Director of Public Prosecutions v Borrett
[2021] VCC 1325
•27 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCE LIST |
Case No. CR-19-00682
Indictment No. J12891024
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| LLOYD ROBERT BORRETT | Accused |
---
| JUDGE: | HIS HONOUR JUDGE BROOKES |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 July 2021 |
| DATE OF SENTENCE: | 27 July 2021 |
| CASE MAY BE CITED AS: | Director of Public Prosecutions v Borrett |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1325 |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – SENTENCE
Catchwords: One charge of rape
Legislation Cited: Sentencing Act 1991(Vic), s5(4)(c), s48F, s48G, s48H, s48I, s48J and s5(2)
Cases Cited: DPP v McInnes [2017] VSCA 374; Boulton v R [2014] 46 VR 308; Dalgleish v R [2017] 262 CLR 428; DPP v Hughes (a pseudonym) [2018] VCC 165
Sentence:Convicted and sentenced to a two-year Community Correction Order. Section 6AAA: Three years’ imprisonment with a non-parole period of two years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr F Cameron | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Richter | Doogue & George Pty Ltd |
HIS HONOUR:
1Lloyd Robert Borrett, you have pleaded guilty before me to one charge of rape, in that you are charged that at Frankston in Victoria between 1 August 2016 and 31 August 2016, you raped the complainant by intentionally sexually penetrating her, in that having introduced your penis into her vagina, you continued to keep it there without her consent in circumstances where you did not reasonably believe that she consented to the penetration. The circumstances of the offending are as follows.
2In or about July or August 2016, you met the complainant through an online dating site. You chatted online for a while before deciding to meet in person.
3On or about 13 August 2016 you met up in person in a restaurant or a café. You got on very well during the date. You drove the complainant home. A second meeting was then arranged. This was a barbecue dinner at your home. You got on well. After dinner, you engaged in consensual kissing and cuddling.
4During the evening, the complainant told you some details about her family history. She told you that her sister died of AIDS and that she herself was very cautious, requiring a sexual partner to be tested for sexually transmitted diseases before engaging in sexual activities without a condom. She also discussed using condoms with you.
5You told the complainant that you loved her and the complainant considered your declaration somewhat premature and she went home.
6You and the complainant had a third date at your home. You talked, laughed, kissed and cuddled in the lounge room, once again consensually. The complainant had about three drinks. You did not drink at all.
7The complainant wanted to have sex with you and she took off her clothes. You and the complainant went into the bedroom; you were both naked. There was consensual kissing and cuddling. The complainant was on her back; you were on top of her. You inserted your penis into her vagina. At some point thereafter, the complainant realised that you were not wearing a condom.
8Because of her family history, she decided she could not continue with the sexual act. She told you to stop. You did not stop. The complainant pleaded loudly for you to stop and she did this loudly at least three times. The complainant hit you on the shoulder at least twice. You did not stop. The complainant tried to push you off her and was unable to do so. The complainant was very upset and crying. You continued with the intercourse, and it is not clear whether you ejaculated. In any event, this constitutes the charge of rape.
9You got off the complainant. She was still crying. She asked you several times, “Why didn’t you stop?” You did not answer. The complainant asked you to leave and you demurred. The complainant was sobbing. She was saying, “Why didn’t you stop?” You, yourself started crying, stating that you were worried that you had ruined everything between you. You stayed the night. The complainant was unsure about what would happen if she insisted that you left her home. The complainant was also unsure whether you had had sex again that night. The next morning you left.
10Your behaviour towards the complainant as postulated by the prosecution was:
“… very loving and adoring and, as a result … [the complainant] decided to push the incident out of her mind.”
11On 6 September 2016, the complainant was tested for sexually transmitted diseases. She insisted that you be tested. You told her that you had done so, but she did not see any confirmatory paperwork. The tests, in any event, returned a negative result.
12You and the complainant remained in a sexual relationship for about three months. During that period, the complainant raised the incident with you on more than one occasion. You ignored the complainant when she raised the topic.
13One Thursday night, the complainant was upset. She went and slept in the spare room. She was upset over the first incident, being the rape incident. She wanted to be alone. You came into the spare room in the morning. The complainant told you why she was so upset.
14She said: “I know you don’t think it’s important.” You said: “It is, if it’s important to you.” She told you that she did not want to see you on the following night and was spending time with her daughter. It was on that Friday, the complainant decided to end the relationship.
15The complainant sent an email to you on 14 November 2016 telling you that she did not want to see you again. In reply, you stated, amongst other things:
“At first I misread your requests to stop as playful, but once I realised you were serious I stopped. I got it wrong.
It’s not a situation I’ve ever had happen before and I totally misread it. I thought you’d accepted this when I apologised straight away. I was crying because I fully understood how badly you must have felt and was so upset because of it.”
16There were several other emails between you and the complainant. The complainant then blocked you from contacting her.
17In early 2018, the complainant told her friend what had occurred between you and the complainant. She had previously blind copied her friend into emails in November 2016 with you.
18The friend recalls that the complainant told her that during the first time having sex with you, she suddenly got fearful of wanting to continue on with the sex with you when she started thinking during your first sexual encounter about the fact that you and she were not using any protection for sexually transmitted diseases and this was a stupid and risky thing for you to be doing, and so she did not want to continue.
19The complainant told her friend that she told you that she did not want to continue and told you to stop. You ignored her requests and continued with the sex. The complainant said, “Stop” more firmly. You still did not stop. She was underneath you. She then punched you in the chest while telling you to stop. The complainant told her friend that you ignored her wishes and continued with the sexual intercourse until you finished and ejaculated.
20The complainant told her friend that after the sex she burst into tears and asked you: “Why didn’t you stop?” You told her: “I didn’t think you meant it.” She then said: “When someone tells you to stop, they mean stop.”
21On 28 September 2017, the complainant reported the matter to the police. She made a statement detailing the allegations.
22A pretext phone call was arranged for 22 January 2018. It lasted approximately 13 minutes. The call was recorded and later transcribed. During the discussion you said:
“But all I can say is at first I thought you were playing. Then when I didn’t, instead of stopping, and that’s the crazy thing, instead of stopping which I should have done. I started asking myself all sorts of questions and stuff.”
23The complainant asked:
“What? Rather than listening to the woman underneath you?”
24You then replied:
“Correct.”
25Later during the conversation, the complainant said that you knew her family history, knew that she wanted to use condoms and that you both got carried away but when she said, “Stop” three times, and hit you, you did not stop. In this conversation you denied ejaculating.
26The complainant said to you:
“You did the wrong thing.”
27You replied:
“I totally get that. I never said I didn’t. I absolutely totally get that. That’s what upset me so much.”
28You underwent a record of interview and, as was your right, you made a “no comment” record of interview. You attended a committal hearing on 8 April 2019, when you were committed for trial before me.
29Your personal circumstances were outlined by your counsel as follows. You are 64 years old, and due to turn 65 any day. The alleged offence took place when you were 60 years of age. You have no prior or subsequent criminal history of any kind. You have had a varied and hardworking life with many jobs, interests and hobbies.
30You were born and grew up in Whyalla, South Australia, and you remain close to your still-married parents and to your brothers and sisters. Your upbringing was a happy and otherwise unremarkable one.
31After school, you studied electrical engineering and worked as a glazier, in ship-building yards and studied computer science in Tasmania. You worked for BHP in a number of roles at mine sites, being selected by them in 1977 to be a trainee programmer in corporate data processing at the Head Office of BHP in Melbourne.
32You moved to Melbourne at the age of 20 and lived in Victoria, both in regional and rural urban areas since. You have worked for numerous companies, large and small, primarily in IT computing and software industries. You have been involved in the marketing and sales of these products, as well as commerce and communications.
33Over the years, you have developed a wide range of interests including gliding, sailing, horse-riding and scuba-diving. You currently own and run a scuba-diving shop which reflects one of your many passions. You have five employees.
34You have had three serious long-term relationships through your life, the most recent lasting six years and having ended a few months before your involvement with the complainant in 2016.
35You do not drink, smoke or take drugs. You have no mental health issues of any kind. You do, however, have physical health issues; namely, you suffered a stroke in December 2017 after the alleged offending, but before the pretext call or record of interview.
36You have Type II diabetes and you suffer from hypertension. You are medicated for hypertension and diabetes. Although you have made a good recovery from the stroke, you have subjectively found yourself less focussed and more apt to confusion and lethargy than previously.
37It is put by your counsel that you are of good character, and it was submitted that your good character is more than the mere absence of prior convictions. I accept that the character evidence discloses that you are a kind, gentle, loyal, loving and generous man.
38As to the alleged offending itself, your counsel points out that the incident of rape arose out of what became an extended consensual loving and close sexual relationship between two adults.
39However, during the sentence indication which was heard by me, and also during the plea, your counsel indicates that the Prosecution opening is accepted.
40Your counsel points out that the incident complained of, the sexual encounter, was initiated by the complainant when she removed her clothes and although, as the complainant says, the two of you got carried away, I infer that it was not apparent to you at the initial stages that you were not wearing a condom, but I also infer that due to the urgency of the moment, probably neither of you turned your mind to it.
41It is also pointed out that in all subsequent communication, you have apologised to the complainant, and, as outlined, your position that you thought the complainant was being playful and stopped having sex with her when you became aware she was serious.
Gravity of offending
42Both counsel concede that rape is a very serious offence. It is submitted by your counsel, and accepted by the prosecution, that although this a serious offence, it falls at the lowest end of the spectrum of gravity for this serious offence.
43This is so, because it did not proceed from any desire to dominate, hurt, possess or exercise power over the complainant, which is the gravamen of the perniciousness of the offence.
44Although it was indicated that your plea would be put on the basis of a mistaken belief in consent, it is clear from the evidence overall that you were aware, and must have been aware, that the plaintiff had withdrawn her consent but you were either unwilling or unable to discontinue the activity.
45Your counsel submits, and I can accept, that the act itself was not prolonged, the period of time between consensual sex and the cessation of sex altogether appears to be measured in seconds, and as I said, I accept this submission.
46I also accept his submission that none of the features that generally serve to aggravate the offence of rape are seen here, for example an imbalance of power; the use of violence; the use of force or threats; the betrayal of trust; the use of inducements or deception, all are absent here.
47I should say at this stage, that I do not accept this submission in its totality. There was clearly an imbalance of power, in that the complainant was unable to physically force you to desist from the act.
48As I said at the indication of sentence hearing, men have to realise that women have the total right over their own bodies and can withdraw consent at any time, just as males can, even if the female herself has initiated the event.
49The reasons behind this are because of the traditional view about rape in the community which it is probably trite to say that in previous generations, was treated far more seriously in terms of penalty.
50However, one only needs to read the victim impact statement of the complainant to understand the basis behind the modern dispositions with respect to this offence.
51The complainant, in her victim impact statement, states, inter alia:
“I no longer trust my interactions with others. Am I being manipulated I wonder? If I get too close what will they do to me? So, I keep myself apart, looking at other people as if through a fog and feeling like I'll always be ‘outside’ of them.
I stopped calling friends or seeing them as much as I had done in the past. I was exhausted by what had happened, by the enormous current of emotion I felt I was always fighting. I know it sounds ludicrous, but I also felt that even when I spoke, I was silent and wondered if I’d go mute and never speak again, then I worried that I was going crazy because being mute and maybe hiding under a blanket in the corner of the room and sleeping for the next 40 years sounded pretty attractive at times.”
52Importantly she states, as follows:
“Soon after the crime I sought out another relationship, tried to find someone to protect me and in a rather desperate frame of mind, chose badly and that relationship compounded the damage caused by the crime committed.”
53She also stated:
“I thought once I had reported the crime it would be all okay, but it wasn’t. I didn’t and don’t want to be a victim and I’m not even a survivor, because part of me hasn’t survived this; I’m a witness, and that is what this process has given me; the voice and the presence of a witness, to say that what the accused did, was, and is, wrong and that I matter and that maybe I have a voice again - and that the fog will clear a little.”
54Now, one can accept, as is inherent in the CCO report, that men do not always understand the damage that can be done by an act of non-consensual sex even if it is at the lower end of the spectrum, as is stated here and accepted. But the reason why rape is a serious crime is not only the physical violation, but it a mental violation.
55The victim has been honest enough to say that a subsequent relationship has compounded the damage but I can accept, as a matter of experience, that the contribution to whatever the final damage is, has been a significant part because of your act and her reaction to it.
56As far as comparable cases are concerned, I have been referred by both counsel to two decisions. One is the case of DPP v McInnes [2017] VSCA 374, a decision of the Court of Appeal of Whelan, Priest and Beach JJA.
57Importantly in this case is whether or not a CCO with a non-gaol sentence can be considered in a case of rape. Their Honours, at paragraph 14, cited the case of Boulton v The Queen [2014] 46 VR 308 at paragraph 131, where five members of the Court of Appeal, with respect of community correction orders, stated:
“… a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony, and just punishment, while affording the best prospects for rehabilitation.”
58In the uncommon circumstances of this case, your counsel, and indeed, the prosecution, in a very fair manner, has indicated that a non-custodial sentence can be considered, although one which includes a substantial component of community work, together with an assessment as to whether or not you need to undergo programs to address your offending behaviour, and in that case, the prosecution allege that this will satisfy both the punitive and rehabilitative aims of sentencing.
59I also take into account that by virtue of s5(4)(c) of the Sentencing Act 1991 (Vic), I am obliged not to impose a sentence that involves your confinement unless I considered that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in s48F, s48G, s48H, s48I and s48J are attached.
60Section 5(2) of the Sentencing Act provides for a range of factors that a court must have regard to when sentencing which, so far as is relevant, includes the matters set out therein from (a) to (g).
61The Court of Appeal said that these conditions must be balanced as a matter of instinctive synthesis so as to arrive at a sentence which is just in all the circumstances. The extent to which each factor in s5(2) bears upon the formation of the instinctive synthesis is inevitably a matter of judgment, allowing a measure of discretion to the sentencing judge. Given the discretionary nature of the required judgment, there is no single sentence that is just in all the circumstances. (Reference at paragraph 72).
62Their Honours also referred to the seminal High Court case of Dalgleish [2017] 262 CLR 428. Their Honours, Gageler and Gordon JJ, remarked as follows at paragraph 82:
“Section 5(2)(b) does not in terms provide that current sentencing practices set boundaries and what a court may reasonably impose as a sentence. The court must have regard to current sentencing practices, as well as every other matter listed in s 5(2). Current sentencing practices stand in the same position as every other matter listed in s 5(2). … .”
63Further, they state, at paragraph 83:
“Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’ …. Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.”
64I note in the case of McInnes that the accused was not in a sexual relationship with the complainant and committed the act of rape while she was asleep, which seems to me to be a more serious count than is involved in your situation.
65I was also referred to the County Court case, a decision of her Honour Judge Gaynor in DPP v Hughes (a pseudonym) [2018] VCC 165. Once again, this was a disposition of a CCO as in McInnes without an immediate gaol sentence. Her Honour stated, at paragraph 34:
“In that case, McInnes like yourself, had no prior or subsequent convictions. He too was described as a naïve and immature man [and I interpose this is not your case], who showed great remorse for his offending, as evidenced by his self-reporting the matter to police. In that case, McInnes and the complainant were not in a relationship and she had made it clear to him that she had no interest in a sexual relationship with him. At the time of the offending, the complainant was on sleeping medication, which was known to the accused.”
Disposition
66Ordinarily charges such as these would be expected by the community to be dealt with by way of a term of imprisonment to be immediately served. Indeed, it is unusual in case such as this for the prosecution to concede that a non-custodial disposition was appropriate.
67Pursuant to s5(4) of the Sentencing Act, I am obliged not to impose a sentence involving an immediate custodial term unless I am satisfied in the terms that I referred to above.
68Having regard to the factors to which I must be attentive as detailed in s5(2) of the Sentencing Act, I am not so satisfied.
69In saying this, I very much make the point that such a finding involving charges such as these must indeed be rare and must arise from the unique situation which I do find exist in this present case.
70I am also satisfied that a term of imprisonment would be more onerous for you than the normal prisoner, given your diabetes, hypertension and stroke sequelae which, in my view, could be worsened by a custodial term.
71It is my view that this is one of the rare cases where ordinary members of the community would not necessarily expect a term of imprisonment to be imposed.
72I have had you assessed for placement on a community correction order and you have been found suitable. So what it means, Mr Borrett, is, as you I have no doubt realised, I am not going to send you to gaol. I am going to place you on a Community Correction Order. I must explain the conditions of the Order. They are as follows:
(a) You must report to the Office of Corrections within two working days of the making of this Order; that is, by Thursday of this week;
(b) Whilst you are on the Order, you must not leave Victoria except with the permission of the Office of Corrections;
(c) Whilst you are on the Order, you must not commit any other offence punishable by imprisonment;
(d) Whilst you are on the Order, you must obey all lawful directions of the Community Corrections Office;
(e) You must inform the Community Corrections Office of any change of address or employment within 48 hours of the making of that change.
73As discussed with both counsel at the outset this morning, I am going to make one of the conditions, a condition that you be assessed and if found necessary, to participate in the Forensic Intervention Services branch known as FIS.
74I am also going to order that you be on the Community Correction Order for a period of two years and that in that time you must perform 150 hours of community work and I will order that 50 per cent of that Order can be redirected towards rehabilitation.
75So finally, you must contact the Rosebud Justice Service Centre via telephone within two days to meet the reporting requirements of this Order. Do you understand those conditions, Mr Borrett?
76OFFENDER: Yes.
77HIS HONOUR: Yes, are you willing to enter into a Community Correction Order on those terms?
78OFFENDER: Yes.
79HIS HONOUR: Yes, all right, thank you.
80Pursuant to s6AAA of the Sentencing Act, I declare that had you pleaded not guilty, I would have sentenced you to a term of imprisonment of three years and ordered that you serve a minimum term of two years.
81We will prepare the paperwork and we will forward it. I will let Mr Richter – I will leave that for you to discuss with my associate as to how that is to be performed.
82MR RICHTER: Yes, Your Honour. If Your Honour pleases.
83HIS HONOUR: Any further orders gentlemen?
84MR RICHTER: No, Your Honour.
85MR CAMERON: No other orders sought, just to confirm Your Honour was that sentence imposed with conviction?
86HIS HONOUR: Yes, with conviction, yes.
87MR CAMERON: Thank Your Honour. I presumed that, but I just wanted to check. Thank you.
88HIS HONOUR: No, thank you for bringing it to my attention. Yes, can we adjourn the Court please.
- - -
0
2
0