Director of Public Prosecutions v Berry

[2023] VCC 1170

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Sexual Offences List

Case No. CR-21-01445
Indictment No. M10686174

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN BERRY

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2023
DATE OF SENTENCE:	10 July 2023
CASE MAY BE CITED AS:	DPP v Berry
MEDIUM NEUTRAL CITATION:	[2023] VCC 1170

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – 1 charge of rape – guilty by jury verdict

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited:Mills [1991] 4 VR 235; Azzopardi, Baltatzis and Gabriel v The Queen (2011) 35 VR 43.

Sentence:                  Total effective sentence of 5 years imprisonment with a non-parole period of 3 years; 166 days of pre-sentence detention reckoned as time served under this sentence.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Piggott	Solicitor for the Office of Public Prosecutions
For the Accused	Mr Z. Menon	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Dylan Berry, you were charged on indictment with one charge that, on or about 23 December 2017, you raped Kate Hobson[1]  by introducing your finger into her vagina.

[1] A pseudonym.

2You pleaded not guilty to that charge and a trial by jury ensued.  Following the jury's deliberations, you were found guilty of the charge.

3A plea in mitigation of penalty ensued, and I have received and exhibited the following documents in this case.  The prosecution relied on plea submissions, dated 25 May 2023, with an appendix of comparative cases (Exhibit 'A') and the Victim Impact Statement of Kate Hobson (Exhibit 'B').  Since the conclusion of the plea in mitigation of penalty, I have received Summary of Further Prosecutions Submissions on Plea, dated 4 July 2023, which I now receive and mark into evidence as Exhibit 'C'.

4Your counsel filed plea submissions (Exhibit 1), as well as the report of Daniella Kocic (psychologist), dated 17 May 2023, with addendum report, dated 25 May 2023 (Exhibit 2), a bundle or references (Exhibit 3), a letter of Dr Edwina Montgomery, developmental and general paediatrician, dated 10 May 2023 (Exhibit 4), a letter from Drouin Primary School (Exhibit 5) and a letter from a counsellor (Exhibit 6).  Since the conclusion of the plea in mitigation of penalty, I have received, from your counsel, further plea submissions on your behalf dated 6 July 2023, which I will now receive and mark into evidence as Exhibit 7.

5I have had regard to each of those exhibited documents in formulating my Reasons for Sentence, as well as to the submissions made in evidence and evidence adduced in the plea in mitigation of penalty. 

Circumstances of the offending

6On Friday 22 December 2017, your younger brother, Ryan Unsworth, hosted his eighteenth birthday party at an address in Pargeter Court, Pakenham.  Ms Hobson, who was in Ryan's year at school, attended the party as a guest.  She gave evidence that she had never had a conversation with you before the night of the party. 

7She testified at trial that she had not eaten during the day, and when she got to the party she got really drunk, to the extent that she could not really walk.  Prosecution witness, Jesse Bradley, who was a friend of Ms Hobson and had driven her to the party, confirmed that at 7 pm on the evening, she had been sober, but over the next couple of hours, from about seven to nine, he noticed a bit of slurring in her words, and that she was having trouble standing. Eventually, he testified, she looked as if she was going to pass out, she 'didn’t look like a good drunk', and that she was very drunk. Daniel Woods gave evidence of arriving at the party at quarter past, 20 past 10, and by that time he could immediately tell that she was drunk.

8Mr Bradley gave evidence that Ms Hobson reached a point where she was not in control of herself, and they thought maybe if she vomited it would make her feel a bit better, so he, Kevin Cabezas, Mr Woods, and yourself went out the front of the house with her, to help her vomit on the grass. On the way, she said she needed to get to the toilet, and Mr Woods described her as swerving from side to side, and hitting the walls, and he had to catch her to keep her balanced.

9Mr Bradley described carrying her outside, as she was not able to walk, and she was not able to converse. The group that I have mentioned, joined by your brother Ryan, had her kneel down on the grass, and Mr Bradley saw you handling her torso whilst you were both outside. He described her as 'like a ragdoll', being supported vertically by you. Mr Woods observed you carrying her from the front of the house towards the road, and you told him that she was feeling sick and she needed to vomit.

10She was unable to vomit, so you and the other boys took her back in, and she was put into a chair outside the back of the house, where her state seemed to Mr Bradley to be a little better. She then she had more to drink and she went back into a bad way, appearing very wobbly, and fast asleep in the chair. You were also out the back during this period, Mr Bradley said. Mr Woods described her state in his evidence as still in the drunk sense, he said, but she had lost energy and activity and had gone a bit tired and dazed.

11Mr Bradley, Kevin Cabezas, and Mr Woods made the decision to lie her on the couch in the living room of the house inside at the back, to let her sleep off her intoxication. Mr Woods provided a pillow and blanket, and at this stage any movement from her was minimal. I accept Mr Bradley's description of Ms Hobson’s presentation at that time as 'in a true state of intoxication', falling down, passing out, and I consider that he was justified in his decision 'it was right for her to sleep it off'. She was carried into the room at the rear of the house as I have said, and was laid on the couch in a room next to Ryan Unsworth's bedroom, and she was asleep.

12I accept Mr Bradley's evidence, that Ms Hobson was very drunk, to the point of passing out; and I also accept Mr Woods' evidence that she was 'very drunk' and struggling to stand up properly on her own. 

13Ms Hobson's evidence was that she was so intoxicated that she was placed to rest on a couch in the loungeroom of the house, and the lights in the loungeroom were turned off.  She vomited near the couch.

14She gave evidence that you got on top of her and, at the time, she was 'going in and out of it, and stuff', by which she meant waking up and zoning out, and at one point when she woke up she realised that you were trying to touch her, and she kept saying 'no stop', but you just would not.

15She testified to the jury that you put your fingers into her vagina and she could 'physically not move … because I kept zoning out'.  This is her description of the evidence referable to your charge of digital rape. Subsequently in her evidence, she testified that during the event, she woke up and felt someone on her, and then she probably opened her eyes and was freaked out, trying to move, and she kept saying 'no', and she kept zoning out. You pulled her undies aside, and she could feel your fingers, and she just kept saying 'stop', and you just would not stop, and then she zoned out, and then she woke up again when the boys walked in. In cross examination by your counsel in her evidence at the special hearing, she accepted that she had told police that she kept saying, 'no, stop', and 'stop, stop', and she clarified that she probably told you about four times to stop. She could not move, she said, because you had your whole bodyweight on her, and she was really drunk and she just could not physically move anything. When she said zoned out, she said it was like falling asleep uncontrollably, and she was just like passed out, she thought. Ms Hobson was asked about your version of events, that she was awake when the penetration happened, to which she agreed, and said that she disagreed that she consented to or agreed to the act and any other touching. It was not suggested to Ms Hobson that she did not say 'stop' or 'no'.

16About 30 minutes after she was laid to sleep on the couch, Jesse Bradley testified, he, Kevin Cabezas, and Daniel Woods went into the room to check on her, and they found Ms Hobson with her head off the couch, and they discovered the vomit on the floor. After another 30 minutes to an hour, they returned and they saw you on the couch, with her body still half off the couch. They asked what you were doing, and then helped Ms Hobson back onto the couch. Mr Bradley described her eyes as closed, but her head and chest were still off the couch towards the floor. You left while they tended to her, and Mr Bradley made the decision to take her home.

17At about the same time, you entered your brother Ryan's bedroom, which as I have said was next to the living room, and said to Elisha Cox, his girlfriend, that you had 'fingered' the victim survivor. Ryan had a conversation with others, including your partner, Emily Campbell, and in evidence which I accept, Mr Bradley described Ms Campbell as waking up Ms Hobson, questioning her, and physically confronting her. Mr Bradley then picked up Ms Hobson  in his arms and took her to his car and shortly thereafter they left the party.  

18Police were then summoned to the house in relation to an unrelated complaint, and statements were taken from the participants.  As the victim-survivor has a cognitive impairment, she participated in the VARE process, as did a number of the other witnesses in the case.

19On 23 December 2017, you were arrested and participated in a record of interview with police, which was played for the jury and was tendered into evidence.

20You told police that you had been drinking at the party and were intoxicated, and that you understood that the victim-survivor was a school friend of your brother, and you thought you had met her once before the night of the party.  You claimed that you did not have any contact with her at the party. 

21You accepted that she had vomited in the loungeroom during the evening and that you and two other friends had helped her lie down on the couch in the loungeroom, and that she was not in a good state at the time.

22You told police that, later that night, she had approached you and started kissing you and then you 'fingered her' and that she was 'up for it', that she did not say anything, but was participating in the act of digital penetration, as she was kissing you, and that the incident lasted about five minutes.

23You told police that you did not observe her lapse in and out of consciousness, and that you accepted that you told your brother, and your partner, that you had digitally penetrated her.

24The issues for the jury's deliberation were consent and a belief in consent, in that, in your interview you had provided an account inconsistent with guilt, which was your explanation that she was 'up for it', that she had kissed you and, in as many words, that she was consenting to the act of penetration that took place.  The prosecution claimed that the answers that you gave to police provided a separate route to a guilty verdict on the charge of rape, as your explanation did not really offer a narrative in which Ms Hobson had said or done anything to indicate her consent to the act of penetration.  By its verdict, the jury rejected your explanation consistent with innocence.

25Your counsel, and counsel for the prosecution, disagree whether the jury's verdict is consistent with its acceptance of Ms Hobson’s evidence in its entirety, and in a number of particular respects the interpretation of the verdict is now a question for my determination as it bears upon my assessment of the circumstances of offending.

26In my view, the first issue for my resolution is the state of Ms Hobson's intoxication. In my view, this is acutely relevant to my task of assessing the circumstances of offending consistent with the jury's verdict, as the prosecution's principal argument in counsel's closing address was that Ms Hobson's evidence described an act of rape that occurred when she did not consent and was exceptionally affected by alcohol. Your account to police asserted that she was not intoxicated to the point of incapacity of consenting, and perhaps did consent (even if, at least impliedly, she may not have said or done anything to indicate her free agreement to the specific act of sexual penetration).

27Having had the opportunity to observe all witnesses as they gave evidence, and understanding the circumstances as I do, I reject your account as to her level of intoxication as implausible and untrue, and I accept Ms Hobson's description of her very high level of intoxication and her state of being asleep at the time that you laid on top of her and digitally penetrated her. As the witnesses described, Ms Hobson had consumed alcohol to significant excess, which had affected her physical demeanour and behaviour to the extent that the view was collectively formed that she would benefit from vomiting, which she was initially unable to do, only for her to consume more alcohol. As she was lain to rest on the couch, she did vomit, and I accept Mr Bradley's characterisation of her physical posture when he checked on her twice that she was at least asleep, with half her body off the couch. I have no reservations in accepting her description that she was zoning in and out at the time of your offending. I find, beyond reasonable doubt, that she did not consent to the act and was asleep and deeply intoxicated at the time that you laid on top of her and penetrated her, and that state of sleep and intoxication was known to you from your contact with her during the hours prior to the act of penetration. You were also aware that she had recently vomited, and it was, or certainly would have been, abundantly clear that she was not consenting to your sexual penetration of her.

28In my view, the second issue upon which counsel have diverged is more difficult – that is whether I accept her evidence that she said, 'no' and 'stop' when you put your fingers into her vagina; linked, as it was, to her evidence that she was that drunk she could not move and kept zoning out. During cross-examination by your counsel at the special hearing, she testified that she told you to stop a number of times, and she said it loudly. She conceded that she thought she zoned out, as she could not remember 'him taking his fingers out', and she then fell asleep uncontrollably, and passed out. Counsel at the special hearing did not challenge Ms Hobson's evidence that she was that intoxicated she was in and out of consciousness, nor that she said 'no' multiple times or 'stop'.

29Your counsel has reminded me I must consider the whole of the evidence and not simply parts of it, and submitted that there was no basis to conclude from the verdict of the jury that the jury accepted the victim-survivor's evidence in its entirety. I was reminded that Elysha Cox and Ryan Unsworth had been in the bedroom nearby and did not hear anything (albeit that having reviewed the transcript, I note there was no evidence as to whether the door to that bedroom was then open or closed, nor whether there was any other ambient noise.

30I have indicated that I accept beyond reasonable doubt that Ms Hobson was asleep immediately prior to you digitally penetrating her and was intoxicated to such an extent that she was zoning in and out of awakeness during the event. The lack of challenge to her description of telling you, 'no' or 'stop', makes my task of adjudicating this circumstance difficult. As I have said, I consider your explanation to police to be implausible, and I put it to one side. 

31I also accept Ms Hobson to be a very credible witness. She told police an account of the act including reference to no and stop, which I find supports her credibility on this point. Her evidence of circumstances surrounding the events is confirmed by other credible witnesses. I therefore find beyond reasonable doubt that she explicitly communicated those words to you, and I sentence you on the basis that at the time of penetrating her with your fingers, as a result of her high level of intoxication, you knew her to be in and out of consciousness, and zoning in and out, incapable of consenting to the sexual act. You proceeded anyway.

Effect on the victim

32I have had the benefit of a victim impact statement prepared by Ms Hobson, and she read the statement aloud at the hearing. 

33Ms Hobson told me that:

'... I am shut off from the world, I live with server (sic) depression, anxiety and PTSD.

…

I'm scared of my life to walk out the front door.

…

I have nightmares every night, replaying everything, I have nightmares of YOU on top of me and not having any control over what was happening.

…

… I suffer from chronic insomnia'.

34Ms Hobson told me that she has fears around leaving her house, the trauma of the incident has impacted on her relationships, and she feels her life is ruined.

35You have caused her lasting trauma, discomfort and immense distress.

Personal circumstances

36As I have mentioned, you were twenty-one at the time of your offending and you are now twenty-seven.  You have one full sibling, three half-siblings on your mother's side, and four half-siblings on your father's side. 

37Your parents divorced when you were aged two, and I understand that your mother worked as a cleaner at a hospital and your father worked as a tram driver.  You lived primarily with your mother and stepfather growing up, and you were very close to your stepfather however, I understand that they divorced when you were aged sixteen and, at that young age, you were required to process the difficulty of the dissolution of a second family unit.

38At that age, you 'rebelled a bit' and you decided to move out of the family home to live with friends in Frankston.

39You spent every second weekend, and some weekdays, at your father's house growing up, and you maintained a close relationship with you father, but not your mother.

40You were introduced to alcohol at a fairly young age, and were permitted to have a drink in your early teens. Your father describes you as having had intermittent issues with alcohol. Ms Campbell also described some drug use, and that you used to drink 'quite a bit'. I understand you have completed a men's behavioural change course, and an alcohol abuse course through Peninsula Health, which is to your credit.

41You had difficulties in primary school, struggling to focus, read and learn.  You attended Pakenham High School until you were asked to leave in Year 8 due to your misbehaviour and then you attended Chisholm TAFE in Dandenong and completed the equivalent to Year 11.

42You began a bricklaying apprenticeship however you did not complete this due to your use of substances.

43You returned to bricklaying and worked with the same employer as a bricklayer in the eight years leading up to you being remanded following the jury's verdict in this case.

44I have had the benefit of a number of references tendered in support of you, and also of oral evidence from your partner and father.

45Your employer speaks highly of you. He has told me you are honest, reliable, and have a good work ethic.

46You would like to resume employment with him as soon as you are released. 

47You have been in a relationship with your partner, Ms Campbell, for nine years.  She has a daughter, now aged eleven, who you have raised as your own, and you share a son, Ryder, who is now aged six.

48Your time on remand has been very difficult for Ms Campbell and the children, and you told Daniella Kocic, psychologist, that she is 'struggling mentally, financially, and juggling everything' in your absence.

49Your family tells me you are a loving, caring, and involved father, who is very actively involved in the daily care of your children. You play with them indoors, and outdoors, and were responsible for the evening responsibilities of dinner, readers, and bedtime routines. I understand that Ryder has been diagnosed with ADHD and anxiety, and is nonverbal except at home, and has exhibited some behavioural issues at school, particularly after you were remanded on this charge. Both Ryder and Scarlett are in counselling, which helps to support them during their very difficult transition into a single parent household while you serve your sentence.

50Ms Campbell is struggling also, as she transitions to raising the children without the support that she is accustomed to you providing, given her professional responsibilities as a vet nurse.

51It was submitted on your behalf that your family is experiencing hardship which rises to exceptional circumstances. I have considered the evidence carefully. In my view, the difficulties that your family is encountering do not meet this high standard, but I do accept your counsel's alternate submission (accepted by the prosecution), that your feelings of unfulfilled responsibility and helplessness will mean that your sentence is more burdensome as a result, and I mitigate sentence on this basis.

52I understand that you were diagnosed with Attention Deficit Hyperactivity Disorder ('ADHD') in Grade 1, when you were aged six or seven, and you were prescribed Ritalin, and you remained on this substance until the age of fifteen.  You then stopped taking the medication, and you restarted at the age of eighteen. 

53You were also diagnosed with depression and anxiety at the age of twenty by a general practitioner, and you were prescribed 20 milligrams daily of Escitalopram, which you took sporadically in the years following, until January 2023.

54Your symptoms include having little to no joy in anything and little interest or pleasure in activities.  You consider that you are 'always grumpy' and that 'nothing [makes you] happy'.  You experience anxiety when you need to talk to new people, go to the shops and see people.  Ms Kocic notes that your testing indicates moderate depressive symptoms, and moderate anxiety symptoms, and led to a provisional diagnosis of Social Phobia (and Social Anxiety Disorder) which potentially and logically was then extrapolated into a diagnosis of Major Depressive Disorder ('MDD'), Social Anxiety Disorder ('SAD') and Generalised Anxiety Disorder ('GAD'). 

55I confess that, while I accept your diagnoses of ADHD and your symptoms of depression and anxiety, it is difficult to interpret the extrapolation from the moderate symptoms into this diagnosis.  In any event, though, I must focus on the symptoms and not their label.  It is clear that you experience a psychological burden as a result of these symptoms, and I am prepared to infer, due to your various conditions and their effect upon you, including the pressure of knowing that your family is experiencing considerable setback as a result of your incarceration, that the sentence that I must impose will weigh more heavily upon you than upon a person who does not experience these symptoms, and there is a serious risk of imprisonment having a significant adverse effect on your mental health. I accept that Verdins factors 5 and 6 apply to you, and I take these factors into account in mitigation of sentence.

56At the time of your offending, you had one prior finding of guilt, from January 2015 in the Dandenong Children's Court, for offences of exceed prescribed concentration of alcohol and being a learner driver, driving a vehicle without an experienced driver next to you.  You were fined without conviction.  This prior offence, which is of a different character to the much more serious offence that you now face, unfortunately bears a factor of similarity to the current offending, in that alcohol was involved.  As you are now no doubt aware, especially with the maturity that comes from your advanced age compared to your age at the time of offending, there are risk factors in evidence from your consumption of alcohol, in that it may diminish your sense of self-control and encourage risk-taking and offensive behaviour, which would otherwise not occur in you.

57Ms Kocic administered a general risk assessment and expressed a view as to your risk of re-offending.  Unfortunately, her opinion in relation to the report, dated 17 May 2023, which expresses the view that your risk of re-offending is low to moderate, is affected by a number of errors.  First, on two occasions in that report, she referred to you as pleading guilty to the offence, as opposed to having been found guilty by a jury following trial.  She provided an addendum report dated 25 May 2023, attributing this to what she called a typographical error, leading to 'an oversight on my part to amend the standard report template inclusions to the relevant circumstance of [your] matter'.  This is an inadequate explanation of how this was duplicated at a later point in the report. 

58Ms Kocic disavowed her impression, i.e. that you had demonstrated good insight into the link between your intoxication and behaviour, and the precipitants and underlying beliefs that motivated your offending had been related to her (typographical) errors.  That is how she attributed them, not me.

59In my view, Ms Kocic also misstated the effect of your prior criminal offence, by describing it as 'not at all similar to the current offending'.  As I have explained, I reach a different view, in that I consider there is a connection between the offences, in that they were both influenced by alcohol.  Accordingly, I put that aspect of Ms Kocic's view to one side and I shall draw my own conclusion in relation to your prospects for rehabilitation.

Objective gravity of your offending, moral culpability, sentencing principles

60Your offending involved a brutal and callous penetration of a vulnerable young woman's vagina, whilst she was asleep and heavily intoxicated. She had been put to bed by her friends who were concerned about her state of intoxication. The fact of your victim-survivor's intoxication and associated vulnerability, and that you did not heed her requests to stop, aggravate your offending. The offence was somewhat spontaneous and opportunistic, though involved an aspect of predation given her vulnerable state, and occurred at a time when you were intoxicated.

61I accept prosecution counsel's submission that she was in the home of friends in an environment where she should have been able to be safe. You had, earlier in the evening, placed yourself in the position of her carer given her state of intoxication and nausea. Prosecution counsel has submitted that this placed you in a position of trust over her, but I do not accept that you exploited a position of trust in the sense that that expression is used in sentencing law. In my view, this instead informs the predatory nature of your behaviour, which, as I have said, I have taken into account.

62I agree with each counsel that the offence of rape is always serious. Whilst relatively brief in its duration, it has left a legacy of trauma on your victim-survivor.

63I accept your counsel's submission that some of the aggravating features present in other cases are absent in your case, in that your offence was unaccompanied by violence separate to the penetration, or threats, and there was no risk of transmission of disease.

64You were at the time of your offending, and you are still, a young man. The Victorian Court of Appeal has endorsed a number of propositions relevant to the sentencing of youthful offenders. They have been applied many times in many later cases.

65Relevantly, youth of an offender, should be a primary consideration for a sentencing court where that matter properly arises.[2] Further, it was said in the case of Mills that, in the case of a youthful offender, rehabilitation is far more important than general deterrence. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred, as rehabilitation benefits the community as well as the offender.

[2]        Mills [1998] 4 VR 235.

66In Azzopardi, Baltatzis and Gabriel v The Queen,[3] the Court considered that the general primacy of an offender's youth as a sentencing consideration is underpinned by a number of considerations relevant to these points.

[3] (2011) 35 VR 43, [34]-[40].

67First, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

68Secondly, courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that rehabilitation of young offenders, 'is one of the great objectives of the criminal law'.

69Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed.

70These principles apply in your case. I moderate sentence on the basis of your young age at the time of offending, and I intend to impose a sentence that emphasises and allows for your rehabilitation, whilst also paying attention to the other purposes of sentencing that I will mention. This is your first period in any form of detention, and I trust and infer that it has been of salutary effect.  Having regard to your family support, your history of skill and trade and your modest criminal history, I am prepared to infer that your prospects for rehabilitation are good, provided that you continue to limit your consumption of alcohol, which has brought you before the court now on two occasions.

71As I have previously mentioned in respect of your mental health presentation, and now more broadly in respect of other features of your circumstances, as I have said I am prepared to infer that service of your sentence will weigh more heavily upon you than on a person without your diagnosis. 

72There has been a long period of delay between your commission of this offence in December 2017, and your verdict and sentence. The matter has been hanging over your head in the meantime, and I mitigate sentence on the basis of the delay in resolving the matter.

73I am of course well versed in current sentencing practices from the era prior to the introduction of the standard sentence regime, and have read and considered the cases drawn to my attention (noting as counsel have, that there are distinct points of differences in the facts of each case as well as points of similarity).

74General deterrence is a purpose of sentencing to which I must have careful regard. I also consider that I must deter you specifically from future, similar conduct, though to a lesser extent. I must punish you and denounce your behaviour strongly, whilst allowing for your continuing rehabilitation.

Sentence

75On the charge of rape, you are convicted and sentenced to five years imprisonment, and I order that a minimum of three years be served before parole eligibility.

76I declare 166 days  pre-sentence detention excluding today.  Is that calculation correct?

77MS PIGGOTT:  According to my calculations, Your Honour.

78MR MENON:  Yes, Your Honour.

79HER HONOUR:  Thank you.  Are there any other ancillary orders to be made?

80MS PIGGOTT:  No, no thank you.

81HER HONOUR:  Any other applications to make or orders sought?

82MS PIGGOTT:  No, thank you, Your Honour.

83HER HONOUR:  Thank you very much to both counsel.

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