Director of Public Prosecutions v Burgess (a pseudonym)

[2024] VCC 876

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY BURGESS (A PSEUDONYM)

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JUDGE:

Her Honour Judge Blair

WHERE HELD:

Melbourne

DATE OF HEARING:

10 May 2024

29 May 2024

DATE OF SENTENCE:

11 June 2024

CASE MAY BE CITED AS:

DPP v Burgess (a pseudonym)

MEDIUM NEUTRAL CITATION:

[2024] VCC 876

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE

Catchwords:              Rape – serious offender provisions – Verdins – Bugmy – remorse – rehabilitation – offence against intimate partner – bipolar affective disorder

Legislation Cited:      Sentencing Act 1991 (Vic); Criminal Procedure Act 2009 (Vic); Sex Offender Registration Act 2004 (Vic)

Cases Cited:R v Verdins [2007] VSCA 62; Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169; Sayer v The Queen [2018] VSCA 177

Sentence:                  Total effective sentence of 6 years and 10 months. 4 years and 11 months cumulative on sentence currently being served. New single non parole period of 6 years and 9 months to commence 12 September 2022

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr G. Cooper	Victoria Legal Aid

HER HONOUR:

1Anthony Burgess,[1] on 10 May 2024, you were arraigned on Indictment P11144786 and pleaded guilty to three charges of rape.

[1] A pseudonym.

2You admitted one unrelated and dated prior conviction. In addition, you admitted one subsequent conviction. In December 2022, I sentenced you to a total effective sentence of five years with a non-parole period of two years and nine months in relation to one charge of rape and one charge of sexual assault.

Circumstances of offending

3You met the victim, Lindsay Kirk,[2] in December 1989 and started living together the following year. You married in 1991 and remained together until 2018. You have six children from that marriage.

[2] A pseudonym.

4During the marriage, you worked in furniture removal and then in piggeries. Ms Kirk initially worked as a bank teller but predominantly performed home duties once the family grew. Your work saw you move around, and you and your family lived at various residences around Central Victoria as well as other locations across Victoria and South Australia.

5In early 2007, Ms Kirk inherited money and bought your grandfather's house. After settlement took place, you and Ms Kirk argued, and she told you that 'maybe she should leave' the marriage. Ultimately, she remained in the marriage to 'keep both mother and father in the same household'.

6The offending before the court occurred while you and Ms Kirk lived with your six children at the home purchased by Ms Kirk.

7On 14 October 2007, you and Ms Kirk held a housewarming party attended by some of your friends. Three of these people stayed the night and slept in various beds and bedrooms in the house.

8You and Ms Kirk went to your bedroom where you had consensual penile/vaginal sexual intercourse. During the intercourse, you told her that you wanted to 'cum on her backside'. You then tried to penetrate Ms Kirk's anus with your erect penis. This shocked her, and she jumped off the bed. You tried to 'drag' her onto the bed and 'there was pushing and shoving' from both sides. Ms Kirk did not 'yell out' to the other people in the house, as she was 'too scared' of how you would react and she 'didn't want [your] kids to hear her'.

9Ms Kirk 'gave in' to you, she got onto the bed and lay 'face down' on the pillow. You knelt behind her and pulled her hips up and penetrated her anus with your erect penis for a few minutes. You were grunting as you did this and seemed to be in a 'weird state'. Ms Kirk was crying as this occurred. You ejaculated into Ms Kirk's anus and then rolled over to the left-hand side of the bed and went to sleep. Ms Kirk was unable to sleep. (Charge 1)

10At some time between 15 October and 9 November 2007, at approximately 10 pm, Ms Kirk was sitting reading a book in the lounge room. You came into the room and told her that you 'wanted her to make [you] cum'. Ms Kirk was annoyed and did not look up from her book, instead asking, 'Why?' You responded, 'Because I've got a knife'. When Ms Kirk looked up, she saw that you had a steak knife in your right hand, and you were pointing it between her and the ground.

11Ms Kirk 'couldn't believe [you] had a knife' and thought that she 'needed to comply and do what [you] told her to do'. She immediately lay down on the lounge room floor next to the couch and pulled her pants and underwear off. You told her to, 'Turn over onto her stomach'. You used both hands to pull her hips towards you so that she was kneeling. You then penetrated her anus with your penis. Ms Kirk could see the knife lying on the floor beside her while you did this. You ejaculated either in her anus or on her backside and then left the lounge room, returning to the bedroom. Ms Kirk 'sat on the couch in shock'. (Charge 2)

12In December 2007, Ms Kirk fell pregnant with twins and stopped work. During May 2008, while Ms Kirk was heavily pregnant, a friend visited the family home. Ms Kirk told him that you had 'raped her a couple of times' but did not 'go into details'. This friend has stated that Ms Kirk told him over the telephone that you had been 'sexually abusive' towards her and had 'anally penetrated her'.

13In the afternoon of 24 December 2009, Ms Kirk returned home from having Christmas drinks with a neighbour. When she arrived home, she was drunk, the children were in bed, and she went to the bedroom and 'half' lay on the floor.

14You came into the bedroom and spoke to her 'angrily'. You pulled her up from the floor and pulled her pants down. You bent her over the bed, pulled her right leg in the air and held her hips. You then penetrated her anus with your penis in a 'fast and aggressive' manner. Ms Kirk had both her hands on the bed trying to keep her balance and 'felt weaker than [you]' and did not want to 'think of the consequences if she fought [you]'. You ejaculated in her anus and then 'acted normal again', insisting that she went to sleep rather than wrapping the children's Christmas presents. (Charge 3)

15During 2010, Ms Kirk's brother and his wife visited your family home.

16Ms Kirk told her sister-in-law that you had 'raped her a couple of times' and asked whether the medication you were taking could cause you 'to go into a trance while [you] raped her'. At that time, Ms Kirk’s sister-in-law told Ms Kirk that she 'didn't know but would find out'. Ms Kirk described to her that it was not an 'isolated incident'. She mentioned the incident at the party and the time you had a 'knife sitting beside her whilst [you] raped her'.

17Your sister-in-law told your brother, and they contacted CASA and spoke to a police member. A few days later, they contacted Ms Kirk and told her that she should leave you, but she said she was unable to due to the children.

18The police member made contact with Ms Kirk about the allegations of anal rape. At that time, no action was taken with respect to those allegations.

19In 2017, Ms Kirk attended her local doctor to discuss your depression and whether it arose from your childhood sexual abuse. While she was at the appointment, she told the doctor that you had raped her anally.

20During 2018, Ms Kirk told her son, John,[3] that you had anally raped her. She also told her daughter, Shelly,[4] that you had been anally raping her, and Shelly helped her move into another bedroom of the house. Later that year, Ms Kirk told another friend that you had anally raped her.

[3] A pseudonym.

[4] A pseudonym.

21On 29 September 2018, Ms Kirk left you and went to the house of a friend. The following morning, one of your sons arrived and drove her back home where she told you that she was leaving and taking the children.

22On 30 September 2018, Ms Kirk  contacted a community organisation who helped her to re-settle in a new area with the children. A short time later, she applied for and was granted an intervention order. Ms Kirk reported the offending to police but made a formal statement of no complaint at that time.

23In mid-2021, you sent Ms Kirk a number of text messages, the majority of which went unanswered.

24On 21 December 2021, Ms Kirk sent you a text message asking, 'I have to know did you rape me all those times because you hated me? Or why?' to which you responded:

I never hated you I had always loved you and still do but to be honest I don't know why I did those awful things to you my shrink recon its mostly to do with what happened to me all those years ago I know I'll never be able to make it up but I'm truly sorry for what I've done to you and the kids.

25At 7.15 pm, you sent a further text, reading, 'I'm going to miss not seeing everyone for 15 years hopefully I come out a better person'. Following the receipt of this message, Ms Kirk attended a police station and made her formal statement of disclosure in relation to the allegations.

26On 17 August 2022, police attended your residence. You were arrested and by police. You did a no comment record of interview but agreed that you had told police that you 'knew this day was coming'. You were released on summons.

Nature and gravity of offending

27Mr Burgess, clearly your offending is very serious. This fact has been recognised and conceded on your behalf by your counsel. Given the date of your offending, category and standard sentencing do not apply.

28In sentencing you, I must make an assessment of the objective gravity of your offending by reference to the particular circumstances of your case. The starting point for such an assessment is the maximum penalty, which is 25 years' imprisonment for the offence of rape. Further, I have had regard to the fact that the victim of your offending was your wife, whom you should have loved and protected. In addition, your offending occurred within the family home, a place where your wife/victim should have been able to feel safe and secure but could not. In this sense, your offending represents a gross breach of trust and a grave form of domestic violence. It had the impact of undermining the dignity, confidence and happiness of your wife.

29The second episode of rape was particularly serious, as you used a knife to ensure compliance with your demand for sex. Each of the instances of offending were accompanied by a degree of force on your part, and it would have been obvious to you that your victim was not consenting. Although each instance of rape was relatively short in duration, they were repeated, and your victim was left with a significant degree of anxiety about if and when it would occur again. In these circumstances, I consider what you have done to your wife  represents a very serious episode of offending.

Victim impact

30Ms Kirk provided a victim impact statement in relation to your offending dated 12 September 2023, and this was marked as Exhibit B on your plea.

31In her statement, Ms Kirk outlined the severely negative impacts that your atrocious actions have had on all aspects of her life, in particular her sense of self-worth and safety. This, she said, was not only due to the sexual violence she experienced, but that it was perpetrated by her husband, who should have loved and protected her.

32Ms Kirk explained the pain of leaving behind her previous life in a small country town where she was both employed and volunteered her time. The active social life and community connections were sacrificed. Your school-age children had to move to much bigger and unfamiliar schools where they were anxious and afraid.

33Financially, life has been extremely difficult for Ms Kirk. It is a constant worry and struggle for her to pay off her home and provide for the children. The trust issues, anger and nightmares Ms Kirk now experiences contrast to the cheerful and bubbly disposition she used to have, and she fears she will never be that person again.

34Your offending has understandably been profoundly harmful to Ms Kirk, both at the time it occurred and many years later into the present day, and I take this into account in sentencing you.

Serious offender provisions

35As a result of the previous sentence imposed upon you in 2022, upon sentencing you to imprisonment on any of these charges, your status changes to one of a serious sexual offender. This means that community protection becomes the predominant sentencing purpose.

36Pursuant to s6F of the Sentencing Act 1991,[5] I cause to be entered into the records that for Charges 1 through to 3, you are sentenced as a serious offender. I note that s6E applies and that every term of imprisonment imposed by a court on a serious sexual offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence of imprisonment imposed on that offender, whether before or at the same time as that term.[6] That section must, however, give way to some extent to the principle of totality.

[5] Sentencing Act 1991 (Vic) s 6F.

[6] Ibid s 6E.

37The prosecutor, Mr Cordy, submitted that the Crown did not push for a disproportionate sentence in your case.

Personal circumstances

38You are currently 55 years of age, and you were between 39 and 41 years of age at the time of the offending incidents.

39You were born in Ballarat and lived in an orphanage until you were adopted at around six months old by the people you consider to be your parents. You later learned your biological father died in a workplace accident and your mother was encouraged to put you up for adoption, as she struggled as a single mother. You continued to have some contact with your biological mother, but this was not a close relationship. She passed away in 2015 or 2016.

40You were raised in Bendigo where you were the eldest of four children in the household. You have a brother and sister who were also adopted, and your youngest sibling is the biological son of your adoptive parents. You learned you were adopted around age 12 or 13. This was difficult for you, and you feel that this knowledge impacted the bond you had with your family to some extent.

41The family home appears to have been a generally positive environment although the household often experienced financial stress. Your father worked long hours as a mechanic, and your mother began working in a factory and as a cleaner to supplement the household income once the children were old enough to go to school. You were aware your family had lesser means than others, and you recall spending a lot of time at home playing cricket with your siblings, as there was little money for anything else. You had a particularly close relationship with your father and enjoyed helping him with mechanic jobs.

42When you were around 11 years old, an uncle began to sexually abuse you. This behaviour continued until your uncle's death when you were 15 years old. You initially did not understand that the conduct was wrong, but as you matured, you felt significant shame, embarrassment and feared being blamed for what had happened. These feelings prevented you from disclosing the abuse until adulthood, and you managed your thoughts and emotions about it by trying to put it out of your mind. You told psychologist, Ms Steffens, that you have some vivid memories of the abuse, particularly the first time it occurred, and you can still remember what you were wearing.

43You attended school where you were an average student and had some issues making friends. Coinciding with the start of the sexual abuse, from Year 6 your academic performance and social isolation worsened. By Year 9, you were often excluded from class by your teachers because of issues with your behaviour and attention. This compounded issues with your academic performance, and around this time you left school permanently.

44With the assistance of your father, you immediately began employment at a supermarket. From there, you held labouring and agricultural positions before eventually working in piggeries. You progressed to managerial positions in this field and moved around Victoria and South Australia, rarely spending more than 18 months in one location. Though you worked long hours, you enjoyed this lifestyle and the quietness of rural life. You report being more or less consistently employed from the time you left school at around age 14 to 15 up until the time of your voluntary mental health admission in October 2021.

45Your relationship with Ms Kirk was your first and longest romantic relationship and commenced when you were 18 years old. Your six children together are currently aged between 15 to 30 years. You consider that you had a good relationship until your mental health decline. The marriage lasted for 28 years and ended approximately six years ago. After separating from Ms Kirk, you subsequently had one other serious relationship, which lasted approximately two years. That relationship involved the complainant in the offences for which you are currently serving a term of imprisonment.

46Your mental health history has significant relevance to the current and subsequent offending, and therefore I will elaborate more on this topic shortly. You have no history of alcohol or illicit substance abuse.

47You have a limited prior criminal history comprising of a single charge of hindering police from 1990, for which you received a good behaviour bond. In 2022, I sentenced you in relation to one charge of rape and one charge of sexual assault. As previously mentioned, this was in relation to a different complainant, with whom you were in a long-term relationship at the time. This offending occurred in 2021 whilst you were a voluntary mental health patient. You received a term of imprisonment of five years with a non-parole period of two years and nine months for that offending, which commenced on 2 December 2022. I note that there was 81 days reckoned by way of pre-sentence detention.

48You are currently incarcerated at Hopkins Correctional Centre where you live in a lodge with five other prisoners. You report that the routine of prison has helped with medication compliance for your mental health, and you have had access to some psychiatric and psychological support.

49You work five days a week as a billet in timber, which involves the manufacture of children's toys. You have also completed vocational certificates in OH&S, food handling and a barista course and expressed an interest in offence-specific programs however were advised you would need to wait until closer to your earliest release date to become eligible for these programs.

50You continue to have consistent contact with members of your family from custody. You speak regularly with one of your brothers and continue to have a close relationship with your father, who is aged in his 80s. Your sister passed away age 44 from a heart attack, and your mother passed away from dementia approximately seven years ago.

51You have phone calls and in-person contact with some of your children whilst your relationship with your other children is strained. You have found separation from your children to be a difficult aspect of incarceration.

Psychological history and Verdins principles

52Your counsel, Mr Cooper, submitted that based on your mental health history, limbs 1, 3 and 5 of Verdins were enlivened in your case.[7] This submission was based heavily upon the report of psychologist, Courtney Steffens.

[7] R v Verdins [2007] VSCA 62.

53Ms Steffens interviewed you from custody on 6 October 2023 and produced a report dated 27 October 2023.

54Among other documents, Ms Steffens had regard to the psychological reports produced by Jeffrey Cummins as well as the psychiatric report produced by Dr Gregory Lysenko of Forensicare. These reports were produced for the matter for which you were sentenced to a term of imprisonment in 2022.

55In her report, Ms Steffens noted that you were diagnosed with bipolar affective disorder in around 2007 and you also began taking medication for the condition at this time. This diagnosis was confirmed in Dr Lysenko's 2022 report. Your counsel noted that, upon further consideration, you believe you may have been diagnosed as early as 2000.

56You reported to Ms Steffens that your symptoms, particularly of mania, were especially acute around the time of your diagnosis, which also coincides with the first two counts of the offending. These symptoms included irritability, unstable moods, increased sex drive, activity and obsessive behaviours. Ms Steffens identified these behaviours as being consistent with a manic episode. Around this time, you inconsistently took your medication and experienced mood fluctuations as a result. In describing the offending incidents themselves, you told Ms Steffens that you felt like you would 'go into another world', 'become a totally different person' and feel as though you were experiencing the events from the outside. The incidents would be followed by a period of low self-esteem where you say you 'would feel so bad' and 'like the biggest loser'.

57Ms Steffens noted that at the time of her assessment, you were prescribed several medications by the prison psychiatrist, including two mood stabilisers (valproate, lithium) and an anti-psychotic (olanzapine). You reported responding well to this medication and that your mental stability was the best it had been in about 15 years.

58Ms Steffens administered several psychometric tests to obtain further insight into your mental state. On the basis of these assessments, Ms Steffens considered that you were experiencing a major depressive episode in the context of your bipolar affective disorder and adjustment disorder with anxiety related to the present legal proceedings. She also noted that you reported experiencing thoughts of self-harm or suicide almost every day within the fortnight preceding the assessment.

59Ms Steffens provided the opinion that bipolar affective disorder played a 'significant role' in the offending and recommended that the severity of your mental health history and current presentation be taken into account in sentencing you.

60Ms Steffens considered that your other reported symptoms suggested a historical diagnosis of post-traumatic stress disorder with dissociative features or another disassociate disorder, noting that post-traumatic stress disorder symptoms may subside and recur over time. Further longitudinal study would be needed to confirm or exclude the presence of these disorders. She also considered that you had schizoid and avoidant personality traits which fell short of meeting the criteria for a personality disorder.

61At the time of her report, Ms Steffens considered that your mental health required immediate intervention to ensure stability and manage acute symptoms. Following this, she recommended that you continue to receive ongoing monitoring of your mental health and medication review whilst in custody, particularly as medication non-adherence has in the past precipitated a deterioration in mental state.

62In her view, prison will continue to weigh more heavily on you due to your mental health conditions and you remain at ongoing risk of mental deterioration in that environment. She also noted that the custodial environment also risks perpetuating your tendency towards social isolation, and your history of PTSD, even if presently in remission, further increases risk of mental deterioration.

63Counsel for the prosecution, Mr Cordy, raised concerns about some of the conclusions in Ms Steffens' report, and she was therefore called to give evidence at a further plea hearing on 29 May 2024.

64In evidence-in-chief, Ms Steffens confirmed the opinions of her October 2023 report. She reiterated that bipolar affective disorder is a serious mental illness and that, in her opinion, you meet the criteria for bipolar I, the more severe form of the disorder. This opinion was based on your history of manic episodes and hospitalisation for the condition.

65Ms Steffens explained that sexual disinhibition and hypersexuality occurring within manic episodes are discrete indicators of bipolar I. These features present as particularly severe in your case, and they result in significant functional impairment when you are not subject to a well-established medication regime. When experiencing manic symptoms, sexual impulses appear to dominate your decision-making and cause you to act in a manner in stark contrast to your usual reserved disposition, which is not characterised by such impulses. She explained that this incongruency between usual disposition and presentation during a mood fluctuation is a typical feature of bipolar affective disorder.

66

Ms Steffens conceded there were no contemporaneous medical records to corroborate your reported symptoms but nonetheless maintained her opinion that there is strong evidence that you were affected by bipolar affective disorder at the time of the offending and the effects of this condition can be seen until the present time. She explained her conclusion was based not only on self-reported symptoms but also other professional reports and

out-of-character behaviour which was observed by Ms Kirk and prompted your presentation for treatment.

67Mr Cordy argued that it was hard to see how Verdins applied, considering the protracted nature of the offending and the periods of apparent comprehension of the wrongfulness of the conduct before returning to reoffending.[8] Mr Cordy put several text messages contained within the prosecution opening to Ms Steffens to illustrate this point. Ms Steffens explained that this behaviour conformed with the nature of an episodic mental illness such as bipolar affective disorder and it was entirely plausible that you could be reflective on the consequences of your behaviour at one point in time and lack judgment again at another. She highlighted that you were in fact an in-patient at a mental health facility at the time of the subsequent offending.

[8] Ibid.

68Based upon the report and oral evidence of Ms Steffens, I am satisfied that there is a clear nexus between your diagnosis of bipolar affective disorder and each instance of the charged offending. On this basis, I find that limb 1 of Verdins is enlivened and your moral culpability should be reduced accordingly.[9] In your case, I accept that this impacts the punishment which is just in all the circumstances and reduces the relevance of denunciation as a sentencing objective.

[9] Ibid.

69I further accept that given the strength of the relationship highlighted by Ms Steffens between the offending and your mental health condition, limb 3 of Verdins is also engaged and considerations of general deterrence should be moderated in your case.[10]

[10] Ibid.

70I accept Ms Steffens' opinion in her report and oral evidence about difficulties commonly encountered in the initial stages of diagnosis and commencing a medication regime. This potentially coincided with the first two counts of offending. I agree with the submissions of Mr Cordy for the prosecution that by 2009, when the third incident of offending occurred, you would have developed a level of insight in terms of what was required to manage your bipolar affective disorder symptoms; in particular, the importance of medication compliance. It was noted in Ms Steffens' report and conceded in the submissions of your counsel that you were not compliant with medication and other treatment at the time each of the offences occurred. In my view, the reductions afforded to moral culpability and general deterrence should be somewhat moderated in consideration of Charge 3 on the indictment.

71Lastly, I accept that there is strong evidence to find that prison will weigh more heavily upon you due to your mental health condition. This is particularly salient considering your poor mental state at the time of Ms Steffens' assessment despite medication compliance, and I also take into account her concerns regarding a recurrence of PTSD symptoms in that environment.

Bugmy

72Your counsel submitted that the principles in the case of Bugmy also have application to your case.[11] Bugmy recognises the enduring effects of childhood deprivation and may be relevant to moral culpability in both a 'general' or 'specific' sense, the latter being relevant if there is also some nexus between the effects of the deprivation and the offending.[12]

[11] Bugmy v The Queen [2013] HCA 37.

[12] Ibid.

73Your counsel submitted that the principles were applicable in both ways to your case. He relied on aspects of your personal history, including the protracted sexual abuse you experienced as a child and the loss of connection to your biological parents when you were an infant. Mr Cooper submitted the latter circumstance remains relevant notwithstanding your relatively happy and stable home life with your adoptive parents.

74In her psychological report, Ms Steffens opined that your bipolar affective disorder and other aspects of your personality were related to the negative aspects of your childhood. She noted that experiencing childhood sexual abuse is a risk factor for the development of bipolar affective disorder, and the condition has been associated with an increased risk of sexual offending in men. Further, poor parental attachment has also been observed in a large proportion of sexual offenders. It was Ms Steffens' opinion that your prior traumatic experiences, which you are yet to directly address in a therapeutic context, continue to have a lasting impact on your mood and emotional regulation.

75In my view, the principles of Bugmy do have application to your case in both a general and specific sense.[13] I am mindful that there is some degree of overlap between the application of Bugmy and Verdins to your circumstances, and I have therefore been careful to place appropriate weight on these mitigatory factors. It is my view that your moral culpability ought be reduced and general deterrence should be moderated.

[13] Ibid.

76The principles of Bugmy and Verdins also have the effect of raising additional considerations of community protection, and I note Ms Steffens' opinion that compliance with medication and addressing your childhood trauma through psychotherapy will be important to your long-term rehabilitation.

Plea of guilty

77A strong sentencing consideration in your favour is your plea of guilty to these offences, which the prosecution conceded was at the earliest opportunity. You indicated an intention to plead guilty prior to committal mention and did not challenge the facts as alleged by the victim.

78This has meant that witnesses, in particular Ms Kirk, were spared from giving evidence and the court has also been spared the resources and expense in conducting a trial and other related hearings. In these circumstances, your plea has substantial utilitarian value, and I find you have facilitated the course of justice.

79Though the court's case backlog caused by the pandemic had largely eased by the time of your plea hearing, I still consider there is some additional residual benefit to your plea given the time it was entered. In the circumstances, I propose to allow a significant sentencing discount for your plea of guilty.[14]

[14] Worboyes v The Queen [2021] VSCA 169.

Remorse

80Your counsel submitted that there were several sources of evidence of your remorse. Mr Cooper highlighted aspects of the report of Ms Steffens and the content of some of the text messages exchanged between you and the victim, which were extracted in the prosecution opening.

81Ms Steffens said you presented as experiencing significant shame and regret for your actions and their effects on Ms Kirk and your family. You clearly recognised your actions to be wrong and, in her view, exhibited a 'compelling' willingness to take responsibility and minimise harm to your family.

82Counsel for the prosecution questioned the extent of your remorse, drawing attention to a cycle over a protracted period of offending, reportedly feeling shame and remorse, then offending again.

83This apparent contradiction may be more appropriately explained by poor management of your disorder rather than an absence of genuine remorse. Ms Steffens explained in oral evidence that it is characteristic of bipolar affective disorder to have shifts between periods of impulsivity and poor judgment to rational thinking, insight and self-reflection. In light of that opinion, it seems unlikely to be coincidence that the clarity you now possess about your actions coincides with mood stability unprecedented in 15 years.

84Though it may not have been immediately expressed, I accept that you have genuine remorse for your actions. This is evidenced not only by self-report but also Ms Steffens' expert opinion about your presentation in custody and your early and consistent intention to take responsibility for the offending by pleading guilty and seeking treatment.

Onerous conditions in custody

85

Previously, in 2022, I accepted that your time in custody would be made more onerous given your concern and worry for your father. At the time of your remand in September 2022, you had been living with and caring for your

83-year-old father. I accept that you have continued to find it very difficult to cope with your inability to care for your father and also that you may not see him again. I have again taken this into account as a factor that will make your experience of prison more onerous.

Rehabilitation

86Ms Steffens assessed you as a low to moderate risk of future sexual offending provided you maintain your current regime of medication. The evidence of Ms Steffens was that your level of risk would reduce upon engagement in programs. You have repeatedly indicated a strong willingness to engage in treatment whilst in custody and post-release. Further, you have now had a considerable period in custody where your medication has been consistent, and consequently your mood has stabilised. This has allowed you to gain insight and to better appreciate the importance of ongoing treatment. In my assessment, you have reasonable prospects for rehabilitation. I intend to provide for your ongoing rehabilitation by way of a parole period.

Sentencing principles

87I consider the relevant sentencing principles that must be applied in this case are general deterrence, denunciation and just punishment albeit each of these principles should be somewhat moderated given my findings pursuant to Verdins and Bugmy. Although specific deterrence remains a relevant sentencing consideration, in my view, the terms of imprisonment that I will impose will sufficiently deter you from offending in the future. Protection of the community will also be achieved given the lengthy term of imprisonment and period of supervised release I intend to provide.

88Totality is an important consideration in your case. As I have stated previously, this sentencing principle is not extinguished by the serious sexual offender provisions. Not only must I sentence you for the total criminality involved in the offending before the court, but I must also have regard to the sentence you are currently serving. In this regard, there has been no good explanation as to why there was a delay in this matter such that it could not be dealt with along the 2021 offending.

89The principles of proportionality and parsimony are also important considerations. They require me to make sure the punishment imposed fits the crime committed and that I do no more than is necessary to punish you for your offending. I have taken these principles into account in fixing the sentence I will now impose.

90I take into account the sentencing guidelines referred to in s5 of the Sentencing Act[15] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me. Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[15] Sentencing Act 1991 (Vic) s 5.

91Mr Burgess, after consideration of all of the above matters, including the oral and written submissions of both the defence and the prosecution, the victim impact statement from Ms Kirk, the oral testimony of Ms Steffens, psychologist, and all tendered material, I determine the only sentence that can be imposed for the serious offending before the court is one of imprisonment.

92In relation to each of the offences before the court, you are convicted, and I sentence you as follows:

·Charge 1 of rape, you are sentenced to five years' imprisonment;

·Charge 2 of rape, you are sentenced to five years and six months' imprisonment, and that is the base sentence;

·Charge 3, you are sentenced to five years and six months' imprisonment.

93In relation to Charge 1, I order that six months of that sentence be served cumulatively, and in relation to Charge 3, I order that 10 months of that sentence be served cumulatively.

94That makes a total effective sentence in relation to the current offending before the court of six years and 10 months.

95I order that 16 months of this sentence be cumulative upon the sentence you are now undergoing. In making this order for cumulation, I am mindful that you have already served one year and nine months – that is, 21 months in custody pursuant to the 2022 sentence.[16]

[16] Order amended on 14 June 2024 pursuant to s. 412 of the Criminal Procedure Act 2009 (Vic) as follows I order that 4 years and 11 months of this sentence be served cumulatively upon the sentence you are now undergoing.

96I now turn to the issue of parole. The purpose of parole is to provide for mitigation of punishment in favour of rehabilitation through conditional release where appropriate. A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances. Pursuant to s14(1) of the Sentencing Act 1991,[17] I am required to set a new single non-parole period. I order that you serve a period of five years' imprisonment from today's date before becoming eligible for parole.[18]

[17] Sentencing Act 1991 (Vic) s 14(1).

[18] Order amended on 14 June 2024 pursuant to s.412 of the Criminal Procedure Act 2009 (Vic) as follows I order that you serve a period of 6 years and 9 months imprisonment. This non-parole period is to commence on 12 September 2022, being the date you were first remanded into custody.

97Now, Mr Burgess, my intention when I consider all of the offending, so the global impact of four charges or rape and sexual assault, is that the total sentence is one of nine years and 11 months. In terms of the non-parole period, the global non-parole period  equates to six years and nine months, and that takes into account that you have served 21 months so far.

98

Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of 11 years' imprisonment, with an eight-year

non-parole period.[19]

[19] Order amended 14 June 2024 pursuant to s. 412 of the Criminal Procedure Act 2009 (Vic) as follows but for your plea of guilty, I would have imposed a term of 10 years' imprisonment with a new single non-parole period of 8 years; Sentencing Act 1991 (Vic) s 6AAA.

99

The prosecution has made an application pursuant to s11(6) of the

Sex Offender Registration

Act 2004 for an order that you be registered.[20] As you have pleaded guilty to three charges of rape against an adult, and you are to be sentenced as a serious sexual offender for each, each of the offences before the court are to be categorised as a class 3 offence for the purposes of the SORA. If I were to grant the application, the period of reporting for you would be 'life' pursuant to s34 of the SORA.[21]

[20] Sex Offender Registration Act 2004 (Vic) s 11(6) (‘SORA’).

[21] Ibid s 34.

100The test to be applied pursuant to s11(3) of the SORA is a two-step test.[22] First, the court must be satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons or of the community; and second, whether the order should be made, having regard to all relevant circumstances of the case.

[22] Ibid s 11(3).

101In this case, you have opposed the making of the order. On your behalf, your counsel, Mr Cooper, has conceded that limb 1 of the test is made out; that is, the court can be satisfied beyond reasonable doubt that you do pose a risk to the sexual safety of one or more persons in the community. However, Mr Cooper submitted that the second limb is not met in your case. In this regard, Mr Cooper submitted the following factors:

(a)The nature of the risk imposed in your case is directed towards intimate partners in the context of a deterioration of your mental health. There is no evidence of risk of sexual offending toward children;

(b)The purpose of SORA is primarily the protection of children. In these circumstances, your registration would not advance the purposes of the SORA;[23]

(c)A further purpose of the SORA is to reduce the likelihood of reoffending. If made subject to registration, you would have no obligation to report to police any contact with an adult female or the commencement of a new intimate relationship. In these circumstances, the reporting obligations would not assist in reducing the likelihood of future reoffending given the nature of the particular risk in your particular case;

(d)Registration and compliance with the SORA requires very onerous reporting obligations, and in your case, these obligations would be for life.

[23] Sayer v The Queen [2018] VSCA 177.

102I accept that when balanced against the extent to which the reporting would advance the purposes of the SORA, this weighs in favour of refusing the application.

103For these reasons I refuse the application.

104Now, Mr Cordy and Mr Cooper, is there anything further?

105MR CORDY: No, I do not believe so, Your Honour.

106MR COOPER: No, Your Honour.

107HER HONOUR: All right. I am hoping that my maths is correct. As indicated during the course of the plea, the totality issues in this case have caused me to adjust the sentence that perhaps I would have otherwise imposed, but globally, it is a sentence of nine years, 11 months with a non-parole period of six years and nine months – that would be if all offending had been dealt with at the one time – for the current offending, as I have said, a total effective sentence of six years and 10 months. But if there are any issues with the maths, do not hesitate to contact chambers.

108MR COOPER: Yes, Your Honour, thank you.

109MR CORDY: Yes, Your Honour.

110HER HONOUR: All right. Thanks very much to both counsel for their assistance. Ms Kirk, I know that one of the things that you indicated in your victim impact statement was that the court proceedings dragging on had, had a significant impact on you. I am hoping that you, to some extent, can put things behind you now that this part of things has finalised. I do not imagine that it will be a miracle cure, but it is just one further step towards the road of recovery, which I sincerely hope you can achieve. I appreciate your involvement in the proceedings and thank you for attending court, all right. So thanks very much. We will adjourn.

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