Director of Public Prosecutions v Brenner (a pseudonym)
[2024] VCC 341
•19 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSH BRENNER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February 2024 | |
DATE OF SENTENCE: | 19 March 2024 | |
CASE MAY BE CITED AS: | DPP v Brenner (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 341 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – plea following trial
Catchwords: Sentencing – rape – sentenced on charge 2 on basis that the accused had belief in consent although not reasonable – lower culpability on charge 2 compared to other charges – sentenced on charge 4 and 5 on basis that the accused was aware the victim was not consenting – sentenced on charge 5 as a serious sexual offender – charge 5 most serious given repeated offending within a short time – no planning – behaviour out of character – 20 years old at time of offending – no criminal history – good work history – lack of anti-social traits – no finding of elevated or reduced risk of future sexual offending – strong social support – demonstrated progress on rehabilitation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Palliyaguruge [2021] VCC 958; DPP v Alanazi [2022] VCC 140
Sentence:Total effective sentence 5 years 6 months imprisonment with a non-parole period of 3 years 4 months; 109 days reckoned as already served
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | G. McMaster | Office of Public Prosecution |
For Accused | D. Dann KC M. McGrath | Anthony Isaacs Criminal Defence Lawyers |
HIS HONOUR:
1
Josh Brenner,[1] a jury has found you guilty of three charges of raping
Bev Hastings,[2] all during a single incident in the early hours of 1 January 2021. The jury also found you not guilty of a further two charges of rape during the same incident.
[1] A Pseudonym.
[2] A Pseudonym.
Summary of offending
2In accordance with these verdicts, you are to be sentenced as follows.
3On New Year's Eve, 31 December 2020, you attended a party at a house on Kooyong Road, Elsternwick. The complainant Ms Hastings was also there; but you did not know each other.
4As midnight approached, you were both on the dance floor with others. At the end of the countdown to midnight, without having spoken to her, as she was about to kiss one of her friends, you turned her towards you and kissed her on the mouth. She was surprised.
5You both remained on the dancefloor and embraced. You asked her to go play pool and she agreed. You then led her upstairs to a bedroom and closed the door.
6The complainant said at that point that she did not really want to have sex and you agreed. You both sat on the bed, kissing consensually.
7Over the coming moments, you then removed the complainant’s pants, leaving her underpants on. You asked if you could perform oral sex on her, but she refused. You then, sitting beside her, put your fingers into her vagina and said something about it seeming to you that she wanted to have sex. She denied it and you said words to the effect of ‘Fair enough’. This digital penetration was the subject of Charge 1 at trial, on which you were found not guilty.
8You then, having removed your pants or part of them, lay on top of her on the bed and inserted your penis into her vagina. She said words to the effect during this time 'You’re not listening to me’ and you replied saying words to the effect 'But you kissed me on New Year's' or words to that effect. This was the sexual penetration the subject of Charge 2, for which you were convicted.
9The complainant continued to say that she did not want to have sex and you continued to agree.
10It was alleged that you stopped penetrating her, sat on or stood by the bed and masturbated in order to maintain an erection before getting back on top of her and continuing to penetrate her vagina with your penis. This was the subject of Charge 3 on which you were found not guilty.
11You then manoeuvred Ms Hastings off the bed and onto the floor where, standing in front of her, you put your penis into her mouth. She did not engage in oral sex as you had hoped. This is the offence in Charge 4 on which you were convicted.
12Then, having gotten Ms Hastings back on the bed and in the context of her crying and calling out, you placed your hand over her mouth as you penetrated her vagina again with your penis. This is the offence in Charge 5 on which you were convicted.
13At the conclusion of these events, friends of Ms Hastings’ entered the room, being concerned about what they could hear from outside. You got off the bed, reportedly saying something about this not looking good for you, dressed and left the room.
14Downstairs, you saw friend of yours and reportedly said something about being hated for what you had done and, soon after, you left the party with others.
15Some days later, on 12 January 2021, Ms Hastings telephoned you and you both discussed what happened at the party. The call was recorded. She emphasised that she repeatedly made it clear she did not want to have sex and that you put your hand over her mouth. You conceded that the two of you agreed not to have sex at the start, but you said you thought as things had progressed, she had changed her mind and you said you did not recall covering her mouth with your hand.
16Ms Hastings provided a victim impact statement dated 26 February 2024 (Exhibit A). In it, she stated that before the incident, she was studying teaching. But now she is undergoing treatment for a Major Depressive Disorder and Post Traumatic Stress Disorder and sees a psychologist twice a week. She stated that she has lost contact with all her friends, and her relationship with her family is strained.
17In a letter from the Women’s Recovery Network where Ms Hastings is undergoing treatment (Exhibit E), Dr Phoebe Gao states that Ms Hastings’ diagnoses are strongly correlated with her assault. Her condition has a severe impact on her physical and mental health; it prevents her from engaging in day-to-day functioning, study, or work. Medication has done little to reduce her depressive symptoms and suicidal ideation, and so she is undergoing Electroconvulsive Therapy.
18Ms Hastings’ brother made a statement dated 21 February 2024 (Exhibit B). He stated that over the past few years, his sister has grown gradually more distant from her family, friends, hobbies, and passions.
19Ms Hastings’ mother made a statement dated 20 February 2024 (Exhibit C). She has observed her daughter change from a funny, motivated, and socially engaged young woman, to one who is depressed, socially isolated and withdrawn.
20Ms Hastings’s father, in a statement dated 20 February 2024 (Exhibit D), stated that the impact of the trial process on his daughter, and the family, has been staggering.
Procedural history
21Police arrested you on 18 June 2021, about six months after the offence and interviewed you, during which you made no comment, as was your right.
22You were charged on summons on 2 May 2022. You conducted a contested committal hearing on 13 December 2022 where witnesses were cross-examined.
23Your trial commenced on 13 November 2023 and upon being convicted on 1 December 2023, you were remanded in custody.
24
It has now been more than two and a half years since you were interviewed.
The informant conceded that there were some delays in the investigation, including due to COVID, and I accept that you have lived in a state of anxiety with these charges hanging over your head for this time.
Personal circumstances
25You are now 23 years old. You were 20 at the time of your offending. You have an older brother who is now 28 years old. Your parents separated when you were eight years old, but nevertheless, both played very active roles in your upbringing. You had a happy childhood and excelled at sport from a young age. You have worked as a basketball referee at children’s basketball camps since you were 14 years old.
26You were supported throughout the trial by your mother, father, brother, and grandmother. You remain very close to your family, and they will continue to support you during your sentence.
27Upon completing Year 12, you travelled to the USA on a basketball scholarship. In December 2019, however, injured and following a death in the family, you returned to live with your mother in Melbourne.
28After your return, you worked as a landscape gardener for 18 months. During COVID, you completed training to work in real estate which you did for 18 months. Your job there, however, was terminated when you were charged with these offences. You then commenced a plumbing apprenticeship for which, at the time of your trial, you had been employed for 12 months.
29You have no criminal history and no matters pending.
30Following your remand, after a week or so, you have been moved to Ravenhall Prison where you have become a billet, assisting with the running of the kitchen. Your time there has been free of incidents.
31You have completed several prison courses, including on Occupational Health and Safety, cleaning, construction work and healthy living (Exhibit 3). You are enrolled in several other courses, on warehousing, music, and creative writing.
32In his report dated 23 February 2024 (Exhibit 1), psychologist Dr Paul Grech stated that he had assessed your risk of sexual re-offending. He reportedly employed two standard assessment scales relating to historical matters, the STATIC-99R and the STATIC-2002. He did not, however, set out the basis for your scores under those tests. Nor did he set out how he considered recent or dynamic factors, other than opaquely stating he ‘made reference to the Rapid Risk Assessment for Sex Offence Recidivism and items from the Sexual Violence Risk-20 Scale'. He also provided an opinion about your risk of escalating in offending, without setting out how he arrived at that conclusion.
33During the plea hearing on 29 February 2024, I raised concerns about the basis for, and accuracy of Dr Grech’s conclusions as to risk, indicating that I had questions about that assessment. Your counsel acknowledged those concerns but elected not to call evidence from Dr Grech or seek other evidence.
34I accept Dr Grech’s opinion that your insight is improving into your psychological functioning, behaviour, and the gravity of your offending. Also, that you will be able to meet any requirements of future orders including for treatment.
35As to your risk, however, I do not accept Dr Grech’s opinions about the level of your risk of future sexual offending. There being no satisfactory material therefore upon which I can make a finding about your risk, I make no findings that you are at either elevated or reduced risk. I expect that an accurate assessment of your risk can only be made as you approach your release into the community. I hasten to add, that this does not prevent me from coming to a view about your prospects for rehabilitation.
36Friends and family have provided character references for you (Exhibit 2).
37Your partner since October 2022, Georgia Keighran, gave character evidence during your trial and provided a written reference. Your relationship with her continues and you have regular daily contact from prison and visits. She states that your dedication to your relationship, despite your current circumstances, has only solidified her support of you.
38Brad Teal has known your family for over 50 years. He described you as presenting well, on time, diligent and thoughtful at work when you worked for his firm. Outside of work, he described you as smart and fun-loving.
39Peter Lynch has known you for all your life. He observed you to be a polite and courteous young man, respectful of others, particularly women, in his view.
40Family friend, Michelle Wise, said she knows you as an upstanding member of the community, committed to your sport, family, friends, community, and work. She praised the efforts you have made to remain productive in custody.
41Kieran Cumberlidge has also known you for most of your life. She has observed you to be respectful, caring, and thoughtful, and that she has never observed you behave inappropriately towards women.
42Matt Foster has known you through basketball for almost six years. He described you as caring and compassionate, and highlighted that all your peers at the basketball club had very high opinions of you. In his eyes, you are caring and loyal, and sometimes sacrificed your own interests to advance the greater good of the club. He stated that these offences are out of character which is the tenor of all your references.
Sentencing issues
43The maximum penalty for rape is 25 years imprisonment.
44Rape also attracts a standard sentence of 10 years. I have taken this into account as one among a number of factors, when arriving at your sentence. As yours is a standard sentence case, I must fix a non-parole period that is at least 60 per cent of the total sentence, unless I find it to be in the interests of justice not to do so.
45Rape is also a Category 1 offence under the Sentencing Act 1991 and as such, I must impose an imprisonment term for it. It was not submitted that I should do otherwise.
46Further, given that I will impose a sentence of imprisonment on you for each of the three offences for which you were convicted, the Serious Offender provisions in Part 2A of the Sentencing Act also apply. This means that I must sentence you on Charge 5, the third offence, as a serious sexual offender, requiring that the safety of the community is the principal sentencing purpose in relation to that charge. I may impose a disproportionate sentence if necessary to achieve that goal. It also means that I must order that the sentence in Charge 5 be served cumulatively upon the other sentences unless I otherwise order.
47The prosecutor, however, concedes that I need not impose a disproportionate sentence and I do not propose to do so.
48As to the seriousness of your offending, rape is undeniably grave. The wilful penetration of another person’s body without their consent strikes at the heart of a person’s sense of self. Doing so sexually, adds even greater harm, impacting as it does on matters of profound privacy and often resulting in deep shame and fundamental changes to how that person is in and relates to the world around them.
49The gravity of your conduct is made more serious with each repetition of that offence on that night.
50Given the jury’s verdicts, in particular, their findings of not guilty on Charges 1 and 3, I must determine the basis on which you fall to be sentenced, consistent with those verdicts.
51To be clear, I will not impose any punishment on you for the allegations for which you were found not guilty. I will give those verdicts their full force and I will not take into account any aspect of those allegations against you, when considering the overall facts of the matter or imposing sentence.
52Your counsel, Mr Dann, submitted that the jury’s verdicts can be understood as supporting the position you took during the trial, namely, that you believed at the time that Ms Hastings was consenting, but that ultimately, that belief was not reasonable. He submitted that this is a lower form of culpability and should attract lesser punishment, than if you knew at the time that there was no consent or did not turn your mind to whether there was.
53The prosecutor submitted that this is not the only way the verdicts could be understood and that the evidence on Charge 5, including your putting your hand over Ms Hastings’s mouth, would contradict anything other than that you knew there was no consent at the time.
54Consistent with the jury’s verdicts of not guilty on Charges 1 and 3, and that each of the first three charges, 1, 2 and 3 occurred earlier in the incident, I accept that the jury may have found there to be scope for misunderstanding by you at the time as to consent. I also note that your counsel challenged during the trial, the accuracy or plausibility of Ms Hastings’s account of you ceasing to penetrate her in accordance with Charge 2, masturbating and then recommencing penetration while on the bed. Whilst recognising that this may have been the reason they found you not guilty of Charge 3, on this question, I will give you the benefit of the doubt and I will accept your counsel's submission with respect to Charge 2 and sentence you for that offence on the basis that you had a belief that there was consent, although it was not a reasonable one. I accept that is a lower form of culpability and will attract a lesser punishment.
55As to Charge 5, however, I accept the jury’s verdict on the basis of the evidence led in support of it. That includes the allegation that you had your hand over Ms Hastings’s mouth at the time of the penetration. This fact is also consistent with the evidence of witnesses who said she heard muffled sounds coming from the room where you both were at the time. If the hearing of muffled sounds were the only basis for finding that you had your hand over her mouth, I might struggle to find beyond reasonable doubt that this occurred. However, in the context of Ms Hastings’s account that that is what you had done, and your subsequent willingness when speaking with a friend or friends to accept the possibility that this was what you in fact did, I find that this did occur. In all the circumstances, I find that you were positively aware at the time of the offending in Charge 5, that Ms Hastings was not consenting.
56The offending in Charge 4 occurred immediately before that in Charge 5 and it must be said, following the offending in Charges 2 and 3. It involved you manoeuvring the complainant over the end of the bed onto the floor and attempting oral sex by putting your penis into her mouth, standing in front of her. Ms Hastings’s evidence was that she effectively refused to participate in the oral sex, beyond the fact of your penis being in her mouth. I find that the jury accepted her account in this regard, as is reflected, of course, in the guilty verdict. Her evidence was also that by this time she had repeatedly said she did not want to have sex with you. By her lack of engagement in fellating you, it cannot be said that you were left in the same state of misunderstanding that may have been present earlier, for example at the time of the digital penetration in Charge 1. In those circumstances, I find that you were aware of Ms Hastings’s lack of consent at the time of the events in Charge 4.
57Given the repeat offending, whilst all occurring within a short time, I find the objective gravity of the offending in Charge 5 to be the highest of the three offences.
58As to how blameworthy you were for what you did, or in other words, your moral culpability, I have taken into account a number of factors, including there was no evidence or suggestion of you planning to offend in this way, beyond going into the bedroom together and engaging in consensual kissing and touching. I do not find that that conduct was planning for any criminal offence. Relevant also that is that you were young, only 20 years old at the time. It occurred in the heightened setting of a New Year’s party, populated by similarly aged friends, where alcohol and drugs were being used after midnight. Both you and the complainant had been drinking. I accept, considering your character references, that you were acting in a way in this offending, that was out of your usual character.
59In all the circumstances, while you were fully responsible for what you did to Ms Hastings, I find your offending to be a long way from cold-hearted or calculated sexual predation. There was no suggestion that your conduct fell within the context of other criminal or anti-social purpose.
60Notwithstanding that, rape is intolerable in our community. One of the only ways to protect victims of this type of offending, is to ensure as best as can be achieved, that the message gets out that victims will be heard and that offenders will be punished accordingly. The sentence I impose is calculated to send a message to others that harsh consequences, imprisonment, even for youthful offenders, will be the result.
61By imposing a term of imprisonment on you, I also intend to make the community’s denunciation of your conduct clear, and to exact just punishment on you for what you did.
62I accept it has now been three years since the offending and I accept that this has been a stressful time for you, living with the charges hanging over your head, including because you lost your job once you were charged. On the positive side, however, the court has effectively had the opportunity to observe your progress in rehabilitation during this time. To your credit, you have not been in any other trouble, you have obtained new work and you have continued to impress those around you.
63Due to your otherwise good character, your age, lack of criminal history, your good work history, the lack of anti-social traits, there being no identified elevated risk factors for further offending and in the context of strong social support and how you have behaved over the last three years, I find that you have very good prospects for rehabilitation, which rehabilitation has already partly been achieved in my view.
64I do not find the need to give any significant weight to specific deterrence or to protection of the community from you in sentencing you.
65While you must be sentenced as a serious offender as defined in the Sentencing Act on Charge 5, I have had regard to the totality of your offending, occurring as it did in a single incident over a short time. I will make orders for concurrency so as to ensure that your total sentence remains proportionate to the seriousness of your total offending and to avoid a crushing sentence.
66The sentence I impose will represent a significant proportion of your young life to date. For someone of your character and age, I consider it to be in the community’s interest, as well as your own, to provide a parole eligibility date that is within sight, albeit one that ensures you serve the time in custody that justice requires.
67During the plea hearing, counsel referred me to two comparative standard sentence cases where sentence followed a jury’s guilty verdict at trial.
68In DPP v Palliyaguruge [2021] VCC 958, the accused was found guilty of three counts of rape of an extremely vulnerable victim. He met her at a nightclub where she was heavily intoxicated and incapable of consenting. He took her away from there, engaged in oral and digital penetration in his car and then penile penetration after taking her to his home. He too had no criminal history and good prospects of rehabilitation. The sentences for rape were of seven years each, upheld on appeal. I find the facts of that case to be more serious than the facts of yours.
69In DPP v Alanazi [2022] VCC 140, the accused had sex with the complainant while she was asleep and incapable of consenting in the morning, after she had had consensual sex with his friend, in the apartment where he was visiting. The accused was 23 at the time with strong prospects of rehabilitation. The sentence was five years for rape.
70Of course, every case must be assessed upon its own facts, and I do not regard myself as being bound by these cases or the results in them. I find that you have compelling personal circumstances, and I will give them full weight.
71The prosecution referred me to Sentencing Statics for the offence of rape which I regard as useful, but only in a very general sense.
72I sentence you as follows:
(a) On Charge 2, rape – three years and six months;
(b) On Charge 4, rape – four years six months;
(c) On Charge 5, rape – five years' imprisonment.
73I order that four years of the sentence on Charge 5 is to be served concurrently with the sentences imposed on Charges 2 and 4. The sentences on Charges 2 and 4 are both to be served concurrently with each other.
74That makes a total effective sentence of 5 years and 6 months imprisonment.
75I fix a non-parole period of 3 years and 4 months.
76I declare that you have served 109 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence.
77I declare that you are sentenced on Charge 5 as a serious sexual offender under the Act.
Ancillary orders
78I note that the prosecutor has considered the provisions of the Sex Offender Registration Act and whether you should be registered. Ultimately, she has not made an application and accordingly, I make no registration order in your case.
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