Director of Public Prosecutions v Clarke (a pseudonym)

[2021] VCC 1404

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH CLARKE (PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	8 September 2021
DATE OF SENTENCE:	22 September 2021
CASE MAY BE CITED AS:	DPP v Clarke (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1404

REASONS FOR SENTENCE
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Subject:

Catchwords:              Criminal law – Sentencing – Rape conviction following trial – Standard sentence – Term of imprisonment imposed

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A McKenry	Abbey Hogan Solicitor for Public Prosecutions
For the Accused	Mr R Lawson	Roger O’Halloran & Co

HER HONOUR:

1Keith Clarke,[1] you were found guilty of the charge of rape following trial by jury.

[1]        A pseudonym

2Rape is a very serious offence, as is reflected by the maximum penalty of 25 years’ imprisonment and the standard sentence of 10 years’ imprisonment imposed by Parliament.

3Rape is an intensely personal crime involving the physical invasion of a person and their security, and the more intangible loss of their rights and freedoms.[2]  It has been consistently stated that there is no hierarchy as to the type of penetration rendering one inherently more or less severe than another.[3]

[2]R v Mason [2001] VSCA 62, [8]

[3]R v Lomax [1998] 1 VR 551, 558−59; DPP v Tewksbury [2018] VSCA 38, [67]; and DPP v Elfata [2019] VSCA 63, [36]

4The background to the offending is that you were married to the complainant, Hope Franklin[4].  At the time when the rape was committed you were living separate and apart from your wife under the one roof (the property), in a small rural settlement near Colac.

[4]        A pseudonym

5You were aged forty-three and the complainant was aged forty-one.

6The complainant has two sons from a previous marriage. You have a daughter together, Sarah,[5] who was born in 2014. 

[5]        A pseudonym

7The children were all living together with you at the property, as well as a third adult, Drew Hopkins,[6] at the time of the offending.

[6]        A pseudonym

8Mr Hopkins was a friend of yours whom you had known for some years through mutual work as truck drivers. 

9In early January 2018 you and the complainant were planning to leave the property so that you could visit some relatives.  It was arranged that Mr Hopkins could come to the property to live so that he would look after the animals and care for the property whilst you were away.

10Mr Hopkins, who was then living in Rye, came down to the property and was later encouraged by you to move in permanently because his relationship had broken down and there were better employment prospects in the Colac region. 

11He resided with you and the complainant at the residence as a boarder.

12The rape occurred on a date between the 14 February and the 28 February 2018. 

13Mr Hopkins was preparing to have an interview with MatchWorks employment placement services and the complainant, who is a hairdresser, offered to cut his hair and trim his beard in anticipation of the interview.

14Whilst Mr Hopkins was sitting in a chair in the ensuite bathroom and the complainant was standing in front of him, leaning slightly forward to trim his beard, you entered the ensuite and stood behind the complainant.  It was summertime, and the complainant was wearing a long free-flowing summer dress that went down to her ankles, and underwear. You quickly lifted her dress and pulled her underwear to the side, and inserted a small, motorised vibrator inside her vagina with force.  She felt the vibration inside her vagina.  She turned and asked you what you were doing.  You laughed and said, “I’ll leave you guys to deal with that,” and you then walked out of the ensuite.

15In evidence, the complainant described the vibrator as being about the size of a thumb, with the silicon sheath that covers the motorised part removed. 

16She described the difficulty she had removing the vibrator. It took about a minute.  When eventually she removed it, she noticed that the vibrator was still operating.  She threw the vibrator into the sink.

17The complainant was very embarrassed and upset by your actions.  She finished cutting Mr Hopkins’ hair and went outside.  She deliberately removed herself so that the children could not see her crying and being upset.  She sat there for some two hours.

18Sometime later you went outside and asked the complainant what was wrong, and she replied “How dare you do that to me?  You made me feel like a piece of meat.”  You sat down beside the complainant, and she got up and went inside.

19Evidence at the trial confirmed that the complainant complained about what had occurred to Mr Hopkins on the night of the incident, and that she further complained to her sister, Penny Dawson,[7] in early 2019, and to her lawyer, Tom Anderson,[8] who was representing her in respect to proceedings relating to a family violence intervention order, in April 2019.

[7]        A pseudonym

[8]        A pseudonym

20Mr Anderson advised the complainant given what had been disclosed to him that your actions could constitute a rape and that she should report the matter to the police. 

21In April 2019, the complainant reported the matter to police.

22On 8 April 2019, the police conducted a record of interview with you at the Colac Police Station.  You did not dispute the complainant’s version of the events and confirmed that the incident had occurred.  You told police that you had put the sex toy up against the complainant’s vagina, and, because she did not protest, you then inserted it into the vagina.  You told police that you considered it to be consensual because the complainant did nothing to try and stop you.

23During the interview, you admitted that there was no verbal consent given by the complainant prior to you inserting the vibrator into the complainant’s vagina.

24At trial you gave evidence and adopted your answers in the record of interview.

25You were cross-examined by Mr McKenry, the prosecutor.  You agreed with the suggestion that he put that Mr Hopkins had been living at the residence for either just a couple of days or no more than a couple of weeks at the time the incident occurred.

26In cross-examination, you confirmed that there was no conversation between yourself and Ms Franklin about what it was that you were proposing to do, that is, penetrating the complainant’s vagina with the vibrator.  In answer to the prosecutor’s question when he said, “There was no conversation beforehand to indicate to Ms Franklin what you were proposing to do specifically.  Fair to say?”, you answered “At the time of the incident, I did not specifically say or ask whether it would be okay for me to perform that act.”[9]

[9]Transcript (“T”) 158, Lines (“L”) 23−27

27In cross-examination, you conceded that it was a fair comment that, at the time you inserted the unprotected mechanical part of the vibrator into the complainant’s vagina, in your mind you knew that she did not know what was coming.[10] 

[10]T159, L25−27

28Further, you were asked this question, “You did not believe at the time you inserted the object into her [the complainant] that she was consenting?”, to which you answered, “Well, given that she had no idea what I was about to do and I didn’t verbalise it.  Correct.”[11]

[11]T166, L17−21

29A person who intentionally sexually penetrates another person without that person’s consent is guilty of the offence of rape.  It is clear from the jury verdict that they accepted, on the occasion that you inserted the unprotected mechanical part of the vibrator into the Ms Franklin's vagina, that you intentionally sexually penetrated Ms Franklin without her consent.

30The evidence from Ms Franklin was that there had been no sexual contact with you for some several months prior to the rape occurring.  The rape occurred in such circumstances that it was without any warning and without any effort on your behalf to secure consent to the act being performed.

31Both Parliament and the Courts recognise that it is very important to communicate consent to any sexual act prior to its execution.  Notwithstanding that the rape occurred for a relatively short duration, nonetheless the impact has been long lasting.

32The offence has caused considerable hurt.  Ms Franklin read her victim impact statement out at the plea hearing.  She set out comprehensively the hurt, upset and humiliation that she felt about being sexually penetrated by you in the manner that you did, and this has had an impact that continues up until this day. 

33Ms Franklin has been very traumatised by the rape.  She felt that she was disrespected and treated like a piece of meat, worthless, totally violated, and too scared to speak up.  The immediate effect was that she was so upset that she removed herself away from the view of her children and sobbed alone for some two hours.  She felt worthless and degraded as a woman, not worthy of respect and love.  The intense feeling of shock and numbness took over her ability to function, both in body and mind.

34Her life has changed completely. She is a very fearful person who is now withdrawn.  She has developed trust issues, especially trusting other men.  It took her months to get the courage to start a new relationship, which has since dissolved, because she could not get past the trust issues and the fact that the sexual trauma caused by you has caused her to feel not safe and comfortable to commit to a sexual relationship.

35Objectively, I consider this to be a serious offence, involving as it does a significant breach of trust on your behalf against your wife with whom you were then living separate and apart.  The act of itself was violent and caused physical discomfort as well as hurt and humiliation.  The fact that it was committed in the presence of a third party who had only recently commenced living at the property in the circumstances as described earlier, added to the complainant’s humiliation. Ms Franklin ought to have felt safe and secure within her own home.  Your actions have disturbed her sense of safety and have had a lasting and detrimental impact.

36Ms Franklin still suffers features of post-traumatic stress trauma such as nightmares and flashbacks, sleeplessness, and she has feared seeing you in the small rural hamlet where she lives.  She has undergone years of psychological counselling in the hope of regaining her self-esteem and self-worth so that she may heal the trauma of the past.

37The nature of the rape is such that I do not consider it to be at the lower end of seriousness, which was submitted by your counsel, Mr Lawson.  I consider this to be serious offending.  However, I accept that it is not at the highest level of seriousness and I have assessed it as being less serious than the mid-point of seriousness for this type of offence.

38Mr Clarke, your actions must be condemned.

39Denunciation and general deterrence are significant features of this sentence.

40I have had regard to your background and history.

41You are one of two children born to your parents.  Your mother is deceased.  She died in 2017.  Your father remarried, and both he and your stepmother are in their seventies.  They reside in Queensland but have been living in Victoria for some months.  You have a sister whom you have not seen for many years.

42Your mother was diagnosed with multiple sclerosis when you were aged between 10 and 11.  You left school after Year 10, and you were supportive of your mother, attending to her care, and for some years leading up to her death you were the principal carer.

43In 2004, you were diagnosed with penile cancer.  The condition has been in remission for some time, but you remain anxious about the uncertainty of the prognosis associated with your condition.

44You have been self-employed for the past 15 years.  At the time of the commission of the offence you were working under a franchise.  In January of 2018 there was a fire at your property that destroyed the main truck that you were utilising as part of your business.  This crippled your business and thereafter your business suffered financially. 

45You come before the court with no prior criminal history.  I have taken into account your general good character that is evidenced by the fact that at the age of 45 you have no criminal convictions.

46I have read and accept the references provided by Brian Stephens[12] and Sandra Fitzgerald[13] both of whom attest to your otherwise good character.  Since leaving the property, you have built up a maintenance business and have worked predominantly for Ms Fitzgerald and her husband, Mr Stephens, who both have a sizeable commercial property portfolio for which you were undertaking all maintenance.  They both speak highly of you, and state that they will continue to support you.

[12]        A pseudonym

[13]        A pseudonym

47Mr Stephens has indicated that he will visit you in gaol to provide you with moral support. 

48I have taken into consideration their character references that have been filed on your behalf.

49Following the report of the rape and the breakdown of your marriage you have not seen your daughter, who is now aged six.  This does cause you some distress.

50Ms Lee Thurlow, in her letter addressed to the Court, confirms that she has been treating you as a psychologist since 30 July 2018 pursuant to a mental health care plan.  She has treated you for depression, anxiety, and stress.  She notes that you enjoy a close and supportive relationship with your father, James.[14]  She further states that you have significant and ongoing anxiety and depression relating to not being able to see your daughter for some years.  She noted the difficulties that you have suffered associated with the loss of your business and the difficulties relating to the deterioration of your marriage.  She noted your strong work ethic and commitment to gainful responsible employment.

[14]        A pseudonym

51Mr Clarke, I must sentence you having regard to the objective gravity of the offending and I have already indicated my view that I do not consider this as low-level offending, rather I consider that it is offending that sits at slightly below the mid-level of offending in terms of the objective gravity.

52You have shown poor insight into your offending conduct and you have not demonstrated any remorse.  I consider your moral culpability to be high.

53In view of your lack of prior criminal history, it is accepted by the prosecution that the significance of specific deterrence and the protection of the community is not elevated in the sentencing exercise.  Nevertheless, your lack of remorse and insight and the opportunistic nature of the rape committed by you means that these are still considerations that are relevant.   

54Overall, I consider that you have good prospects for rehabilitation.

55I have taken into account the impact of COVID‑19 and the additional stress and concern that it causes for prisoners and their families.[15]  All face-to-face personal visits have been cancelled, and there are other restrictions in place to manage the risks involved with the potential for spread of the virus within the prison system.

[15]        Brown (aka Davis) v The Queen [2020] VSCA 60, [48]

56The standard sentencing regime that applies to you, and the standard sentence for the offence of rape, is 10 years’ imprisonment.  The standard sentence for an offence is the sentence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the mid-range of seriousness.[16]

[16]Section 5A(1)(b) of the Sentencing Act 1991

57Objective factors affecting the relative seriousness of an offence are determined without reference to matters personal to you or the class of offender and are wholly by reference to the nature of the offending.[17]

[17]Section 5A(3) of the Sentencing Act 1991

58The standard sentencing regime does not require the standard sentence to be imposed, nor allow the standard sentence to be viewed as a starting point.

59Therefore, in sentencing you for a standard offence, I must take the standard sentence into account; however, it is just one of the factors relevant to the sentencing and does not dominate other sentencing considerations.[18]  The instinctive synthesis approach is preserved under the standard sentencing regime.

[18]Section 5B(2) of the Sentencing Act 1991

60Unless the Court considers that it is in the interests of justice not to do so, the Court must fix a non-parole period of at least 60 per cent of the “relevant term” if that term is less than 20 years.  The relevant term is the sentence imposed for the standard sentence offence – in this case, whatever the sentence is that is imposed for the charge of rape – and not the standard sentence of 10 years itself.[19]

[19]Section 11A(5) of the Sentencing Act 1991

61I have had regard to the Court of Appeal decision of R v Brown[20] which sets out the law in relation to the effective standard sentences and to current sentencing practices and, in particular, I have had regard to the cases provided by the prosecution, namely Lockyer (a pseudonym) v The Queen [2020] VSCA 321, Director of Public Prosecutions v Dat (a pseudonym) [2020] VCC 344, and Director of Public Prosecutions v Flancey (a pseudonym) [2021] VCC 1225.

[20] [2018] VSCA 286

62Ultimately, each case must be dealt with based on its own particular facts.  I have received guidance as to the current sentencing practices for the standard offence of rape from the cases provided.

Conclusion

63In sentencing you, I am asked to impose just punishment.  The only available sentence is one involving the imposition of a term of imprisonment with a non‑parole period.

64In relation to the one charge of rape, you will be convicted and sentenced to eight years’ imprisonment.  I fix a non-parole period of five years.

65I make a declaration of pre-sentence detention.  I declare that you have spent 48 days in pre-sentence detention, and I direct that that be entered into the records of the Court.

66They are my sentencing remarks.  So that concludes the matter, gentlemen, unless there are any other orders that I am expected to make, such as any disposal orders?

67MR McKENRY:  No, there are no such orders sought, Your Honour.  As Your Honour pleases.

68HER HONOUR:  Okay.  Thank you both very much for your assistance and that concludes the matter and we will  now disconnect from the link.  Thank you very much.

69MR LAWSON:  Thank you, Your Honour.

70MR McKENRY:  Your Honour please.

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