Director of Public Prosecutions v Booth
[2023] VCC 1814
•10 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01437
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY BOOTH |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2023 | |
DATE OF SENTENCE: | 10 October 2023 | |
CASE MAY BE CITED AS: | DPP v Booth | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1814 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Indecent assault – Rape – Sexual penetration with a person aged 10 – 16 years – Not guilty plea – Trial – Covid-19 pandemic – Delay – Stay of sentence application
Legislation Cited: s 309(2) Criminal Procedure Act 2009; ss 5, 5AA. 6D Sentencing Act 1991 (Vic); Sexual Offenders Registration Act 2004
Cases Cited:Azzopardi v R [2011] 35 VR 43; Bromley v The Queen [2018] VSCA 329; Jurj and Miftode v The Queen; DPP v Jurj and Miftode [2016] VSCA 57; R v Crowley [2009] VSCA 176; R v Gant and Siddique [2016] VSCA 662; R v Merrett, Piggott & Ferrari [2007] VSCA 1; R v Mills [1998] 4 VR 235; R v Verdins [2007] VSCA 10; Stalio v The Queen [2012] VSCA 120
Sentence: 6 years’ and 4 months imprisonment with a non-parole period of 3 years and 6 months imprisonment; application to stay sentence refused.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | G. Hayward L. Watson (sentence) | The Office of Public Prosecutions |
| For the Accused | T Kassimatis KC | Tony Hargreaves & Partners |
| R. de Kretser |
HER HONOUR:
1Gregory Booth, following a trial of several weeks on 7 June 2023 on an indictment containing 34 charges a jury found you guilty of 3 charges of indecent assault, 5 charges of rape, one charge of attempted rape and one charge of sexual penetration with a person aged 10-16 years of age. You were acquitted of the other charges.
Circumstances of the offending
2The charges fall into 6 different incidents, with 5 incidents relating to Ms Seraphina Cook[1] and the last incident relating to Ms Trudy Parker.[2] Both names have been pseudonymised in the written reasons to respect the privacy of both women and I remind anyone who might be listening that publication of anything likely to identify a complainant in a sexual offences case is legally prohibited.
[1] A pseudonym.
[2] A pseudonym.
3Ms Cook is now in her early 50’s. She grew up in Melton and she came to know you from quite a young age as your families became friends in the local area. You were friends with her brother, Billy Cook[3], and she was also friends with your younger sister.
[3] A pseudonym.
4At the outset I note that your Counsel Mr Kassimatis KC submits that the jury verdicts of guilty on all charges, but in particular those relating to incidents 2, 6 and 8 are inconsistent and irreconcilable with the verdicts of not guilty. It is submitted that when properly scrutinised they defy or strain reasonable credulity and do not withstand rational scrutiny. Both Counsel made submissions as to available competing interpretations. Ultimately it will be a matter for a different Court to decide these issues and whether, on the evidence, the verdicts were unsafe and unsatisfactory.
5I propose to sentence you on the charges for which you were convicted, in a manner consistent with the evidence given at trial and the jury’s verdicts. The following is a summary of the offending and a brief exploration of the likely basis for the verdicts.
Incident 1 (charges 1 and 2)
6In May 1985 a party was held at the Cook family home in Melton to celebrate Billy Cook’s 21st birthday. A number of people were in attendance including yourself. You were 20 years of age at the time and Ms Cook was 12.
7Ms Cook gave evidence that during the party she went to the back patio of the premises to take out some rubbish. She turned around and you were there. She remembered your hands ‘being all over [her] like an octopus.’ As she got closer to you, you grabbed her with your hands and kissed her on the lips and neck. She describes you putting your hand down her underwear and as ‘actually touching the front of her vagina.’. That is the basis of charge 2, indecent assault. She also gave evidence of you ‘touching up [her] top’ and of touching her breasts both over and under her clothing, which constitutes charge 1, indecent assault. She managed to get away. You followed her into her room, and allegedly started groping her again with your hands. She then gave evidence that she saw your partner at the time, Odette, come into the bathroom. She saw her through the mirror on the wall and locked eyes with her, and heard her yell out ‘he’s not here’ and then leave. She wasn’t sure how the incident itself ended. At trial it was disputed that this occurred and/or that in the circumstances described, Odette would have been able to see what was allegedly occurring. Given the jury’s verdicts on count 1 and 2, I consider it likely, though not certain, that they accepted Ms Cook’s evidence in relation to what happened in her room. In any event, charges 1 and 2 relate to what occurred on the patio and you have not been charged with any conduct that allegedly happened in the bedroom.
Incident 2 (Charges 3, 4 and 7)
8Ms Cook gave evidence that her next vivid memory was of an incident in Falcon Drive. She was going to her brother’s house, who lived on that street, and you pulled up in your ute and offered her a lift. She believed she was 15 at the time. You drove and turned into Minns Road which was all farming crops back then. She gave evidence that you pulled over and took her hand and put it on your penis and you might have said something like ‘look, its hard.’ You had your pants on at that stage. This is the basis of charge 3, indecent assault. You then took your penis out and told her to suck it or put it in her mouth. She did what you asked. You told her to stop not long after and she remembered gagging. This is charge 4, rape. Next, you told her to get her pants off and she did. While positioned on the bench seat in the car you turned her around and you put your penis into her vagina and had sex with her, constituting charge 7, sexual penetration with a person under 16 as an alternative to rape. Ms Cook gave evidence that she was laying there, not moving and she didn’t believe she made any sound. When you had finished, you fixed yourself up and she got dressed. You ended up dropping her off somewhere, saying ‘orooroo, thanks for that.’ Ms Cook gave evidence that she didn’t want you to do any of these sexual acts. In respect of charge 7 I am mindful that the jury acquitted you of the principal charge of rape, which was charge 6.
9Your Counsel submits that it is irreconcilable that you were found guilty of an indecent assault and a rape and then seconds later, as part of the same incident, you were acquitted of a rape (charge 6) but convicted of a sexual penetration of a person under 16 charge (charge 7). A conviction on charge 7 was also irreconcilable, it was submitted, with the not guilty verdicts of the same charge, in a similar period, namely charges 10, 12 and 16 where the sexual acts were not denied. The prosecution submit that the not guilty verdict on charge 6 may reflect that the jury had a doubt, in the circumstances, that you were aware, at that stage, that Ms Cook was not consenting. Also, it was open to them to be satisfied as to her age on this occasion but not to have been satisfied beyond reasonable doubt that she was in fact under 16 at the time of the other charges.
Incident 6 (Charge 21)
10Next, Ms Cook gave evidence of an incident that occurred at her brother’s house in his backyard, when she was 15 or possibly 16 years of age. She stated that others were at the house, including her brother, Trudy Parker, Emily Hislop,[4] Aston Mazzone[5] and Nicholas Haffington[6]. You were standing outside and you walked towards her, causing her to step backwards. When you had reached the fence at the side of the house, she gave evidence that you wanted her to suck your penis and that she didn’t want to and you forced her. I note that the jury acquitted you of this alleged rape, charge 19. You then walked together until she fell over and you fell on top of her. She gave evidence that she told you to stop. You pulled her pants down and lay on her so that she couldn’t move her legs. You were in between her legs, separated them, and inserted your penis into her vagina. When you had had enough you got up, fixed yourself and walked off. This forms the basis of charge 21, rape.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
11Your Counsel submits that your conviction on charge 21 is irreconcilable with the not guilty verdict on charge 19. The defence at trial was that this sexual incident did not occur. If the jury accepted beyond reasonable doubt that it did, then the evidence of Ms Parker as to observing sexual activity that appeared to be consensual cast doubt on whether Ms Cook was not consenting. The prosecution submit that the verdict is logically explicable in that the jury accepted that the penile/vaginal penetration, as described by Ms Cook, took place and that it did so without her consent and in circumstances where you were aware that she was either not consenting or might not be.
Incident 7 (charges 24 & 26)
12In respect of charges 24 and 26, both charges of rape, Ms Cook gave evidence of walking home one night from her brother’s, when she might have been 16 years of age. She walked down Falcon Drive and crossed over through a reserve to go to Coburns Road. As she was coming through the path she gave evidence that you jumped out from behind a tree and scared her. You started groping her and tried to pull her pants down. Somehow you got her on the ground and she ended up with her back in the dirt. You were on top of her. You pulled her pants down, lent over the top of her and put your penis in her mouth (charge 24, rape). You then moved down her body and you put your penis into her vagina (charge 26, rape). She felt like she couldn’t breathe. I note for completeness that there were other charges surrounding this incident on which you were directly acquitted.
Incident 8 (Charge 31)
13Between 1 January 1988 and 20 July 1989, when Ms Cook was around 16 years of age she was at her home in Melton South when she saw a marked police car in the driveway. There was a knock at the front door, and she opened it and saw you. You said ‘come on stop mucking around’ and she followed you. You went down to her bedroom and she remembers you taking off your pants and laying down your belt, which held your gun and holster at the end of the bed. She then gave evidence of sexual acts that occurred allegedly without her consent and that surrounded the attempted rape, that is charge 31. The jury acquitted you of these surrounding charges, namely charges 29 and 30. At trial your defence was that these acts had occurred but that they were consensual. In respect of the attempted anal rape, at trial it was disputed that this act had occurred. By their verdict the jury accepted the evidence of Ms Cook that after penetrating her with your fingers and penis, she was on all fours and you tried to put your penis into her anus. She was moving and wriggling as it was hurting. This is the basis of the attempted rape, charge 31. She gave evidence that after you had tried to put your penis in her anus, you then put it in her vagina and I note that you were acquitted of this charge of rape, charge 32.
14Your Counsel submits that the jury verdict is irreconcilable with the verdicts of not guilty. The prosecution submit that the jury’s reasoning was explicable, in that they may not have been satisfied to the requisite standard that you were aware that Ms Cook was not consenting to these other sexual acts, given the factual circumstances. In respect of the attempted rape, it was open for the jury to accept that Ms Cook made it clear to you that she was not consenting to that act and to accordingly convict you on this basis.
15Focusing on incidents 2, 6 and 8 I consider that there is an adequate factual foundation for the relevant charges on the evidence, as I’ve identified, and I generally accept, for the purposes of sentencing, the prosecution submission as to the available pathway of reasoning. As I have already stated, it is not my task or role to conduct an unsafe and unsatisfactory appeal ground at the end of a trial.
16Continuing with Ms Cook, it seems that contact subsequently ceased between the two of you for some period of time and that in April 2016 this was resumed in circumstances where you had apparently found Ms Cook’s daughters purse on a train. You ended up attending her work and you also met up on 15 April 2016 where there was some alleged sexual contact between the two of you. At trial this was relied upon by both Counsel for context. There was some dispute as to precisely what had occurred, but it is not the subject of any charge and I regard it as more relevant to assisting with the chronology in this matter.
17On 24 October 2016 Ms Cook made her first of four police statements.
Trudy Parker (Charge 34)
18Trudy Parker is now in her early 50’s. Her older sister was Emily Hislop who was in a relationship with Ms Cook’s brother, Billy Cook. When she was approximately 16/17 years of age she lived in the house with her sister and Billy Cook. You met her in the context of being friends with Billy and visiting the house regularly.
19On 16 April 1988 you married Annette Booth. Shortly prior to the wedding you held a buck’s party at your father’s home in Melton West attended by colleagues and friends including Billy Cook. Ms Parker and Ms Cook were also there and Ms Parker described herself as drunk.
20During the evening Ms Parker had consensual sexual intercourse with you in your utility vehicle at Minns Road, Melton. After the party, she returned to her home.
21The morning following your buck’s party Ms Parker was in her bed at home. Shortly after sunrise that day you allegedly broke into the roof cavity of the premises by removing roof tiles and entering the home through a manhole. This was disputed at trial. Both parties agree that the jury verdict does not determine or subsume this factual dispute. If I was pressed upon to resolve it, I can indicate that on my assessment of the evidence, noting that Ms Parker herself did not actually see this, I would have difficulty making such a finding beyond reasonable doubt.
22You entered Ms Parker’s room, lay on her bed and undressed yourself. Ms Parker gave evidence that you tried to hop on top of her and she tried pushing you away and telling you no. You then started pulling down her underwear and she was trying to pull them back up. You then got her underwear off; she had her legs pushed up towards her shoulders, and you forced her to have sex, by placing your penis into her vagina. You ejaculated and hopped off her, got dressed and left the room.
23In October 2016 Ms Cook contacted Ms Parker. She hadn’t spoken to her for years but reached out to her because she knew about things that had happened when she was younger involving you and thought that Ms Parker would know how she was feeling.
24On 28 October 2016, Trudy Parker made her first statement to the police.
Victim impact
25Ms Cook’s victim impact statement, which she read out in Court, is an eloquent and powerful testament to the far reaching and significant consequences of your offending. She reflects back on her childhood and asks – ‘why was I not protected?’ ‘Was I not important?’ “Why did you make my life a living hell?’ ‘Why did you hurt me?’ She laments the experiences and opportunities she has missed out on in life. She speaks of how your offending made her feel powerless and worthless; ‘I just never knew my worth as a woman.’ She speaks of the pervasive impact of your offending – causing her to feel vulnerable, worthless, immature for her age, hurting herself, self-blame for what happened, behind in learning at school, wanting to die; ‘never ever feeling good enough’; never feeling safe.
26She refers to the ongoing impact of your offending, stating -
For almost 40 years now I have lived with what you did to me. For almost 40 years I have watched over my shoulder and tried not to let you find where I live or am. For almost 40 years I have been silent because no one listened, no one helped, and no one stood up for me.
27She has PTSD, anxiety and depression and sees her psychologist regularly.
28She describes herself as a strong independent woman, a fighter and a survivor. She states the little girl in her, captured in the 3 photographs included in her statement that were given to her by her father, is also a fighter, a survivor, a warrior, and ‘she has been heard and believed now.’
29Ms Parker in her statement speaks of the profound impact of your offending. She reflects back to her past and states ‘so long ago I was silenced, too scared to come forward, a teenager with no voice, worried that it might happen again … who would ever believe me?’ Your offending has affected her ability to connect with herself and others; caused her to fear for her safety; and has taken a toll on her life, her mental health and her family. Reliving the experience has been traumatising for her. Many aspects of her life have been impacted and have suffered, including her career, her friendships, and her relationship.
30Mr Booth, I take into account the impact of your offending on your victims.
Gravity of the offending
31In formulating the appropriate sentence to be imposed I am required to have regard to the gravity of your offending.
32The offences for which you have been found guilty are inherently serious. Rape in particular is always to be regarded as a very serious offence. I note that the standard sentence scheme does not apply in your case as the offending predates its commencement. Also, the maximum term that attaches to the charges are variously 5 and 10 years. Offending conduct of this nature now attracts much longer maximum terms. In determining your sentence I am guided by the maximum term applicable; it is a factor that I am bound to take into account in the sentencing process and is an important yardstick in the fixing of sentence.[7]
[7] Bromley v The Queen [2018] VSCA 329.
33In assessing the gravity of your offending, each charge must be considered in light of its own particular circumstances.
34In respect of charges 1 and 2, Ms Cook was a child, only 12 years of age at the time. You took advantage of her in her own home and made contact with her bare breasts and vagina. In my assessment of your culpability, I do take into account that you were young offender at the time, aged 20.
35In respect of the other offences you were still relatively young aged between 23 and 25. There was a 7 year and 10 month age difference between you and Ms Cook.
36In relation to charges 3, 4 and 7, Ms Cook was 15 years of age at the time and you drove her to a secluded area where you forced her to suck your penis against her will and penetrated her vagina with your penis. On charge 21, you forced Ms Cook, who was possibly 16 at the time to have penile/vaginal intercourse in your brother’s exposed backyard.
37In respect of charges 24 and 26 this offending occurred in a public place when you took Ms Cook by complete surprise. She ended up on her back in the dirt and with you on top of her, pulling her pants down. She was naked from the waist down and she remembered thinking that anyone could be walking through the path. You forced your penis into her mouth and she felt like she couldn’t breathe. You were pulling hard on her shoulders whilst having non-consensual sex and she was crying. Your conduct towards her on this occasion was humiliating and obviously distressing.
38In respect of charge 31, Ms Cook was in her bedroom and you tried to put your penis in her anus and she kept moving, squeezing her butt cheeks together and trying to stop you. In respect of this charge I take into account that, on the jury’s verdict, this act appears to have occurred in the middle of other consensual sexual activity, which I consider does have some moderating effect.
39In relation to the charge involving Ms Parker, that is charge 34, you were 23 years of age at the time and she was 16 years and 10 months. Your counsel submits that the offending occurred in the context of you having had consensual sex on a previous occasion and only hours earlier that evening. While that may have had some bearing on your state of mind, of course, it doesn’t mean Ms Parker was consenting on this occasion, and any such suggestion was clearly rejected by the jury verdict.
40You were a police member for most of your offending but I accept your Counsel’s submission that your position did not materially impact the offending, or facilitate it. The prosecution do not submit that s.5AA of the Sentencing Act 1991 applies in your case. They point to the fact that you were a police officer as one of the factors explaining why Ms Cook did not complain at the time of the offences.
41Also, I accept your Counsel’s general submission that your offending was not attended by most of the aggravating indicia which typically features in serious examples of rape and other sexual assaults, such as the use of weapons, offending in company or the infliction of physical injuries.[8]
[8] See Jurj and Miftode v The Queen; DPP v Jurj and Miftode [2016] VSCA 57.
Personal circumstances
42Your background was canvassed in detail by Mr Kassimatis and in the psychological report of clinical and forensic psychologist, Mr Patrick Newton.
43You are presently 58 years of age, born on 19 September 1964. You have no prior criminal history or subsequent offending.
44You were born in Preston and are the eldest of three children in your family, having two younger sisters. Your father joined the Victoria Police and later ran a petrol station and truck dealership in his retirement. Your mother worked as an office administrator. While you describe your parents’ relationship as generally a loving one it was also conflictual and ultimately they separated. Growing up you were very close with your father but later in life he became more distant. He passed away in 2022 and your mother passed away earlier in 1999.
45You attended Melton Secondary College and it seems that you didn’t present with any significant issues though you report never getting ‘good marks.’ You left school in Year 11 and then worked in a supermarket.
46In 1984 you joined the Victoria Police. Over the years you have worked in a number of stations and you reached the rank of Leading Senior Constable and acted as Sergeant for various periods. In the course of your duties you have been exposed to multiple traumatic events including attendance at scenes of road trauma and recovery operations associated with missing persons. In 2016 you were suspended in the context of these charges. In 2022 you formally resigned. After leaving the police you worked as a maintenance contractor and up until very recently you have had some casual work as an installer with a curtain and blind company.
47In 1984 you met your wife and in 1988 you married and you have two adult daughters, both of whom are now married, and one grandchild. Your wife currently works at a café. Despite some difficulties over the years and your infidelities your relationship with your wife appears to be a strong one.
Mental health
48As I’ve already noted you were assessed by Mr Newton. You described a significant family history of depression which he considers has likely predisposed you to your conditions. You also described suffering from persistent anxiety throughout your life, later exacerbated in connection with your exposure to trauma through your work in the police force. It is clear from the letter of your GP, Dr Marcus Watson, that through your work you have experienced some harrowing and very confronting situations that have impacted you. You have been prescribed anti-depressant medication through your GP for some 15 years. In more recent times you have also increased your drinking as a means to ‘escape’ from your stressors.
49Mr Newton diagnosed you with a number of conditions including –
i.Major depressive disorder, recurrent, mild to moderate intensity;
ii.Separation anxiety, chronic, mild severity;
iii.Post-traumatic stress disorder, in partial remission; and
iv.Alcohol-use disorder, mild to moderate severity.
50Your conditions are long standing and have been compounded by the criminal process and the delay in this matter.
51Your Counsel submits that, on the evidence, the court can be satisfied that gaol is likely to worsen your mental health and render the service of a prison term especially difficult. Mr Kassimatis submitted that limbs 5 and 6 of Verdins were enlivened in your case.[9]
[9] R v Verdins [2007] VSCA 102.
52Mr Hayward, on behalf of the prosecution, accepts that on the evidence your conditions may mean that a sentence of imprisonment will weigh more heavily on you than a person in ‘normal health’. However, as for limb 6 he did not accept that the evidence sufficiently raised a serious risk of imprisonment having a significant adverse effect on your mental health.
53I accept that your psychological conditions, as canvassed by Mr Newton, will mean that imprisonment will weigh more heavily on you. I also accept that there is a serious risk of imprisonment having a significant adverse effect on your mental health. While this is not referred to in the context of your major depressive disorder or PTSD, at paragraph [41] of his report, Mr Newton considers that the enforced separation from your wife and family, which is inherent to incarceration, ‘would be almost certain to result in an exacerbation of the distress caused by [your separation anxiety] disorder’. You have a long history of separation anxiety and I accept that this is likely to be aggravated by the experience of imprisonment. This is a concern that is presently weighing on you and you anticipate a strong resurgence of your symptoms of separation anxiety. As to the weight of this factor, I take into account that you are currently only assessed as being at a ‘mild level’ of intensity relative to other sufferers.’
Delay
54It was submitted on your behalf, and I accept, that delay here has had been inordinate and is a powerful mitigatory factor. Before I canvass this further, I do want to acknowledge that delay in making a complaint of sexual offending is sadly not uncommon and there are a good reasons why a person, particularly a young person, may delay in complaining. It has no doubt required considerable strength and resilience on the part of Ms Cook and Ms Parker to come forward as they did. The delay also bears upon the impact of your offending, which has clearly been significant and long lasting.
55As a mitigatory factor in your case, delay is relevant in a number of ways, focusing attention on issues of rehabilitation and fairness. First, the last offence, the subject of charge 34 was committed some 35 years ago and you have not reoffended in this time. This is particularly relevant to an assessment of your prospects of rehabilitation, which I’ll return to shortly. In respect of this delay I also note that you have lost the benefit of the charges being dealt with when you were much younger.
56Next, as I’ve already outlined, the first complaint to police was in 2016. Following this, on 9 January 2017 a warrant was executed on your premises. More than a year later, on 22 February 2018, you were charged.
57As for Court process, the first committal hearing could not proceed in December 2018 for reasons, including that the prosecutor was required to excuse herself. The committal hearing took place some seven months later.
58The trial was listed and vacated three times during the Covid-19 pandemic in the 2020-2021 period. On 28 March 2022 it was listed for a fourth time. An interlocutory appeal was made in respect of an unfavourable ruling by the trial judge to the Court of Appeal and this succeeded, with judgement given on 29 August 2022. On 2 May 2023 the trial finally commenced and the jury returned verdicts on 7 June 2023.
59The substantial delay, that is, the period exceeding some 6 years, it was submitted, has taken its toll. The matter has been ‘hanging over your head’ for a substantial period of time. Your physical and mental health have suffered, and your financial resources and marriage are strained. This is consistent with the report of Mr Newton who notes that there is a strong reactive element to the anxiety you are suffering from, related to your legal matters and the consequences you might face. He opines that ‘the lengthy duration of [your] proceedings has had the effect of steadily depleting [your] emotional reserves; in turn this has led to a steady increase in the severity of [your] symptoms.’ ( at [61]). Your GP, Dr Watson, also refers to the ‘depression and turmoil’ you have experienced over the last recent years. The surgery consultation notes from 2020 chronicle the difficulties and stress you have experienced arising from the delays in this case. In her letter, your wife also states that the last ‘7 years have drastically taken a severe toll on [you] both. She states, ‘our relationship, mental and physical health and our finances have all hit rock bottom’.
60In sentencing you I take into account as an important matter the delay in your case, as advanced on your behalf by your Counsel.[10]
[10] R v Merrett, Piggott & Ferrari [2007] VSCA 1.
Youth
61Your Counsel submits that your age at the time of the offending, and its implications, should also attract some mitigation. On charges 1 and 2, as I have already noted, you were aged 20 and on the remaining charges you were in your early to mid-twenties. As the prosecution point out, had you been dealt with for charges 1 and 2 soon after their commission it is doubtful that you would have been imprisoned or detained.
62There are well settled principles in relation to youthful and young offenders.[11] The Courts recognise that due to their immaturity young offenders may be prone to ill-considered decisions and may lack the degree of insight, judgement and self control possessed by an older person. The weight to be given to youth must be balanced against the seriousness of the offending. In your case, I do give your youth at the time weight, particularly in circumstances where you have gone on to mature in age and demonstrate rehabilitation, having remained offence free for decades, continuing to work and contributing to the community.
[11] Azzopardi v R [2011] 35 VR 43; R v Mills [1998] 4 VR 235.
Extra-curial punishment
63Your Counsel also relies upon your loss of career as operating as an additional punishment in your case. Once you were charged, and after almost 35 years of service, you were suspended from Victoria Police without pay. In 2022 you resigned. As Dr Watson notes ‘[you] had to resign from the police force 2 years ago before [you] ever got to trial because [your] situation after 4 years on suspension was untenable.’ I take this factor into account.
Good character
64Your Counsel also relied upon your previous good character. You have no criminal history or subsequent offending. You have a strong work history and service to the community as a member of the police. You have positive relationships with your wife, two daughters and friends in the community.
65The testimonials tendered on your behalf collectively speak of you as someone who is hard working and committed to his family. In her letter your wife describes you as a good provider and a loving father and now grandfather. Your daughter refers to you as ‘incredibly supportive’ of her and as a great mentor. She also speaks of her extreme shock when you told her about the charges. Your brother-in-law states that you are ‘well regarded throughout [your] extended family and friendship groups.’ Your son-in-law regards you as a second father and looks to you as a role model. He credits you for helping him become a better person and professional. Your long-term friend and previous colleague in the police force, Shane Keegan, describes how you were one of his senior officers in the Traffic Operations Group and describes you as ‘patient and generous with [your] knowledge,’ trustworthy and dependable. He refers to you as clever and articulate and is confident you can adapt to any challenges presented in the future. Another long-term friend and retired Victoria Police officer, Ronald Davison, refers to you as hardworking, reliable and as having integrity.
66In sentencing you, I accept and take into account your good character.
67This leads into an assessment of your prospects of rehabilitation which I’ll address now.
Prospects of rehabilitation
68Weighing up all relevant considerations, I consider that you have very strong prospects of rehabilitation. Relevant to this assessment is your previous good character, your solid work history and contributions, your continuing family and friendship support and your lack of any criminal history or subsequent offending. The long period without offending provides a strong foundation for a favourable conclusion as to rehabilitation and risk of recidivism.
69Also, the testimonials in support of you indicate that you have been upfront about your court case. Mr Allan Schofield, General Manager of G & G Engineering, speaks of your honesty in telling him about your charges and then later advising him of the outcome of the jury trial. In recent times you’ve worked casually for this company to continue to support your family. You are considered a capable, valuable and respected member of their team and you will continue to be afforded an opportunity to work for them after the service of any sentence.
70I also take into account the risk assessment undertaken by Mr Newton’s for sexual re-offending. Overall, he concluded that you would be most accurately classified as presenting as a low-moderate risk of recidivism to further sexual offending (at [56]). If you could engage with appropriate treatment, he would anticipate that your level of risk would trend rapidly toward the ‘low risk’ range.
71Mr Newton considers that you would benefit from targeted treatment to address your mental health conditions, including trauma-focused cognitive behavioural therapy to treat your PTSD.
Other matters
72Also, I accept that service by you of a term of imprisonment as a former Victorian police officer is going to be far more difficult and that you have concerns for your safety, as expressed to Mr Newton. I’ve taken this into account in determining the appropriate sentence. I also accept that you will experience concern and anxiety about the financial implications faced by your family caused by your inability to provide continuing financial support.
Sentencing principles
73The basic principles for which a Court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community. I consider that specific deterrence and community protection, given prominence by s.6D of the Sentencing Act, play little role in the sentencing matrix given my findings as to your previous good character and prospects of rehabilitation.
74I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case.
75Upon sentencing you, as confirmed with Counsel this morning, to imprisonment on Charges 1 and 2 your status changes to one of a serious sexual offender.[12] This means that community protection becomes the predominant sentencing purpose and that every sentence of imprisonment imposed from this point will be served cumulatively unless otherwise directed by the Court. In all of the circumstances of your case, I do not intend to impose a disproportionate sentence, and nor is one sought by the prosecution. They accept that given the lack of any prior or relevant subsequent convictions the reality is that little weight needs to be given to protection of the community. While the principle of totality is moderated by the operation of s6D of the Sentencing Act 1991 it does continue to apply and is an important consideration in your case.
[12] The Queen v Crowley [2009] VSCA 176.
76I must also have regard to ‘current sentencing practices’ which relates to practices current as at the date of sentencing.[13] The principle of equal justice also requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time. I note that it has not been submitted that there was a greater difference in sentencing practices at the relevant time.
[13] Stalio v The Queen [2012] VSCA 120.
77Counsel did not provide or rely on any comparable cases. In many respects Mr Booth your case is unique and represents a challenging sentencing task, particularly given the very long delay between offending and sentence. While this is an important consideration, it is also important that the effluxion of time does not result in a sentence that devalues the gravity of the offending or the significant harm it has caused.[14]
[14] Bromley v The Queen [2018] VSCA 329.
78Synthesising all relevant matters, and taking into account all submissions made by Counsel, I am satisfied that the only just and appropriate sentence in your case is one of immediate imprisonment for a substantial period. I am satisfied that neither a wholly nor partially suspended sentence of imprisonment would meet the relevant sentencing principles. The need for general deterrence and denunciation remain very important sentencing objectives. The sentence imposed however must reflect all of the circumstances, including the significant and compelling factors in mitigation advanced on your behalf, matters personal to you, and the yardstick set by the maximum prescribed sentences.
79The orders for cumulation will also reflect in particular the principle of totality, along with the need to acknowledge separate and distinct criminal offending.
Sentence
80Mr Booth at this stage I’ll ask you to stand please.
81You are convicted and sentenced as follows:
(a) Charge 1, indecent assault, you are sentenced to 6 months imprisonment
(b) Charge 2, indecent assault, you are sentenced to 6 months imprisonment
(c) Charge 3, indecent assault, you are sentenced to 5 months imprisonment
(d) Charge 4, rape, you are sentenced to 2 years and 9 months imprisonment
(e) Charge 7, sexual penetration of a child under the age of 16 years, you are sentenced to 2 years imprisonment
(f) Charge 21, rape, you are sentenced to 2 years and 9 months imprisonment
(g) Charge 24, rape, you are sentenced to 3 years imprisonment
(h) Charge 26, rape, you are sentenced to 3 years imprisonment
(i) Charge 31, attempted rape, you are sentenced to 2 years imprisonment
(j) Charge 34, rape, you are sentenced to 2 years and 9 months imprisonment
82The orders for cumulation are as follows: Charge 24 is the base sentence; one month on Charge 1; one month on Charge 2; 1 month on Charge 3; 8 months on Charge 4; 3 months on Charge 7; 8 months on Charge 21; 4 months on Charge 26; 4 months on Charge 31; 10 months on Charge 34.
83That should arrive at a total effective sentence of 6 years and 4 months imprisonment. Mr Booth, I set a non-parole period of 3 years and 6 months imprisonment which, having regard to all the circumstances, I consider to be the minimum term justice requires that you serve.
84You are sentenced as a serious sexual offender on charges 3, 4, 7, 21, 24, 26, 31 and 34 and I cause that declaration to be noted in the records of the Court.
85The consequence of the verdicts is that you will be required to comply with the reporting obligations under the Sexual Offenders Registration Act 2004 for life and you will be provided with the paperwork shortly and asked to acknowledge receipt of it.
Stay of sentence application
86Your Counsel submitted that this Court is reposed with the power to stay the sentence it imposes pending appeal.[15] The power may be exercised in very rare and exceptional cases and when the interests of justice demand it. This is because once a verdict of guilty has been delivered, it is for the Court of Appeal, and not the trial judge to determine whether that verdict is unsafe, if challenged.
[15] Criminal Procedure Act 2009, s.309(2).
87It was submitted on your behalf that your case meets the necessary threshold. With a focus on incidents 2, 6 and 8 it was submitted that your trial miscarried and if the jury were prepared to return guilty verdicts on some charges which do not withstand rational scrutiny then the manner in which the jury performed its task in toto is suspect. Further, reliance was placed on your circumstances, justifying a stay of sentence, pending the outcome of an appeal.
88In my reasons for sentence I have already explored the possible basis or foundation for the verdicts as they relate to charges the subject of incident 2, 6 and 8. I have also closely considered your personal circumstances. I have had regard to the authorities your Counsel referred me to. I do not consider that your case falls within the same category as the case of Gant & Siddique, which as your Counsel accepts, was exceptional and rare.[16]
[16] The Queen v Gant and Siddique [2016] VSCA 662.
89As I indicated at the outset, after consideration of the authorities, the submissions, and the findings I have made in the course of my sentencing remarks, I am not satisfied that exceptional circumstances exist, and I do not find that it is in the interests of justice to stay the operation of the sentence.
90Accordingly the sentence having been passed, it must now Mr Booth, come into effect.
91I cause the following custody management issues to be entered into the records of the court: Mr Booth suffers from major depressive disorder, anxiety separation disorder, PTSD. He is on anti-depressant medication; it is his first time in custody; and he is a previous serving member of the Victorian Police Force.
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