Director of Public Prosecutions v Bolton
[2018] VCC 385
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01059
CR-16-01985
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK BOLTON |
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JUDGE: | Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 March 2018 | |
CASE MAY BE CITED AS: | DPP v Bolton | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 385 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Treasure | Office of Public Prosecutions |
| For the Accused | Mr M Page | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1 PATRICK BOLTON, you are to be sentenced in respect of five charges contained in Indictment No: F12108179A (I shall refer to this as “the trial indictment”). You had indicated your intention to plead guilty to a second indictment (Indictment No; F12108179B), but as I shall later explain, the arraignment on that indictment was aborted.
Indictment No: F12108179A – trial indictment
2 The trial indictment alleged six charges, one of which, charge 5, is of no relevance for present purposes, since it was an alternative charge to charge 4 and you were found guilty of the principal charge. The charges in respect of which you are to be sentenced on the trial indictment are:
·Common assault, contrary to common law (charge 1);
·Make threat to kill, contrary to s20(1) of the Crimes Act 1958 (charge 2);
·Two charges of rape (charges 3 and 6), contrary to s38(1) of the Crimes Act; and
·Intentionally cause injury (charge 4) contrary to s18(1) of the Crimes Act.
3 You pleaded not guilty to all charges and the matter proceeded to trial.
4 Mr G Slim appeared on behalf of the prosecution. Mr M Page appeared on your behalf.
5 On 1 November 2017, following a nine day trial, a jury of twelve announced unanimous verdicts finding you guilty of all charges. Because, as mentioned earlier, charge 5, recklessly cause injury, was the alternative charge to charge 4, intentionally cause injury, the jury was not asked to return a verdict on it.
6 The plea hearing was adjourned to 17 November 2017.
Indictment No: F12108179B – proposed plea indictment
7 The plea indictment alleged one charge:
·Contravene Family Violence Intervention Order intending to cause harm or fear, contrary to s123A(2) of the Family Violence Protection Act 2008.
8 This charge had previously appeared on an earlier version of indictment F12108179A as the identity of the complainant in all cases was the same, but as I understand it the charge was severed and arraignment was deferred pending the determination of the jury verdict on indictment F12108179A, the trial indictment.
9 On 1 November, following the jury’s verdict on the trial indictment, your counsel, Mr Page, after consultation with you, stated that you would plead guilty to the charge on the plea indictment. Arraignment on the plea indictment commenced, but as the particulars were being read to you, Mr Page interrupted the arraignment stating that it was unlikely that you would accept all of the particulars alleged against you, although you would accept one such particular.
10 In view of Mr Page’s indication, the arraignment was aborted and the further hearing of this matter was adjourned to 17 November, 2017.
11 By consent on 12 December 2017 the further hearing of the charge the subject of the plea indictment was adjourned to a date to be fixed following the finalisation of an appeal you intend to lodge against the jury’s verdict on the trial indictment. The court records show that as the arraignment was aborted on 1 November, you are taken to have pleaded not guilty to the charge.
Indictment No: F12108179A - trial indictment
12 The charges before the jury arose from an incident that occurred on 5 June 2015 when you assaulted and raped your ex-girlfriend, SR,[1] three weeks after you were released from prison. You had been sentenced to a partially suspended term of imprisonment for charges arising from an incident on 11 August 2014 when you brutally assaulted SR in circumstances I shall soon describe. You were released from prison three weeks before attacking her again.
[1] SR is a pseudonym
13 At the time of offending you were aged almost 49 years, and SR was aged 30.
History of Proceedings and overview of the case against you
14 The matter first came before me on 27 February 2017. You were arraigned and pleaded not guilty to all charges.
Pre-trial issues resulting in two interlocutory appeals
15 On 27 February 2017, before a jury was empanelled, your counsel applied to have certain relationship and context evidence excluded. Your counsel also applied to exclude evidence that you pleaded guilty to two charges arising from an incident in Williamstown in August 2014 during which you brutally assaulted SR (“the Williamstown incident”). You had only been released from prison 3 weeks before committing the charges the subject of the trial indictment.
16 After hearing submissions on 27 and 28 February and 1 March, 2017, on 2 March, 2017 I dismissed your application to exclude the evidence.[2] Your counsel announced that you intended to bring an interlocutory appeal against my ruling and he sought certification to enable such an appeal to be launched. Under s295(3)(a) of the Criminal Procedure Act 2009, I certified that the interlocutory decision concerned the admissibility of evidence that, if ruled inadmissible would substantially weaken the prosecution case.
[2]DPP v Patrick Bolton [2017] VCC 755 (Ruling No. 1 – Relationship and Context Evidence)
17 Your interlocutory appeal was not determined on its merits as the prosecution foreshadowed it may seek to file a tendency notice.[3] Accordingly, your application for leave was refused.
[3]See Martin Henderson (a pseudonym) v R (Unreported) Supreme Court of Victoria, Court of Appeal, 8 May 2017, S APCR 2017 0035
18 Thereafter, the prosecution filed a tendency notice indicating its intention to introduce evidence of uncharged acts of sexual assaults, violence and threats of violence committed by you against SR as outlined in a 22 page statement SR made to police in August 2014 following the Williamstown incident. The prosecution submitted, in essence, that such evidence demonstrated a pattern of your behaviour such as might render it more probable that you acted in accordance with that tendency on 5 June, 2015.
19 Following a contested hearing about the admissibility of the proposed tendency evidence conducted before me on 5, 6 and 7 June, 2017, on 8 June 2017 I acceded to the prosecution’s application to admit the majority of the proposed tendency evidence and I confirmed that my first ruling made in respect of the context and relationship evidence would stand. I further confirmed that the evidence about the Williamstown incident, including your guilty plea and consequent sentence, could be used in direct proof of charged acts.[4]
[4]DPP v Bolton [2017] VCC 756 – Ruling 2. Tendency, relationship and context evidence.
20 Your counsel announced that you intended to lodge a further interlocutory appeal against this ruling, and in view of the fact that the first interlocutory appeal was refused in the circumstances described above, I gave certification under s295(3)(a) of the Criminal Procedure Act 2009.
21 On 6 September 2017, the Court of Appeal upheld your appeal in part, and the matter was remitted to me for further determination.[5] As a result, agreement was reached between your legal representatives and the prosecution about the relationship and context evidence, but I was required to rule whether some limited form of tendency evidence could be admitted at trial.
[5]Martin Henderson (a pseudonym) v R [2017] VSCA 237
22 Following further preliminary applications, which commenced on 16 October 2017 and continued on 17, 18 and 19 October, I ruled that evidence showing your tendency to burn SR in her vaginal area with a cigarette or cigarette lighter in the context of sexual intercourse could be admitted to assist in proof of only charges 4 and 5, the injury charges alleging that while raping SR on 5 June 2015, you deliberately burnt her vaginal area with a lit cigarette.
23 On 20 October 2017 a jury of 12 was empanelled. The trial continued on 23, 24, 25, 26, 27, 30 and 31 October. On 1 November the jury returned unanimous verdicts of guilty to all charges bar the alternative to charge 4 (charge 5).
The issues at trial
24 According to the defence response filed on your behalf, you denied committing any of the offences. You denied entering the premises on the date and place at which it was alleged you committed the crimes.
25 The principal issue in dispute in the case of each charge was whether the events occurred. No question of intention, consent or lawful justification arose in answer to any charge.
The prosecution case
26 A number of witnesses were called by the prosecution at your trial, including SR, whose total evidence spanned three days.
27 At times, when giving her evidence, SR became visibly distressed. She was crying. She required a number of breaks so that she could compose herself.
28 During the course of cross-examination, which lasted for two days, it was suggested to SR that none of the incidents happened. SR was asked whether she self-inflicted the injuries found by a forensic medical examiner.
29 Although the prosecution case largely rested on the evidence of SR, there was also medical and DNA evidence tending to support SR’s testimony.
30 During a voir dire SR was asked whether she had engaged in sexual activity within anyone else in the period 31 May 2015 to 5 June 2015 such as might explain the physical injuries, however this line was not pressed before the jury.[6]
[6]On 17 October 2017, prior to the jury’s empanelment, I granted leave to permit these questions on the grounds that Mr Page submitted that DNA evidence raised the possibility that someone else may have caused the physical injuries found to SR’s anus during the medical examination. See transcript of pre-trial proceedings (PT) 540 and 550.
Facts upon which you are to be sentenced
Background to the offending
31 As mentioned earlier, you and SR had been in a romantic relationship, on and off, between approximately 2010 and August 2014. During the course of that relationship you committed acts of physical violence and verbal abuse against SR.[7]
[7]The full particulars of that history was not placed before the jury. Counsel agreed on a “formula” to introduce that history, following the Court of Appeal’s judgment in the second interlocutory appeal - Martin Henderson (a pseudonym) v R [2017] VSCA 237 .
32 The relationship ended when you brutally assaulted SR in Williamstown on 11 August 2014 (“the Williamstown incident”). During the Williamstown incident, both you and SR were in a car. Initially, she was the driver, but after stopping near the Williamstown police station, you became angry with SR and you became physically aggressive. She ended up outside the car, near the car door. You had hold of her by the hair. SR was screaming out for help. Fortunately two bystanders came to SR’s rescue. One of them called out to you, but as you saw him approach, you accelerated sharply and drove off, while SR’s hair was still caught in the door. SR was dragged alongside the vehicle, on the road, as you sped off. She was rescued, but not before she sustained cuts and abrasions down the side of her body, and two large clumps of her hair were ripped from her scalp.[8]
[8]The injuries are more particularly described in plea summary, Exhibit B. Photographs depicting some of the injuries that SR sustained were included in Exhibit A, behind Tab 4.
33 SR made a 22 page statement to police in which she detailed what happened to her in the Williamstown incident and what events led to it. In that statement SR also referred to numerous past acts of sexual assault, physical acts of violence, threats of violence and general verbal abuse that you committed against her during the course of your relationship.[9]
[9]The jury was not informed of the full contents of the statement or of its length.
34 A brief of evidence was compiled against you, and you were charged with numerous offences covering a broad time frame. You were also charged with offences arising out of the Williamstown incident. Two eye witnesses to that incident made statements to police and there was also medical evidence supporting those charges. All of this material was included in the brief.
35 On 17 February 2015, you pleaded guilty to two charges, which were heard summarily – one charge of recklessly causing injury to the complainant and one charge of conduct endangering serious injury.[10] The charges to which you pleaded guilty were confined to what was observed by the independent eye witnesses in the Williamstown incident. SR did not attend court on any day that the matter was listed for hearing.
[10]Note the difference between Exhibit C and the police record of convictions.
36 On 17 February 2015, at the plea hearing, an agreed statement of facts was provided to the court and it formed the factual basis upon which you were sentenced. That agreed summary of facts was tendered as exhibit B upon your trial. That summary is in the following terms:
“Plea Summary
Summary of Circumstances
1. The accused, Patrick Bolton (d.o.b.29/07/66), met the victim, [SR], in about 2010. The accused and the victim were involved in a sexual relationship for about 4 years, until 11 August 2014. It was an "on again off again" relationship.
2. Between February 2014 and early July 2014 the victim resided in Western Australia. She returned to Victoria in July 2014. The accused did not know the victim's phone number or where she was living. He had, however, been contacting her through Facebook since February 2014.
3. On 7 August 2014 the accused and the victim made an arrangement to meet the accused at Bell City Apartments for the accused to return some of the victim's personal items which she had left at his house when she left for Western Australia.
4. On 11 August 2014 at approximately 10.45 am Christopher Underwood was working in Parker Street, Williamstown. He heard a woman yelling. He observed the victim trying to get out of a car which had stopped near the property where he was working. He saw the accused jump out of the driver's seat and walk around the front of the car towards the victim who was trying to get out of the front passenger seat.
5. On observing Christopher Underwood the accused turned back and got into the driver's seat. The victim was yelling, "Help me!" The accused started the car and leant across and grabbed the victim by the hair and pulled her back into the car. The accused was hitting the victim. The accused had hold of the victim's hair with his left hand. He was throwing punches at the victim with his right fist as he tried to drag her back into the car (Charge [number deleted] - recklessly cause injury.) The victim continued to scream, "Help me. Help me!"
6. Christopher Underwood ran to the passenger's side and tried to pull the victim out of the car by grabbing her arm. As he did this the accused accelerated forward, dragging the victim by her hair. Christopher Underwood was yelling "Stop, stop! You are going to kill her." The victim was dragged along the ground by her hair towards his parked van.
7. Nicholas Van Den Berg was standing about 15-20 metres away. He observed the incident. He saw Christopher Underwood try to drag the victim clear of the car. He saw the accused's left hand have a firm grasp of the victim's hair. He saw the accused accelerate violently pulling the victim and Christopher Underwood along the gravel. He estimated that the victim was dragged along the gravel by the car for about 5 metres (Charge [number deleted] - recklessly engaging in conduct placing a person in danger of injury.) He saw the victim come free of the driver's grasp when a clump of her hair was ripped from her head by the accused.
8. The accused drove off erratically, fishtailing and narrowly missing parked cars.
9. The police were called and they attended the scene. An ambulance was called. The victim was taken to the Williamstown police station at 11.30 am. The victim's injuries were photographed (see photo books #3 14, 19, #2 12-15, 7)
10. The victim was examined by Dr Moller at 7 pm the same day (11/8/14.) The following injuries were noted and photographed:
(i)2 x 2 cm bruises - left chin;
(ii)2 superficial linear abrasions - right chin;
(iii)Generalised facial tenderness;
(iv)Redness under the left eye;
(v)5 cm superficial abrasion to the neck;
(vi)Two areas of scalp loss with some areas of short hair regrowth; generalised reddened, abraded skin on the abdomen and right leg;
(vii)Three superficial abrasions to the right upper back;
(viii)General abraded skin and bruising on the outer right leg;
(ix)Bruising to the right inner thigh;
(x)Red mark over the left knee;
(xi)Bruise over the left upper outer thigh.
11. The doctor was of the opinion that the abrasions to the right abdomen and thigh were caused by contact with a rough surface with a large surface area. She was of the opinion that they had been caused within a day. She was of the opinion that the bruises had also occurred within the timeframe of 11 August 2014. The doctor was of the opinion that the hair loss on the scalp was likely to have been predominantly caused by chronic trauma (persistent pulling).
12. The police interviewed the accused on 12 August 2014. The accused admitted to hitting the victim and driving off. He was unable to recall where or how he hit the victim.”
37 On 18 February 2015, on both charges you were sentenced to an aggregate term of 15 months’ imprisonment, nine months of which was to be served immediately, the balance suspended for 12 months. At the time of sentence you had served 191 days by way of presentence detention, which period was declared as time served under the sentence in accordance with s18(4) of the Sentencing Act 1991.
38 On 10 May 2015 you were released from custody having served the unsuspended portion of the term of imprisonment imposed in respect of the Williamstown incident. Upon your release you still had 6 months’ imprisonment remaining in suspension for the 12 month operational period.
39 Three weeks later, on 31 May 2015 you were present at the unit of your friend, Douglas Shannon, in Maidstone. Apparently, because she was homeless, you had arranged for SR to stay at Mr Shannon’s unit.[11] The same day that SR moved into Mr Shannon’s unit, you attended there. That was a Sunday. In between that Sunday and the next Friday, Mr Shannon sent you a number of text messages asking you to remove “your trash” and “your rubbish” (both references to SR) from his premises.[12] Mr Shannon wanted you to move SR out of his premises. You had shown the police brief containing SR’s statement to Mr Shannon and in his text messages he also referred to SR as “dog”, meaning a police informer or “lagger”.[13]
[11]At trial SR stated that her friend RS had arranged the accommodation, but RS testified that while she drove SR to Mr Shannon’s residence, she had not organised the accommodation. Text messages sent by Mr Shannon support the inference that the prisoner organised the accommodation (Exhibit 2, tab 2).
[12]Exhibit A, tab 2
[13]See exhibit A, tab 2
40 On Friday 5 June, armed with the brief of evidence referred to earlier, you returned to Mr Shannon’s premises where you committed these offences. Mr Shannon testified that he did not witness the charged acts. After you arrived, Mr Shannon left the premises with a social worker to attend an “appointment”.[14]
[14]According to Mr Shannon, he had a standing appointment on Fridays to have coffee with his social worker. According to the social worker’s statement, Mr Shannon had to attend the Magistrates Court that day. The jury was not informed that the Mr Shannon had an appointment at Court.
41 SR consumed a large quantity of alcohol during the period of time that you remained at the unit.
Charge one – Common Law assault
42 With the brief of evidence rolled up in your back pocket, you verbally abused SR. You were angry that she had made the statement to police and you confronted her about why she had done it. You would not accept her explanation that she did not attend court. You used the brief of evidence to strike SR to her face.
43 SR’s evidence in chief about this charge at trial was:
“Q: What about, what did Mr Bolton do?---
A: Um he was on the couch.
…..
… he was yelling and screaming …. and he had ah the brief in his hand.
…. "Why did you go to those dogs?" And, "Why did you even make a statement?" "Why would you ever do that?" And just going ballistic, basically.
Q: Did he call you any names?---
A: Yes. ….A dog.
[SR later explained that being called a “dog” “means you're a “lagger” and that I went to the police”.][15]
[15]TT 74
Q: Were you able to answer or get a word in at all?---
A: I tried, …. but there's only so much you can try.
…. I said to him …. I didn't go to court. ….
Q: Did he continue to yell at you?---
A: Yes.
Q: Did he have anything in his possession that you noticed?---
A: Yes, he had …. my statement, the brief from the last court appearance.
….He was waving it about when he was on the couch.
Q: Is that when he was yelling at you?---
A: Yes, it was.
Q: Did he do anything with it?---
A: …. yes, he slapped me across the face with it.
Q: Once or more than once?---
A: Three times.
….
Q: And what did he do with it after he'd hit you with it three times in the face?---
A: He threw it on the ground.”[16]
[16]Trial Transcript (TT) 60 - 61
44 When cross-examined SR testified that you had the brief in your back pocket before producing it and using it as a weapon.[17]
[17]TT 189 - 190
45 Also in cross-examination it was put to SR that the incident did not happen.[18]
[18]TT 189 and 214
Charge two – threat to kill
46 You smoked a substance, after which you became more aggressive. You would not let go of the subject of SR’s police statement. You threatened her declaring words to the effect:
“If you go to the police again, I am going to kill you.”
47 SR’s evidence in chief about this charge at trial was:
“Q: [SR], you described how he hit you with the brief three times and I can lead you on this, after that, did he then smoke a substance?---
A: Yes, he did.
….
Q: After he started smoking the substance, did he become even more violent?---
A: Yes, he did.
Q: Did he say anything to you?---
A: He was …. becoming very, very um aggressive.
…. he just was going off about … going to the police.
Q: Did he say anything as to what might happen if you went to the police?---
A: Yes, he did.
[at this stage SR became distressed]
HER HONOUR: Q: Are you all right?---
A: Yes, he did.
MR SLIM: Q: Just take your time, what did he say about what might happen if you went to the police?---
A: He said he'd kill me.
….
HER HONOUR: I'm sorry to interrupt, [SR] ….What words did he say, just tell us what he said?---
A: If you go to the police again, I'm going to kill - kill you.
Q: MR SLIM: Did you take that threat seriously?---
A: Yes, I did.
Q: What was your manner at the time he acted like that and said these things to you, what were you doing?---
A: There's not much you can do. Um you can't plead or beg or anything, it makes him more aggressive. Um you can't say much.[19]
[19]TT 67 - 68
….
Q: You've told us about how he said to you that if you go to the police again, he'll kill you?---
A: Yes.
Q: You said that you took that threat seriously?---
A: Yes.
Q: You thought he could follow through with it and I can lead you on this, was that based on your past experience of his violence?---
A: Yes.[20]
….
Q: Now, so if I can take you back to when he's told you that he's threatened he's going to kill you if you go to the police again, is that correct?---
A: Yes.
Q: You believed him?---
A: Yes, I did.
….
…. I was terrified - I'm terrified of him. I was terrified at the time. There's not much you can do.[21]
[20]TT 74
[21]TT 74 - 75
48 In cross-examination it was suggested that this event did not happen.[22]
[22]TT 189 and 214
Charge three – rape (penis/vagina) and charge 4 – intentionally cause injury
Charge 3 - Rape
49 SR was sitting on a chair. She was menstruating. You pulled down her tracksuit pants, underwear and sanitary pad. Despite her pleas that you desist, you raped SR by forcing your penis into her vagina.
Charge 4 – Intentionally cause injury
50 While raping SR, you deliberately placed your lit cigarette against SR’s skin, near her vagina, intending to cause injury. The resulting pain was immense. Your callous action caused a blistering burn injury.
51 SR’s evidence about these charges at trial was that you were sitting on the couch and that you smoked a substance:
Charge 3 – Rape
“ … he came over to me. [He was] standing over me and …. he started - he was yelling and ….‑
…. he was ah just screaming at me about …. going to the police. ….[A]nd how effing dare I and all this sort of stuff and …. ‑
…. Then he'd - he grabbed my - my tracksuit pants.
…. he grabbed my tracksuit pants and he …. pulled forward on the - on the one seater.
…. And then he - he pulled them down.
…. I had my, ah, period at the time.
…. And, …. so the underwear and pad went down with all of that.
….
…., he pulled me forward on the - ….On the couch.
Q: So he's in front of you?---
A: Yes.
Q: Over you?---
A: Yes.
Q: So he's pulled you towards himself?---
A: Yes…..
Q: What's the next thing that you remember?---
A: Him pulling his - undoing his pants and his, …. penis was hard.
…. And I just said to him, "Please don't do this".
…. I knew what he was going to do and I just said to him, "Please don't do this", and he pulled …. his pants down and, …. I was on the edge of the - …. seat and he started having sex with me. He put on a - …. a condom.
…. he started to have sex with me.
…. he lent down and I was on the edge of the one seater and, …. he was able to put his penis inside my vagina.
…. I froze.
…..
Q: And did he take any notice of you telling him not to do this?
---
A: No, he didn't care.
Charge 4 – Intentionally cause injury
Q: Now at some stage while he was having sex with you, did he do anything else?---.
A: Yes….He…. had a cigarette in his hand ‑ ‑ ‑
…. and he said to me, "Do you want me to put this in you?"
Q: Did you reply?---
A: I don't remember.
Q: What is the next thing that you remember happening after he said that to you and had the cigarette in his hand?---
A: Your Honour, can I have a break please?
[SR is distressed][23]
[23]TT 76 - 78
….
Q: You told us before the break that while he had - he was having sex with you, he had a cigarette in his hand? ….You told us he said to you, "Do you want me to put this in you?" …. Can you remember whether you said anything in response at that stage?---
A: I think I said please don't.
Q: Taking your time, what's the next thing that you remember happening, what did he do, if anything?---
A: ….he …. burnt me with the cigarette …. on my lips of my vagina.
…. he put - um he put the cigarette down …. to my vagina twice on my left side and once on my right side.
….
Q: And what did you feel? What was the sensation?---
A: Immense pain. It was very, very painful.
Q: And you've told us he was having sex with you at the time. Is that correct?---
A: Yes, he ‑ ‑ ‑
Q: In other words, his penis was inside your vagina?---
A: Yes, it was.
Q: At some stage did he ejaculate?---
A: Yes, he did.
Q: Was his penis still in your vagina when he ejaculated?---
A: Yes, it was.
Q: Did he still have his condom on?---
A: Yes, he did.
Q: What happened after he ejaculated?---
A: …. he, … took his penis out and, …. he had a - …. grey, …. shopping bag - like a - a plastic bag - and, …. he put the condom ….in the plastic bag.
….
…., [he] tied [it] up.
…. He took it out, um, of the front door.”[24]
[24]TT 82 - 84
52 In cross-examination it was put to SR that these things did not happen.[25]
[25]TT 189 and 124
Charge six - rape (penis/anus)
53 You returned to the unit. By now SR had been to the bathroom and had put her pants back on. You maintained your rage about SR’s police statement. As she sat on the chair, you suddenly pulled her towards you, flipping her over so that she was bent face down, kneeling over the chair. Believing that you were about to vaginally rape her again, SR pleaded for you not to do it. You then raped her by forcing your penis into her anus. You did not use any lubrication, and this act of violation was both humiliating and extremely painful. You caused a number of injuries to SR’s anus, including two specific injuries as well as other abrasions.
54 SR’s evidence about this charge at trial was:
“…. and then …. he was going on about the brief and just going …. very ballistic about it all and saying that …. and I said to him that I didn't go to court. So it's not my fault….
…., he stood up and …. he came over to me and he was …. just yelling …. and he was puffing out his chest and just being very aggressive.
…. And …. then he suddenly …. grabbed my hips and he pulled me off the chair and turned me over and so I sort of fell.
…. And I sort of fell on my knees.
…. And as I was bent over the …. the chair
….
…. he pulled down my tracksuit pants and my underwear.
….It happened so fast, I - I don't know …. whether he put a - I don't know what's happened with that.
…. he pushed my head down onto the seat.
…. At the back of my neck.
…. And …. he just um shoved his penis into my anus. ….
…. I thought he was just going to put it in my vagina again and I - I said to him, "Please don't. Please stop."
…. Then he didn't stop.
…. [he put his penis]…. In my …. anus.
[There was no lubrication].
…. It was very painful.
…. I was crying and …. he was - I don't know if I was yelling that, I don't - I don't remember, but it was very painful and so I was just - I was just telling him to stop.
…. just next to him was …. a shopping bag, …. a grey shopping bag and …. a towel, a …. brown and white towel and he pulled out of me and he went on the towel.
….[After he withdrew his penis] He was just laughing.
…., he put the …. white and brown towel into the plastic bag and he tied it up in a double knot.
…. He went and sat on the couch.
…. I just pulled up my pants and sat on a chair.
….He sat there for a little while.
…. he seemed very happy with himself.
…. He just laughed.
…. he went out the front door [taking the plastic bag with him. He was gone]…. maybe …. eight to ten minutes. I, I don't know 100 per cent.
[When he came back] …. he went and got a drink [then smoked a substance].
[SR distressed].[26]
[26]TT 103 - 107
….
Q: You were on the single seater and he started smoking the substance again. What's the next thing that you remember?---
A: …. him being very angry ….
…. He was just going on about …. the same stuff that he had been going on about before.
…. eventually he got up and …. slapped me on the right side of my head.
…. And he said that's it. ….[W]e're going to SASHS [Salvation Army Social Housing].
…. it's a crisis accommodation. They arrange crisis accommodation and it's in Sunshine.
Q: Did you agree to go?---
A: Yes, I did.
…
…. I grabbed my bag and my suitcase, black bag and …. he - he drove me there in his …. Commodore.”[27]
[27]TT 111
55 As with the other charges, in cross-examination it was suggested to SR that this incident did not happen.[28]
[28]TT 189 and 214
Aftermath
56 After committing the anal rape, you drove SR to the Salvation Army Social Housing (“SASH”), where you dropped her off. When SR entered SASH she was distressed. She told the worker there that she had been raped. Crisis accommodation was arranged for SR, and after receiving a taxi voucher, SR went to the Fawkner police station sometime around 4.00 pm.[29]
[29]Senior Detective Naylor first spoke to SR at approximately 4.40 pm (TT 417)
57 SR was also highly distressed when reporting the rapes. She had vomited on herself and needed time to compose herself on a number of occasions as she attempted to tell police what happened.[30]
[30]TT 418 - 419
58 SR was taken to the Austin hospital where she was examined by a Forensic Medical Officer, Dr Romy Giles. Dr Giles took a brief history from SR to “guide” her examination.[31] Although at trial SR could not recall doing so,[32] Dr Giles testified that when taking a history from SR about the incident, SR told Dr Giles that during the incident you ejaculated on her breasts and possibly on her top. By reference to her contemporaneous notes, Dr Giles testified:
"On the 5 June 2015 at approximately 1.30 in the afternoon, [SR] reported that she had been sexually assaulted by her ex-partner. She reported penile-vaginal penetration with a condom. She reported penile-anal penetration without a condom and that there was no ejaculation. There was ejaculation onto the bare skin of her breasts and perhaps a bit on her top that she was wearing. That during the alleged assault, there was some biting of her back and also some cigarette burns to her upper inner thighs and groin area".[33]
[31]TT 241
[32]TT 210 -211
[33]TT 241. SR’s account to Dr Giles was raised in cross-examination of SR at TT 210 -211. The jury were directed that if accepted, they could use this earlier representation made by SR as evidence.
59 Dr Giles took swabs from various parts of SR’s body and a number of slides were made. The swabs and slides were later submitted for forensic DNA analysis. The swab taken from SR’s breast area was found to contain your DNA.[34] That finding is consistent with SR’s account to Dr Giles. You did not contest the expert evidence that -
“the statistical analysis indicated that the DNA evidence is 100 billion times more likely if Bolton is a contributor to the sample….[t]han if he's not.”[35]
[34]Evidence of Bianca Laan, TT 409
[35]TT 409
60 In an apparent endeavour to reduce the impact of the DNA evidence, your counsel suggested to SR that she performed oral sex on you on Monday 31 May after which you ejaculated on her chest or top. Ultimately SR denied the assertion.[36] Your counsel also asked SR whether she had showered or washed between that Monday and Friday 5 June. SR stated that she had, although she could not recall the dates and times that she did so.[37]
[36]TT 186 - 187
[37]TT 214
61 The only evidence before the jury was that SR did not perform oral sex on you on the Monday and that she showered between the Monday and the Friday. You did not give evidence that SR performed oral sex on you as suggested by your counsel. In the end, there was no evidence other than SR’s testimony to explain the presence of your DNA on her chest.
62 Dr Giles also found injuries to SR’s anus consistent with SR’s description of the anal rape. Dr Giles also found a fresh blistering injury at SR’s upper inner thigh near the groin, consistent with a recent cigarette burn inflicted during the time frame and in the circumstances described by SR. Dr Giles found other similar injuries of varying ages in SR’s vaginal/upper thigh region. These injuries were consistent with older cigarette burns. The older injuries were at various stages of healing. Dr Giles was unable to date the older injuries with any degree of certainty.[38]
[38]TT 248 – 252
63 It was not until 10.45 pm that SR and Senior Detective Naylor headed back to the police station, after the medical examination was completed. By then, SR was exhausted and asked if she could make her formal statement the next day.[39]
[39]TT 420
64 On 6 June 2015 SR made her formal statement about the charges.
65 The same day, Mr Shannon’s premises was searched, and a statement was taken from him.
66 Police also attended your premises on 6 June 2015. Your car was searched, and on the back seat police found the police brief still in a state consistent with having been rolled up.
67 No record of interview was tendered at trial.
The course you elected at trial
68 The course you elected was to give no evidence and to call no evidence.
69 As no record of interview was tendered, and because you elected to remain mute and call no evidence, none of the assertions put to SR in cross-examination were supported by any evidence from you.
70 Of the two people present at the time you committed the offences, only SR gave evidence. There was no contradictory version from you. As your counsel stated towards the end of the trial, the prosecution was being put to its proof.[40]
[40]Mr Page stated: “I'm essentially putting the Crown to proof in relation to most of these allegations rather than - I haven't called any evidence and I'm bound by that decision.” (TT 451 – 452)
Gravity of your offending
Rape – charges 3 and 6
71 I need not remind you that -
“Rape in any form is a contemptible crime” -
since these were the very words uttered by a judge of this court when sentencing you for three rapes that you committed in January 1996. On that occasion in addition to the three rape charges, you had also pleaded guilty to one count of recklessly causing injury to the victim of the rapes when you struck her to the face. The rapes consisted of two counts of oral rape and one of vaginal rape. You appealed to the Court of Appeal against the severity of the total effective sentence imposed of 10 years and six months’ imprisonment with a non-parole period of 7 years and 6 months. In his judgment Hayne JA, as his Honour then was, observed that the learned sentencing judge was right to use the words I just cited.
72 The maximum applicable penalty of 25 years’ imprisonment reflects the fact that this crime must be regarded as serious.
73 Domestic violence is a matter of great community concern. Courts have observed that such conduct will not be tolerated. Principles of condemnation, denunciation, general deterrence, protection of the community and just punishment are dominant sentencing considerations. Given your prior convictions for rape and other violent offences to which I shall refer more fully later, specific deterrence is also an important sentencing factor in your case.
74 I consider your offending to be at the upper end of the scale of seriousness for this type of offence.
75 Because of your prior convictions for rape, you fall to be sentenced as a serious sex offender on charges 3 and 6, meaning that in balancing all sentencing considerations, protection of the community must be regarded as the principal purpose for the sentences .
Threat to kill - charge 2
76 The maximum applicable penalty is 10 years’ imprisonment.
77 In view of your past history of violence, particularly in respect of the Williamstown incident, the threat you issued to SR was made in the knowledge that SR had failed to turn up at court for the committal hearing in relation to the Williamstown incident and the allegations of past violence, threats of violence and abuse as contained in her 22 page statement. You knew that SR was frightened of you, as she was the “aggrieved family member” named in the intervention order made against you. You intended to punish SR and thought you could get away with it by threatening to kill her. SR testified that she was terrified by your threat, based on your past conduct.
78 I regard your conduct as a serious example of this type of offence.
Intentionally causing injury – charge 4
79 The maximum applicable penalty is 10 years’ imprisonment.
80 The gravity of this type of offence varies widely. In your case, I regard your conduct at the upper end of the scale of seriousness. The offence was committed while you were raping SR, and by its verdict, the jury accepted that you did it meaning to cause injury.
81 Your conduct was sadistic and merciless.
Assault (common law) – charge 1
82 The maximum applicable penalty is 5 years’ imprisonment.
83 The gravity of this offence also varies widely, depending on the circumstances.
84 I cannot ignore your history of violence towards SR, and your prior convictions for violent crimes committed against her and against others. You had the brief ready to use as a weapon, and likely thought it was befitting punishment to use it as such since you blamed SR for your troubles.
Aggravating circumstances
85 As I stated earlier, at the time of committing these offences you had only just come out of jail having served a sentence of imprisonment for charges involving extreme violence against SR.
86 You were still undergoing the suspended portion of the sentence imposed on 18 February 2015 when you committed these offences during the operational period of the order.
87 You were also bound by the terms of an intervention order made against you on 18 February 2015 (the date you were sentenced in respect of the Williamstown incident) which was taken out by police to protect SR from you. The order was served upon you on 6 March 2015 (while you were in custody). You breached the terms of that order.
88 Your crimes were motivated by feelings of animosity and revenge. You intended to punish SR for the wrong you perceived she had done you – she had the temerity to complain to police - and even though she never attended at court to testify against you, you served time in custody. Rather than reflect on your own violent conduct that resulted in your imprisonment, you blamed SR.
89 Your threat to kill SR was made in the belief that she would not go to the police again. If you behaved this way after serving a term of imprisonment because of the Williamstown incident, surely SR would have every reason to fear your response if she complained to police again. You knew that despite making her 22 page statement SR did not attend court. Making a threat in these circumstances emboldened you, and your cowardly acts were both brazen and pitiless.
90 I do not regard your conduct as spontaneous. You persisted for some time committing the offences in four stages – first came the assault with the brief, second, a little later you made the threat to kill. Third, was the vaginal rape together with the intentional burning of SR’s vaginal area with a lit cigarette. Finally, when you returned to the unit after leaving for 8 – 10 minutes, the fourth stage occurred – the anal rape. You paid no regard to what you had done or the accumulation of fear and pain that SR must have endured. You raped SR ignoring her pleas. There were times between these stages that you assaulted SR, but these are not the subject of any charges. After one such assault, when you hit SR in the head, you told her:
“…you know I'm only doing this because I care about you. ….
…. I'm trying to look out for you.”[41]
[41]TT 86 - 87
Relevance of uncharged acts
91 I have mentioned uncharged acts of violence, threats of violence and other forms of abuse referred to by SR in her 22 page statement to police. There has been no full examination of that past history and I make no findings about it. However, you did not challenge SR’s evidence put in a leading “formula” by agreement to the effect that in the course of your relationship with SR you were both physically and verbally abusive towards her. Your past history of violence and abuse of SR deprives you of the ability to argue that this was an isolated incident.
Victim impact statement
92 SR made a Victim Impact Statement, tendered as exhibit A. SR read the statement to the court. She was visibly upset while reading it.
93 The statement demonstrates the profound impact your offending has had on SR. She stated:
“…. I have so much to explain and express to you about how he has destroyed my world, my being, spirit, self and life.… I am currently taking medication for my panic attacks and anxiety related issues. I drank the pain away and did not address medical issues. I have now been 100% sober for over a year with no relapses.…
Patrick Bolton… has harmed me in ways that are unimaginable.…
…. I know that I have seen the very depths of hell. My trust in people is all but destroyed. I suffer from constant panic attacks. Seven days a week. It is a daily struggle to get out of this constant feeling of terror, doom, helplessness and despair. I suffer severe depersonalisation/derealisation and this affects my sense of reality. I feel very fearful of people in general and cannot be in close proximity of people, whether it be one person or many. I cannot go into shops without running out from the feelings of complete dizziness and terror (I am working on this daily). I struggle with small tasks such as collecting mail as I am overwhelmed with feelings of terror and dizziness. I suffered severe physical trauma and distress. I have permanent scars and I cannot look at my body without feeling disgust, repulsion and hatred towards myself. I have permanent disfigurements.
I refuse to let Centrelink put me on a disability payment as I wish to work again one day and not have these feelings anymore. Although I cannot work at the moment and have not been able to work for some time, I wish to one day return to the workforce and go back to being a productive member of society. I was all these things before I met Patrick Bolton.…
The physical and psychological impacts of the assaults continue to interfere in my daily life and prevent me from achieving what used to come so easily.…[i]t has also exacted a huge personal cost. Not being able to work full-time is humiliating, embarrassing, shameful and distressing.….The hyper-vigilance, the repetitive and intrusive thoughts, the flashbacks, sleeplessness, insomnia, nightmares, difficulties in concentration, panic attacks – all of these are things I struggle with on a daily basis. I continue to rely on psychiatric medications to support me to manage these symptoms. The persistence and invasiveness of post-traumatic stress wears me down and consumes so much of my energy that work is not possible at this time. Daily living at this point seems impossible at times. I have been out of work for some time now. I feel helpless.
….
These images haunt my days, my nights, my dreams and my existence. I am no longer the person I was before. I was once the person that people could rely on for just about anything. Now I am a shell of my former self, a speck of the brave person that was [SR]. I had my productive way of life, my self-esteem, my respect and my dignity stripped from me in the most humiliating and terrifying of situations. Not a day goes by when what was done to me does not interfere with my life or limb the life I lead in some way…..
I have also lost any sort of social life. Before the assaults, I had an active and vibrant social life.… Since the assaults, I have lost all social life and the inability to socialise freely and regularly has meant that in many ways I have lost all social networks. I am alone. I do not trust people and I feel distrust for anyone I meet. I do not like this behaviour at all and hope that one day I may trust again.
I am not the person I was before meeting Patrick Bolton and I will never be the same as a result of what [he] has done to me. What has been given to me is a lifetime of terror, mistrust, fear, insomnia, anxiety, dissociation, loss of energy or interest in anything much, nightmares, hyper-vigilance, shame, guilt, do not like physical touching, intimacy issues, depersonalisation, derealisation and unending panic attacks. The list goes on. I struggle to remember what life was like when things like safety and relaxation could be taken for granted. I struggle to connect to people in good faith and am suspicious of everyone. I constantly wonder if people around me mean well or mean me harm. I struggle to find the energy, on so many days, to fight through the difficulties the assaults [have] created for me and reach out to others. Solitude and isolation too often seem like the safe option, the only option. Social isolation has become yet another reality of life for me. I prefer to be alone.
…. I am alive, I just don’t live…..”
94 SR went on to acknowledge the support she has received from the investigating police officers and from members of the Office of Public Prosecutions.
Plea in mitigation
95 Not much could be advanced by way of mitigation.
96 You pleaded not guilty to the charges, and you have shown no remorse.
97 SR was required to give evidence against you both at committal and at trial. As mentioned earlier, SR was quite distressed when giving her evidence and a number of breaks were given to allow her to compose herself.
98 Your counsel, Mr Page acknowledged the gravity of your offending, although he submitted that “they do not fall at the upper end of seriousness due to the relatively short duration of the incident and the lack of preplanning.”[42]
[42]Exhibit 1, paragraph 3
99 Mr Page also acknowledged that you are not entitled to any of the sentencing discounts that attach to a guilty plea. You maintain your innocence and as mentioned earlier, you intend to appeal against the jury’s verdicts, as is your right.
100 However, your counsel submitted that there are a number of relevant matters to be counted in your favour in mitigation of penalty, including your “ability to stay out of trouble for periods of time”, your solid work history and your personal circumstances.
Personal history
101 You are now aged 51 years. You were the second youngest of six children born to your parents. All of your surviving siblings live in New South Wales.
102 Your father was a truck driver who was killed in a car accident when you were aged four years. Following your father’s death your mother took over the family truck and hired men to drive it but she struggled to raise her six children on limited income derived from the business.
103 When you were aged about seven or eight years, your mother formed a relationship with a man who was an alcoholic. He was abusive to you. Your mother became an alcoholic.
104 You were educated to the age of 13 or 14 years leaving school before completing your secondary education. By age 14 you had commenced drinking alcohol.
105 Your first court appearance was at age 15 on a charge of break and enter. You were first institutionalised at age 15 on a charge of possessing LSD. By the age of about 15 or 16 you had become a user of a number of illicit drugs including LSD, speed and cannabis.
106 Despite your use of illicit substances you were able to hold down a number of jobs. Your working life commenced at age 16. At age 18, you moved to Queensland and started work at an abattoir. You later successfully completed an apprenticeship in boiler making.
107 You moved to Melbourne when you were aged approximately 27 and commenced work as a painter and decorator. You returned to Queensland briefly but then returned to Melbourne, again finding employment.
108 All the while, you continued to use and abuse illicit drugs.
109 In approximately 1990 you formed a relationship. You have two children born in 1993 and 1995 respectively. As your criminal history will show you were imprisoned for a period during the relationship. The relationship ended upon your release from custody.
110 You then formed a relationship with another woman and have a daughter from that union. That relationship ended in approximately 2007. I note that in May 2006 you were convicted of breaching an intervention order, but your counsel did not explain for whose benefit that order was made.
111 Your counsel states that throughout the years you were a “recreational user of speed and heroin”.[43]
[43]Exhibit 1, paragraph 24
112 Following your release from custody, you furthered your education and obtained qualifications to operate various plant machinery.
113 Between 2004 and 2013 you worked in traffic management.
Prior convictions and court appearances
114 As mentioned earlier, you have a lengthy list of prior convictions and court appearances. The list includes the following:
·On 8 March 1990 you were convicted in the Magistrates’ Court at Sunshine on one charge of burglary, one charge of theft from a motor vehicle and one charge of criminal damage. You were convicted and sentenced to a term of imprisonment of six months on each charge, concurrent, the sentence being wholly suspended for a period of 12 months.
·On 15 January 1991, you were convicted in the County Court at Melbourne on one charge of armed robbery, one charge of aggravated burglary, one charge of intentionally or recklessly causing injury, and one charge of unlawful assault. You were sentenced to 4 years and six months’ imprisonment on the charge of armed robbery, three years on the charge of aggravated burglary, two years of which was ordered to be served concurrently, three years on the charge of intentionally or recklessly causing injury, two years and six months of which was concurrent and six months on the unlawful assault resulting in a total effective sentence of six years’ imprisonment.
·On 19 March 1991 the Supreme Court of Victoria, Court of Criminal Appeal at Melbourne dismissed your appeal in respect of the sentences and confirmed the sentences passed in the County Court on 15 January 1991. From the judgment of the Court of Criminal Appeal[44] it is clear that you and a co-offender broke into two homes and committed acts of violence and made threats of violence to the occupants. The Court considered that you played the principal role, a factor justifying a sentence greater than that imposed on your co-offender.
[44]The Queen v Patrick Ronald Bolton (Unreported), Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal 35/1991, 19 March 1991
Speaking on behalf of the Court,[45] Crockett J stated:
[45]Crockett, Gobbo and Smith, JJ
“The offences were serious, and they were committed in very serious circumstances, involving as they did the breaking into the private homes of two households and then proceeding to do violence or threaten violence to the people inside before removing property and cash.
It is clear enough in those circumstances that the person principally responsible for the commission of those offences had to have passed upon him a salutary sentence. That is what the judge has done. We have borne in mind in that connection also the aspect you have mentioned as to your addiction to alcohol and drugs. As you yourself say, it is no excuse – it may be an explanation. But we have looked at it in connection with the possibility of your reformation. We recognise the weight to be given to your attempts at rehabilitation about which you have told us. These are matters to be treated as attracting leniency on your part. However, even bearing in mind those matters, we are still left with the view that we cannot say that the judge erred so as to require us to interfere with his sentence.”[46]
[46]Supra, at pages 2 - 3
·On 27 September 1991 you were convicted and sentenced in the Magistrates’ Court at Sunshine on a charge of handle stolen goods and failing to appear at court on 18 May 1990. You were convicted and sentenced to 4 months’ imprisonment concurrent with the sentence you were then undergoing.
·On 13 February 1995 you were convicted in the Magistrates’ Court at Williamstown on one charge of burglary, one charge of theft, one charge of possess cannabis and one charge of use cannabis. In respect of the burglary and theft charges you were sentenced to a term of six months’ imprisonment on each charge concurrent, with the sentence suspended for two years, and on the possess and use cannabis charges you were convicted and fined an aggregate of $300.
·On 3 November 1995 you appeared in the Magistrates’ Court at Sunshine on a charge of possess a regulated weapon. Without conviction you were fined $150.
·On 4 November 1996 you were convicted in the County Court at Melbourne on three charges of rape, and one charge of intentionally or recklessly causing injury. A total effective sentence of 10 years and nine months’ imprisonment was imposed. A minimum non-parole period of eight years and nine months was fixed. You appealed against the severity of the sentence. The individual terms imposed are set out fully in the judgment of the Court of Appeal.[47] I referred to this judgment earlier. It is worth noting here the circumstances of your offending on that occasion, and the reasons why your appeal was dismissed.
[47]R v Bolton and Barker [1998] 1 V.R. 692
The facts emerge from the judgment of Callaway JA:
“Patrick Ronald Bolton, who is now aged 30, and Christopher David Barker, who is now aged 28, pleaded guilty in the County Court to a presentment containing seven counts. Counts 1, 2, 4 and 5 related to Bolton. They charged that he had recklessly caused injury to a young woman then aged 29, to whom I shall refer either as "the complainant" or "the victim", and that he had raped her, twice orally and once by introducing his penis into her vagina. Counts 3, 6 and 7 related to Barker. They charged that he had raped the complainant, twice orally and once by introducing his penis into her vagina. All the offences occurred at Mt Cottrell on the same night in January 1996.
The maximum penalty for recklessly causing injury is five years' imprisonment and the maximum penalty for rape is 25 years' imprisonment. S10 of the Sentencing Act 1991 applied to all counts except count 1 (recklessly causing injury) and counts 5 and 7 (the vaginal rapes). The reason it did not apply to counts 5 and 7 is that, at that stage, each of the applicants fell to be sentenced as a serious sexual offender. The prima facie rules regarding concurrency and cumulation were also reversed, by s16(1A) and (3A), in relation to those two counts and s5A(a) required the court to regard the protection of the community from the offender as the principal purpose for which any sentence of imprisonment was imposed.
After hearing a plea for leniency on behalf of each of the applicants, the learned judge sentenced Bolton -
on count 1 to three months' imprisonment;
on count 2 to three years' imprisonment;
on count 4 to four years' imprisonment; and
on count 5 to nine years' imprisonment.
It was directed that one year and nine months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 5, making a total effective sentence of ten years and nine months' imprisonment. A non-parole period of eight years and nine months was fixed. ….
….
Declarations regarding pre-sentence detention were made in respect of each applicant.
…. [I]t is, regrettably, necessary to say something of the circumstances of the offences. The accounts given by the complainant and each of the applicants differed and the presentment to which they pleaded guilty represented, as it were, an agreed statement of the position. Save for the identity of the driver, which is not a material fact, I shall therefore follow in large part the summary with which the judge began his sentencing remarks.
The applicants met the complainant at a service station in West Footscray about 11 o'clock on the night in question. They had driven there and came across her by chance. She was in an obviously distressed condition, partly because she was without accommodation that night. Barker spoke to her and told her that he might be able to help her. She accepted his offer. They placed her belongings in the boot of the car and drove off. Bolton and Barker were sitting in the front. Barker was driving. The complainant was sitting behind him. Not long after they had made a brief stop at a house in the Footscray area, Bolton leaned over from the front passenger seat and tried to touch the complainant on her left breast. She either slapped his hand away or slapped his face. At all events she struck him. The car stopped almost immediately. She got out and Bolton struck her with considerable force about the left eye. Photographs taken later indicate the severity of the blow.
Her clothing was forcibly removed and, as she was lying in the dirt on the side of the carriageway, Bolton forced her to take his penis into her mouth. Barker, who had driven away but returned, then forced himself upon her in a similar fashion. Still naked, except for her footwear, the complainant was required to get back into the car, where Bolton again orally raped her. The car was driven a short distance, with the complainant naked in the back of the vehicle, before it stopped again in the same general area. Bolton then raped her vaginally and Barker raped her both orally and vaginally. When the complainant was released Bolton asked her whether she wanted her clothes. She refused, fearing that in order to retrieve them she would have to get back into the car. The applicants drove away. The complainant jumped the fence and ran across a number of paddocks, hiding behind trees and rocks until she came to a farmhouse, where she was taken in by the occupants.”
Regarding the merits of your appeal, his Honour stated:
“…. The account of events at the beginning of this judgment understates the moral culpability of the applicants and the terrible experience they inflicted on the victim. The maximum penalty prescribed by Parliament for counts 2 and 4 (the oral rapes) was 16 years and 8 months when s10 of the Sentencing Act is taken into account. Even if the sentence imposed on count 5 is accepted, a question might be thought to arise whether it is our duty to increase either or both of the sentences imposed on counts 2 and 4 or the measure of cumulation. ….
…. I do not think that we should be justified in increasing any of the sentences or directing a greater measure of cumulation; but I would unhesitatingly reject the submission made by [counsel], on behalf of Bolton, that each of the sentences imposed on his client, except on count 1, was in fact manifestly excessive. I mention the factors on which counsel relied, because they are relevant to the task of re-sentencing. They were the applicant's plea of guilty, which was indicated at the committal mention after an interview with the police in which admissions were freely made and which spared the victim the trauma of any court appearance; the operation and effect of s10 of the Sentencing Act upon the sentences to be imposed on counts 2 and 4; the sentencing principle of totality; the applicant's background and personal circumstances; and the apparently genuine remorse to which Mr Watson-Munro had referred in his report.
Counsel submitted that a sentence of nine years' imprisonment should not have been imposed on count 5 because the sentence it implied, if there had not been a plea of guilty in the circumstances that I have described, would have been beyond the range available to the judge. A substantial discount was warranted in conformity both with s5(2)(e) of the Sentencing Act and common law principles. I accept the premise but not the conclusion. A head sentence of between 12 and 13 1/2 years' imprisonment would not have been manifestly excessive in the circumstances counsel postulated. I refer to, without repeating, what I said about the maximum penalty prescribed by Parliament in R v Pearce. [citation omitted] As I have already mentioned, Bolton fell to be sentenced on count 5 as a serious sexual offender.
Neither of the applicants enticed the victim into the car with a view to assaulting or raping her, but they took advantage of her vulnerability to commit these offences. Bolton admitted 25 previous convictions from 12 court appearances between 8th January 1986 and 3rd November 1995. None of them was for a sexual offence but they included convictions for armed robbery, aggravated burglary, recklessly causing injury and common assault. For those offences he was sentenced to six years' imprisonment with a minimum term of four years in January 1991. ….
….
Bolton's convictions for offences involving violence cannot be ignored in the sentencing process.
It is true that, after ill-treatment in his formative years, Bolton has managed to acquire a good work record and is a qualified tradesman. His most recent employer provided a favourable reference. Mr Watson-Munro considered that there was a strong nexus between his abuse of alcohol and drugs and the offences, but no challenge was made to the judge's assessment that he was neither significantly intoxicated nor disoriented. He has lived in a de facto relationship for the past six years and is the father of two young children. Enforced separation from his family will, as [counsel] submitted, increase the severity of the sentence.
….
Weighing all these matters, I do not think that, in Bolton's case, "a different sentence should have been passed or a different order made". As Mr [counsel] specifically relied on the principle of totality, I should say that I do not think that that disposition is "incommensurate with the gravity of the whole of [the applicant's] proven criminal conduct or with his due desserts". Nothing would be gained by pedantically directing that the whole of the sentence imposed on count 1 and only one year and six months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 5. I have had more hesitation concerning the non-parole period, but in the end I do not think that appellate intervention is warranted. In conformity with our usual practice, Bolton's application should therefore be dismissed.”[48]
[48]Ibid at 694 - 696
·On 9 May 2006 you were convicted in the Magistrates’ Court at Sunshine on a charge of breaching an intervention order and failing to answer bail. On the breach of intervention order you were convicted and fined $500. On the fail to answer bail you were convicted and fined $200.
·On 30 May 2006 you were convicted in the Magistrates’ Court at Melbourne on charges of possess cannabis, unlicensed driving, fraudulently use registration plate and use unregistered motor vehicle on a highway. On the charge of possess cannabis you were convicted and released on a community based order for nine months with special conditions that you perform 125 hours of unpaid community work over 9 months. On each of the unlicensed driving, fraudulent use of a registration plate and use unregistered motor vehicle you were convicted and released on a community based order with special conditions that you perform 125 hours of unpaid community work over nine months.[49]
[49]It is likely that one community based order was made in respect of all sentences imposed that day, despite the way the sentences appear in the “LEAP” report
·On 14 December 2007 you were convicted in the Magistrates’ Court at Sunshine on one charge of fraudulently lend identifying number, one charge of fail to stop at a red traffic light, unlicensed driving and failing to answer bail. In respect of these charges you were sentenced to pay an aggregate fine of $400. On the same date and place you were also convicted on a charge of breaching an intervention order and a further charge of fail to answer bail. In respect of these charges you were convicted and sentenced to pay an aggregate fine of $800.
·On 31 July 2008 you were convicted in the Magistrates’ Court at Sunshine on a charge of theft and a charge of traffic cannabis. You were sentenced to an aggregate term of imprisonment of four months, wholly suspended for 12 months. On 29 July 2009 in the Magistrates’ Court at Broadmeadows you were dealt with for breaching the terms of your suspended sentence by committing further offences during the operational period. The suspended sentence was not restored due to exceptional circumstances.
·On 29 July 2009 you were convicted in the Magistrates’ Court at Broadmeadows on a charge of drive whilst authorisation suspended and a charge of exceed signed speed limit. You were sentenced to an aggregate term of imprisonment of two months, concurrent wholly suspended for an operational period of nine months.
·On 3 February 2010 in the Magistrates’ Court at Sunshine you were convicted of drive whilst authorisation suspended and exceed default speed limit. You were sentenced to an aggregate term of imprisonment of one month, concurrent and wholly suspended for an operational period of six months. On the same date and place you were dealt with for breaching the terms of the suspended sentence imposed on 29 July 2009 in the Magistrates’ Court at Broadmeadows although the suspended sentence was not restored.
·On 9 January 2013 in the Magistrates’ Court at Melbourne you were convicted of assault police and behave in an offensive manner in a public place. You were sentenced to an aggregate term of imprisonment of 21 days, base sentence, wholly suspended with an operational period of 12 months. On the same date and place you were also convicted of contravening a family violence intervention order and failing to answer bail. You were sentenced to an aggregate term of imprisonment of 60 days, cumulative and partially suspended with an operational period of 12 months. The term to be served was 42 days.
·On 17 June 2013 in the Magistrates’ Court at Sunshine you were convicted on a charge of careless driving of a motor vehicle, start or drive a motor vehicle making unnecessary noise, drive without “L” plates displayed and drive under the influence of a drug. On each of these charges you were convicted and released on a community correction order for a period of 12 months with special conditions to perform 120 hours of unpaid community work and to undergo treatment and rehabilitation for drug abuse or dependency as directed. Your license to drive was cancelled and you were disqualified for a period of two years.
·On 26 November 2014 in the Magistrates’ Court at Melbourne sitting at the County Court you were called up on having breached the terms of your community correction order imposed in the Magistrates’ Court at Sunshine on 17 June 2013. The breach was proved and with conviction you were sentenced to pay a fine in the aggregate amount of $800.
·Finally, Patrick Bolton, you have also admitted during your trial that on 18 February 2015 in the Magistrates’ Court at Melbourne you were convicted of one charge of recklessly cause injury and one charge of reckless conduct endangering serious injury. As mentioned earlier, you were sentenced to an aggregate term of 15 months’ imprisonment which term was partially suspended, the term to be served being nine months imprisonment with an operational period of 12 months.[50]
[50]Exhibit C – but note there are errors in that document. Exhibit C does not accord with the “LEAP” record admitted as the offender’s prior criminal history.
115 I have taken time to set out your criminal history in some detail to note that you have spent periods of time in custody. Your record does not support Mr Page’s submission that there are significant gaps in your offending or that you have demonstrated a capacity to stay out of trouble. To the contrary, your record demonstrates that you have failed to comply with court orders. You have learnt little from the various sentences imposed upon you.
116 Most significantly, your poor record undermines your counsel’s submission that there are still prospects for your reformation.
117 Your prior convictions for rape and the Court of Appeal’s reasons outlined above give context to the decision I must make whether to impose a disproportionate sentence to protect members of the community from you. I shall return to this question soon.
Prospects for rehabilitation
118 You have now spent 932 days in custody. During that time you have participated in a number of courses, mainly aimed at enhancing your chances of gaining employment upon your release.[51]
[51]Exhibit 3, copy bundle of certificates confirming successful participation in programs
119 I have spent some considerable time reviewing your criminal record to better understand first, what you have done in the past, and, so far as can be determined, why; and second, whether you have learnt from your court experience and the various sentences you have served. These matters are relevant to my assessment about whether you are likely to re-offend in like manner in the future and what risk you pose to the community.
120 Your prior criminal history, gathered over many years, does not bode well for your prospects of rehabilitation. Your counsel did not inform me of the circumstances of most of your prior court appearances. You do not appear to respect court orders, and much less do you appear to respect the rights of women to refuse your sexual advances. You do not accept responsibility for your conduct on this occasion, and there is neither a hint of remorse nor a tittle of victim empathy. It is telling that after one of the uncharged assaults you committed that day when you hit SR in the head, you attempted to justify your conduct, telling SR:
“…you know I'm only doing this because I care about you. ….
…. I'm trying to look out for you.”[52]
[52]TT 86 - 87
121 Unfortunately, although it is a harsh thing to write off a person’s prospects for reformation, I consider that is now the reality of your situation.
Alcohol and drug addiction
122 Your counsel referred to your long-standing problems with alcohol and illicit drugs of dependence. He did not go so far as to say that this had any impact on your offending.
123 Although there is evidence that you “smoked a substance” before committing some of the offences and that this made you more aggressive, there is simply no evidence as to what the substance was or how much of it you smoked. Moreover, since you deny having committed the offences, there is no evidence that any drug or alcohol addiction contributed to your offending.
No reports tendered
124 Your plea hearing was adjourned to give you the opportunity to gather evidence, such as a psychological report. When the hearing resumed before me yesterday, I was informed that no evidence would be tendered on your behalf. I stopped to observe that you were calling no evidence to shed light on the risk you may pose to members of the community.
To be sentenced as a serious sex offender on charges 3 and 6
125 As I stated earlier, because of your prior convictions for rape, you fall to be sentenced as a serious sexual offender on charges 3 and 6.
126 As a consequence, in determining the length of the terms of imprisonment in respect of those charges, I must regard the protection of the community from you as the principal purpose for which each such sentence is imposed, and I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the relevant offence considered in the light of its objective circumstances.[53] I note that the prosecution does not seek such an order. Mr Slim submitted that a proportionate sentence will be sufficiently significant to afford adequate protection to the community such that I could not be satisfied beyond reasonable doubt that a disproportionate sentence is warranted in all the circumstances.
[53]Sentencing Act 1991, s6D
127 I take into account the prosecutor’s concession, but I am not bound by it. In the end I must apply the law and come to my own conclusions based on the evidence before me about what is necessary to give effect to the express purpose of the serious sexual offender provisions of the Sentencing Act.
128 Mr Page submits that I should not impose a disproportionate sentence for the following reasons:[54]
[54]See exhibit 2, Mr Page’s written submissions on the operation of the serious sexual offender provisions
I. There is a long gap between your prior convictions for rape and these rapes;
II. There are significant differences between the circumstances of the prior rapes and the present ones;
III. You will be older when you are released (I take this to mean that after an appropriate total effective sentence is imposed you will no longer pose a threat to the community);
IV. There is no adequate evidence upon which I could be satisfied beyond reasonable doubt that you would pose a risk to the community upon your release; and
V. Protection of the community means more than protecting one member of the community. If I am only concerned about protecting SR, although she is a member of the community, that is insufficient.
129 I have already mentioned some of the factors that have a bearing on this question, including your prospects for rehabilitation and your prior rape convictions.
130 I have referred to the circumstances of your prior rape convictions. As the Court of Appeal’s judgment notes, as well as the aggravating factors mentioned, there were a number of factors that mitigated penalty:[55]
[55]Supra at 698 - 699
a) You made full and frank admissions to police when interviewed;
b) Your crimes were spontaneous;
c) You pleaded guilty at the earliest opportunity;
d) You spared the victim the trauma of giving evidence at committal and upon your trial;
e) There was evidence of your true remorse;
f) You then had no prior convictions for rape or any other form of sexual assault;
g) On two of the charges you were not sentenced as a serious sexual offender;
h) The effect of the operation of s10 of the Sentencing Act 1991 as it then stood required the sentencing court to take account of the abolition of remissions. As Callaway JA observed, that provision had the effect of reducing the maximum applicable penalty for the oral rapes from 25 years to 16 years and eight month’s imprisonment.[56] That provision no longer applies;
i) There was evidence from a psychologist establishing a strong nexus between your abuse of alcohol and drugs and the offences, although it was not disputed that neither significantly intoxicated nor disorientated you at the time you committed the offences.[57]
[56]Supra at 697
[57]Supra at 699
131 These mitigating factors are absent in the present case. You have learnt little, if anything, from your earlier punishments.
132 The gap between your prior rape convictions and the current convictions do not reduce the need to protect the community from you. To the contrary, in my judgment, despite a lengthy period in custody you clearly continued to pose an on-going risk of re-offending in like manner, a risk that materialised almost two decades later when you raped SR. True it is that there are differences between the circumstances of your prior rape convictions and the current ones, but I do not agree that I should view a savage revenge rape following the breakdown of a personal relationship as any less heinous than a rape on a stranger. As mentioned, many of the mitigating factors that were present in the previous matter are absent here.
133 On the question whether I must be satisfied beyond reasonable doubt that you would pose a risk to the broader community (that is to say to persons in addition to SR), I first note that I am satisfied beyond reasonable doubt that you pose a risk to SR. The term of imprisonment imposed upon you in respect of the Williamstown incident was your motivation to exact revenge on SR.
134 As to the broader risk to the community, you have raped a stranger, you have raped a person you claimed to have loved. The risk you pose is not confined to SR.
135 Assessing as I do that your prospects for rehabilitation are extremely poor and that you lack regard for court orders, I consider that the principal sentencing objective of protection of the community from you on these charges is not only the statutory requirement, but also the very real imperative.
Sentences to be imposed
136 In summary:
a)You pleaded not guilty to the charges, so no sentencing discount can be awarded;
b)You have shown no remorse, which although not an aggravating factor, cannot be invoked to mitigate penalty;
c)SR was required to give evidence against you at committal and at trial. It was a traumatic experience for her. As mentioned earlier, SR was quite distressed when giving her evidence and a number of breaks were given to allow her to compose herself;
d)You have a long list of prior convictions including for rape, assault, causing injury, breach of intervention orders, breaching the terms of suspended sentences and community based order;
e)You committed these offences whilst still undergoing a 6 month suspended term of imprisonment, only 3 weeks after your release from prison after having served a sentence for harming the same victim;
f)In committing the offences you also breached the terms of an intervention order taken out to protect SR;
g)Your crimes were motivated by feelings of revenge and were not spontaneous;
h)Your victim was almost 20 years your junior. She was vulnerable and homeless. You committed these offences in the temporary accommodation you had organised for her;
i)Your crimes are at the upper end of the scale of seriousness;
j)Although current sentencing practice is a matter that must be considered, it is not overriding factor;
k)Your prospects for rehabilitation are extremely poor;
l)The likelihood of your reoffending is high;
m)Specific and general deterrence loom large;
n)You pose a very real danger to the community generally, and in particular to SR;
o)Your conduct must be condemned and denounced;
p)You must be adequately punished for these crimes;
q)The impact your offending has had on SR; and
r)There is little that can be said by way of mitigation.
137 The only appropriate response to your offending is to impose terms of imprisonment.
138 On charge 6, anal rape, you are convicted and sentenced as a serious sexual offender to a term of TWELVE YEARS’ IMPRISONMENT. This will be the base sentence.
139 On charge 3, vaginal rape, you are convicted and sentenced as a serious sexual offender to a term of TEN YEARS’ IMPRISONMENT.
140 On charge 4, intentionally cause injury by burning SR’s vaginal area whilst raping her, you are convicted and sentenced to a term FOUR YEARS’ IMPRISONMENT.
141 On charge 2, threat to kill, you are convicted and sentenced to a term of TWO YEARS’ IMPRISONMENT.
142 On charge 1, common law assault, you are convicted and sentenced to a term of TWELVE MONTHS’ IMPRISONMENT.
Cumulation and/or concurrency
143 I now turn to the question of cumulation.
144 Section 6E of the Sentencing Act applies to charges 3 and 6, the rape charges. The section provides:
“Every term of imprisonment imposed by a court on a serious [sexual] 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.”
145 I must fix appropriate individual terms in respect of each charge and recognise that although you committed them on the same day, they are nevertheless discrete acts of sexual violation of such gravity that total or substantial concurrency would fail to do justice.
146 As to the charges to which s6E has no application, I take account of the fact that although you committed these crimes on the same day, they are nevertheless discrete episodes committed in the four phases described earlier. Principles of totality are relevant.
147 Taking into account all relevant factors, I consider that there should be some cumulation in respect of the charges in respect of which you were not sentenced as a serious sex offender, and that there be some period of concurrency between charges 3 and 6, the charges in respect of which you were sentenced as a serious sexual offender.
148 Since it is less cumbersome to adopt a single expression to give effect to the period of concurrency relevant to charge 3 and the periods of cumulation for the purposes of the other charges, I propose to refer to the periods of resulting cumulation.
149 I therefore direct that SEVEN YEARS of the sentence imposed on charge 3, and EIGHTEEN MONTHS of the sentence imposed on charge 4 and SIX MONTHS of the sentence imposed on charge 2 be served cumulatively with the sentence imposed on charge 6, the base sentence, and with each other. This results in a total effective sentence of TWENTY-ONE YEARS’ IMPRISONMENT.
Non-parole period
150 Although the courts have said from time to time, including in your prior rape appeal judgment, that in fixing a minimum term there is no “two-thirds” rule of thumb,[58] a non-parole period may be assessed as unusual by comparison with other cases or having regard to the facts of the particular case.
[58]Supra at 699
151 In determining the non-parole period in your case I am required to take into account that the purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of your rehabilitation through conditional freedom. The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. Among the relevant factors I am required to take into account are:
a)A non-parole period has a penal element;
b)Where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and, most significantly; and
c)Your prospects of rehabilitation.
152 In view of your extremely poor prospects for rehabilitation, your risk of reoffending, and the very real danger you will undoubtedly continue to pose to the community I consider that a longer than usual minimum term should be fixed.
153 Taking all these matters into account I direct that you serve a minimum period of SEVENTEEN years’ imprisonment before becoming eligible for parole.
Records of the court to reflect sentenced as a serious sex offender in respect of charges 3 and 6
154 I am required by law to note that you were sentenced as a Serious Sexual Offender in respect of charges 3 and 6. Accordingly, I direct that this fact be entered in the records of the Court.
Serious sex offender obligations - Registration Under the Sex Offenders Registration Act 2004
155 Because of your three prior convictions for rape, and as a result of your convictions for rape on charges 3 and 6 you have become a Registrable Sex Offender under the Sex Offenders Registration Act 2004. You are required to comply with the provisions of that Act.
156 The delegate of the Secretary of the Department of Justice, in these circumstances my Associate, will now give you notice of your obligations under the Act. I note that the length of the reporting period is for the rest of your life. Mr Day?
157 OFFENDER: Have this from me. Next time kiss me before you fuck me, all right?
158 HER HONOUR: Let the transcript record that Mr Bolton refused to sign the document, and he ripped up the document that contains the obligations under the Sex Offender Registration Act. In other words, he tore up the documentation that my associate attempted to pass to him.
Pre-sentence declaration
159 Under s18(4) of the Sentencing Act I declare that the period of 932 (NINE HUNDRED AND THIRTY-TWO) days is to be reckoned as a period of imprisonment already served under this sentence. I further direct that the fact of this declaration and its details be noted in the court’s records.
160 Please remove the prisoner, immediately.
161 MS TREASURE: Correct, Your Honour.
162 OFFENDER: Yeah. Just kiss me before you fuck me next time, all right?
163 HER HONOUR: The transcript may record the prisoner's words. Adjourn the court.
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