Director of Public Prosecutions v Brayden Tripp (a pseudonym)
[2023] VCC 2445
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRAYDEN TRIPP (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Brayden Tripp (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2445 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW- Sentence
Catchwords: Rape – threat to inflict serious injury – intentionally cause injury – standard sentencing regime on charge 1 of rape
Legislation Cited: Sentencing Act 1991, s5A; s5B; 5B(3)(b)
Cases Cited:Brown v The Queen [2019] VSCA 286
Sentence:Convicted and sentenced to 11 years and six months imprisonment with a non-parole period of eight years and three months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Director of Public Prosecutions |
| For the Accused | Ms J. Swiney | Theo Magazis & Associates |
HIS HONOUR:
1Brayden Tripp[1], on 4 October 2023 at the County Court of Victoria sitting here at Melbourne you pleaded guilty to the following charges on indictment no.M12513970.1:
Charge 1, rape. This charge has a maximum penalty of 25 years' imprisonment. This charge is also a standard sentencing offence. The standard sentence is 10 years.
Charge 2, making a threat to inflict serious injury. This charge is a rolled up charge. This charge has a maximum sentence of five years' imprisonment; and
Charge 3, intentionally cause injury. This charge is also a rolled up charge. This charge has a maximum penalty of 10 years' imprisonment.
[1] A pseudonym name.
2On that same day you admitted your prior criminal history. Your criminal history is relevant to the present offending in respect of the violence offences. This is your first offence for sexual offending, in this case against your former domestic partner and wife, and mother of your three children.
3Your criminal history includes eight prior court appearances between March 1994 and November 2008 for violence, property, dishonesty and drug charges. The highest penalty was a two month suspended sentence of that period. There was then a 10 year gap between court appearance.
4In November 2018, you were sentenced to a combination sentence of 12 months imprisonment and 32 days' imprisonment with pre-sentence detention of 32 days and a Community Corrections Order of 12 months, with community work and drug treatment conditions. That sentence was for offending against a different former domestic partner and her new partner.
5In 2019, you were before the Magistrates' Court and on appeal at the County Court for recklessly cause injury, property offences, dishonesty offences, possession of drugs. At the County Court you were sentenced to eight months imprisonment with six months of the sentence to be served concurrent with other sentences, and you were fined a total of $4,250. In October 2020, you were fined for theft and property offences in the sum of $2,000. Fourteen months later, you committed the offences before the court.
6
On 4 October 2023, your plea hearing was adjourned to this day,
18 December 2023. You have served a total of 742 days of pre-sentence detention, not including this day.
The circumstances of your offending
7The prosecutor tendered a Prosecution Plea Opening dated 5 December 2023. It was Exhibit “A”. The prosecutor read the relevant parts of that document into the record of the court.
8The victim of your offending is Isabelle Hoover[2]. Ms Hoover is your wife and the mother of your three children. You separated in 2013 and have had contact with one another due to your children. The contact became more frequent after 2020 when two of your children lived with you and your parents, their grandparents.
[2] A pseudonym name.
9The offending in this case all took place on the 2nd and 3 December 2021 in Wollert. At approximately 10.30 pm on 2 December 2021, you contacted Ms Hoover and asked her to pick you up at a house in Mernda and then to take you to your residence in Wollert.
10The address was rented at that time by a friend of yours Michael Shackleton. You were living in the garage at that address. On the arrival at the Wollert address you wanted to show Ms Hoover how well you were doing and what you'd set up in the garage. You invited Ms Hoover into the house where you spoke briefly with Shackleton, then moved to the converted garage where you were living.
11After having a look at the garage, Ms Hoover asked you for the car keys to her car back from you. However, you told her that she was not allowed to drive as she had consumed two glasses of alcohol during the night. Ms Hoover in response told you that she would then either call a taxi or get a Uber. Despite her suggestions as to how she would arrange her own transport, you laughed at her and said, 'You're not fuckin' goin' anywhere'.
12Ms Hoover kept looking at the door and you came and sat on the bed with your back against the wall and your legs across the bed. Ms Hoover, who was wearing a dress at the time did not want to be near you, so she turned over onto her side and pulled her legs up into what is described as a foetal position.
13You told Ms Hoover to 'Suck my dick' to which she replied, 'I'm not sucking your dick. If you come near me I'll bite it.' You have grabbed Ms Hoover’s ankles and pulled her out of the foetal position, pulling her legs straight and twisting her over. You have then grabbed Ms Hoover’s under pants on either side and ripped them from her. She begged you to stop what you were doing and she said, 'I don't want to have sex with you, please don't do this, please don't make me do this'. However, you kept grabbing and fighting her. Ms Hoover states you were much bigger and stronger and as she was losing, she just lay there. Whilst you were holding her down you forced your penis into her vagina. That is the basis of Charge 1, the charge of rape. Ms Hoover was then laying on the bed crying and you stopped raping her. You were still angry.
14Charge 2, is a rolled up charge of three separate events. The first event was, you said to Ms Hoover, '[She] was nothing but a fuckin' stupid whore anyway and wasn't privileged enough to suck your dick anyway.' Ms Hoover states that you were angry as you didn’t get what you had wanted. Whilst Ms Hoover was curled up on the bed, you used a spray deodorant can and lit the spray with a lighter, which you then sprayed over her body while she was lying there. You said to her, 'Fuck you, cunt. How are you going to go with a crispy skin tone look?'
15The second event is when you took a blue sharpie pen and wrote something on Ms Hoover's forehead, and then wrote 'Deusce' in graffiti style writing on her left leg. 'Deusce' was your tag as it were and it was 30 centimetres long on her leg.
16Ms Hoover continued to plead with you to let her go, and each time she did so, you told her that she could not go. Ms Hoover then asked you if you could go and get some smokes. However, you said to her, 'No. You'll fuckin' scream and run off.' Ms Hoover has then made a request of you to allow for her to use the toilet, but you denied her request.
17Lastly, the third event was later that night, you picked up a screwdriver from the floor of the garage and knelt in front of Ms Hoover and began tapping the screwdriver against her forehead. While you were tapping the screwdriver on her forehead you said to her, 'Which eye should I take out first, your wonky eye or your other eye, so that you can't drive your fancy car, that'll fix you up.' That's the basis of Charge 2.
18Charge 3 is also a rolled up charge, again with three separate events of offending. The first offending, you continued to abuse Ms Hoover by grabbing her chin and squeezing her jaw, and pushing her jaw around to force her head up to the roof of the garage to look at the garage door motor telling her to, 'Look at the fucking camera.' You then caused injury to Ms Hoover's jaw and face area.
19The second offending, is when you then later told Ms Hoover to 'tell the camera you love heroin; tell them you love heroin'. You then said to her, 'You're gonna go missing. You're going to have a hotshot'. I note, a ‘hotshot’ is a term for a lethal injection of heroin. Ms Hoover described you at this time as if you were going crazy. Ms Hoover took a dive over the bed to try and get to the sliding door of the garage. You prevented her by grabbing her and pinned her down, so she started screaming. When Ms Hoover started to scream you grabbed her and slammed her face on the bedframe. You then stopped banging her head on the bedframe and Ms Hoover's eye was sore and her mouth was bleeding.
20The third offence was when you grabbed Ms Hoover around the neck and started choking her, saying, 'I said you're not going to get away with this, you're going to pay for this'. Ms Hoover was held in the garage for approximately six hours and was only able to leave after she had convinced you that your youngest child was about to wake up and be scared when she was not home.
21
Prior to Ms Hoover being able to leave the house, you made her go to the toilet in the main house because she had been asking during the night to go.
Ms Hoover, while she was in the toilet was crying until she worked up the courage to step back into the kitchen in the hopes that she could leave the house.
22On 3 December 2021 at approximately 6 am, Ms Hoover left your residence and you let her out the front door, and she ran to her car and drove off. It was not until 5 December 2021 that Ms Hoover reported the matter to the Mernda police station.
23
On the same day at approximately 7.30 that evening, Ms Hoover attended The Royal Women's Hospital and underwent a forensic medical examination.
Ms Hoover was examined approximately two and a half to three days following the incident by Dr Casey Walsh who was a forensic medical officer. Dr Walsh noted the genital examination was normal but made the following observations to Ms Hoover’s head and neck injuries:
(a) There was tenderness to her left scalp with no visible injury.
(b) Small amount of faint bruising of the right upper eyelid which is difficult to appreciate.
(c) Bruising to the left upper eyelid and peri-orbital region, purple and brown in colour.
(d) Bruising to the left lower lip and to the skin below the lip margin, purple and brown in colour. This was associated with a small abrasion to the inner lip.
(e) Tenderness to the inner right cheek, with no visible injury.
(f) Bruising underneath the chin with a larger purple coloured bruise to the left side, approximately one and a half centimetres in diameter; and
(g) a smaller brown coloured bruise on the right side, and tenderness to her neck.
24On 6 December 2021, you were arrested at your home in Wollert in relation to the allegations that you have now pleaded guilty. A search warrant had been executed at your premises at 6 pm. The scene was processed by major crime scene investigators. CCTV with audio was collected from that area. On the CCTV recording there is a sound of a female screaming, 'Don't touch me. Don't fuckin' touch me' at the time of the incident. There are numerous other conversations of yelling and screaming of a male and female that were picked up on that recording.
25You were interviewed at the Mernda police station on the same day, 6 December 2021. You exercised your right to make a 'no comment' record of interview.
26On 9 May 2022, a committal hearing was conducted. Ms Hoover and five police officers were cross-examined at that committal hearing. The charges were listed for trial on 26 April 2023. I am told this morning, the trial was adjourned on that date because your then counsel was not available. The trial was then listed for 4 October 2023. You plead guilty on that day to the three charges that are on the indictment before the court.
Victim Impact Statement
27A victim impact statement was filed but unsigned by Isabelle Hoover dated 18 December 2023, and was Exhibit “B”. The statement was read aloud by the Informant in this matter. It is clear from the victim impact statement that in her words, you broke her and the children by this offending. Ms Hoover describes the emotional scars to her as being irreparable. She states she has panic attacks and difficulty sleeping and concentrating. She concluded her statement by saying that she is rebuilding her life and the lives of the children. She said that she is leaving the “darkness” with you today.
Personal circumstances
28You were 45 years of age at the time of these offences. You will turn 48 in January next year. You were born in Melbourne and raised by your parents in Bundoora. You enjoyed a normal and happy upbringing. You have two older brothers, aged 54 and 51. You also had an older sister who died approximately 12 years ago from complications arising from drug and alcohol abuse.
29You have known Ms Hoover from early teenage years. You started dating her at the age of 22. By the age of 26 you were married. Ms Hoover had a son from a previous relationship, who you treated as your own son. You and Ms Hoover have three children, two sons, born in 2002 and 2012 and a daughter born in 2004.
30Your marriage broke down in 2013. You took this development very hard. You originally moved to your parents' holiday house in Rye and then moved into their own home in Bundoora.
31You later formed another relationship with a Ms Taylor. Ms Taylor was your victim of violent offending, for which Judge Trapnell of this court sentenced you for violence to a former domestic partner. You had served imprisonment as part of that sentence prior to the offending before this court.
32You have been examined by Ms Gina Cidoni, a Forensic Psychologist for the purposes of this plea hearing. Her report dated 13 December 2023 was Exhibit 2. You told Ms Cidoni you continue to have a good relationship with your two older children. You have no contact with your youngest son, who would now be approximately 11 years of age.
33You completed Year 12 education at Parade College in Bundoora. At school you proved to be a good footballer. Your plan was to play AFL level. You injured your right ankle at the age of 18 years and managed to play VFL level until you were about 25.
34You have had periods of employment in a soft drink company, and as a truck driver for Toll. You also worked for Interflow as a sewage machine operator. Your work history has been punctuated by drug use and the resulted periods of incarceration. Your drug use has included cannabis, amphetamines, methamphetamines, GHB, Xanax and Valium. You have even dabbled in heroin on your report to Ms Cidoni. Ms Cidoni assessed you as a medium risk for sexual violence and a moderate risk of non-sexual violence in the future.
35Your parents and one brother were present in court at your plea. You have had full and caring support from your family for your whole life. It continues today and will into the future.
36I have previously referred to your criminal history and will not repeat it here. Significantly, you offend against people who are or have been in domestic relationships with you, but not against your family of origin. The drug and alcohol abuse does not excuse that offending.
Sentencing considerations
37The basis purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as, the seriousness of your offending and your culpability for it and your personal circumstances.
38I am also required to balance the interest of the community in denouncing your criminal conduct with the interest in the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
39I am also required to take into account current sentencing practices in fixing your sentence, that enquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. In your case it relates to standard sentencing cases. Nevertheless, many of the cases would be distinguishable from your case as indeed they are from one another. The cases to which I have been referred, fit entirely in that category.
40The standard sentencing regime applies to Charge 1 on the indictment. The maximum penalty of Charge 1 is 25 years' imprisonment. Pursuant to s5A and 5B of the Sentencing Act, this charge is also subject to the standard sentencing provisions. The standard sentence for this charge, that is Charge 1, is 10 years' imprisonment.
41The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of rape, the maximum sentence and the standard sentence are to be taken into account as guideposts in the sentencing process. In section 5B(3)(b), the Parliament enacted the standard sentencing provisions that are not intended to affect the approach to sentencing known as the instinctive synthesis.
42In the case of R v Brown, Champion J set out that the standard sentence is not to take the predominant role in sentencing and is just one of the factors to be taken into account. It follows that the standard sentence does not assume the dominant role in the determination of the sentence for your charge. The standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing practices to which a court must have regard along with the other sentencing factors identified which are required to be taken into account under the Sentencing Act.
43Further, so far as consideration of current sentencing practices is concerned as I had said before, requires a court when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the standard sentencing scheme.
44Your plea of guilty to the charges on the indictment was indicated at the time when the trial indictment was listed for hearing on 4 October 2023. A contested committal had been conducted on your behalf where Ms Hoover and police witnesses had been cross-examined. Your plea of guilty has obviated the necessity for Ms Hoover to be cross-examined about this offending for a second time.
45I accept your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending and your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community, and your plea has also avoided the necessity of your victim to give evidence at a trial.
46Your plea is also a clear acknowledgement by you, that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognised you are willing to facilitate the course of justice in the community.
47I assess that you have expressed and shown very limited remorse for this offending. In Ms Cidoni's report you stated the following about your offending:
'He reported on the night in question, he had consumed alcohol throughout the day, combined with cannabis and methamphetamine. He claimed Ms Hoover had also consumed numerous cans of alcohol. He said they engaged in sexual activity and throughout the course of the same, they were insulting one another. He could not recall her explicitly consenting to the acts but said she did not say no. He admitted to drawing on her with a permanent marker and using aerosol as a makeshift flamethrower.'
48You have spent a large proportion of your pre-sentence on remand under the COVID-19 regime of restrictions. You have also had the unknown factor of the length of the sentence hanging over your head during that remand period.
49Your offending is a very serious example of this offending. The Parliament has set out a maximum penalty of 25 years and a standard sentence of 10 years for this charge, Charge 1. This is a clear indication of the seriousness with which the community through Parliament treat this type of offending. Further, your victim is your wife, from whom you were separated for approximately eight years. Your victim is the mother of your three children.
50The following matters indicate the seriousness of your offending:
(1) your overall offending was violent and persisted over a period of some six hours;
(2) your victim had helped you to get to your home, then you took advantage of her in your own premises;
(3) despite your victim's pleas, you continued with your offending;
(4) you continued your offending whilst your victim was very distressed;
(5) you did not use a condom, adding to the risk of disease transmission;
(6) you engaged in acts of humiliation of your victim, “tagging” her as it were with the marker and getting her to admit to being a heroin user for the camera;
(7) you physically threatened her with burning, and disfigurement of her eye with a screwdriver;
(8) you denied her access to a toilet and refused to let her leave your garage abode.
51I take into account your personal circumstances as set out in the reasons when fixing your sentence. I note your prior criminal history which has violent offending but no sexual offending.
52I take into account that each of Charges 2 and 3 are rolled up charges encompassing three separate events of offending in each of them. The offending is all in a period of six hours on a single day. Whilst this offending is not strictly a domestic violence setting in the sense that you were living with your wife at the time, it has occurred at a time when your wife was called upon by you for assistance and that she was the mother of your children. I find this is an aggravating factor in your overall offending.
53I have cumulated some part of the sentences on Charges 2 and 3 on the sentence of Charge 1 and have moderated accumulation so as to give effect of the sentencing principle of totality and not to impose a crushing sentence upon you.
54I assess your prospects of rehabilitation as guarded to poor. You have had a long-term drug problem that has ended in criminal offending. You have had periods of no offending. You have enjoyed and continue to have strong family support from your parents and brothers. Past periods of incarceration have not deterred you from violent offending after it. You are now well into your mature years and still offending and using drugs and alcohol in an uncontrolled manner.
55The sentencing principles of general deterrence, specific deterrence for you, just punishment, protection of the community, denunciation of your actions and your rehabilitation dictate that the only appropriate sentence is a term of imprisonment with a fixed non-parole period. If you are granted parole, the Adult Parole Board will further supervise your rehabilitation.
56Would you stand please.
57On the charge of rape, Charge 1, you are convicted and sentenced to 10 years' imprisonment.
58On Charge 2, threat to inflict serious injury, you are convicted and sentenced to 18 months' imprisonment.
59On Charge 3, intentionally cause injury, you are convicted and sentenced to three years' imprisonment.
60The base sentence is Charge 1, 10 years for rape. On that, cumulated from Charge 2, six months and cumulated again on those two from intentionally cause injury which is Charge 3, 12 months.
61
That is a total effective sentence of 11 years and six months' imprisonment. I fix a non-parole period of eight years and three months. But for your plea of guilty I would have sentenced you to 14 years and six months with a non-parole of
10 years and three months.
62I declare that you have served 472 days pre-sentence detention in respect of the sentence I have just imposed.
63Is there anything further?
64MR NIBBS: No, Your Honour.
65MS SWINEY: No, Your Honour. As Your Honour please.
66HIS HONOUR: Is the arithmetic correct?
67MS SWINEY: Yes.
68MR NIBBS: Yes, Your Honour.
69HIS HONOUR: Thank you. Remove the prisoner. Counsel I'd just like to thank you for your assistance in this matter.
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