Director of Public Prosecutions v Browne (a pseudonym)
[2023] VCC 1650
•12 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCA BROWNE (A pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 July 2023 |
| DATE OF SENTENCE: | 12 September 2023 |
| CASE MAY BE CITED AS: | DPP v Browne (A pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1650 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Rape – common law assault – criminal damage – failing to comply with conditions of a community correction order – offending occurred whilst subject to a community correction order and on bail – plea of guilty prior to trial commencing – prior criminal history – diagnosis of obsessive compulsive disorder, post-traumatic stress disorder, borderline personality disorder and alcohol dependence – standard sentence scheme – high moral culpability – Verdins – Bugmy – evidence of remorse – positive prospects of rehabilitation – totality
Legislation Cited: Sentencing Act 1991
Cases Cited:Brown v The Queen [2019] 59 VR 462; R v Mason [2001] VSCA 62; DPP v Mokhtari [2020] VSCA 16; Jurj and Mitford v R [2016] VSCA 57; R v Verdins (2007) 16 VR 269; Worboyes v R [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; DPP v Mitchell [2019] VCC 305; DPP v Lockyer [2020] VCC 323; DPP v Skeates [2022] VCC 692
Sentence: Total effective sentence of 7 years and 11 months’ imprisonment. Non-parole period set at 5 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. McVean | Office of Public Prosecutions |
| For the Offender | Mr J. Lavery | Greg Thomas Barrister & Solicitor |
HIS HONOUR
Introduction
1Luca Browne[1], I propose to sentence you to a total of seven years and 11 months’ imprisonment. I will set a non-parole period of five years' imprisonment. I will declare the 1,091 days of your pre-sentence detention as time served under my sentences today.
[1] A pseudonym.
2You pleaded guilty to a charge of rape, a charge of common law assault, a charge of criminal damage, three summary charges and a charge of failing to comply with the conditions of a community correction order. Two of the charges on the indictment are rolled-up charges.
3The circumstances of your offending are set out in the prosecution opening.
Circumstances
4On about 21 August 2020, you and the victim met on a social media dating application. You and she 'chatted' for two days, exchanged phone numbers and then conversed through 'WhatsApp'. After three days of using this application, she told you she no longer wanted contact. You became angry and accused her of misleading you.
5However, on about 5 September you contacted her and you and she resumed regular contact. In order to meet her face-to-face, you booked and then cancelled an Airbnb booking. Ultimately, you and she arranged to meet at her home. You would travel from where you were living and stay overnight. She arranged for her two-year old daughter to stay overnight with the child's father, who lived nearby.
6On 15 September 2020 you arrived at her home at about 7.45 pm. Your speech was already 'slurry' and your behaviour was, to her, a 'bit odd'. You and she drank alcohol after you arrived. You put your hands down her stockings and started to 'rub' her. She stopped you from doing that. You and she kissed and then went to the bedroom and engaged in consensual oral and penile sex 'for a short period'.
7Afterwards, you continued to drink. You spoke to her in a 'rambling manner'. You lit a cigarette. When asked to smoke outside the house, you sat on the couch, put the cigarette on your chest where it started to burn you. The cigarette rolled off your chest and onto the floor. She picked it up but you took it from her, went into the kitchen and drank more whiskey.
8You became aggressive, punching your fist into your hand and telling her you wanted to beat up her former partner and referred to her father. It is not revealed why you spoke of her former partner and her father. She tried to defuse your aggression but you swiped a glass off the kitchen bench which smashed on the floor. You then struck her face. The blow threw her onto the couch. She rose and walked towards the front door but you grabbed her around the throat while saying things to her. You let her go and then punched the balustrade of the staircase. You sat down and she sat beside you. You then got up, walked to the front door and urinated on the carpet.
9You then grabbed her wrist and pulled her up from where she was seated, grabbed her hair and threw her to the floor in her bedroom and kicked her jaw twice. When she tried to get up you grabbed her hair again and punched her to the jaw. You grabbed her throat again and punched her down onto the bed. These circumstances constitute the rolled-up charge of common law assault. The charge encompasses eight assaults upon the victim.
10As she struggled against your hold on her throat, you penetrated her vagina and anus with your fingers. These actions not only caused her pain but also bleeding from the vagina and anus. This bleeding continued for about 12 hours. These actions constitute the rolled-up charge of rape, encompassing two occasions of rape.
11Her struggles enabled her ultimately to escape from you and leave the house through the front door. After leaving the house she heard you yelling. In turning to see where you were, she fell and injured herself by grazing her palms, hips, knee and ankle and she lost a toenail. She ran to the home of her former partner. She was hysterical and crying uncontrollably. She asked him to call the police, which he did.
12After the victim left her house you threw her television set onto the floor, smashing the screen. Your earlier punching of the balustrade chipped the wood. These circumstances constitute the charge of criminal damage, which involves the smashing of the glass, damaging the balustrade and the television set.
13When the police came to the victim's house, they found you asleep and naked from the waist down. They tried to arrest you but you swore, struggled and spat at the police members. You refused to dress or even allow them to cover you with a towel. You were eventually handcuffed, taken to a divisional van, where you spat and kicked the doors of the van. These circumstances constitute the charge of resisting police officers, being emergency workers on duty.
14At the police station you remained aggressive and refused to be interviewed. You were remanded into custody where you have remained.
15The victim suffered numerous soft tissue injuries, the majority of which were due to your assaults upon her but some due to her fall in trying to escape. These injuries are set out in paragraph 40 of the prosecution's opening.
16At the time of this offending you were on bail. On 16 April 2020 a family violence intervention order was made where you were the respondent. On 17 July 2020, you were arrested and charged with various offences, including persistent contravention of the family violence protection order and released on bail. Your offending on 15 September 2020 gave rise to the summary charges of contravening the conditions of bail and committing an indictable offence while on bail. Your contravention of the conduct condition of your bail involved consuming alcohol and disobeying the curfew.
Criminal history
17Between 27 June 2012 and 1 August 2018, excluding an appeal, you have appeared in a criminal court on six occasions and have been convicted or found guilty of 12 charges. You have been sentenced to imprisonment once for a period of six months. This sentence was coupled with a community correction order of 18 months' duration, which is the subject of the contravention proceeding before me. This order related to a charge of threatening to inflict serious injury and unlawful assault.
18You have been placed on three community correction orders, each of which you have contravened. Apart from the above charges they have involved charges of criminal damage, using a carriage service to harass, unlawful assault, recklessly causing injury, threatening to inflict serious injury and contravening a family violence intervention order.
19One of my pre-trial rulings concerned tendency evidence. In my ruling I examined the circumstances of various incidents involving you and women. Some of these incidents resulted in criminal charges. After the plea hearing, I sought the submissions of the parties as to whether I could have regard to the content of my ruling. Although the prosecution submitted I should, your counsel submitted I should not. I accept your counsel's submission. In sentencing you, I will not pay any regard to what I said in my ruling on tendency evidence.
Victim impact statement
20On 15 May 2021, the victim made an impact statement.
21For a time afterwards she was incapable of caring for her daughter and she could not be alone and relied, first, upon her former partner to be with her and, second, a friend.
22When she made the statement, she was having daily flashbacks and nightmares about what might have happened if her daughter was present. She was anxious. She woke at night, crying. She would check the locks several times a night.
23She told her employer so she could be protected from you. Her fellow employees looked upon her with pity and sorrow. This was too much for her and she applied to work somewhere else.
24Although the reason is unclear, she lost a close friend due to your actions. Her anxiety and lack of trust has made forming new relationships difficult. She now wishes to move elsewhere.
Personal
25You are now 41. You were 38 at the time of committing these offences.
26Your father was an alcoholic and violent. You feared him. Your mother was an alcoholic. She left the family when you were two. In later years she became a part of your life. In her letter she describes aspects of your early life:
‘Luca is my second child and at the time of his birth I was 18 and living with Luca’s father Nick[2] and our first daughter. Luca’s father was eight years older than I and as a 15-year-old victim survivor of incest and child assault by two male family members, I was a prime target for a 23-year-old man. We married after Sally's[3] birth and divorced five years later when I was aged 21.
Throughout the marriage I was beaten, raped, controlled and terrorised; Luca’s first experience of family violence was in utero and after his birth, the second was aged four weeks when a lamp was thrown at the bassinet because he was crying. In addition to this violent lifestyle both Nick and I were illicit drug users; Nick using any drug available and committing crimes to acquire, such as chemist robberies and such, and myself using cannabis and amphetamines habitually. I shoplifted items to feed and clothe myself and the children, and after pregnancy to acquire money to purchase drugs. I removed myself and my children after our third child was miscarried due to a beating at 16 weeks' gestation'.
[2] (A pseudonym).
[3] (A pseudonym).
27You told the psychologist:
'He would often go to AA and NA meetings during his younger years with his father. Mr Browne recalled his father to be very abusive and would torture Mr Browne and his sister, at one time stomping on Mr Browne’s head, and at other times forcing them to hold up pillows in the corner and beating them when they couldn't hold them up any longer. Mr Browne also reported that he and his sister had to punch each other in the face, harder and harder, until their father was satisfied that they were hurt, bringing on shameful memories'.
28You lived with your father until you were 16. Then you spent a year in a foster home before living with your mother. Your father died in October 2019.
29You have struggled with alcohol and substances for years. You smoked cannabis and used amphetamines. The latter in your late teenage years and with your father. There have been periods when you have not used substances. Between 2011 and 2014 you did not use substances. Your ability to abstain from alcohol has improved. You have sought professional help. Several years ago, you attended a Recovery Oz programme, this lasting three-and-a-half months. Using substances has had serious side effects. Drinking alcohol and using cannabis at the same time leaves you feeling paranoid.
30You have three children, the eldest is 15 and the youngest, five. You have had contact with the younger two until the pandemic.
31Your brother, Nathan[4], gave oral evidence as well as writing a letter of support. At the time of your offending, you were living with your brother and had done so for about two months. While living with your brother, you were the primary carer of your daughter, Vanessa[5], while her mother worked. However, the child's mother re-partnered and used the pandemic as an excuse to end contact.
[4] (A pseudonym).
[5] (A pseudonym).
32For many years you attended meetings of AA and NA. These stopped because of the restrictions of the pandemic. Similarly, you attended a programme called Recovery Oz. Your brother believes you are of good character unless drunk.
33Your brother believes your relapse into drinking was due to the death of your father, the lockdown, loss of direct contact with AA and NA and the loss of contact with your children. While in custody, your brother speaks to you most days. You are able to speak to your children when they are with your brother.
34In about July 2020 you were assaulted by another prisoner. You were rendered unconscious and you did not know you had been assaulted. You were placed in an isolation cell for four days.
35You are undertaking courses in custody. You are studying Christianity and Buddhism and are attending church sessions. In a letter dated 1 September 2023, the Reverend Robert Ferguson said you attended his Christian Discipleship group and church services. He added:
'He has demonstrated active engagement in both settings, contributing to group discussions and making time for pastoral conversations with myself as the local Anglican chaplain'.
36You wrote a letter last Sunday. You explained your change of plea to guilty being due to hearing the victim's voice on the emergency call. You say you think about what you did to her often. You say you are sorry for the harm caused her and will strive not to re-offend. You say:
'I am now fully aware that I turned to alcohol every time I thought I couldn't cope with how I was feeling and was scared that every person would always reject, hurt or abandon me'.
37You now realise you should not drink alcohol for you know the type of person you are when sober and the type of person when not. Now, for the first time, you despise alcohol.
38You attend church and are studying Buddhism, undertaking every programme available and working full-time. Your biggest punishment is the inability to see your children.
Psychologist
39Alison Mynard is a clinical psychologist. At the request of your solicitors, she reviewed you on three occasions in April 2023[6]. She had interviewed you in August of 2021.
[6] Report dated 9 June 2023.
40Ms Mynard’s association is more extensive than those interviews. She has treated you under a mental health care plan in August, September and December 2019, and in February, March, April, May, June, August, September and October of 2020, and then in June, July and August of 2021. She has counselled you when you were in the community to assist with your mental health. She is in an excellent position to diagnose your psychological condition and discover their origins.
41Ms Mynard diagnosed you as suffering from an obsessive compulsive disorder, a complex post-traumatic stress disorder, a borderline personality disorder and alcohol dependence.
42She traces your psychological condition to your childhood experiences and your reaction to them[7]:
'Mr Browne was exposed to many traumatic experiences as a child, resulting in a fear of abandonment, feeling socially isolated, expecting that others will abuse him and trouble trusting others. He moved between his parents' houses, acting out behaviourally for many years, frightened of his father. He developed complex trauma as well as high levels of anxiety, and obsessive-compulsive disorder, in attempts to control the world around him somehow, because the world was so out of control for him, with his father being so abusive.
He has been in several relationships that have been unstable and he does have ongoing issues with abandonment and struggling to cope with breakups or chaotic relationships. His depression is exacerbated because he cannot see his children. This is an underlying factor that significantly impacts his depression, anxiety and unstable mood.
For many years Mr Browne has exhibited strong avoidant symptoms of PTSD, using substances, particularly alcohol to numb his emotional state. His offending took place when he was substance-affected, which appears to be the pattern of offending for him'.
[7] At [31] and [32].
43Having treated you with some apparent success, Ms Mynard sought to explain your offending on this occasion:
'At the time of the offending Mr Browne continued to experience symptoms that were consistent with complex PTSD, grief, and alcohol intoxication. These conditions did impact him in that the alcohol intoxication highlighted feelings of anger, aggression, being dismissive of his partner, and impulsive and reckless behaviours. In the past he has demonstrated that once he is abstinent from substances Mr Browne can examine his actions and work out his reasons for relapsing and work on preventing this again'.
44She does not explain why you were angry and aggressive to this victim even though your anger and aggression was highlighted by your alcohol consumption.
45Ms Mynard examined your reaction to imprisonment:
'He does find being in custody very difficult due to his PTSD and anxiety, particularly after he was assaulted in custody. He finds that he is very hyper-vigilant and he cannot let his guard down, always watching for anger. Mr Browne finds it hard to sleep and feels constantly under threat. In the writer's opinion he will likely continue to deteriorate the longer he is in custody'.
46She explored the type of treatment you should receive:
'He would benefit from a range of treatment and rehabilitative measures to reduce his risk of relapse and reoffending. In the writer's view Mr Browne has a moderately high chance of rehabilitation given his high levels of insight and the long periods where he has been abstinent from alcohol. He does have positive protective factors in his life, including being a help-seeking person, having the support of his family and having the cognitive capacity to process his experiences and learn from them'.
Community correction order
47The community correction order was the result of an appeal to this court from a sentence of a Magistrate. This contravention proceeding concerns that order. The order started on 23 March 2019 after you had served the term of six months' imprisonment. Apart from your reoffending, your compliance with the conditions of the order was inconsistent. There were 33 non-attendances for appointments related to supervision, treatment and unpaid community work. The order was due to end on 22 September 2020 but you were remanded into custody over these matters on 16 September.
48Nadhyra Gamo is a Community Correction officer. On 4 May 2021 she prepared a report about your contravention of the order. She noted your early compliance with the conditions of the order and wrote:
'Between 17.7.2020 and 7.8.2020, Mr Browne was placed in custody for family violent incidents. Considering such, on 21.7.2020 a Risk and Review meeting was completed where Mr Browne’s non-compliance and high risk behaviour was discussed. Melbourne CCS management discussed that the following actions would occur: liaise with legal representation to initiate possible consolidation and re-assess risk due to being a priority offender.
Thereafter, throughout the time he was reporting on the order Mr Browne was involved in several family violence incidents and during some supervision appointments, he spent time denying and minimising all engagement in the violent behaviour, not taking responsibility or showing empathy for the victim. This violent behaviour and involvement in family violence incidents were consistent until he was placed in custody on 16.9.2020'.
49Turning to the conditions of the order, for example, with supervision, you attended two out of six scheduled appointments. You stopped attending without notice. When asked why you advised:
'In April 2020 during the compliance review hearing (CRH), Mr Browne informed that he had had a lapse. He informed that a major trigger for his drinking is his relationships and indicated this was a similar pattern for his offending. He acknowledged that his relationships end in domestic violence which is linked to his alcohol consumption'.
50The mental health condition was satisfied through your attendance upon Ms Mynard. She saw you on eight occasions while you were on the order and not in custody. She considered you responded well to her treatment and your symptoms were improving.
51You completed 24 of 40 hours of unpaid community work. Community Corrections tried hard, but unsuccessfully, for you to complete the remaining 16 hours.
52The recommendation was the cancellation of the order and re-sentencing on the charges. Before making the recommendation, the author said:
Browne was assessed as being a high risk of general re-offending according to a formal risk assessment during the risk and review meeting on 21.7.2020. He has contravened all community-based dispositions afforded to him by the court and currently finds himself in contravention of this order for failing to comply with the conditions and alleged further offending. It appears the current CCO has neither deterred Mr Browne from offending, nor aided him in making positive changes, despite engaging in psychological treatment as well as several supervision appointments which assisted him in implementing an intervention plan to address risks and needs. It is evident that he has shown little commitment towards the community work condition of the order and towards his treatment and rehabilitation condition. However, he did attend supervision sessions on several occasions and to his credit contacted this service on some occasions until he was placed in custody. Further, Mr Browne has allegedly offended during the operational period of this order and has reported that he will be pleading guilty to all offences. The alleged further offences and the index offences are both alcohol and violence related and is evidence of his consistent high-risk behaviour within the community, and this shows his lack of desire to change his behaviour and is ultimately placing the community at risk'.
53As I said, the Community Corrections officer recommended cancellation of the order and re-sentencing you upon the charges underlying the order. In brief, the police summary of your offending is as follows.
54On 7 February 2018, you and the victim were living in her parents' home. At about 11 pm the victim rejected your sexual advances. Later you and she went to the bedroom. You abused her, grabbed her ankles, pulled her onto her back, got on top of her and choked her with both hands. She feared for her safety. At that time you and she were the parents of an 11-week old girl. The victim walked from the bedroom into another room. While she feed her daughter you repeatedly punched one of her knees, abused her and slapped her face more than once.
55Ultimately, the victim's father became aware of what happened to his daughter. He intervened. You pushed him in the chest repeatedly and threatened to stab him in the throat.
56When interviewed by police members you denied the allegations in strong terms.
Discussion
Maximum penalties
57The maximum penalties for the offences are:
(a) rape - 25 years' imprisonment;
(b) common law assault - five years' imprisonment;
(c) criminal damage - 10 years' imprisonment;
(d) resist a police officer - six months' imprisonment or a fine of 60 penalty units;
(e) committing an indictable offence while on bail - three months' imprisonment or a fine of 30 penalty units;
(f) contravening a conduct condition of bail - three months' imprisonment or a fine of 30 penalty units.
58Rape is a Category 1 offence for the purposes of the Sentencing Act 1991. Although academic in your case, a court must impose a term of imprisonment for that offence, not being a sentence of imprisonment coupled with a community correction order.
Standard Sentence Scheme
59On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences for which standard sentences are prescribed. The offence contained in the charge of rape is one such offence. The standard sentence for that offence is 10 years' imprisonment. What is the meaning of a standard sentence?
60First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness.[8] The objective factors reflecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[9] Third, in sentencing you for this offence I must take the standard sentence as one of the factors relevant to sentencing.[10]
[8] S 5A(1)(b).
[9] S 5A(3).
[10] S 5B(2)(a).
61In Brown v The Queen[11] the court discussed the standard sentence scheme. In paragraph 4 it said:
'The key new requirement is that a judge when sentencing for a 'standard sentence offence' must take the standard sentence into account as one of the factors relevant to sentencing. This requirement:
· is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
· does not affect the established 'instinctive synthesis' approach to sentencing;
· does not require or permit 'two-stage sentencing; and
· does not otherwise affect the matters which the court must, or may, take into account in sentencing'.
[11] [2019] 59 VR 462.
Non parole period
62The scheme sets out the non-parole periods for standard sentence offences. Unless I consider it is not in the interests of justice, the non-parole period must be at least 60 per cent of the sentence imposed on the standard sentence offence, namely, the offence of rape.
Gravity
63In R v Mason, the court said of the offence of rape[12]:
'It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects upon the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms…'.
[12] [2001] VSCA 62 at [8].
64Again, in DPP v Mokhtari, the court said[13]:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious irrespective of the form and extent of the penetration'.
[13] [2020] VSCA 161 at [41].
65In Jurj and Mitford v R[14], the court set out the features typically taken into account by sentencers and that court when assessing the gravity of an instance of rape[15].
[14] [2016] VSCA 57.
[15] At [80].
66Here, the rape was not premeditated and you acted alone. There were two forms of rape committed in the one incident. From the victim's perspective, what was anticipated to be an enjoyable evening, despite her protests, turned rapidly into a nightmare, all occurring in her home where she should expect to be safe.
67The offending occupied an hour but included a short period of consensual sexual activity. Apart from the acts of violence constituting the charge of assault, there were non-verbal acts of violence surrounding the rape; smashing a glass and punching the balustrade. I do not consider placing a cigarette on your chest as an act of violence, it was a disturbing act for the victim to witness in the circumstances, as was you urinating on the carpet.
68The rape was the culmination of a series of assaults upon the victim: hitting her in the face, grabbing her hair, grabbing her throat, grabbing her wrist, kicking her twice to the jaw. No weapon was involved. Apart from being degraded, the victim was injured, and since the bleeding from her vagina and anus lasted about 12 hours, significantly so. Whether your motivation was sexual gratification or not, given what rape actually means to the victim, it does not matter.
69Even though the impact statement was written only eight months after the incident, it demonstrates the harm suffered by the victim. I would expect her to remember the incident for the rest of her life.
70In terms of objective seriousness, the prosecution submitted these acts is mid-range for this type of offending. I accept that is so except that it is in the upper part of the range.
71It goes almost without saying that the only appropriate sentences for the offences in Charges 1 and 2 is imprisonment.
Culpability
72You do not rely upon R v Verdins[16] to reduce your moral culpability for the offences of rape and assault. Although your childhood disadvantages results in a reduction in your moral culpability. nevertheless, your moral culpability remains high.
[16] (2007) 16 VR 269.
Guilty pleas
73This proceeding has taken a somewhat unusual course. At the committal hearing you pleaded guilty and were committed. Later, you said you wanted to change your plea to not guilty. After various mention and directions hearings in this court you entered guilty pleas following certain rulings made by me. At that stage this was three days into the trial, although a jury had not been empanelled. I cannot treat your guilty pleas as having be made early in this proceeding. They were made late.
74By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system. It creates room for those proceedings which genuinely require a jury trial. It relieves witnesses of the burden of giving evidence in this Court. This is especially so where the victim is concerned for she was cross-examined in the committal hearing. Judging from her impact statement, this would have been stressful for her.
75Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The sense of crisis expressed by the court in Worboyes v R[17] has almost disappeared. This court is still faced with the backlog of cases arising from when there were no jury trials during the period of greatest restrictions. To an outsider these considerations may seem irrelevant, however, they are not. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
[17][2021] VSCA 169.
Verdins
76The Director accepts the applicability of the fifth proposition stated in Verdins case. The proposition states:
'The existence of the condition as at the time of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person of normal health'.
77Whether it applies depends upon Ms Mynard’s opinion you find custody very difficult because of the symptoms of your post-traumatic stress disorder, made worse by being assaulted in custody. Moreover, your psychological state should worsen the longer you remain in custody.
78Proposition 5 does apply as a moderating factor in sentencing you.
Bugmy
79Your counsel relies upon the court's observations in Bugmy v R[18]:
'…The experience of growing up in an environment surrounded by alcohol use and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending'.
[18] (2013) 249 CLR 571 at [43].
80The court noted in the next paragraph the conflicting purposes of punishment:
'…An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender'.
81These observations were influenced by the particular facts of Mr Bugmy's case. In your case, Ms Mynard saw your feelings of anger, aggression, impulsive and reckless behaviours and dismissal of your partner as manifestations of your psychological disorder and grief, accentuated by your consumption of alcohol.
82Significantly, in the passages I quoted earlier, she traces the source of your complex post-traumatic stress, obsessive compulsive and borderline personality disorders to your upbringing.
83Your upbringing explains much of your psychological condition and your offending against this victim. However, your inability to stop drinking means the other aspect identified by the court in paragraph 45 remains a sentencing consideration. It should have been obvious to you the risk posed by you through your drinking on this occasion.
Rehabilitation
84Until your recent letter, I would not view your guilty pleas as evidence of remorse. I considered they were entered in the face of a strong prosecution case. The victim had given evidence at the committal hearing, her evidence must have been powerful enough for you to enter pleas of guilty at that hearing. There followed several of my rulings, some favourable to you, others not. Those unfavourable to you made the prospect of a success at trial less likely. However, you explain why you changed your plea in the letter and I accept what you say. Your guilty pleas are evidence of remorse.
85The Director's counsel points to what the psychologist, Ms Mynard, notes you telling her: 'After they had met and engaged in sex, she had reported that he had raped her'; and you were 'alcohol affected' which had 'severely impaired his judgment'. I agree with the submission these statements minimise your involvement by saying 'she' instead of 'I' and linking it to the effect of alcohol on your judgment. I also agree those statements show no consideration of the effect of the offending on the victim at this stage. However, again, I view the contents of your letter as evidencing a distinct change in attitude and appreciation of the damage you have done to the victim. I accept you are now remorseful.
86For genuine sorrow for a person's offending to be useful it must point to a determination not to re-offend, at least in some manner. While in custody you expressed your sorrow for your offending to your sister and a friend. You have done so in the letter. Despite the circumstances of you pleading guilty and what you told Ms Mynard, but in light of the statements to others, I consider you are sorry for your offending. I consider now your remorse will translate into the required determination.
87From the psychologist's perspective:
'It is the writer's opinion that Mr Browne would benefit significantly from these approaches to treatment. If he were to engage in therapy focused on resolving his early traumas and reduce the impact of his complex mental health issues, the writer believes that his risk of relapse and reoffending would significantly reduce'.
88She believes you have a moderately high chance of rehabilitation because you have a help-seeking personality, the cognitive capacity to learn and the support of your family. On the other hand, you showed significant risk factors which are the predictors of dangerousness and your elevated scores on the aggression index points to your issues with physical aggression, a lack of control and extreme displays of aggression in the past.
89You pleaded guilty to contravening a community correction order. It started on 23 March 2019 when you were released from custody and effectively ended when you were arrested in July of 2020. In the space of about 16 months you contravened the order 31 times. It was operative when you still committed these offences.
90You have the support of family and friends. Ronan Adams[19] is your stepfather. He is an experienced social worker and offers this perspective[20]:
'What I would suggest is that Luca is an ideal candidate for total rehabilitation. The polarities in his behaviour between sober and intoxicated are quite extreme, as are the consequences of his drunken behaviour as opposed to his sober life. Should Luca maintain sobriety and simultaneously undergo the treatment needed to address his traumas, he could also maintain the behaviours needed to remain a productive, respected member of the community'.
[19] (A pseudonym).
[20] Letter dated 26 July 2023.
91Your older sister, Sally[21], has had almost daily contact with you while you have been in prison. To her you have 'expressed self-loathing, regret, sorrow and guilt’ and has stated that he 'wished he could go back in time and change things'. A somewhat similar view is expressed by your friend, Anne Matthews[22].
[21] (A pseudonym).
[22] (A pseudonym).
92It is not easy to determine your prospects of rehabilitation. In the context of your supportive family, given appropriate and successful treatment, they would be good. On the other hand, you received treatment from Ms Mynard which did not prevent you from assaulting and raping the victim. For such entrenched psychological problems, it may be the treatment was insufficiently intense and prolonged to achieve rehabilitation. Nowadays, prisoners do receive treatment for psychological issues. With the length of your sentence such treatment may be of significant length and intensity to be effective. I do not understand Ms Mynard to say further treatment would be ineffectual. In fact, she says the opposite.
93My sentences will act as a powerful deterrent, initially to drinking alcohol. Although used by you as a means of relating to others and treating the pain caused by the symptoms of your underlying psychological condition, as can be seen in this case, it caused you to act viciously towards the victim. For you, drinking alcohol is the first step to disaster.
94They are also powerful deterrents to re-offending. It is a marked demonstration of the power of the law to punish severely. My sentences of imprisonment are far and away the severest penalty you have received.
95It seems your rehabilitation depends upon intensive treatment, whether in custody or in the community, it depends on your willingness to engage in appropriate treatment. You have done so in the past with Ms Mynard but not while subject to the community correction order.
96I note you have embraced religion while in custody and the Anglican priest speaks well of you. Following a religion and the moral code it engenders is a positive sign.
97Overall, I consider your prospects of rehabilitation are positive.
Current sentencing practices
98Acknowledging the effect of section 5B(2) of the Sentencing Act, the Director's counsel referred to three sentencing decisions of this court[23].
[23] DPP v Mitchell [2019] VCC 305; DPP v Lockyer [2020] VCC 323; and DPP v Skeates [2022] VCC 692.
Section 16(3C)
99Your offending occurred while you were the subject of a community correction order. This could be seen as an aggravating factor. However, you are charged with the offence of contravention, which I must deal with.
100You also committed these offences while on bail. Apart from creating an offence the law doubly punishes the fact in section 16(3C) of the Sentencing Act, which provides:
'Every term of imprisonment imposed on a person for an offence committed while on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term'.
101Where there are sentences of imprisonment for more than one charge, I must pay regard to the principle of totality. Provisions like s16(3C) modify the principle but do not abolish it.
Sentence
102On Charge 1, a charge of rape, I sentence you to seven years' imprisonment.
103On Charge 2, a charge of common law assault, I sentence you to 18 months' imprisonment.
104On Charge 3, a charge of criminal damage, I sentence you to three months' imprisonment.
105On summary Charge 10, a charge of resisting police officers, I sentence you to 14 days' imprisonment.
106On summary Charge 12, a charge of committing an indictable offence while on bail, I sentence you to one month imprisonment.
107On summary Charge 13, a charge of contravening a conduct condition of bail, I sentence you to 14 days' imprisonment.
108On the charge of contravening the conditions of a community correction order, I sentence you to one month imprisonment. I will order that sentence to be served cumulatively upon the other sentences of imprisonment. This recognises the aggravating aspects of your contravention. However, rather than cancelling the order and re-sentencing you on the charges, giving effect to the principle of totality and your limited compliance with the order, I will not cancel the order and re-sentence you but will confirm the order.
109The base sentence is the sentence on Charge 1. Nine months of the sentence on Charge 2 and the sentences on summary Charge 12 and the charge of contravening the conditions of a community correction order are to be served cumulatively upon themselves and the base sentence. The total effective sentence is seven years and 11 months' imprisonment. The remaining sentences of imprisonment are to be served concurrently.
110I will set a non-parole period of five years' imprisonment.
111Excluding today, you have been in custody for 1,091 days. I declare those days of your pre-sentence detention as time served under my sentences today.
Section 6AAA
112If you had pleaded not guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total maximum effective sentence of 10 years' imprisonment and fixed a non-parole period of six-and-a-half years' imprisonment.
Section 5B(5) statement
113Section 5B(5) of the Sentencing Act requires, as part of any reasons under subs (4), that I must refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.
114My sentence for the offence of rape in this case is less than the standard sentence. The standard sentence is 10 years' imprisonment while my sentence is seven years' imprisonment. It is less because of the combination of factors. They include your guilty pleas. From my section 6AAA statement, you will see its significance. They also include your prospects of rehabilitation and the effect of imprisonment upon you.
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