Director of Public Prosecutions v Carvalho
[2023] VCC 1283
•26 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00833
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GERARD DOMINIC JEAN-LOUIS CARVALHO |
---
JUDGE: | Her Honour Judge Ellis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2023 | |
DATE OF SENTENCE: | 26 July 2023 | |
CASE MAY BE CITED AS: | DPP v Carvalho | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1283 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: one charge of rape-guilty verdict- no prior criminal history- complainant asleep or unconscious at time of offending- filming of offending- delay;
Legislation Cited: Crimes Act 1958, Crimes Amendment (Sexual Offences) Act 2016, Sentencing Act 1991;
Cases Cited:DPP v Mokhtari [2020] VSCA 161, Jurj v The Queen [2016] VSCA 57, Hasan v The Queen [2010] VSCA 352, Brown v The Queen (2019) 59 VR 462, DPP v Macarthur [2019] VSCA 71;
Sentence: Imprisonment for a period of 6 years and 9 months, with a non-parole period of 4 years and 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. P Thorp | Office of Public Prosecutions |
| For the Accused | Mr. P Dunn KC Mr. M Brogden | Theo Magazis & Associates |
HER HONOUR:
1Gerard Dominic Jean-Louis Carvalho, on 10 May 2023, you were found guilty by jury of one charge of rape contrary to section 38(1) of the Crimes Act 1958 (Vic).[1] The maximum penalty for this offence is 25 years' imprisonment.
[1] As amended by the Crimes Amendment (Sexual Offences) Act 2016.
Circumstances of Offending
2The offending took place on 19 March 2018. At the time you were 38 years of age. You were working as a contract photographer for various nightclubs, and it was through your work that you met the complainant, Hollie Shuman[2].
[2] A pseudonym.
3Ms Shuman was born in 1982 and was aged 35 at the time of the offending. She was a frequent patron of a particular nightclub.
4Before turning to the offending itself, it is necessary to set out the background to the discovery of your offending. Your conduct came to light in July 2018, when an explicit video and graphic photographs were discovered on an Axon 7 mobile phone. This phone was previously owned by you, however had recently been sold to a third party. It is the contents of the video that give rise to the charge of rape, of which you have been found guilty.
5The 31 second video depicts you sexually penetrating the complainant’s vagina with your penis. Upon discovering the pornographic material, the phone was provided to Victoria Police, and concerns were raised as to the state of consciousness of the woman in the video.
6The complainant's face is not clearly visible in the footage, but she was later identified, in part due to the distinct tattoo down the centre of her back, which can be observed throughout the material. Ultimately police enquiries led to the identification of Ms Shuman, as I will discuss further shortly.
7Turning now to the offending. Prior to 18 March 2018, you and the complainant were not well known to each other. Your interaction with each other was largely limited to you photographing Ms Shuman at previous events associated with the nightclub. However, you were someone who was familiar to Ms Shuman; she saw you regularly enough at various events that she considered you were 'part of the furniture' at the nightclub.
8At around 8 pm on 18 March 2018, Ms Shuman attended an event at the nightclub with some of her friends. Throughout the course of the night, the complainant consumed some alcoholic drinks, as well as two lines of cocaine. You were working that night at the venue as a photographer, and you had also consumed both alcohol and cocaine.
9Towards the end of the night, between approximately 2 and 3 am, you and the complainant began speaking to each other. According to the complainant's evidence, you mentioned that you were finishing work soon, and given that Ms Shuman only lived a seven to ten minute walk away from the venue, you offered to walk her home safely and she accepted. The complainant recalls that there was absolutely no sexual behaviour or flirtation between the two of you.
10Your account as to how you came to be at Ms Shuman’s apartment differed to that of the complainant. On your evidence, Ms Shuman invited you to go back to her place for a drink and you agreed, realising upon leaving that she was planning to walk home as it was not far from the club. You gave evidence that whilst you were talking at the club, the conversation suddenly turned to her asking you personal questions and you thought she might have been, in your words, 'sizing you up' in some way.[3]
[3] T362.12-19.
11However it came to be that you travelled to Ms Shuman’s apartment, there is no dispute on the evidence that during the walk home, there was no physical interaction or anything flirtatious or seductive between you.[4] On your evidence, the complainant led the way in the dark and there was nothing out of the ordinary about the way she talked or walked. From your observation, her state of sobriety seemed 'fine'.[5]
[4] T365.19-20, 439.3-6.
[5] T365.19- T366.2.
12Ms Shuman gave evidence that once you arrived at the entrance to her apartment building, you asked her if you could come in and use her bathroom, to which she agreed.[6] Here, again your account of events was different, in that you stated that Ms Shuman invited you in for a drink and it was for this reason you entered her apartment.[7] In any event, once inside her apartment, Ms Shuman poured herself a glass of red wine; a regular ritual after a night out to help her unwind. She stated that upon your return from the bathroom, she offered you a drink, which you accepted.[8] The two of you then sat in the kitchen talking for approximately 20 minutes. The complainant recalls the conversation a being purely 'friendly … nothing of real substance' and denies any talk of a sexual nature.[9]
[6] T54.21-T55.12.
[7] T362.19-24.
[8] T55.23- T56.7.
[9] T56.10-22.
13According to Ms Shuman, her last recollection of that night, is the two of you speaking together in the kitchen close to 4 am. She has no memory of anything until around 2 or 3 pm the following afternoon, when she awoke in her bed, wearing only a nightie and seeing you asleep next to her.
14Whilst she was asleep or unconscious, you sexually penetrated Ms Shuman by inserting your penis into her vagina (Charge 1: Rape). You filmed yourself sexually penetrating the complainant in a video that lasted 31 seconds and commenced at 13:43:53, concluding at 13:44:27.
15Identifiable in that video is your hand displaying discernible gold rings on your fingers. The complainant's face is only partly visible for the last few seconds of the video. She appears to be face down, with her eyes closed. It was the prosecution case at trial that during the video, Ms Shuman was clearly either asleep or unconscious, her body relaxed in a sleep-like state, and that as you penetrated her, her body was limp, she made no noise, and in response to you thrusting your penis in and out of her vagina, it caused her body and arm to wobble.
16Proximate to the video, you also took twelve photographs of the complainant’s vagina and anal region. Time stamps indicate that these photographs were taken at various times, the first seven photographs being taken between 13:41:50 pm and 13:42:41, of the complainant’s genitals. Photograph 8 was taken at 13:43:39. This photograph depicts your penis penetrating her vagina. Photographs 9 and 10 were taken at 13:46. The last two were taken over an hour later at 14:53 pm.[10] The 12 photographs depict the complainant at different angles and with different lighting. These photographs include close‑up shots of her vagina and anal region, particularly the last two. As I have said, the complainant’s face is not visible in the photos.
[10] Statement of Agreed Facts (Exhibit A).
17Ms Shuman has no memory or recollection of any sexual acts that occurred between the two of you. Until she was contacted by police, she was not aware that you had sexually penetrated her while she slept. She was unaware that you had filmed that sexual penetration; and she was unaware that you had taken intimate photographs of her genitals and anus. During cross examination, Ms Shuman did not agree that the two of you had had any discussion about you having sex with her while she was asleep, about you 'waking her up sexually', or about you filming sex with your phone.[11] Her evidence was that she would not have agreed to let you have sex with her whilst she was asleep and she would not have given you permission to film or record sexual activity, nor to photograph her genitals.
[11] T143.8-15.
18Ms Shuman recalls that when she awoke sometime between 2 and 3 pm in the afternoon of 19 March 2018, she was positioned on her stomach and on the right side of the bed – a position and on a bed side that she would not normally sleep. She described that she felt very 'uneasy' when she awoke, about 'the whole scenario'. It was uncharacteristic of her to sleep that late, and she denies taking any sleeping tablets the night before, stating she was aware of the dangers of doing so whilst drinking. You were asleep next to her and you were naked. The complainant presumed that you had possibly had sex but she wanted you to leave. She showered as she felt disgusted and uncomfortable in her own place. It seemed you were not in a hurry to leave, and so in an attempt to get you to leave, she told you she needed to run errands in South Melbourne. You responded that you lived in South Melbourne and asked her for a lift home.[12]
[12] T57.25- T58.3, T59.30-T60.15.
19Ms Shuman then drove you to South Melbourne and dropped you off outside the Coles Supermarket near Dorcas Street. You did not give her your address. Whilst Ms Shuman was indicating to turn left into Coles, another car hit her car from behind. You both got out of the vehicle, and Ms Shuman exchanged details with the other driver. After this, you went home. On Ms Shuman’s evidence, you did not discuss meeting up again. The next time you saw each other was at the nightclub. but there was little interaction between you. On your evidence, you exchanged phone numbers at her apartment. Ms Shuman did not dispute when shown extracts from phone records, that the two of you exchanged phone numbers but she thought it may have occurred later.
20These phone records show that after 18 March 2018, text messages were exchanged between you, which the complainant believed related to the minor vehicle collision. There was some further communication a few weeks later, which she states likely related to her assisting her friends to find a photographer.
Investigation
21Approximately three months later on 8 June 2018, you sold your Axon 7 mobile phone to Claire Brealey and Joel McClelland after listing the phone for sale on Gumtree. A few weeks after the sale, Mr McClelland was looking through the phone and discovered the sexual video and explicit pictures. On 23 July, Mr McClelland attended the Geelong Police Station and provided police with the phone, as well as your mobile phone number and address. The mobile phone was analysed by the Victoria Police E-Crime Squad and all data was extracted. Using the latitude and longitude information attached to the photos, police located the approximate location of where they were taken, being in the vicinity of Wellington Street, St Kilda, but could not isolate the location any further, despite door knocks and a letter drop at premises nearby.
22Police executed a search warrant at your premises on 28 August 2018. You were not at home as you were travelling back from an overseas trip at the time. Police left a business card at the premises and later that day, you voluntarily contacted Detective Senior Constable Carton and attended the Melbourne West Police Station where you were interviewed. You provided police with information as to where you had met the complainant, which enabled investigators to narrow down their enquiries. Specifically, whilst you were purportedly unable to recall the name of the female with whom you were having sex in the video, you told police you knew her from the nightclub. Police then attended the nightclub and questioned staff in an effort to the identity the female with a distinctive back tattoo. Eventually, in early October 2018, police attended at Ms Shuman’s home and confirmed her identify on the basis of her tattoo.
23At that stage, Ms Shuman was in the process of getting ready to go out for dinner when police came to her door. Investigators asked the complainant about her interactions with you, and she initially told police that there was consensual sexual activity between you. The complainant, in her evidence explained that this was due to the assumption that she made when she awoke in the afternoon. She was informed as to the existence of the video, of which she stated she had been unaware. Nor was she aware of photographs having been taken. Ms Shuman told police she would not have consented to sexual activity with you if she were asleep nor to you filming sexual activity.
24Police spoke with the complainant again on 8 October 2018. At the time, Ms Shuman indicated that she did not want to proceed with criminal charges. You were re-interviewed by police again after that, which I will come to in a moment.
25Ultimately, in late 2021, by which stage the complainant had moved interstate, Ms Shuman contacted police again as she was considering making a statement of complaint, saying 'it didn’t go away'. She made a police statement on 12 November 2021.
26You were arrested on 22 November 2021 and declined to answer any questions when interviewed. At the time of the interview, you were wearing two gold‑coloured rings on your left index finger and thumb and these items were seized by police and photographed. They are the same rings that can be seen in the video footage.
Defence Case
27Turning now to the information that you have provided as to the events of 19 March and your account as given at trial. During the interview on 28 August 2018, you confirmed that you were in the video located on the phone and that you had taken the footage and photographs. You stated that:
·You met the woman in the video at a club, that she invited you to come back to her house; invited you into her bedroom and that you had sex that night;
·You said you had sex again the next morning;
·You asked the woman if she would mind if you videoed the two of you having sex, she said, 'Yeah fine';
·You asked her the night before if you could wake her up sexually, she said yes. She asked, 'Is that a fantasy of yours?', to which you responded yes.
28I will now specifically mention some of the answers that you gave to police, as many of these were relied upon by the prosecution as admissions.
In the first interview, Question 832:
Q. 832: What was she doing that gave you the impression that she was consenting?
A: She said that I could do that.
Q. 834: Not just the video and the photographs, but the sexual intercourse as well?
A: Absolutely.
Q. 838: What was she doing that gave you the impression that she was OK with everything?
A: Because I asked her the previous night if I can wake her up sexually and she said yes.
Q. 839: What do you mean by that?
A:So I could be sexual and she would wake up.
29Later you were asked at Questions 1009 through to1013:
Q. 1009-1010: Yeah, OK. And I just want to clarify - so you said you asked her if you could wake her up in the morning sexually and she asked 'is that a fantasy of yours?'
A: Yeah, no, no, yeah. I said 'sexually' but I specified 'with sexual intercourse'.
Q. 1011: OK.
A:And then she asked me, she had a bit of a laugh, 'is that a fantasy of yours' and I said 'yes'.
Q. 1012-1013: What is, what is the fantasy?
A:And then she agreed. That I do just that. So like wake them up sexually like that.
Q.1145/1147: When you said she woke up startled, was that prior to this video?
A:That was after this video. She didn’t wake up so I stopped and then I spooned her again and then she woke up while I was spooning her.
Q. 1203:When she woke up startled, was she aware that you had had sex with her that morning?
A: No, I don't think so.
30You have stated that in this answer at Question 1203, you were referring to her waking up startled when you rubbed your hands on her, waking her up sexually, before intercourse.[13]
[13] T416.25-31.
31Some further clarification was sought in a later record of interview conducted on 28 November 2018:
Q: 414: You woke her up?
A: Yeah, because she was meant to wake up as part of the thing, or this was meant to, like, yeah, just as I - as I start, she's meant to come to, obviously meant to wake up.
Q. 423: Just run it for me, so I want to make sure I'm clear, that's all.
A:Yeah. So - so during this process, she's meant to wake up, and then we're meant to continue.
Q. 424: While you're having sex with her?
A: Yeah, we're meant to continue, yeah.
Q. 425: Right, O.K.
A: And she didn't, so I stopped.
Q. 426: O.K.
A: And then I woke her up.Q. 430: Right. So you stop having sex with her, tapping her on the shoulder, trying to wake her up.
A: Yeah.
Q. 431: And that's when she wakes up startled.
A: Yeah.32You gave evidence at trial. You gave an account as to what happened once inside the complainant’s apartment. You disputed that you came in to use the toilet, saying once you arrived, she gave you a tour and offered you a drink. On your evidence, you sat talking in the kitchen, during which time you had a second glass of wine,[14] before Ms Shuman took you by the hand and suggested you go to her bedroom.[15] You gave evidence that you engaged in oral sex with each other, you gave her a massage and you had penile vaginal sex.[16] You stated that the two of you, after having sex, lay cuddling and had an intimate conversation.[17] You gave evidence that you asked her during this conversation, if you could wake her up sexually, and she asked if this was a fantasy of yours, and agreed. You state that she also agreed that you could record this on your phone.[18]
[14] T378.4-5.
[15] T378.8-13.
[16] T379.7-14.
[17] T379.31- T380.9.
[18] T380.27-T381.5.
33You provided an account at trial as to how waking the complainant up sexually took place. Specifically, you gave evidence that after the two of you had consensual sex (and the intimate conversation), you went to sleep. You gave evidence that you woke up and it was dark in the room because the curtains were drawn. I will refer to this portion of your evidence‑in‑chief which commences at [T382.16]:
And what happened?---Ah, well, I – I woke her up. So I used my hands on her as I described.
In what way?---I caressed her back and her arms, and she woke up startled. And, um –I just say, 'Oh, it's me'. And she looked at me and smiled. And we started kissing. And, um – and then I took some images of her, like I said I would.
Yeah?---And, um, then proceeded to have sex. And, um – and I took a video of that. And towards the end of that video, when I was looking at my screen, I panned up, and I – I noticed that she may have dozed off. And I immediately stopped having sex, and I immediately stopped the recording.
All right. What happened after that?---After that, I gave her a little, um, shake on her arm, but she seemed too tired.
34You also gave evidence that the complainant was awake and consented to you taking each of the 12 photographs. Your evidence at [T386.4] was that after you took photograph number 8 (photograph of you penetrating her), you said:
So before I started to have sex with her, I moved her more onto her front, and she moved with me, and then – and I started to have sex with her, as – as is in this – as is in captured in this image, and then I – then I started a – a – to record a video of it soon after this image.
35You said you then took photographs 8 and 9, and spooned Ms Shuman before you dozed off. When you awoke, she was up and about, and came back to bed where you had sex again which culminated in you ejaculating. You said that around this time you took two further photos at 1.53 pm.[19] You gave evidence that she spread her legs in order for you to take these graphic photos of her vagina.[20]
[19] T387.5- T388.26.
[20] T386.20- T388.28.
36This was in stark contrast to the evidence of Ms Shuman who, as I have already noted, said the first knowledge she had of any video or photographs being taken of her was when the police turned up at her house. She gave evidence that she did not have sex with you in the afternoon when she woke up, nor was she aware of you taking any photographs of her or filming her.[21] She said being filmed during sex or having intimate photographs taken of her body parts is not something she would ever do whatsoever. She stated that as a woman who ran her own company, she prided herself on her career as a professional, there is no way she would have risked her career with something of this nature and further it is incongruent with her morals.[22]
[21] T144.12-18.
[22] T59.11-22.
37At trial, the prosecution relied on your answers in the record of interview as being admissions that the complainant was asleep at the time of the sexual penetration and that you knew she was not aware that you had had sex with her, because she was asleep. The prosecution also submitted that your evidence in court on how the ‘process’ of waking her up, and whether she was awake at the time of the sexual penetration, was different to what you had told police. It was submitted by your counsel that the answers were not admissions, and that you were explaining to police what had occurred, and that this was not inconsistent with your evidence.
38Regardless, it was the prosecution case at trial that you raped the complainant, that by your own admission to police, Ms Shuman was asleep when you penetrated her and that the video itself clearly depicted you penetrating a sleeping or unconscious woman.
39In any case, by the jury’s verdict, the jury were satisfied beyond reasonable doubt that you had sexually penetrated the complainant without her consent and that you did not have a reasonable belief in consent.
40Mr Dunn submits that the jury’s verdict indicates that despite the fact that you might have held a belief that she was consenting, such a belief was not reasonable in the circumstances. I have difficulty with that submission. The jury’s verdict tells us nothing as to whether they formed a view that you had a belief in consent. That is the version that is given by you. All that can be deduced from the jury’s verdict is that they found that you did not have a reasonable belief in consent.
Victim Impact
41Ms Shuman has provided a compelling Victim Impact Statement and this was tendered on the plea as Exhibit A. Ms Shuman describes the harm that your offending has had on her both mentally and physically, and how she was, in her words 'violated in the most personal way'. She described how her tattoo now makes her 'sick to [her] stomach'.
42Ms Shuman described herself before the offending as being 'the absolute life of the party … always friendly, outgoing and vivacious'. Since the offending, she struggles to get out of bed most mornings, has stopped doing the things that she once enjoyed and gets 'no real enjoyment' from life's activities.
43She also described the strain this offending has put on her current relationship, and she has difficulties with intimacy. She fears that her husband 'doesn't look at [her] the same' and she is worried the impact it will have on their relationship in the future. Since becoming aware that she was offended against, she has replaced her mattress.
44Ms Shuman has become withdrawn, feels unsafe, she is afraid to leave the house, and her pre-existing physical symptoms feel worse and she has experienced complete emotional breakdowns. She lacks confidence, stating:
I did like to think of myself as being intelligent, and a good judge of character. This has shattered my belief in everything I thought I knew and everything I thought I was.
45I take into account the impact that your offending has had on Ms Shuman, who discovered in a most confronting way that she had been raped by you, whilst she was asleep in her own bed.
Personal Circumstances
46You were born in Colombo, Sri Lanka in November 1979 to a family of Tamil background. You are now aged 43. You have two siblings: an older brother, Jean‑Paul, who is an associate professor at Oxford, England, and a younger sister, Karina, who lives in Sydney with your mother.
47You and your family moved to Australia in March 1985 due to the civil war and unrest in Sri Lanka. You were 3 years old when the anti-Tamil program known as ‘Black July’ engulfed Colombo, where you were living at the time. It was a week of looting and lynching by rebels that descended on your neighbourhood. You could not be identified as Tamil due to your Portuguese surname. You and your family were forced to stay home and protect your house, whilst sheltering other Tamil families. Your family business was looted and burned. After this, your family migrated to Australia.
48Upon arrival to Australia, your family settled in Perth – you were aged 5. You were bullied from a young age, which was exacerbated partly due to your speech impediment or stutter. Your brother recalls that during primary school, you were often the target of physical intimidation and abuse by fellow students. Nevertheless, you always remained calm and affectionate with a good sense of humour.
49You went on to study nutrition in Perth before eventually moving to Melbourne in 2006 to continue your studies. Once you completed your studies, you worked in retail and as a nutritionist at a pharmacy in Footscray.
50In 2012, you commenced work in event photography, and by 2015 you had transitioned to full-time work, predominately in the nightlife industry. Since 2018, you have worked for a photographic printing company, Picture Works Group, moving on entirely from your previous work. Your employer has provided a character reference and notes the professional and calm approach that you have brought to your work.
51You have no prior criminal history.
52A number of character references were tendered. Your brother travelled from the UK to support you during your trial. He has prepared a very insightful character reference as to your childhood and the person that he and his wife know you to be. According to your brother, you have had strong female role models and you have always had great respect for women, maintaining good relationships with the women in your life including past girlfriends.
53Your sister‑in‑law reflects that you have always been welcoming, loving and kind, with a peaceful happy presence. She describes you as respectful, open and honest, loyal and patient. This is echoed in the other references supplied by friends and extended family who note the values instilled in you by your parents, in particular your understanding of gender equality. They have never seen you exhibit disrespect towards women or to behave violently. They consider you to be extremely well mannered and gentle.
54Clearly you are well regarded and admired by those closest to you. I take those references into account. It seems that this offending was indeed very much out of character.
Nature and Gravity of Offending
55The high maximum penalty that applies to the offence of rape is indicative of the way in which Parliament views offences of this type and reflects the community’s abhorrence of this crime. Offences that violate the bodily integrity and personal dignity of another person by means of sexual intrusion are serious. As the Court of Appeal recognised in DPP v Mokhtari[23]
'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.'
[23] [2020] VSCA 161 (Maxwell P, Beach and Weinberg JJA) [41].
56I view your offending here as serious. In assessing the objective gravity, I have had regard to the various matters identified in Jurj v The Queen.[24] You raped the complainant in her bedroom whilst she was asleep, and therefore vulnerable, unable to defend herself or resist. You did so for your own sexual gratification.
[24] Jurj v The Queen [2016] VSCA 57 [80] (Maxwell P, Redlich and Beach JJA) (‘Jurj’).
57The video footage of your sexual penetration of Ms Shuman while she lay limply and soundlessly on the bed, her body involuntarily moving as you thrust your penis in and out, makes for confronting viewing when looked at in conjunction with her evidence.
58Your counsel, Mr Dunn KC, has submitted that your offending was confined to the 31 seconds of the video. There is no evidence as to how long you penetrated the complainant for (indeed the video does not show when you began penetrating her, nor does it show when you withdrew your penis from her vagina). It seems that the penetration was for more than 31 seconds but for much longer cannot be determined. I do not sentence you on the basis that it was much longer than 31 seconds, only you know how long you penetrated her for. Accordingly, on the evidence before me, I accept that the offending was of relatively short duration and is confined to a single occasion.
59The fact that you chose to film your rape of Ms Shuman is an aggravating feature of your offending. It is also aggravating that you took explicit photos of her genitals both before and after the offending. Looking at the timing of the photographs, it is apparent that there was a period of time spanning over an hour, in which you were at least interacting with her genitals photographing them. I accept that you did not intend to distribute the footage or the photos or the images. Had it not been for the fact that Mr McClelland, after purchasing the phone, performed a reset on the phone which resulted on the material resurfacing, it is possible this footage may never have seen the light of day. Ms Shuman may have remained entirely unaware that she had been violated.
60Your counsel has submitted that the complainant did not experience a protracted physical or psychological ordeal, being unaware of the offending until contacted by police in October 2018. That is not to say that this offending has not had an impact on her. Clearly, from her victim impact statement it has. Whilst it is true that she was not cognisant of the rape when it took place, upon becoming aware that she had been violated and her rape filmed, this has had a considerable effect on her. It is not a stretch to say that it would have been incredibly disturbing for a person to discover that she has been violated, penetrated, that someone has photographed her genitals. The constant thought as to what happened whilst she was asleep has its own degree of horror.
61Moreover you did not use a condom, which is an aggravating feature, as this carries with it a degree of recklessness with regard to the risk of unwanted pregnancy and sexually transmitted disease.[25] Although there is no evidence as to whether you ejaculated during this penetration, a level of risk nonetheless existed.
[25] Hasan v The Queen [2010] VSCA 352 [38].
62I accept that there were no threats of violence or coercion. True it is that Ms Shuman was not visibly protesting, but how could she when she was asleep and unaware that you were penetrating her?
63Overall, I regard your conduct as serious and your moral culpability high.
Procedural History
64You were arrested and charged on 22 November 2021. This charge was committed to this court on 17 May 2022 following a contested committal hearing. The matter was ultimately listed for trial on 26 April 2023, and the jury returned a guilty verdict on 10 May 2023. You were remanded at this time. The matter was then listed for a plea hearing on 19 May, however it was adjourned as you had contracted COVID-19 whilst in custody and an audio-visual link was not able to be obtained.
65The plea hearing was eventually heard on 23 June 2023. As of today, you have accrued 77 days’ pre-sentence detention. I take into account that whilst custodial restrictions with respect to COVID‑19 have eased somewhat, there are still protocols which have the effect of making imprisonment more burdensome. Indeed, shortly after you were remanded in custody for this offending, as I have said, you contracted COVID‑19 and spent several days in isolation and further days in a specialised COVID unit.
Delay
66There has been a considerable delay involved in this matter. The offending took place over five years ago in March 2018. Although you were interviewed twice in 2018, you were not charged until November 2021, when the complainant made a complaint, over three and half years after the offending. Additional delays have been incurred as a consequence of events outside of your control, in particular the delays associated with the pandemic although a portion of the delay reflects the fact that you disputed any criminal liability for the offending. Of course, you are not to be punished for exercising your right to trial.
67A consequence of the delay is that these proceedings have been in effect hanging over your head for many years. The fact that you were interviewed and then nothing occurred for over three years, means that you have had the stress and anxiety associated with these proceedings renewed. This has no doubt weighed heavily upon you. Throughout this period, you have continued to be employed and there have been no further incidents of criminal behaviour. I take these matters into account, and in particular the delay between your first interview and the date on which you were charged.
Prospects of Rehabilitation
68As I have said, you come before the court with no prior criminal history and a strong work background. Your character references make it clear that this offending is extremely out of character. These factors bode well for your prospects of rehabilitation which are enhanced by the fact that you have the support of your family. In light of this, I consider your prospects of rehabilitation to be extremely good, if not excellent.
Sentencing Act Provisions
69The offence of rape is a category 1 offence. Imprisonment is mandatory and cannot be combined with a community correction order.
70Rape is also a standard sentence offence. The standard sentence on this charge is 10 years' imprisonment.
71As section 5A of the Sentencing Act 1991 makes clear, the period specified as the standard sentence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
72Section 5B(2)(a) obliges the court to take the standard sentence into account as one of the factors relevant to sentence. The standard sentence is a matter to which the sentencing court must have regard.
73As the Court of Appeal clarified in Brown v The Queen,[26] section 5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the sentencing discretion. It is to be treated as a 'legislative guidepost', having the same function as the maximum penalty. It does not affect the established 'instinctive synthesis' approach to sentencing and does not require or permit 'two stage sentencing'. Further, it does not otherwise affect the matters which the court may, or must, take into account.
[26] (2019) 59 VR 462.
74Further, when fixing a non-parole period in respect of a standard sentence offence, the court must not fix a non-parole period that is less than 60 per cent of a head sentence unless satisfied that it is in the interests of justice not to do so.
75Finally, I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.
76I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence by the process of instinctive synthesis. Having identified and considered all of the relevant factors in assessing the appropriate sentence, including the maximum penalty and the standard sentence for rape, in this case I have formed the view that the sentence I will impose on this charge is lower than the standard sentence.
77Additionally, I have had regard to current sentences practices for this offence under the standard sentencing scheme, although this is not a controlling factor. A number of cases were referred to by both parties. Those cases were set out in tables provided by the prosecution which related to other standard sentence rape cases, and those which involved similar features of offending. Of course, no two cases are alike.
Relevant Sentencing Factors
78The basic purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Pursuant to the Sentencing Act 1991, I am required to take into account various factors when formulating an appropriate sentence. These include the seriousness of the offence, your culpability which I consider to be high, the effect of your offending on the victim and your personal circumstances.
79The sentence I pass must balance the interests of the community in denouncing criminal conduct with the community's interests in seeking to ensure that, as far as possible, you are rehabilitated. I am to have regard to protection of the community. I also have regard to principles of parsimony.
General and Specific Deterrence
80General deterrence is an important sentencing consideration. Other members of the community must understand that sexual offences against women without their consent, a violation of their rights, will not be tolerated. This is particularly so when advantage is taken of a woman while she sleeps in her own home.
81As the Court of Appeal stated in the case of DPP v Macarthur[27] a case involving charges of rape and attempted rape:
'[T]he sentences to be imposed in a case such as this must make it clear that any person, who is minded to exploit the vulnerability of members of the public, particularly women, in such circumstances, by sexually interfering with them, will suffer a deprivation of their right to be at liberty within society for a substantial period of time. As an associated consideration, it is important that the Court make it plain that offending of the kind that was engaged in in this case is entirely unacceptable and reprehensible. In that way, in a case such as this, the Court, by the sentences imposed by it, has a duty to express its denunciation of such offending in clear terms.'[28]
[27] [2019] VSCA 71.
[28] Ibid [69].
82Although you have no prior criminal history, specific deterrence is not irrelevant here. The sentence that I impose also needs to deter you from committing such offending in the future. I must give primary consideration to the principles of just punishment and denunciation. Your behaviour was reprehensible and the court denounces your conduct.
Sentence
83On Charge 1, the charge of rape, you are convicted and sentenced to 6 years and 9 months; imprisonment.
84I fix a non-parole period of 4 years and 6 months' imprisonment.
Pre-Sentence Detention
85Pursuant to section 18 of the Sentencing Act 1991, I declare 77 days pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
Sex Offender Registration
86The offences of rape when committed against an adult, is a Class 3 offence under the Sex Offenders Registration Act. Registration under the Act is discretionary. In this case, the prosecution have not urged me to place you on the sex offenders register; and I do not propose to make such an order.
- - -
0
6
0