into your car for what she understood was to be a sexual service for money. You drove your car with Jenna Donaldson in it into a dead-end alleyway and parked your car next to a fence. You parked the passenger side of your car close to that fence, described by Jenna Donaldson as about 30 centimetres between the car and the fence. She was unable to open her door to get out.
19 Jenna Donaldson described seeing your face all of a sudden, when you jumped over onto her. She started shaking, stuttering “No, no, no,” and “What the hell?”, and she started screaming. You grabbed hold of her and adjusted the seat that she was on to make it lie down. Jenna Donaldson yelled out “Help, help, fire”, to try and get attention. You started to get rough and closer to her. She was scared and felt you were strong. She knew she was overpowered and that you had the upper hand. This deprivation of her liberty by trapping her in the car, as she described, was relied upon by the prosecution as false imprisonment (Charge 1).
20 Regarding Charge 2, Jenna Donaldson said that she could not believe what was happening when you were trying to put your penis into her vagina. She was asking you to use a condom, “Please use a condom”, pleading with you, saying “No, no, what are you doing?" and "Help.” You raped her by putting your penis into her vagina. You told her to shut up. She was crying “Help.” Jenna Donaldson described being scared, and that it was the “worst moment of her life”. At one stage you took her handbag and put it under the steering wheel on your side of the floor. You told her she was “silly” and “a stupid girl” for not having a spotter, pimp or someone to watch out for her.
21 In that trial Mr Holt again did not dispute Jenna Donaldson had been raped and falsely imprisoned, as she alleged, on 5 April 2012. The sole issue in that trial, as with that involving Maggie Shelby Simpson, was whether you were the offender. The jury, by its verdict, was satisfied beyond reasonable doubt you were.
22 At the time of your offending against Jenna Donaldson you were on parole from a sentence of his Honour Judge Duckett in 2002 and also on Appeal bail from the Geelong Magistrates’ Court on 27 February 2012, and I shall return to that shortly.
23 I turn to a summary of your offending involving Courtney Jessica Burns.
24 On Saturday, 14 July 2012 Courtney Jessica Burns was in Australia backpacking from her home in Holland. At approximately 11 pm, Courtney Jessica Burns went to a hotel in St Kilda. At about 2.30 am she decided to leave the hotel and go home. When she left the hotel, she had had a little bit to drink and described herself as a bit tipsy. She walked on her own from the hotel to The Esplanade, turned into Carlisle Street and walked towards St Kilda Road.
25 About 20 metres from St Kilda Road a car pulled out on her right and stopped. The driver, you, opened the door on the passenger side of the car and began talking to her. Courtney Jessica Burns did not initially see another car in front of yours, however, you told her that a car in front had been following her.
26 Courtney Jessica Burns got into your car. You drove past St Kilda Road into Westbury Street and parked in a parking bay away from the road. Courtney Jessica Burns said she was confused by your actions. You jumped at her, started kissing her and put your tongue in her mouth (Charge 2). She said she was “flabbergasted” and distressed as it happened very fast, with you just coming right at her.
27 You said you had seen her walking up the street, that she was not really walking straight, ‘a bit to the left and a bit to the right’. In an attempt to redirect you from that opinion, she told you she was not really drunk and that she could remember everything and that she was really clear and sober. She wanted to get out of the car, and screamed at you to let her go. She struggled against you, making it clear she did not want to do what you were doing. At one time she tried to open the car door. You grabbed her hand so she could not leave (Charge 1).
28 At one point, you hit her to the face with a closed fist and covered her mouth to stop her yelling, which caused her to panic (Charge 3). She was afraid you would choke her and when you grabbed her throat with one hand and held her back, told her she could not get out and that no one would hear her screams. At one stage, you took her passport and put it onto another seat in the car so she could not easily access it.
29 After you had taken her passport and put it onto the seat where she could not retrieve it, you lifted the front of her top and unbuttoned her jeans, pulling them down partially. Courtney Jessica Burns was trying to push you off. You told her to rub your penis and you grabbed her hand, placed it on your penis and made her masturbate you (Charge 4).
30 You told her to take her right leg out of her jeans. Courtney Jessica Burns said she tried to keep calm. Believing she could not get out, she tried to control herself. She tried “to be gone”. She stopped struggling and "just went with it". You became aggressive when you inserted your penis into her vagina, penetrating her for five minutes or so (Charge 5).
31 Courtney Jessica Burns tried to convince you to go back to her house where she knew her housemates would be, although she did not advise you of the latter. She convinced you to get back into the driver’s seat and you then drove to her home. Both you and Courtney Jessica Burns got out of the car and went to the front door of her house. Once the front door was open Courtney Jessica Burns ran inside and told her housemates immediately about your offending. You ran away.
32 Mr Holt again conceded Courtney Jessica Burns had been the victim of a violent rape. Again, the issue in that trial for the jury was whether the prosecution had proven beyond reasonable doubt the offender was you.
33 By their verdicts on each of those charges, the jury was satisfied beyond reasonable doubt you were the offender. Your offending involving Courtney Jessica Burns also occurred whilst you were on parole for the offences for which you were sentenced by his Honour Judge Duckett in 2002 and also whilst you were on Appeal bail from Geelong Magistrates’ Court on 27 February 2012.
34 Yet again, you had offended in a violent and sexual way. Disturbingly, Courtney Jessica Burns was a different category of victim. She was not a sex worker. She was, however, vulnerable, a woman you thought was affected by alcohol.
35 Returning to the issue in each trial, being the identity of the offender, I note that each of the victims were not required in cross-examination during your trial to relive and give evidence about the rapes and assaults. Nor were there contested committals requiring complainants to give evidence. That their cross-examination at trial was so limited was to your counsel’s credit.
36 Your offending behaviour in the three trials before me, with your prior criminal history, is chilling.
37 You were not questioned by police regarding your offending against Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns until 1 February 2013. At that time you had been arrested on 28 September 2012, for the rape and murder of Ms Meagher on 22 September 2012. You answered "no comment" to police questions involving Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns and to answer that way, of course, was your right.
38 Your victims, Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns, have suffered considerably as a result of your offending and I shall return to pass some remarks on that shortly.
39 You pleaded not guilty to the charges in all three trials. I do not find you to be remorseful for your offending, and your counsel upon your plea conceded remorse was not relevant.
40 As I have previously stated, each of your victims were in their own way vulnerable. Perhaps you thought, as sex workers, Maggie Shelby Simpson and Jenna Donaldson would not report your offending to police. Courtney Jessica Burns, you thought, was intoxicated. Each in their own way were easy prey and you, by April 2012, were an experienced hunter. Once each of these victims were in your sights their fate was sealed.
41 Your offending against Maggie Shelby Simpson occurred on a date between October and December 2000. This was within the same timeframe as the offending dealt with by his Honour Judge Duckett on 26 April 2002. Those offences before his Honour occurred between 1 September 2000 and 31 March 2001. His Honour sentenced you to a term of imprisonment of 11 years and set a non-parole period of 8 years for your offending against five sex workers. I am mindful that had the charges involving Maggie Shelby Simpson been dealt with at that time, such would have been relevant to totality of that sentence, although I note you pleaded guilty in relation to those five victims.
42 His Honour described your offending relevant to those five complainants as involving an array of threats and violence by you to force your victims to satisfy your "gross sexual appetite", and that your acts caused horrifying distress. His Honour referred to the forced anal rape of one of your victims., that your response to your victims’ pleading, cries of pain and tears was that you forced those five victims into further sexual acts. His Honour noted there was deliberate humiliation of your victims with you saying, "I can keep you here all night. No one goes around this alley. Don’t try and get out of the car."
43 There are a number of concerning similarities between that offending and that involving Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns, including the deliberate humiliation of Maggie Shelby Simpson with you taunting her saying "no-one is going to care if she was dumped in the alley and that she was nothing but a junkie slut". Further, when violently anally raping Maggie Shelby Simpson, she was in agony and told you she felt like she was going to "diarrhoea" and your response was "If you shit in my car I’ll kill you now".
44 Forced anal rape was also part of your offending involving some of the complainants in 2002.
45 Indeed, you have a relevant and very concerning prior criminal history.
46 In brief, on 8 June 1990 you committed three offences including attempted rape and rape of the 16 year old girlfriend of your sister.
47 On 30 August 1990 you committed offences of attempted rape and threat to kill involving a 17 year old woman not previously known to you.
48 On 12 December 1990 you committed offences of attempted rape and threat to kill involving a 16 year old hitchhiker who you abducted in your car and took to a remote location. You were sentenced for all those offences by his Honour Judge O’Shea in June 1991, when you were 19 years of age, to five years' imprisonment with a minimum of three years. You pleaded guilty to that offending and this was the only prior matter at the time of your offending against Maggie Shelby simpson.
49
Your offending in August 1990 was committed while you were on bail for your offending in June 1990. Further, your offending on 12 December 1990 occurred whilst you were on bail for your offending on both 8 June and
30 August 1990. You pleaded guilty to that offending.
50 Prophetically, when being sentenced on 7 June 1991 by his Honour Judge O’Shea for your offending in June, August and December 1990, sentenced then without any prior convictions, his Honour expressed concerns about your likelihood of re-offending. Tragically for a number of women you did re-offend.
51 You were released from custody relevant to that sentence in April 1993.
52 As previously stated, you appeared before his Honour Judge Duckett for sentence in 2002. At that time his Honour, again prophetically, expressed concerns regarding your approach to interpersonal conflicts and control of your "sexual appetite".
53 Before his Honour Judge Duckett, you gave evidence on the plea and said you went "through the motions" of having rehabilitated yourself so you could achieve early release from prison following sentence by Judge O’Shea.
54 His Honour Judge Duckett referred in 2002 to your long-term need to violently attack, sexually assault and humiliate young women who were not known to you.
55 When sentencing his Honour stated "an attempt must be made to protect society from you and others who might be disposed to offend repeatedly in a similar manner".
56 And here you are again with the same type of degrading and violent sexual offending in 2012.
57 As previously stated, an aggravating feature of your offending against Jenna Donaldson and Courtney Jessica Burns was that you were on parole for the offences dealt with by his Honour Judge Duckett, and on appeal bail from a hearing at Geelong Magistrates’ Court on 27 February 2012. On that latter date you had been sentenced to three months' imprisonment on a charge of recklessly causing serious injury, that offending having been committed on 21 August 2011, you having been released on parole in March 2010.
58 Approximately just six weeks after that Magistrates’ Court appearance you raped Jenna Donaldson and approximately three months after that you raped Courtney Jessica Burns.
59 There is a further aggravating feature of your offending involving Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns in that you did not wear a condom when vaginally penetrating these victims (R v Khem[1]). Mr Holt conceded such was an aggravating feature relevant to your three victims.
[1] (2008) 186 A Crim R 465
60 Your prior history of sexual offending is relevant to the sentence I impose, and your repeated sexual offending involving Maggie Shelby Simpson, Jenna Donaldson and Courtney Jessica Burns indicates very little hope of your eventual rehabilitation.
61 You have repeatedly over many years violated the basic rights of women in the community, and with similar sexual offending to that before me. Your previous offending is relevant to your moral culpability for the offending before me.
62 Your repeated violent offending and gravity of that offending provides little to offer the faintest glimmer of hope. Even if there were any considerations of rehabilitation, they must in your case be subordinated to the gravity of your offending.
63 In sentencing you I must, however, not exclude altogether your prospects of rehabilitation.
64 You are currently serving a life sentence with a minimum non-parole period of 35 years for the murder and rape of Ms Meagher, and I am therefore required to carefully consider amongst other matters the sentencing principles of totality and proportionality. I shall return to this later in these sentencing remarks.
65 I was told something of your current incarceration.
66 Tendered on your behalf was correspondence from Mr Brendan Money, Assistant Commissioner, Sentence Management Branch, dated 8 May 2015 relevant to your current incarceration (Exhibit 2). You are currently at Metropolitan Assessment Prison (MAP) and have been there since your arrest in September 2012, apart from a period of approximately 11 to 12 days when you were held in the Russell Observation Unit. Following sentence in the Supreme Court by his Honour Justice Nettle on 19 June 2013, given your current sentence length and protection needs, it was considered you would most likely continue to be accommodated in a protection unit in a maximum security prison. Ultimately whether you would be transferred in the future to another prison would be a matter for Corrections Victoria Sentencing Management. It was anticipated a further comprehensive review of your imprisonment would be conducted once all legal matters are dealt with, including sentence by me.
67 The amount of time you were able to be out of your cell each day depended on the number of other prisoners in the unit. If the unit was full, each prisoner had less time out of the cell. It was recorded you had two hours per day out of your cell in February 2015, and one hour per day in March 2015. During that time you were required to attend Court on a number of those days, which limited your ability to have further time out of your cell. You averaged three hours per day out of your cell in April 2015. From 20 April 2015, you were spending more time out of your cell, as I understand, you gainfully employed painting the cells in the unit.
68 Currently at MAP access by protection prisoners, including yourself, to the gymnasium had been temporarily suspended, although you had access to some equipment.
69 Whilst prisoners had up to ten telephone numbers they could call, you had requested and had approved, two landline and one mobile number.
70 Your visitors in custody were restricted due to your conviction as a sex offender. This meant you could not have visits with mainstream prisoners as their visitors may include children. You were only able to have visits when other restricted visit prisoners had their visits. You must not visit with children unless approved by the General Manager of the prison, and you had not sought approval for such visits. Apart from one particular prisoner, there were no restrictions on your ability to send mail to or receive mail from fellow prisoners.
71 I was told that generally your daily activity involved you being out of your cell from about 8.00 am, with free time or to perform prisoner cleaner duties. Your lunch was at 11.15 am, dinner at 3.30 pm and lock up at 4.30 pm. You were in view of prison officers when out of your cell. If the unit was not full or if other prisoners refused time out of their cells, you had been offered additional time out of your cell.
72 When initially received at MAP on 28 September 2012, you were placed in the Spring Unit having been assessed as a potential risk of suicide/self-harm and were put on hourly observations. You were cleared from psychiatric observations on 17 October 2012 and your risk rating was reduced. You remained on hourly observation.
73 On 28 October 2012, you self-harmed by cutting your forearms and right ankle and were taken to St Vincent’s Hospital. You returned the following day and were placed in the Muirhead Cell in Unit 13, assessed at that time as an immediate risk of suicide/self-harm. You were on constant observations and daily psychiatric reviews.
74 Two days later on 31 October 2012, your risk assessment was reduced and observation regime reduced to 15 minutes with daily psychiatric reviews.
75 On 5 November 2012, your risk assessment was further reduced, however, you were to continue in Unit 13 with 30 minute observations and psychiatric review every three days. Two days later, on 7 November 2012, you were cleared by the psychiatrist to be transferred from Unit 13.
76 On 10 November 2012, you were transferred from the Muirhead cell to Spring Unit with 30 minute observations. On 1 December 2012, you began work as a unit billet. The 30 minute observations continued with regular psychiatric reviews. Seven months later, on 7 June 2013, you changed from 30 minute observations to hourly observations and on 25 June 2013, your risk status was further lowered, although you continued on hourly management observations.
77 On 4 September 2013, you continued your representations to prison management that observations were not required and that they were disturbing your sleep. A meeting was held between yourself and prison authorities on 31 October 2013 and all observation regimes ceased. You continue to receive treatment sessions with the Major Offenders Unit clinician on an individual basis.
78 It was anticipated your placement and situation would continue to be reviewed by the Major Offenders Unit on a quarterly basis.
79 There were a number of victim impact statements before me. They are eloquent and it is difficult to do justice to those statements in these brief sentencing remarks. I have read each statement. There is no doubt your offending has adversely affected each of your victims.
80 Maggie Shelby Simpson described suffering Post Traumatic Stress Disorder, depression and anxiety as a result of your offending and was on a high dose of antidepressants. She had difficulty relating to and trusting others, and had difficulty forming and keeping friendships. Maggie Shelby Simpson described still having visible injuries to her leg which were a daily reminder of your assault upon her. Maggie Shelby Simpson described the pain to her body, which was the direct result of your offending.
81 Maggie Shelby Simpson said her life had changed dramatically as a result of your offending. She thought at the time of it she was going to die.
82 Jenna Donaldson said as a result of your offending she was no longer a happy person, rather was very angry and scared. She could not forget your offending, and had self-harmed and attempted self-harm as a result.
83 She cried in her sleep and woke scared and emotional. She has changed her appearance to avoid male interest in her.
84 Courtney Jessica Burns had not disclosed your offending to her parents. It was too painful to tell people she had been raped. Your offending, she said, had a huge adverse impact on her life. She is now fearful, including when she is walking alone on the street whether it be day or evening. You made her feel she was to blame for your offending. She had never felt so scared in her life as when you raped and assaulted her.
85 The courts have also over the years acknowledged the importance of ‘social rehabilitation’ of victims of offending. In DPP v Toomey[2], his Honour Justice Vincent referred to this citing DPP v DJK[3] (allowing of course for the difference in the factual circumstances in that case to your case) his Honour said:
“With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which mitigate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.”
[2] [2006] VSCA 90
[3] (2003) VSCA 109, paras 17 & 18
86 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious however I must not allow the effects upon a victim to swamp the sentencing process.
87 Regarding your rehabilitation prospects, as previously stated there is little before me to suggest you will ever be rehabilitated. Even if there was the possibility of your rehabilitation, that in my opinion, is subordinated to the gravity of your offending, the need for general deterrence, specific deterrence, just punishment and protection of the community.
88 There has not been anything placed before me to suggest any realistic prospect of your rehabilitation.
89 When sentencing you, general deterrence is of considerable importance as is the need for specific deterrence, given your history of relevant offending.
90 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
91 In my opinion, the magnitude of your offending before me demands a sentence of substance, albeit I am conscious of the sentence imposed by the Honourable Justice Nettle on 19 June 2013.
92 When sentencing you, you are sentenced as both a serious sexual offender and a serious violent offender.
93 On Charges 3, 4, 5 on Indictment C1309028.4, Charge 2 on Indictment C1309028.2 and Charges 2, 4 and 5 on Indictment C1309028.3 and I direct that be entered into the records of the Court that you are sentenced as a serious sexual offender pursuant to s.6D and s6.E Sentencing Act 1991.
94 On Charge 6 on Indictment C1309028.4 you are sentenced as a serious violent offender.
95 When sentencing on these charges, ss.6D and 6E Sentencing Act 1991 are applicable.
96 When sentencing on these charges, in determining the length of the sentence I must:
(a) regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
Further, pursuant to s.6E:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
97 In this regard R v McL[4] is instructive:
“The need for judges not to compress sentences is especially important when the accused person is a “serious sexual offender” within the meaning of s.16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s.16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s.16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s.16(3A) by applying the totality principle to the sentences as if that section (or s.6E which replaced it) was not on the statute book.”
[4] (2000) 174 ALR 1 par 76
98 I am, of course, mindful of the need, given your current sentence, of the principles of totality and proportionality (GJW v The Queen[5]).
[5] [2010] VSCA 193
99 Mr Rose addressed his written submissions (Exhibit A) during your plea hearing. Specifically, Mr Rose withdrew Paragraphs 22-23 and submitted the analysis by Mr Holt in his written outline of submissions (Exhibit 1) at Paragraphs 6-11 accurately stated the law regarding the order in which your sentences would be served. I discussed this with both counsel, and the transcript will reveal that discussion.
100 Mr Rose addressed in his oral submissions ss.6D and 6E Sentencing Act 1991 relevant to serious sexual and serious violent offenders. He submitted community protection was relevant to both the head sentence and non-parole period.
101 The prosecution submitted there was no evidence of remorse by you relevant to the three victims before me. I agree.
102 Mr Rose submitted your offending was extremely serious and fell in the high end of the worst category of offending in respect of the charges before me. I agree.
103 He submitted that despite your offending against Maggie Shelby Simpson in 2000, that there should be some cumulation despite being dealt with it in 2002. I agree.
104 Mr Rose submitted your rape of Jenna Donaldson was prolonged and rough, involving humiliation and fear. Your rape of Courtney Jessica Burns also involved force and fear.
105 That your offending breached parole and appeal bail, and that you fell to be sentenced as a serious sexual and serious violent offender, which made your offending even more grave.
106 He submitted you represented a serious danger to the community, with no real prospects of rehabilitation and there was little that could be said on your behalf. I agree.
107 Mr Rose confirmed your earliest eligibility for parole on 14 June 2048 would be when you were approximately 76 years of age. Your offending before me he submitted, was grave, violent, premeditated and with a level of planning.
108 General deterrence, the need to protect the community, denunciation and just punishment, he said, were required when sentencing you.
109 Should I determine I must set a new non-parole period, which he urged, it should reflect the gravity of your offending.
110 Mr Rose also provided details of current sentencing statistics, which I take into account.
111 There are difficulties also, comparing cases factually as facts vary enormously from case to case, as do matters personal to offenders. Sentencing statistics, whilst relevant, are of limited assistance as matters such as whether Verdins principles applied, whether parity was an issue, whether an offender had a prior criminal record and for what, rehabilitation prospects and so on, again, vary case to case.
112 Mr Holt provided a written outline of submissions for your plea (Exhibit 1), and addressed his submissions on your plea.
113 Mr Holt submitted that upon determining the total effective sentence to be imposed for the offending before me, I had the power and likely would fix a new non-parole period in respect of the offences for which you were sentenced by Justice Nettle and those before me. In his written submissions Mr Holt submitted that to not impose a non-parole period in light of your circumstances and current sentence would be an “entirely rational outcome”. Ultimately, I understood Mr Holt to concede a new non-parole should be set. It is my opinion, given all relevant sentencing considerations, a new non-parole period must be set.
114 Mr Holt, in his written submissions, urged that I should not make orders that would have the effect of requiring you to serve the rest of your life in prison with no hope of ever being released on parole.
115 Mr Holt conceded you fell to be sentenced as a serious offender acknowledging s.6E Sentencing Act, although submitted in his written outline an order that the sentences to be imposed by me be served cumulatively upon any uncompleted sentence would in your case be ‘otiose’.
116 He submitted it was not necessary to impose a disproportionate sentence in order to protect the community, given your age at the time you would be eligible for parole and the inability to speculate as to your likelihood of re-offending at that time, although conceded a lengthy head sentence would be imposed for your offending. Mr Holt ultimately directed his submissions to the minimum sentence you would be required to serve.
117 Mr Holt submitted the importance of community protection was already reflected in the head sentence of life imprisonment you were serving.
118 Mr Holt referred to Ryrie v R[6], in which the Court stated:
“As it seems to me, once it be conceded that all but one of the purposes of imprisonment have been met, the Court should be anxious to ensure that continued incarceration does not represent indeterminate preventive detention.”
[6] (1993) 64 A Crim R 332
119 Whilst of course I acknowledge and agree with the pronouncements of the Court of Appeal, this does not however reflect what I believe is the need for your offending to be appropriately reflected in the sentence ultimately imposed.
120 Mr Holt submitted that when fixing a new non-parole period, it should commence on the day imposed, and the new non-parole period reflect the minimum term justice requires you to serve having regard to all the circumstances. I have taken that into account in determining the new non-parole period.
121 Mr Holt submitted just punishment and denunciation were relevant to the determination of the minimum term you would be required to serve. He submitted, however, that as you were currently not eligible for parole until you are at least 76 years of age, it was difficult to see how the sentencing principles of general deterrence, specific deterrence and community protection would be any further advanced by delaying your eligibility for parole beyond 2048. In my opinion however, the sentence I impose which includes a non-parole period must reflect the gravity of your offending that is before me. The need to further address these sentencing considerations, in my opinion, is not extinguished by the sentence imposed by his Honour Justice Nettle.
122 I have already noted, as relied upon by Mr Holt, that the cross-examination of the three complainants was limited in the way to which I have previously referred and that is to his credit that the trials were so conducted.
123 Mr Holt also submitted the circumstances of your current incarceration were relevant. I agree. In that context the report prepared by Mr Brendan Money detailed your history in custody since your arrest for these offences, and I have referred to that in detail. I am conscious of R v ZMN[7] and the time you have spent in custody on protection. Whilst to a degree speculative, you will be most likely in protection in the foreseeable future. I note this is not the result of your behaviour in custody, rather the perceived ‘threat’ to you from other prisoners.
[7] (2002) 4 VR 537
124 Mr Holt conceded the offences for which you have been convicted before me were very serious. They certainly are. Mr Holt conceded in light of your convictions, you fell to be sentenced to lengthy individual sentences and lengthy total effective sentence. I agree.
125 Mr Holt submitted that in fixing a new non-parole period I should take into account that you have been in custody since 27 September 2012, and serving a sentence since 19 June 2013. I have. Further, that you were currently not eligible for parole until 14 June 2048. I am conscious of that.
126 Mr Holt, in his written submissions, submitted that extending your non-parole period beyond that date would not further advance the sentencing principles of general deterrence, specific deterrence, community protection, and particularly that you are serving a sentence of life imprisonment. Mr Holt submitted it was not possible to assess your level of risk at the time you would be eligible for parole at age 76. I agree in relation to assessment.
127 I have previously referred to my reasons why such a sentence would be inappropriate.
128 Turning to the principle of totality, whilst I agree that such is relevant, I am also mindful of R v McL. Both Mr Rose and Mr Holt conceded this was still the law regarding s.6E Sentencing Act 1991.
129 As well as matters personal to you, including your current incarceration and prospects of rehabilitation, I must also take into account when sentencing for the offences the prospects of general deterrence, specific deterrence, and the need to protect the community from you and bear in the mind the likelihood of your re-offending when ultimately released.
130 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and to impose a just punishment.
131 The very magnitude of your crimes demands a sentence of some substance.
132 I am conscious when sentencing you for the offences before me of his Honour Justice Nettle’s remarks when sentencing you that it would be ‘likely’ you would die in prison whilst serving the sentence his Honour imposed. I am also conscious that the sentence I have imposed will most likely ensure you have likely forfeited your right to hope or expectation of eventual release from prison.
133 I am mindful when declaring a new non-parole period of your current incarceration and length of it. However, in my opinion, to not impose a new non-parole period would result in a manifestly inadequate sentence for the offending before me.
134 I sentence you as follows.
135 On Indictment C1309028.4:
· On Charge 1, you are convicted and sentenced to 18 months' imprisonment.
· On Charge 2, you are convicted and sentenced to 18 months' imprisonment.
· On Charge 3, you are convicted and sentenced to six years' imprisonment.
· On Charge 4, you are convicted and sentenced to six years' imprisonment.
· On Charge 5, you are convicted and sentenced to six years' imprisonment.
· On Charge 6, you are convicted and sentenced to two years' imprisonment.
· On Charge 7, you are convicted and sentenced to 18 months' imprisonment.
136 On Indictment C1309028.2:
137 On Charge 1, you are convicted and sentenced to two years' imprisonment.
138 On Charge 2, you are convicted and sentenced to seven years and six months’ imprisonment.
139 On Indictment C1309028.3:
140 On Charge 1, you are convicted and sentenced to two years and six months' imprisonment.
141 On Charge 2, you are convicted and sentenced to 18 months' imprisonment.
142 On Charge 3, you are convicted and sentenced to 18 months' imprisonment.
143 On Charge 4, you are convicted and sentenced to 18 months' imprisonment.
144 On Charge 5, you are convicted and sentenced to eight years' imprisonment.
145 I order the following in relation to concurrency and cumulation.
146 As you are sentenced as a serious sexual offender and serious violent offender on the charges to which I have previously referred, I will announce those sentence in terms of concurrency, as the legislation requires that cumulation applies unless ordered otherwise, which of course, reverses the normal prescription that concurrency applies unless directed otherwise.
147 Charge 5 on Indictment 1309028.3 is the base sentence.
148 Turning to Indictment C1309028.4:
· I direct Charge 1 be served concurrently with the base sentence.
· I direct that six months of Charge 2 be served cumulatively upon the base sentence.
· I direct that four years and nine months of Charge 3 be served concurrently upon the base sentence and 15 months cumulatively upon the base sentence.
· I direct that four years and nine months of Charge 4 be served concurrently upon the base sentence and 15 months cumulatively.
· I direct that four years and nine months of Charge 5 be served concurrently and 15 months be served cumulatively upon the base sentence.
· I direct that 12 months of Charge 6 be served concurrently and 12 months cumulatively upon the base sentence (serious violent offender).
· I direct the sentence imposed on Charge 7 be served concurrently with the base sentence.
149 Turning to Indictment C1309028.2:
· I direct that 12 months of Charge 1 be served cumulatively upon the base sentence.
· I direct that five years of Charge 2 be served concurrently and two years six months cumulatively upon the base sentence.
150 Turning to Indictment C1309028.3:
· I direct that 15 months of Charge 1 be served cumulatively upon the base sentence.
· I direct that the sentence imposed on Charge 2 be served concurrently with the base sentence.
· I direct the sentence imposed on Charge 3 be served concurrently with the base sentence.
· I direct that the sentence imposed on Charge 4 be served concurrently with the base sentence.
151 For clarity, the orders for cumulation are upon each other and upon the base sentence.
152 That results in a total effective sentence of 18 years' imprisonment. That head sentence is concurrent with the life sentence imposed by his Honour Justice Nettle.
153 Pursuant to s.14 Sentencing Act 1991, I fix a new non-parole period of 43 years to commence today, 28 May 2015.
154 In determining both the appropriate length of the head sentence and the non-parole period, I have taken into account consistent with the principles of totality and proportionality the time you have already spent in custody since sentence in June 2013 including pre-sentence detention then declared relevant to both the head sentence and non-parole period I have this day imposed, as discussed with counsel.
155 I direct it be entered into the records of the Court you have been sentenced as a serious sexual offender and serious violent offender provisions.
156 You are already required to be on the Sex Offender Register and for life. I make no further order in that regard.
157 For completeness, pursuant to s.18(4) Sentencing Act, I do not declare any days as pre-sentence detention.
158 The prosecution made application for a disposal order pursuant to s.77 Confiscation Act 1997. Mr Holt, on your behalf, consented to the order being made, and I make the order in the terms sought.
159 Any other orders?
160 MR ROSE: No, Your Honour. There is just one matter that I thought I did not hear you say on 8.2, Charge 1, the false imprisonment that 12 months was concurrent, 12 months was cumulative.
161 HER HONOUR: I said I direct 12 months be served cumulatively upon the base sentence.
162 MR ROSE: Yes.
163 HER HONOUR: If I need to add 12 months concurrently, then I do.
164 MR ROSE: Concurrent, well you had said it everywhere else.
165 HER HONOUR: All right. So it is 12 months cumulative. That is a total effective sentence of 18 years, a new non-parole period of 43 years from today.
166 I also note that there was that there was that error, typographical error in relation to 76 where I said 79.
167 MR ROSE: Thank you, Your Honour.
168 HER HONOUR: These are not revised. But when it is, I will have that changed to reflect correct, which is 76 years.
169 MR ROSE: As Your Honour pleases.
170 HER HONOUR: Are there any other matters?
171 MR ROSE: No, Your Honour.
172 MR SMALLWOOD: No, Your Honour.
173 HER HONOUR: I should indicate that a note was handed up from the prosecutor just ensuring that I not make reference to identity of the actual complainants and I was not planning to and I did not. Just keep making sure I did not, but I was on to that.
174 MR ROSE: Thank you, Your Honour.
175 HER HONOUR: All right. I believe that the media want a copy of the sentence and it is available, it is unrevised. Unless there is anything else?
176 MR ROSE: No, Your Honour.
177 MR SMALLWOOD: No, Your Honour. As the court pleases.
178 HER HONOUR: Thank you very much.
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