Director of Public Prosecutions v Cassidy
[2023] VCC 527
•3 April 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-02264 & CR-21-00016
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU CASSIDY |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 15 March 2023 | |
DATE OF SENTENCE: | 3 April 2023 | |
CASE MAY BE CITED AS: | DPP v Cassidy | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 527 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing
Catchwords: Guilty plea – procuring a sexual act by threat – common law assault and false imprisonment - offender in intimate relationship with the victim – diagnosed PTSD, generalised anxiety disorder with panic coupled with severe stimulant use disorder and drug-induced psychosis – sentencing principles of general deterrence, denunciation and just punishment – breach of community correction order
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Verdins v. R (2007) 16 VR 269; Marrah v. R [2014] VSCA 119; Boulton v. The Queen [2014] VSCA 342
Sentence: Total effective sentence of two years and 10 months’ imprisonment with a non-parole period of one year and eight months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B.D. Nibbs | Office of Public Prosecutions Victoria |
| For the Accused | Ms K. Mildenhall | Slades and Parsons |
HER HONOUR:
1Beau Cassidy, you have pleaded guilty on indictment to one charge of common assault and one charge of false imprisonment contrary to common law, and two charges of procuring a sexual act by threat contrary to s 44(1) of the Crimes Act 1958 (‘the Act’). The maximum penalty for the offence of procuring a sexual act by threat is 10 years' imprisonment. Pursuant to s320 of the Act, the maximum penalty for the offence of common law assault is five years' imprisonment and the maximum penalty for false imprisonment is 10 years' imprisonment.
2These charges arise from the events of 14 August 2019 and involved your intimate partner at the time.
3On a separate indictment, you have also admitted contravening a community correction order imposed in combination with a sentence of imprisonment by the County Court on 21 April 2020.
4You were born in February 1994 and were 25 years of age at the time of this offending. The victim was born in November 1997 and was 21 years old. You and the victim had been in an intimate sexual relationship for approximately three weeks, having met through an online dating platform.
Circumstances of Offending
5The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 9 March 2023, which is the agreed basis upon which you are to be sentenced.
6On 14 August 2019 at approximately 12.30 am, you travelled by taxi to the victim’s home in Horsham, arriving at about 1 am. The taxi driver observed you and later told police you appeared to be 'fidgety and edgy'.
7The victim was at home with two friends. You did not enter the front door, but walked over the roof of the house, jumped down and knocked on the back flyscreen door and asked to be let in. The victim was concerned as you appeared upset and decided to let you in.
8The four of you then smoked some cannabis and methamphetamine. The victim thought you appeared confused, angry and upset. The others also observed you were fidgety and pacing around the unit.
9The victim’s two friends left the house at approximately 1.15 am, leaving her alone with you. After they left, you turned out all the lights in the unit and locked the flyscreen security doors.
10At this point, the victim was sitting next to the couch with her back against the wall. You walked over to the couch and spat on her. The victim felt spittle land in her hair. This conduct forms part of Charge 1 – common assault, being a rolled up charge comprising three separate incidents.
11While sitting on the couch, you began to flick peanuts from a container over the victim. She understandably became upset and went into the bathroom to fix her hair. The victim then moved to her bedroom to call her friend to ask that she return to the unit, as she was frightened by your erratic behaviour, and did not want to be left alone with you.
12You yelled at the victim to come to you, saying, 'Don't make me come in there!' You then demanded that she give you her mobile phone. The victim complied, feeling she had no choice. You then kept her mobile phone for the remainder of the night.
13You told the victim to sit down. You told her not to move. Every time the victim attempted to stand, you yelled at her to 'shut up and sit down'. You walked into the kitchen, where you dropped her mobile phone cracking the screen. You then returned to the victim and began verbally abusing her, calling her offensive names including 'fat mole', a ‘hoe', and a ‘liar'.
14You left her at this point to go to the garden, where you picked up a wooden plank and returned inside carrying it. You repeatedly threatened to 'belt' the victim with the wooden plank. You said that her house was going to cost her money and that you were going to 'break all of her stuff'. You started hitting the couch and nearby washing basket with the plank. This caused the victim to fear that you were going to hit her with the wooden plank.
15You began kicking the victim’s legs with sufficient force to cause a bruise to her left shin. This conduct also forms part of Charge 1 – common assault. Throughout your offending you repeatedly threatened to 'kick the shit out of her', stating you would 'hurt her so bad that even makeup wouldn't hide it'.
16At one stage, the victim wanted to go to the toilet but you refused, saying “no” and that she could go outside. You eventually allowed her to go to the toilet but told her 'you've got 30 seconds or I'm coming in there'. You then counted the seconds out loud so that she could hear you. After she went to the bathroom you again refused to allow the victim to move, asking her 'where are you going, what are you doing', threatening to kill or assault her. The victim felt trapped and worried for her safety as the security doors in the house were locked and you would not allow her to move freely in the house. This conduct is the subject of Charge 2 – false imprisonment.
17Following this, you asked the victim to roll you a cigarette which you lit then tossed across the room, causing a burn mark on the carpet. You pushed a glass cup from the arm of the couch, causing it to smash on the floor. You got up and kicked the glass causing it to smash further. You then threatened to take and harm the victim’s cat.
18When you returned to the couch, you began striking the washing basket with the plank and again threatened to hit the victim with it. You threatened to stab her while moving your arm in a stabbing motion.
19The victim began crying in distress. You told her to sit down next to you on the couch. You then used a kitchen fork to strike her multiple times in the back of the neck, causing pain and leaving red marks to the back of her neck. This is the third incident that forms part of Charge 1 – common assault. You told the victim to shut up, calling her a 'sook'.
20The victim then moved back to the floor. You asked her to 'explain herself', saying she knew what she had done wrong and that she knew why you were angry. You said she had to tell you within 30 seconds or you would 'take further action'. The victim continued to cry saying she did not know what she had done.
21You then asked her to sit on the couch with you again. You said that you needed to 'get a nut off', which the victim understood you to mean a desire to ejaculate. You said words to the effect, 'If I don't get a nut off soon then I'm going to bash your head in and kill you.' You further threatened that you would 'hurt her real bad', repeating that she needed to 'get the job done' or you would hurt her.
22The victim was scared and felt she had no choice but to engage in sexual activity with you, fearing that you would hurt her if she did not.
23You laid back on the couch and the victim performed oral sex by inserting your penis into her mouth. This continued for about seven minutes, during which you said nothing. This act of sexual penetration is the subject of Charge 3 – procuring a sexual act by threat.
24The victim then removed her pants to have penile-vaginal intercourse with you. You held her by the thighs near her hips causing a bruise to her left thigh. Again, you said nothing to her. This act of sexual penetration is the subject of Charge 4 – procuring a sexual act by threat.
25The victim stopped on a few occasions, but you told her to keep going as you were 'almost there'. She feared that if she stopped you would hurt her. After about 10 to 15 minutes, you ejaculated in her vagina. You then threatened her that if she became pregnant, you would kick her in the stomach to end the pregnancy.
26Afterwards, the victim put on a dressing gown and went into the kitchen. She noticed that you had spilled red cordial over the walls and the fridge. You told her to turn the light off and clean it in the dark. The victim then tried to go have a shower but you would not allow her to do so. You made her roll three cigarettes for you before you got up to leave. You told her to call you a taxi which she did at 5.34 am. The victim sat down in front of the heater and cried. You told her to 'stop crying, you're going to make me cry' and said 'sorry' before leaving.
Investigation and Procedural History
27After you left the house, the victim found her mobile phone on the couch and sent a message to a friend at around 6.15am, in which she said she had been held hostage in her own home and described being 'jabbed' with a fork.
28The victim also discussed your offending with her mother and sister that morning before attending at Horsham police station at 3.35 pm to report the matter to police.
29You were arrested on 14 August 2019 and taken to Horsham Police Station. You participated in a record of interview where you admitted engaging in sexual activity with the victim, but otherwise denied the offending. You said you wanted to apologise to the victim. At this stage, the victim had not made a statement to the police.
30You participated in a further record of interview on 30 December 2019 where you made certain admissions, including to 'trashing' the victim's house, which you agreed would have scared her. However, you denied spitting on her, stabbing her with the kitchen fork or threatening her. You said the sexual activity was consensual. You told police you became angry after her friends sold you some inferior 'ice'.
Procedural history
31A contested committal was held on 7 January 2021. The matter was first listed for trial in the Warrnambool circuit commencing 20 April 202 but was not reached in that circuit or the following three circuits. The matter resolved to a guilty plea, prior to trial, on 23 January 2023.
32On 14 August 2019, you were also arrested and interviewed in respect of a robbery at a Caltex Store committed on 21 July 2019. On that occasion, you had stolen money after threatening a shop attendant whilst armed with a baseball bat. On 21 April 2020, you were convicted and sentenced to 14 months' imprisonment combined with a three-year community correction order by a judge of the County Court, with conditions to engage in drug and mental health treatment for that offending.[1]
[1]DPP v Beau Cassidy [2020] VCC 463 (Judge C. Ryan)
33You admit contravening this order by failing to comply with the conditions of the order; namely, failing to comply with a direction to attend for drug testing on four occasions, and failing to attend for supervision on another four occasions. In addition, you admit contravening the order by committing the offence of wilful damage following a verbal confrontation with your father at your parents' home on 22 September 2021 when you punched a hole in a bedroom wardrobe. On 24 February 2022, you pleaded guilty to this offence and were fined, with conviction, an aggregate of $1,000.
Gravity of offending and victim impact
34I now turn to assess the objective gravity of your offending.
35This was undoubtedly serious offending. Between the hours of 1.15 am until you left in the taxi at 5.34 am, you terrorised the victim by multiple threats, assaults, degrading and humiliating conduct culminating in your conduct in procuring the victim to engage in sexual acts by your threats. It is an aggravating feature of your offending that you engaged in this conduct in the home of the victim, with whom you were in an intimate relationship at the time, and where she was entitled to be safe. She was not. To the contrary, acting erratically, you locked the security doors, took her phone, prevented her from moving freely in her home, threatening to kill or assault her if she did so. By your controlling behaviour, she was trapped in her own home, unable to escape your erratic and threatening conduct.
36Although the charge of common law assault carries the one maximum penalty of five years' imprisonment, it is relevant to the sentence I impose to recognise this is a rolled up charge comprising three separate incidents including the particularly offensive conduct of spitting at the victim, kicking her and concerningly, repeatedly striking her neck with a fork. Fortunately, you did not do so with sufficient force to cause her injury.
37On your behalf, it was submitted that your conduct in procuring the sexual acts by threats could be characterised as falling within the low to moderate range for offending of this kind in circumstances where you made no threats or exhibited controlling behaviour while the sexual activity was taking place. Rather, on your behalf it was submitted it was the victim who 'acted independently to decide which sexual acts' took place, including by removing her pants and performing oral and then penile-vaginal sex. At the time of the sexual activity, it was submitted there was an absence of aggravating features, such as the use of a weapon or any further threats.
38It is true that you did not make any further threats or otherwise engage in controlling behaviour during the course of the sexual activity. In my view, however, the submission made on your behalf understates the significance of the multiple threats and assaults the victim had endured, all while falsely imprisoned in her home over the course of the preceding hours. You had threatened to assault her twice whilst holding the wooden plank. The fact these threats did not occur during the course of the sexual acts, does not mean those threats were not still operative. This is accepted by your plea.
39Although you are not to be punished twice in respect of these preceding acts, they are relevant to my assessment of the objective gravity of your conduct in respect of the offence of procuring the sexual act by threats. This could not be characterised as a low level example of this particular offence. I do accept, however, that other aggravating features such as the use of a weapon during the sexual acts, are not present.
40This was a terrifying ordeal for the victim. In her victim impact statement, the victim states she was in shock following the incident and felt angry with herself for having trusted you. Your offending caused her mental trauma, resulting in ongoing flashbacks and nightmares. She says she has lost trust in males more generally, and now isolates herself from family and friends. She says the marks to her neck are a constant reminder of your crimes, as is the fact she must remain in the same house, filled with her memories of that night.
41Mr Cassidy, there can be no doubt as to the impact that your offending has had on the victim.
Personal circumstances
42I turn now to your personal background. Your background well illustrates the devastating consequences for those who develop an addiction to the drug 'ice'.
43Yours was a happy childhood, having been born into a loving, stable and supportive family. You were born in Edenhope and have an older sister to whom you remain close. When you were young, the family moved to Horsham, where you grew up. Your father, Brian Cassidy, worked as a painter for 30 years, before taking up a role in disability services with Wimmera Uniting Care where he has worked for the past nine years. He also works for the local radio's football and cricket segments. Your mother continues to work at Forty Winks, where she has worked for the past two decades. Both of your parents remain actively involved in the local community. You remain close to family, although your drug addiction issues have understandably been a source of great distress for them.
44You attended St Brigid’s College in Horsham to Year 12, leaving in the final term of that year. During your school years, you were a talented footballer and then basketballer, playing at a state level at that sport.
45Since leaving school, you have demonstrated a strong work ethic. At the age of 17, you commenced a traineeship in retail at Mitre 10 in Horsham, where you worked for approximately two years. You then worked for five years for the CHS group, a civil construction company in Horsham where, by the time you left, you had been promoted to the role of assistant fleet manager. In this role, you were responsible, in part, for 118 vehicles at the company's sites between Horsham and Warrnambool.
46At the time of this offending, you were working as a sub-contractor installing solar panels for a company, VV Electrical and Solar. You worked in this capacity for a few weeks before being remanded in August 2019, however you lost your licence and were unable to remain with the company. After your release from custody, you were employed as a concreter by a family friend.
47You began using cannabis socially from the age of 16 which was the gateway to your abuse of methamphetamine, commencing when you were 17. Once you began smoking this drug, you quickly became addicted. Between 2017 and 2019, you were smoking ice regularly. However, from 2019, you began using intravenously, consuming methamphetamine on weekdays, particularly after you had been paid. You had been using half a gram of ice daily in the lead-up to this offending and the preceding armed robbery.
48You also began to experiment with other drugs, including MDMA, GHB and ecstasy. By 2022, you were using ice every three to four weeks. You would manage work by trying to sober up and curb your use. You would use the prescription drug Seroquel to assist you to sleep.
49At some time between 2016 and 2017, you were involved in a serious accident when a truck you were driving rolled at speed. This also occurred at a time when you were using ice. Although you only received minor injuries, you believed you were going to die.
50You have previously attempted rehabilitation, having spent twelve weeks at the Bendigo Bridge Program in November 2016 and later at the Basin program run by the Salvation Army in Melbourne for 16 weeks in mid-2017. However, you relapsed into intravenous drug use in 2019 at the age of 25. It was around this time you witnessed a friend's father die of a cardiac arrest after you consumed ice together.
51At the time of this offending, you had a limited criminal history, having one prior court appearance from June 2017. On that occasion, you were sentenced by the Magistrates' Court to a 12-month community correction order for driving offences. Of concern, these offences included driving under the influence of a drug and resisting an emergency worker on duty.
52You were assessed for the purposes of your plea by psychologist Alison Mynard on 17 February 2023. In her report dated 26 February 2023, Ms Mynard details the counselling you engaged in with her over 2020 and 2021, with a focus on your substance abuse. Although you engaged well through to November 2021, you ceased all contact with Ms Mynard in 2022, following your relapse. Ms Mynard reports you have indicated a willingness to re-engage in treatment in custody, for which you are presently waitlisted, and upon your release.
53Ms Mynard assessed you as suffering high levels of stress and anxiety and concludes you suffer from a post-traumatic stress disorder, with memories of the truck collision continuing to affect you, compounded by witnessing the death of your family friend in 2019. Ms Mynard concludes you meet the diagnostic criteria for post-traumatic stress disorder, generalised anxiety disorder with panic coupled with a severe stimulant use disorder and drug-induced psychosis.
54As to this offending, Ms Mynard expresses the opinion that you were suffering from a drug-induced psychosis at the time, giving rise to your paranoid behaviour. You believed that the victim’s friends had provided you with a drug other than ice, and that the victim had played a role in taking advantage of you, for which you became angry. In her report, Ms Maynard states:[2]
At the time of the offending, Mr Cassidy suffered from his ongoing condition of PTSD, anxiety and depression, as well as being substance affected with ice. His most prominent symptoms that affected him at the time of the offending was his substance intoxication and his psychosis. His depression and anxiety have been part of his life for many years, and have been exacerbated by his ongoing substance use and the impact this has had on his life.
[2]Exhibit 1 – Psychological report of Ms Alison Mynard dated 26/2/’23 at [63]
55It was not submitted, and there is no basis upon which I could conclude, that your offending was causally connected to your underlying mental health conditions so as to enliven the principle in Verdins[3] to reduce your moral culpability for this offending. Rather, at the time of this offending, you were in a drug-induced psychotic state from your daily consumption of ice, resulting in your paranoid, erratic and threatening behaviour towards the victim. Clearly, addressing your longstanding addiction to ice will be pivotal to your future rehabilitation.
[3]Verdins v. R (2007) 16 VR 269 (“Verdins”)
Matters relied upon in mitigation
56On your behalf, Ms Mildenhall provided detailed written submissions in which she helpfully outlined a number of significant matters that operate in mitigation of your sentence.
57Importantly, you pleaded guilty to these offences prior to trial. Although yours was not an early plea, there is utility in the plea and it facilitates the course of justice. Your plea saved the court and the community the cost and time associated with a trial. Through your guilty plea, you acknowledge responsibility for your offending. Significantly, in a case such as this, your plea also saved the victim from the ordeal of giving evidence at a trial.
58Ms Mildenhall's submissions also highlighted the fact you offered to plead guilty to some of the charges in June 2022. I accept you had acknowledged responsibility for your assaults and the false imprisonment of the victim on an earlier date, but your plea to the procurement of sexual activity by threats was not entered until January 2023.
59The question of remorse is more complicated. In your initial interview with police, you accepted you were 'really nasty' to the victim and wished to apologise, however, you otherwise denied your offending. In your later interview, you agreed that your victim would have been scared through the course of the evening and wanted to apologise, but otherwise denied much of your offending, maintaining she had agreed to have sex with you.
60In your subsequent assessment with Ms Mynard in February 2023, you agreed you were erratic and paranoid at the time. However, you appear to show little insight into the extent to which your threatening behaviour procured the sexual acts, claiming it was the victim who had sex with you, and emphasising that you did not hold her down or force her in any way. More recently, in a letter you wrote to the court, you appear to demonstrate greater insight into the impact of your offending on the victim and express sincere regret for your conduct.
61Your guilty plea also attracts a significant sentencing discount for its utility, particularly given the delays in the criminal justice system that continue after the COVID-19 pandemic. By your plea, you assisted in ameliorating these delays. You are entitled to, and will receive, a significant sentencing discount for your guilty plea.
62The delay associated with these proceedings also operates to moderate your sentence. Although you were interviewed by police in August 2019, you were not charged until 10 months later, on 26 June 2020. The prosecution is unable to provide any explanation for this delay. There was a further delay of 18 months, occasioned by the impact of COVID-19, between the contested committal and the trial listing. An earlier listing of the trial could not proceed due to the unavailability of a trial prosecutor. At the date of your plea hearing, a period of close to three and a half years had elapsed since the offending, much of which is through no fault of your own.
63I accept that, over the course of this period, you have had these serious charges hanging over your head, uncertain as to the outcome. This in itself, is a form of punishment and entitles you to a reduction in your sentence.
64It is further submitted that you have demonstrated reasonably good prospects of rehabilitation over these years. After being sentenced in April 2020, you were released from custody on 10 October 2020, and commenced the community correction order. Consistent with your earlier employment history, you soon obtained employment after being released, working first for GrainCorp in South Australia and then, in January 2021 commenced a business traineeship with a building and landscape supply company in Horsham.
65A breach report provided by Corrections states that you attended 12 sessions of drug counselling with Uniting Wimmera, completing this treatment on 18 March 2021. As stated, you engaged with Ms Mynard for counselling throughout much of 2020 and 2021. Following concerns about a relapse into drug abuse, you initiated a re-referral to Uniting Wimmera for a further seven sessions of drug counselling.
66However, by late 2021, you suffered a relapse into ice use. Ms Mynard explains this occurred in the context of you feeling 'helpless and hopeless' about your pending charges. Then, on 22 September 2021, you were arrested at the home of your parents following a verbal confrontation with your father, during which you punched a hole in the wardrobe giving rise to the criminal damage charge. You were also charged with driving offences on 20 August 2021, including an offence of failing a drug test within three hours of driving, for which you were fined and orders were made against your licence.
67After this incident, you were offered employment with a concreting company in Horsham, Wimmcrete, where you worked until you were remanded on 23 January 2023.
68There are certainly positive indications for your future rehabilitation. At the age of 29, you have a solid work history. Mr Patrick Purcell, from Wimmcrete, has written a letter to the court dated 2 March 2023, stating that you have been open about your challenges with addiction, and describes your work commitment as excellent when you are sober. He states you are a valued worker and is prepared to offer you employment upon your eventual release. Mr Purcell, like others who have known you a long time and whose references I have read, describes you as a kind, respectful and caring adult, whilst acknowledging your difficulty controlling your addiction.
69You retain the support of your parents. This was demonstrated by their letter to the court dated 3 February 2023 and their attendance at your court hearings. They are saddened by your struggle with addiction, and describe you as a 'wonderful son, bother, friend and young man' when you are not under the influence of drugs. It is apparent from reading the reference material provided by your family and friends, all of whom have known you a long time, that when you are not drug affected, you have much to offer the community.
70However, as stated, your future rehabilitation will very much depend on your ability to maintain abstinence from all drug use in the long term. You have demonstrated a willingness to engage in treatment and counselling in the past, including over a relatively sustained period of time. This is to your credit. The challenge for you will be avoiding relapsing into drug use at times of stress in your life. As Ms Mynard observes in her report:[4]
“Mr Cassidy stated that he knows that he needs to remain abstinent from substances upon release from custody. It is noteworthy that Mr Cassidy has already attempted several detoxes and rehabilitation programs and these experiences are part of his road to recovery. He also engaged with the writer in counselling over a period of a year (after the offending) in order to try and stabilise himself. However, without treatment, his prospects for change would be much poorer. The only issue potentially impeding Mr Cassidy’s recovery would be his tendency to avoid his emotions and his avoidant symptoms of PTSD that have led him to increased drug use in recent years…”
[4]op. cit. at [66]
71Overall, I assess you have reasonably good prospects of rehabilitation, subject to ongoing treatment and counselling for your underlying PTSD, anxiety and long-term treatment for drug addiction.
72Ms Mildenhall also submitted that the sentencing principle of totality should be given appropriate weight in the sentencing synthesis for two reasons. First, given the delay in charging you with this offence, you lost the potential for some concurrency with the sentence imposed on the armed robbery offence. This submission has some force, particularly having regard to the fact the offending in both instances was close in time.
73Secondly, in sentencing you for the offending that is the subject of these charges, there ought to be some recognition of the overlap in the offences, particularly the two charges of procuring sexual activity by threat, which arose out of the one incident. I accept that submission, particularly noting that the two acts of sexual penetration were neither separated in time nor distinguished by additional threats or coercion.
Other sentencing considerations
74In cases such as this, the sentencing principles of general deterrence, denunciation and just punishment are strong considerations. Others must be deterred from drug-fuelled offending of this nature, particularly where it involves offending against intimate partners. As the Court of Appeal stated in Marrah v R[5]:
The sentences must convey the unmistakable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.
[5] Marrah v R [2014] VSCA 119 at [25]
75Specific deterrence also has a role to play in your sentence, as does the need for the sentence to protect the community, notwithstanding your limited prior history.
76In an addendum report provided by Ms Mynard dated 17 March 2023, she expressed the opinion that your mental health conditions of anxiety, panic and PTSD had deteriorated whilst in custody, leaving you vulnerable to panic attacks. She also expressed the view that your mental health is better managed in the community by medication that is not available to you in custody. I accept that the symptoms that underlie your PTSD, depression and anxiety are exacerbated in custody, making imprisonment more burdensome for you than for others without these mental health conditions. This finding enlivens limb 5 of the principles in Verdins and I have moderated your sentence to some degree accordingly.
77Ms Mildenhall also referred me to other sentences imposed by the County Court for the offence of procuring a sexual act by threats. These were provided to highlight the range of circumstances in which this offence occurs, which included cases involving forcibly grabbing the victim's head during the sexual act,[6] holding a knife to the victim's throat during the offending conduct,[7] and whilst threatening to distribute intimate images of the young victims.[8] I accept there are aggravating features of these cases that are not present here.
[6]DPP v. Lovell(a pseudonym) [2020] VCC 87
[7]DPP v. Erichan [2018] VCC 363
[8]DPP v. Li (a pseudonym) [2017] VCC 1696
78Here, the gravity of your sexual offending is marked by the manner in which you procured the sexual activity by your threatening behaviour, in the context of your earlier assaults whilst falsely imprisoning the victim in her home, over the preceding hours. The offending is aggravated by the fact it occurred in the context of an intimate relationship. The victim was entitled to feel and be safe with you, no matter how brief the intimate relationship had been.
79On your behalf, it was submitted that giving full weight to your guilty plea, delay and the sentencing principle of totality, a sentence of imprisonment combined with a community correction order was available to meet all relevant sentencing considerations, whilst promoting your rehabilitation.[9] It is submitted that the contravention of your previous community corrections order should be considered as less serious, arguing that the failure to comply with supervision arose due to your work commitments at the time, and that overall you have maintained a reasonable level of compliance, including with treatment and counselling, over the past two and a half years.
[9]Boulton v. The Queen [2014] VSCA 342
80In contrast, the prosecution submits that the gravity of your offending warrants a sentence of imprisonment with a non-parole period fixed.
81Although you have been assessed as suitable for a community correction order, I consider that a combination sentence, with an imprisonment component of no more than 12 months (less time served) would not adequately reflect the gravity of your offending and the weight that must attach to general deterrence and denunciation in particular. However, I agree that the mitigating factors to which I have referred, including the effect of delay and the sentencing principle of totality, must be factored into the sentence I impose and the appropriate non-parole period to be fixed.
Sentence
82Balancing each of the matters to which I have referred, whilst having regard to the maximum penalty imposed for each offence, I sentence you as follows.
83On Charge 1 – common assault (being a rolled up charge), you are convicted and sentenced to 18 months' imprisonment.
84On Charge 2 – false imprisonment, you are convicted and sentenced to 14 months' imprisonment.
85On Charge 3 – procure a sexual act by threat, you are convicted and sentenced to two years' imprisonment.
86On Charge 4 – procure a sexual act by threat, you are convicted and sentenced to two years' imprisonment. This is the base sentence.
87I order that six months of the sentence imposed on Charge 1 and four months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 4 and upon one another. For the reasons I have indicated, the sentence imposed on Charge 3 is to be served concurrently with the sentence imposed on Charge 4.
88This gives a total effective sentence of two years, ten months' imprisonment. I set a non-parole period of one year, eight months' imprisonment.
89Pursuant to s18 of the Sentencing Act 1991, I declare 70 days of pre-sentence detention be reckoned as served under the sentence I have imposed.
90In respect of the contravention of the community correction order imposed by the County Court on 21 April 2020, I find the contravention proved and cancel the order. Having regard to the nature of the contravention, coupled with the delay associated with these proceedings, I make no further order. In doing so, I have also had regard to the fact you have continued to meet your obligations under this order despite the breach proceedings having been initiated, with your engagement described as 'generally good'.
91Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed is a sentence of three years, nine months' imprisonment with a non-parole period of two years, 10 months' imprisonment.
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