Director of Public Prosecutions v Bianco (a pseudonym)

[2019] VCC 1202

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE BIANCO (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 August 2019
CASE MAY BE CITED AS:	DPP v Bianco (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1202

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For the Accused	Mr G. Connelly

HER HONOUR:

1Lee Bianco[1], you have been found guilty by a jury of two charges of rape.  The maximum penalty for each offence is 25 years' imprisonment.  You have further been found guilty by a jury of one charge of sexual assault.  The maximum penalty for that offence is 10 years' imprisonment.  All offences occurred in the early hours of 15 March 2017 at premises where you then resided.

[1] A pseudonym.

2By way of background, the victim in this matter was in a relationship with one of your housemates.  He had stayed at the premises where you resided on a number of occasions and he was known to you.  On the evening of 14 March you were at home, consuming alcohol and listening to music.  You were at this stage alone, in the rear room of the premises described as the family room.  At some time after 10 pm your housemate, Douglas Lord[2], together with the victim in this matter and one of your other housemates, Mike Charles[3], arrived back at the premises and joined you in the family room.  During the course of the evening substantial amounts of alcohol were consumed by you, Mr Lord and the victim.

[2] A pseudonym.

[3] A pseudonym.

3By 3 am the victim was feeling ill and decided to go to bed.  Mr Lord said that it was about this time he realised how intoxicated the victim was.  Mr Lord accompanied the victim to Mr Lord’s bedroom and then obtained a bucket, as the victim needed to vomit.  Mr Lord remained with the victim for a time after bringing him some water and otherwise attending to him, including trying to place him in a position on pillows which he thought to be safer.  Mr Lord then left the victim on the bed fully clothed.  It is unclear whether he covered him with a doona.  He turned out the light and left the room.

4Mr Lord then returned to the lounge room and observed that you were dancing and continuing to consume alcohol.  After a relatively short period of time, Mr Lord went to bed in your room and lay down.  This was apparently not an unusual circumstance when you had both been drinking.  Mr Lord fell asleep.  At sometime around 6 am that morning, the complainant woke without his tracksuit pants and underwear.  He was lying on his side and his left leg was being held in the air.  He was lying on his side and his left leg was being held in the air.   He could feel you sucking his penis and could also feel two or three fingers in his anus.  Your sucking of the victim's penis founds Charge 1, and your digital penetration of his anus founds Charge 2.

5A short time later, the victim describes his anus as being, 'Rimmed'.  That is, he felt you licking his anus.  It is this conduct which founds Charge 3, sexual assault.  The jury was satisfied that the victim was not consenting, either because he was asleep or mistaken as to your identity, and further, that you did not reasonably believe that he was consenting.  Once the victim realised it was not his partner, Mr Lord, he immediately protested, telling you to ‘get the fuck off’ him or he was going to hurt you.  You did not persist after this point and you left the bedroom and returned to your own bedroom, where Mr Lord was asleep on your bed.

6The victim got out of bed and made immediate complaint to your housemate, Mike Charles.  He also complained to his partner, Mr Lord and ultimately confronted you, making complaint as to your conduct.  He then rang his own housemate and made a complaint to him over the phone, and again when his housemate came to collect him.  After his housemate had collected him, he attended the Moorabbin police station and made a formal complaint in relation to your offending. 

7You were arrested later that morning and interviewed at the Moorabbin police station.  On that occasion you made a number of denials which you now admit to be false, including that you were nowhere near the victim, and that you were at the other end of the house, that you were not there, and that you were in the other room playing music.

8The victim had been seen by a forensic medical officer on the morning of making his complaint and DNA results were obtained by the police.  As a result of that you were offered the opportunity for a further interview, which you accepted.  At that time, you told the police that the conduct which founded Charge 1 had occurred, but you described entirely different circumstances from those which the jury have accepted, indicating that your sucking of the victim's penis was consensual.  You maintained your denials in relation to other conduct. 

9Any offence of rape is clearly serious, as is demonstrated by the maximum penalty imposed by Parliament.  You continue to protest your innocence, but you accept that alcohol was problematic at this time, both in general and on the date of this offending.  You have indicated a willingness to participate in a sex offender program.  This is a somewhat unusual position, as was put by your counsel, but I think it is best seen as indicating that while you do not accept you committed the offences, you are aware that there are issues relevant to what occurred, with which you need to deal.

10You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  For completeness, I note that you told Mr Cummins that you have two prior matters for drink driving, dealt with via a penalty infringement notice but these matters were neither alleged by the prosecution and in any case, not relevant to the sentence I will impose this day.

11I have been told the victim was offered an opportunity to make a victim impact statement but, despite follow-up, has not done so.  I did however, see the victim when he gave evidence at trial.  This type of offending in the usual course, has both an immediate impact and a longer time sequalae.  It is to be hoped that the victim is recovering from that which he should not have endured. 

12You are now aged 50, having been born on 15 May 1969.  You were 47 at the date of your offending.  Your father tragically died in April this year, some weeks prior to your trial, aged 80, after a battle with cancer.  Your mother aged 70, attended court upon your trial and clearly remains supportive of you.  You have been a registered carer for both parents since May 2018.  You are the middle child of a sibship of three.  You report growing up in Melbourne in a loving and caring family with no significant traumas.  You also have the ongoing support of your sister, nephews and friends, a number of whom attended court both during the running of your trial and upon your plea this day.

13You were educated until part way through Year 11.  You report, 'hating school', and you believe that you were about 16 when you left.  You report being shy and bullied.  You were struggling to be open about your sexuality.  After leaving school you obtained an apprenticeship in carpet laying at the same company where your father then worked.  You were simultaneously working part-time at Pizza Hut.  You discontinued your apprenticeship having struggled with the academic aspect, and in addition you were dissatisfied with the wages.  You then worked full-time for two years at Pizza Hut as a delivery driver until you ceased your employment aged 22, mainly as a result of the cost of using your own vehicle. 

14This was followed by a short period of unemployment before you secured a position as a driver and detailer for 12 to 18 months before being retrenched.  You were again unemployed for a period of months before you gained employment at Australia Post, where you remained for seven years in retail.  You were offered a redundancy package from that position, which you accepted.  You then worked in various service stations for a number of years before moving to Queensland for six months, where you worked in door sales.  You returned to Melbourne and worked in air conditioning and then for Supercheap Auto in sales for four years.

15After that, you worked at Dimmeys.  You were then unemployed for about nine months before finding employment at Sam's Warehouse, where you again worked in management and sales for two and a half years, before you report being made redundant.  Your most recent employment was with Budget for about two and a half years.  This ceased in the context of the ankle injury which I shall turn to, and you reporting feeling suicidal after being interviewed for the first time in relation to this matter.  I think it is fair to say that you have demonstrated both a work ethic and determination as regards finding employment and there is no reason to believe that his will not continue upon your release from custody. 

16As regards your relationship history, you have had three relatively short relationships, the last of which you say was seven to eight years ago. 

17Whilst you have some history of drug use, you do not report this as any kind of ongoing issue.  You have however, it seems, been a heavy drinker for a number of years.  You started drinking at 18 and describe yourself as drinking regularly from age 20.  You told Mr Cummins that you have a history of binge drinking with a preference for vodka.  You told Mr Cummins that you were significantly intoxicated at the time of this offending, which is of course consistent with the evidence at trial. 

18You told Mr Cummins that you made a number of attempts at suicide in this time frame, including by way of injecting yourself with insulin, injecting air and Endone into your veins.  You further report ingesting toxic fumes.  Subsequently, you drove to a car park at the Black Spur before taking Endone and other painkillers and consuming three quarters of a large bottle of vodka.  Concerningly, you then report driving to Falls Creek, before walking into the bush with thoughts of suicide.  You broke your ankle in a fall and stayed the night in the bush before driving yourself to hospital.  You had plates inserted in your ankle and you were psychiatrically assessed. 

19Your mother attended and drove you home and you have resided with her until your remand.  Since that remand, you report receiving no visitors and this it seems, is at least partially due to your decision in relation to a wish to settle into what you understand will be your ongoing environment.  The other issue has been location, which is difficult for your family.  In custody you have commenced a drug and alcohol program and enrolled in a variety of courses.  You are employed making number plates and you have completed relevant OHS training.  You are, it seems, making the best of your current circumstances, which itself bodes well in terms of your rehabilitation. 

20I received a report dated 1 August 2019 from Mr Jeffrey Cummins, forensic psychologist.  Mr Cummins opines that you are a low moderate risk of committing a sexual offence in the future and he says that risk is already trending towards low.  Mr Cummins identified no psychiatric illness which contributed to your offending.  He says you do not present as having a personality disorder.  He says at the time of your offending you had problems with self-awareness, partly because of intoxication but also because you were feeling depressed about not having a partner. 

21Mr Cummins says that it is probable that you had an alcohol use disorder for several years, and certainly the case at the date of your offending.  That disorder in your case, takes the form of binge drinking.  I note that after your ankle injury, you report remaining alcohol abstinent for a period of a year and subsequently to having curtailed your drinking thereafter.  Mr Cummins further opines that at the time of your offending, you were suffering from symptoms of anxiety and depression but not to the level of a disorder.  Mr Cummins recommends offence specific treatment.  He says there is a significant risk that your mental health with deteriorate upon sentence.

22I have also received a report from Dr Leeton, a psychologist whom you self-referred.  You have been seeing Dr Leeton since June 2017, subsequent to being interviewed.  She says that upon initial assessment, you met the diagnostic criteria for a diagnosis of major depressive disorder and generalised anxiety disorder.  You subsequently attended 24 sessions, which in my view demonstrates significant commitment.  Dr Leeton says that your mood improved significantly after the first six sessions and that you have maintained stable mood with no suicidal thoughts since that time.  In addition, she says you are now better managing your anxiety and your ability to acknowledge and engage with your feelings.  The matters addressed at the various sessions are set out in her report.  The primary aim was to assist you to cope, leading up to your trial. 

23I have further received a report from a Rebecca Bataan from EACH, confirming your participation in alcohol counselling commencing in February this year.  In addition, you have been engaging in anxiety management and mindfulness practice, together with grief counselling following the death of your father earlier this year.  I pause to say that while your consumption of alcohol is not mitigatory, it informs what is required to achieve rehabilitation and your efforts in this regard are clearly positive. 

24As regards your prospects of rehabilitation, in my view they would have to be assessed as very good.  You have no relevant prior convictions, nothing subsequent.  I note the risk assessment of Mr Cummins and the steps you have taken as regards alcohol abuse.  Given this is your first time in custody, it is likely to have a significant deterrent effect whatever the duration.  In addition, you have indicated a willingness to engage in offence specific programs in custody.  I think that your prospects are very good, provided of course you come to accept the wrongfulness of your conduct. 

25As well as matters personal to you, including your prospects of rehabilitation, I take into account other relevant sentencing considerations.  General deterrence is a considerable importance in matters such as this.  I must seek to deter not only you, but others who would engage in like conduct.  The court and the community cannot and will not tolerate offending which damages the lives of victims.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  Specific deterrence can however, I think, be given less weight as a result of your history and subsequent good conduct.  As I have said, I accept there is a significant risk that the term of imprisonment I will impose this day, will have a significant adverse effect upon your mental health and the principles enunciated in Verdins have application to that extent.  I have moderated your sentence accordingly.

26Your counsel, while conceding that a sentence of imprisonment is the only disposition open, submits that total concurrency is appropriate given the time frame over which the offending occurred.  In her submission, it can be seen as a single, ongoing instance of offending.  In the alternative, your counsel submits that an aggregate term of imprisonment is appropriate, effectively for the same reasons. 

27The Crown concur in saying that the only disposition open is a term of imprisonment but submit that orders for cumulation are appropriate to reflect the disparate acts which found the three charges. 

28I have had regard to principles of totality and come into a view as to the appropriate sentence.  I have determined that there should be some moderation and some cumulation, so the total effective sentence reflects the totality of your criminality. 

29On Charge 1, compelled rape, you are convicted and sentenced to be imprisonment for four years;

30Charge 2, rape, convicted and sentenced to be imprisonment four years;

31Charge 3, sexual assault, convicted, sentenced to be imprisoned one year.

32I direct that one year of the sentence upon Charge 2 and two months of the sentence upon Charge 3, be served cumulatively with the sentence upon Charge 1 and upon each other.  That makes a total effective sentence of five years and two months.  I direct that you serve three years before becoming eligible for parole.  I direct that 60 days be reckoned as served.

33Is there anything else that arises?

34MS CONNELLY:  No, Your Honour.

35MS DUCKETT:  No, Your Honour.

36HER HONOUR:  Thank you.  Remove the prisoner please.

37(At this stage the accused left the court.)

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