Director of Public Prosecutions v Buchannan (a pseudonym)

[2022] VCC 1567

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

LLOYD BUCHANNAN (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2022
DATE OF SENTENCE:	7 September 2022
CASE MAY BE CITED AS:	DPP v Buchannan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1567

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Sexual Assault; Rape

Legislation Cited:  Sentencing Act 1991 (Vic); Migration Act 1958; Sex Offenders Registration Act 2004

Cases Cited:Shrestha v The Queen [2017] VSCA 364; Guden v The Queen [2010] 28 VR 294; McPherson v The Queen [2021]
VSCA 53; DPP v Beck [2021] VSCA 88; Allen v The Queen [2021] VSCA 249; Wright v The Queen [2021] VSCA 243; DPP v Huynh [2019] VCC 1299; Bowden v The Queen [2013] VR 229

Sentence:7 years imprisonment (5 years non-parole period); Placed on Sex Offenders Register for Life

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr McConaghy	Office of Public Prosecutions
For the Accused	Mr Sullivan	Daniel Taylor Lawyers

HER HONOUR:

1Lloyd Buchannan[1], you were found guilty by a jury of your peers of two charges of sexual assault and one charge of rape.  You were found not guilty of two charges of sexual assault and one charge of rape.

[1]A pseudonym.

2In sentencing you for those crimes where there was a finding of guilt, I am obliged to have regard to the maximum penalties which attach to each of the offences you have committed.  Sexual assault carries a maximum penalty of 10 years imprisonment and rape carries a maximum penalty of 25 years imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards each offence.

3In addition, rape is a category 1 offence pursuant to the Sentencing Act 1991. Section 5 (2G) of that Act requires the imposition of a custodial order for this offence unless an exception applies.

4The offence of rape is also one which is subject to the standard sentencing scheme. The standard sentence for the offence of rape is 10 years imprisonment.  I will return to this at a later stage.  I now turn to the offences.

The offending

5You were aged between 68 and 69 years at the time of the offending.  In 2019 you moved to live in a unit complex with your dog.  Prior to that you had suffered heart problems and as a result were unable to obtain an erection.

6There are two victims of your offending.  Marie Black[2] is your victim of Charge 3 - sexual assault.  Ms Black was 56 years old at the time of the offence against her and lived in the same unit complex as you from mid-2020.  Ms Black has an intellectual disability.

[2]A pseudonym.

7You both attended the local Community Church and were neighbours at the time of the offence.  I accept that your knowledge of her would have made you aware of Ms Black’s vulnerabilities.

8Between mid-September and early October 2020 you repaired Ms Black’s gate.  After you had finished you invited her to your unit for a drink and she attended.  When she did so you were wearing a dressing gown.  The complainant was wearing a full length nightie.  You both sat on the couch and listened to music and drank wine.

9Ms Black began to dance to the music and you danced with her before kissing her on the lips.  She told you, 'Please don't do that, [Lloyd].  You both then sat back on the couch.  You leant towards Ms Black and started to touch her breasts over her clothes.  You began by rubbing your hand over her nipples before you grabbed and squeezed her breast.  She again said, 'Please don't do that, [Lloyd].  Friends don't do that'.  She said this a number of times.

10Your position at trial was the touching of Ms Black’s breasts was a consensual act.  The jury's verdict confirms that they accepted Ms Black did not consent to this touching and that you did not reasonably believe that she consented to the sexual touching.

11Janet Spade[3] was aged between 47 and 48 years old at the time of your offending against her.  She lived nearby with her husband and suffered from mental health issues which included schizophrenia and anxiety.  You had previously assisted Ms Spade in helping her to move house.

[3]A pseudonym.

12I accept that you are aware of her vulnerabilities, not necessarily by way of exact diagnosis, at the time of your offending against her, that being Charge 5, sexual assault and Charge 6, rape. 

13I pause to note that having seen the VAREs and special hearings of each victim the fact that each had a cognitive impairment is obvious.

14On 21 September 2020 Ms Spade’s husband, Bill[4], was in hospital.  Ms Spade was distressed at her husband's situation and at being on her own.

[4]A pseudonym.

15You had spoken with her on the phone that evening and were told by Ms Spade that she was home by herself.  You went to her home and she let you in although at trial she said you forced yourself in.  You watched television together and had a coffee.  You then approached Ms Spade while she was sitting on her recliner and asked if you could touch her, kneeling down and touching her on the breast.  She told you that, 'You can't because I'm married to Bill Spade'.

16You then placed your hand down Ms Spade’s pants and inserted your finger into her vagina forming the basis for Charge 6, rape.  Whilst you did this you lifted up her T-shirt and bra and placed your mouth onto her breast sucking it.  This forms the basis for Charge 5, sexual assault.

17Ms Spade described herself as scared and that you stopped when her dog began barking and you became angry.

18Your position at trial was that the digital penetration of Ms Spade and the sucking of her breast were each consensual acts.  Again, the jury's verdict establishes that Ms Spade was not consenting and that you did not have a reasonable belief that she was consenting.

19Ms Spade denied having an existing sexual relationship with you at the time of your offending and I accept that there was no such relationship.  Ms Spade also denied any previous sexual contact with you and I accept that this is also so.

20In your record of interview with police you referred to Ms Spade as 'another nutter' and agreed that she was simple.

21I turn now to offence gravity.

Gravity of offences

22The charge of sexual assault is one which naturally describes a wide range of offending behaviour as, of course, does the charge of rape.  Each are inherently serious offences.  The offence gravity of the offending must always depend on the individual circumstances of the case.

23In terms of Charge 3, that is the sexual assault of Marie Black by the touching of her breasts, I have already indicated that I accept that you are aware of her vulnerabilities, that is her intellectual disability, elevating the seriousness of this offence.

24You knew her relatively well at the time of your offence against her.  I do not form the view that this offence was planned.  However, Ms Black was in your home and somewhat at a disadvantage as you were very much in control of the situation.  You persisted despite her clear request that you do not do so.

25I accept the submission that this offence is not at the same level of seriousness as Charge 5 nor, obviously, as Charge 6.

26In terms of Charges 5 and 6, the charge of sexual assault and the rape of Janet Spade, I note that they effectively occurred as part of one transaction which is relevant to the sentencing exercise.  I accept the submission on your behalf that it was a relatively short lived offence.

27I also accept that the nature of this particular offence of rape occurred in circumstances where there was no risk of pregnancy and perhaps not of disease.  But it is also clear that digital rape is not to be regarded as less serious than other forms of rape. 

28In Shrestha v The Queen [2017] VSCA 364 the Court of Appeal observed and I quote:

'It is clear that the general run of sentences for digital rape is well below what is necessary to reflect the objective gravity of that offence and the moral culpability of the offender.'

29As also already indicated, I accept that you would have been aware, given your description of Ms Spade as both a ‘nutter’ and as ‘simple’, that Ms Spade was also somewhat vulnerable.

30On the night of your offending against her, she had the additional vulnerability of being distressed whilst her husband was in hospital.  This was a situation of which you were aware and of which you took considerable advantage.  Firstly, in attending her premises and then committing the offences despite Ms Spade telling you that you were not permitted to touch her.  There does appear to be a degree of forethought in your approach to her home and sexual approach to her.

31Your offending, of course, occurred in Ms Spade’s own home, an environment in which she was entitled to feel safe. 

32Your moral culpability for each offence is assessed by me to be high.

33Your contempt towards each of your victims displayed in your record of interview was deplorable.  Both women were described by you as promiscuous  which you used to excuse your offending.  You described Ms Black as being ‘full of fiction’, a ‘drama queen’ and a ‘bloody bitch’.  I have already referenced your description of Ms Spade who you described as living like a ‘pig’ and ‘fat and lazy’.

34In that interview and in cross-examination at the special hearing of each victim they were challenged as liars.

35The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

36Ms Black has provided a victim impact statement saying that she feels, 'All right now that he is gone'.  She described having nightmares over your offending.  She has difficulty sleeping.  She also has had difficulty leaving her home after the offence, therefore isolating her.

37In her victim impact statement Ms Spade says, 'When I was sexually assaulted and raped in my own home I felt frightened and it hurt'.  She now remains fearful every time there is a knock on the door and says that she is a different person now.  She has lost her trust in men and this has affected her relationship with her much loved husband, Bill.

38It is clear from the victim impact statements of both Ms Black and Ms Spade that the effects of your offending upon each of them is ongoing and has impacted their day to day life and sense of worth.  I have had regard to their contents.

Personal circumstances

39I now turn to your personal circumstances.

40You are now aged 71 years. 

41You were born in New Zealand and each of your parents are now deceased.  Your father was a boat builder and your mother worked part-time cleaning houses.  You do not have a close continuing relationship with any of your six siblings of which you are the youngest.  You do not make any particular complaint about your upbringing.

42You left home at the age of 16 years and moved frequently, working in various roles.  You have had four long term relationships.  From your first marriage, you had a daughter who you met once when she was aged 15 years.  There are three children from your second marriage with whom you do not have any contact.  You met Denise Ainsworth[5] after your third marriage breakdown.  She was your partner for some 19 years.

[5]A pseudonym.

43You spent eight years together in New Zealand before moving to Australia where Ms Ainsworth’s parents resided.  You initially spent time working in the Mornington and Carrum Downs area before Ms Ainsworth wanted to purchase a small gift shop in regional Victoria.  This apparently was an unsuccessful venture.

44In 2019 you underwent cardiac surgery and spent time recovering in hospital in Melbourne.  Not long after returning home from that police apparently served an intervention order upon you and Ms Ainsworth left the relationship.  This effectively left you homeless although it would appear you were strongly supported by your local church community.  You were otherwise somewhat socially isolated.

45You have apparently struggled with alcohol abuse and I accept that you were abusing alcohol at the time of your offending.  Your alcohol use increased after the breakdown of your relationship with Ms Ainsworth.

46Tendered on your behalf was a report authored by Ms Megan Rodgers, psychologist, dated 19 November 2020.  This report sets out much of your personal history.

47In Ms Rodgers' opinion at that time you were within a normal range in terms of any depression, anxiety or stress.  You were coping relatively well in the prison environment.

48On your return to the community, you expressed a desire to use Antabuse to help you stop drinking as you were accepting of the fact that you had an alcohol addiction.  You also look forward to returning to community supports particularly that with your church.

49Also tendered on your behalf was a report authored by Christine Kennedy, provisional psychologist, dated 8 July 2022.  In Ms Kennedy's opinion you suffer from generalised anxiety disorder.

50In terms of your return to the community, Ms Kennedy opines that you would benefit from the successful completion of a sex offender treatment program and from treatment aimed at you gaining an understanding of the effects of sexual abuse upon your victims.  Ms Kennedy states and I quote:

'The features associated with Mr [Buchannan’s] lifestyle which increase his risk of recidivism is his failure to acknowledge the impact the sex offending has had on his victims and the absence of a completed sex offender treatment program.'

51Ms Kennedy indicates that you are likely to present with a few challenges in terms of your safe management in the community and as a protective factor you would greatly benefit from developing an understanding of the effects of your sexual abuse upon your victims.  This much is apparent.

52General deterrence, specific deterrence and protection of the community loom large in the sentencing task.

53You are not an Australian citizen.  Under the Migration Act 1958, the
Minister for Immigration must cancel a person's visa if the person has been sentenced to a term of imprisonment of 12 month or more.  The minister also has a power to revoke the cancellation if satisfied there is a reason to do so.  A person subject to cancellation may seek a merits review of a decision not to revoke the cancellation.

54In Guden v The Queen [2010] 28 VR 294, the Court of Appeal said and again I quote.

'The fact that an offender will serve his or her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.' 

55This of course, depends on the personal circumstances of the offender.  In your particular case you have not lived in New Zealand for some years.  No other circumstance has been raised on your behalf and neither psychological report raise this issue.

56However, I accept in general terms that there is uncertainty for you in terms of what the future holds, which would be a source of stress for you when you would otherwise like to return to your region and your church.

57In terms of your prospects for rehabilitation, you have shown no remorse for your offending.  That much is obvious.  The report of Dr Kennedy would indicate that you need treatment to reduce your future risk.

Prior criminal history and future prospects

58You have an extremely limited prior criminal history.

59On 10 March 2020, you appeared at the Sale Magistrates' Court for two charges of assaulting an hospital emergency worker.  Without conviction you were placed on an adjourned undertaking for a period of six months and ordered to pay $300 to the court fund.  I do not see this prior conviction as relevant to the sentencing exercise.

60Otherwise the offending before me and the offending about which I have now been advised of and dealt with subsequently was all in the year 2020.  You clearly resorted to such behaviour late in life when you otherwise have a lengthy period complying with the community expectations of you.  However, it is deeply concerning that there have been four offences of a similar nature in a relatively limited period.

61You have, however, been on remand for your offending since 23 October 2020.  You have now spent some 684 days in custody.

62For a person who has entered the criminal justice system the first time at a later stage of life I accept that there is a degree of sanction and deterrence in the time served to date.  It is, however, insufficient to properly reflect all relevant sentencing considerations and no party contended that it was.

63I do take into account that the time in custody to date has been during the Corrections response to the COVID-19 pandemic.  In general terms, this has involved quarantine upon reception at any prison.  Periods of lockdown and less access to therapeutic and educational programs as well as personal visits have made the remanded and sentenced prisoner experience more burdensome than it would otherwise be.

64You, however, have tried to use your time wisely and have participated in a number of programs which include food handling, barista training and ‘Blokes in Balance’.  You are working in an assembly position and enjoy that work.  You contact the pastor from your church every Friday but this is the extent of your contact outside the prison system.  You remain an isolated man.

Standard sentencing scheme

65Turning now to the standard sentencing scheme.  I have already referenced the standard sentencing scheme which operates in relation to Charge 6, rape, which carries a standard sentence of 10 years.  The standard sentencing scheme became effective on 1 February 2018 and applies to offences committed after that date.

66The period specified as a standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle range of seriousness.  In determining the objective factors the court must consider only the nature of the offence and not your personal circumstances.  This determination is only intended to give context to the hypothesised midrange offence.  Nothing in the scheme circumscribes the manner in which the court is to assess the seriousness of the offence.

67Pursuant to s11A(4)(c) of the Sentencing Act 1991 the court is required to set a non-parole period of not less than 60 per cent of the head sentence if the court is sentencing the offender to a head sentence of not less than 20 years, unless it is not in the interests of justice to do so.

68The Court of Appeal has said that the key requirement for the court is for it to take into account the standard sentence as the relevant sentencing factor but, as with the maximum penalty, it is in fact a legislative guidepost.  It does not affect the instinctive synthesis.  It does not permit two stage sentencing or otherwise affect matters the court may or must consider when sentencing.  A court does not start by asking whether or not the standard sentence should be imposed and then work its way either up or down.  Consideration of current sentencing practices is necessarily limited by the sentences previously imposed if the sentence in question was subject to the standard sentencing scheme.

69In a recent Court of Appeal decision of McPherson v The Queen [2021]
VSCA 53 the Court dealt with a charge of sexual penetration of a child under 12 which is also subject to the standard sentencing scheme. The court commented that:

‘Before concluding we should mention the difficult task with which sentencing judges are confronted when considering the standard sentence for this type of offending.  The standard sentence is designed to represent a midrange example of this offence, however, the offence covers such a wide range of sexual misconduct as to make the notional midrange very difficult to identify.

Particular to that case, the misconduct can be penetration by finger, penis or tongue or by an object and can be momentary or protracted and can be committed on all ages up to 12.  The impact on the victim can be manageable or catastrophic.  This is not to say the phrase is meaningless.  It must be given its place in the sentencing calculus but it is an intangible concept and judges ought to be wary of affording it too much weight in the sentencing exercise.

In particular, as this court has said, judges must avoiding engaging in two stage sentencing whereby a vague essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates.  It is a factor in the application of the intuitive synthesis in the same way the maximum sentence is.  No more, no less.”

70Neither party submits that Charge 6 is at the midrange for the offence of rape in terms of the standard sentencing scheme. 

71Your counsel has referred me in written submissions to five cases which include DPP v Beck [2021] VSCA 88, Shrestha v The Queen [2017] VSCA 364, Allen v The Queen [2021] VSCA 249, Wright v The Queen [2021] VSCA 243 and DPP v Huynh [2019] VCC 1299. I have had recourse to each of those decisions. It is contended that your charge of rape is lower in its objective seriousness than those referred to in those decisions.

72There are obviously understandable differences.  In brief compass and by way of example only, in DPP v Beck Mr Beck had pleaded guilty.  He had a relevant prior history and the rape charge was rolled up.  In Shrestha v The Queen the sentence imposed was post trial and the original sentencing judge was concerned about the low maximum penalties for digital penetration.  In
Allen v The Queen, Mr Allen had pleaded guilty.  The victim of his offending was particularly young and the offending occurred in the context of he providing her with drugs.  In Wright v The Queen, Mr Wright had a relevant prior history but had pleaded guilty.

73For Charge 6, I have had regard to the standard sentencing scheme. The sentence that I intend to impose for this charge will be lower than the standard sentence prescribed in consideration of s5 (2) of the Act, taking into account the nature and gravity of your offending, the circumstances in which it occurred, your personal circumstances including your remand period during COVID, the expert reports tendered and other mitigatory matters to which I have been referred.

Serious Sexual Offender provisions

74I now turn to the serious offender provisions.  Pursuant to s6F of the
Sentencing Act 1991, you are to be sentenced as a serious sexual offender after Charge 6 which is to be noted on the record. From that point every term of imprisonment imposed for a relevant offence must, unless otherwise directed, be served cumulatively on any sentences of imprisonment imposed whether before or at the same time as that term.

75I am required to regard the protection of the community from you as a principle purpose for which sentence is imposed today.  In order to achieve this purpose I do have the power to impose a sentence greater than that which is proportionate to your offences.  I note that a disproportionate sentence is not sought and will not be imposed.

Sex Offenders registration

76Now turning to Sex Offenders' registration.  Pursuant to s11 of the
Sex Offenders Registration Act 2004 application is made by the Crown for you to be placed on the Sex Offenders Register. Registered sex offenders are required to report and provide various personal details to Victoria Police when they occur and at regular intervals. A person is a ‘registerable offender’ under the Act upon being sentenced for a registerable offence.

77The Act operates in a way that generally requires registration of sexual offenders against children but provides for registration of other sexual offenders only when so ordered by a sentencing court.  That is the application before me.  Section 8 therefore extends the scope of ‘registrable offenders’ to those sentenced for class 3 and class 4 offences.

78By virtue of s8 (1) and Schedule 3, class 3 offences are essentially offences that involve sexual penetration committed against an adult by a serious sexual offender.  By virtue of s8 (2) and Schedule 4, class 4 offences are sexual offences of which, generally speaking, penetration is not a necessary element and the offences were committed against an adult by a serious sexual offender.  A serious sexual offender for these purposes is a person sentenced for at least two offences listed in the schedule to the Act pursuant to s8(3).  You are such an offender.

79A court in these circumstances may only make an order after taking into account any matter that it considers appropriate if satisfied beyond reasonable doubt that a person poses a risk to the sexual safety of one or more persons or of the community.  It is not necessary for the court to be able to identify a risk particular to a person or a particular class of persons.  The evaluation of risk is directed to the risk upon an offender's release into the community assessed by what is presently known.

80According to the decision of Bowden v The Queen [2013] VR 229 the test is twofold. The first question is whether the court is satisfied beyond reasonable doubt that you pose a risk to sexual safety as defined. The second part of the test, if so satisfied, is whether the order should be made in all relevant circumstances.

81The second stage therefore involves balancing the identified risk with regard to the purposes of the Act and restrictions imposed on an offender's right to enjoy freedom and autonomy of action.  The balancing exercise therefore involves considering the magnitude and the nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm to be balanced against the consequences for the offender.

82In your case, the Crown points to the circumstances of the offending for which the jury made its finding of guilt and your offending therefore against two vulnerable women in the community.  In addition, you were recently successfully prosecuted in the Magistrates' Court for sexually offending against an elderly female who was in a wheelchair and also part of your local community.  That offence occurred on 23 January 2020 and therefore in a similar period to your offending against Ms Spade and Ms Black.

83I am now told there has been another matter where there has been a finding of guilt for sexual assault.  The offending is said to have occurred in February 2020 and was dealt with at the Latrobe Valley Magistrates' Court on 26 August 2022 where you were found guilty of sexual assault and were convicted and fined.

84The Crown submits that overall this represents a pattern of offending which is of a similar nature and establishes, firstly, your level of risk and secondly, the nature of it.  You have been in custody since 23 October 2020, so not at large.

85Your counsel submits that due to the serious nature of your offending the subject of your trial and the subsequent convictions, it is conceded that I could be satisfied that you pose the relevant risk.

86Taking into account the circumstances of three serious offences within a relatively short time frame, the fact that there has been other like offending around the same time, the fact that you have been removed from the community since late 2020 and the risk assessment of Dr Kennedy, I am satisfied that the first limb of the test is met and that I have no reasonable doubt that you pose or will pose upon release a real risk to the sexual safety of one or more persons or of the community.

87Considering whether the circumstances of the identified risk justifies imposing upon you the consequences of a registration order, noting it would be for life, to achieve the purposes of the Act, I am only so satisfied and the declaration sought is therefore made. 

88Gentlemen, Mr McConaghy and Mr Sullivan, I am just checking that there has been nothing that you wish to raise in terms of the matters I have referred to thus far?

89MR McCONAGHY:  Nothing, Your Honour.

90HER HONOUR:  All right.  Mr Sullivan?

91MR SULLIVAN:  No, Your Honour.

92HER HONOUR:  Thank you. 

Sentencing

93The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.

94I must also balance the interests of the community in denouncing criminal conduct with the interest the community has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

95I have taken into account the relevant sentencing guidelines referred to in
s5 of the Sentencing Act.  I have taken into account current sentencing practices for the offences to which you have been found guilty as well as the important principles of both totality and proportionality.

96In terms of Charge 1, sexual assault, you are convicted and sentenced to 3 months' imprisonment.  One month will be cumulative on the base sentence.

97On Charge 5, sexual assault, you are convicted and sentenced to 14 months' imprisonment.  Three months is cumulative on the base sentence.

98On Charge 6, that of rape, you are convicted and sentenced to 6 years and 8 months' imprisonment.  That is the base sentence.

99The total effective sentence is therefore one of 7 years' imprisonment.  I fix a non-parole period of 5 years, 684 days will be reckoned as served.

100Mr McConaghy, Mr Sullivan, I am about to leave the Bench so that Mr Sullivan can speak to his client.  Before I do, I referred to Charge 1, sexual assault.  I meant Charge 3, sexual assault.  So apologies for that slip.

101So Charge 3, 3 months, 1 month cumulative.  Charge 5, 14 months,
3 months cumulative.  Charge 6, 6 years and 8 months.  That is the base sentence.

102MR SULLIVAN:  Thank you, Your Honour.

103MR McCONAGHY:  No submissions, Your Honour.

104HER HONOUR:  All right.  Thank you.  Thank you very much.  I will close the court then until 9.30 tomorrow morning.

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