Director of Public Prosecutions v Croft (a pseudonym)

[2023] VCC 1243

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT Melbourne

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN CROFT (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	30 June 2023
DATE OF SENTENCE:	17 July 2023
CASE MAY BE CITED AS:	DPP v Croft (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1243

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              three charges of rape-one charge of sexual assault- guilty verdict- youth-no prior criminal history- extremely good prospects of rehabilitation;

Legislation Cited:      Crimes Act 1958, Crimes Amendment (Sexual Offences) Act 2016, Sentencing Act 1991;

Cases Cited:Azzopardi v R [2011] 35 VR 43, R v Mills (1998) 4 VR 235, Jurj & Miftodev v The Queen [2016] VSCA 57, Hasan v The Queen [2010] VSCA 352, Brown v The Queen [2019] 59 VR 462, DPP v Amin [2019] VCC 1756, DPP v Hyde [2019] VCC 712, DPP v Mullins [2020] VCC 1257;

Sentence:                   Detention in a Youth Justice Centre for a period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy	Office of Public Prosecutions
For the Accused	Mr J. Anderson	Slater and King Lawyers

HER HONOUR:

1.Martin Croft[1], you have been found guilty, following a trial by jury, of three charges of rape and one charge of sexual assault.

[1] A pseudonym.

2.The maximum penalty for rape is 25 years' imprisonment.[2] The maximum penalty for sexual assault is 10 years' imprisonment.[3]

[2] Section 38(1) of the Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016).

[3] Section 40(1) of the Crimes Act 1958 (as amended by the Crimes Amendment (Sexual Offences) Act 2016).

Circumstances of Offending

3.The complainant in this matter, Amelia Lucas[4], was a friend of yours whom you had known since you were both students at high school together.  At the time of the offending, she was 19 years old and you were 18.

[4] A pseudonym.

4.The offending took place in your bedroom in the early hours of 9 May 2021 following your belated 18th birthday party, which had been held at your family home the previous evening.  The party was arranged by your parents and a number of family and friends were in attendance. The complainant arrived with her boyfriend at around 7:00pm, by which time there were already 15 or 20 people present with others arriving later, including Jessie Reynolds[5].  When Ms Reynolds arrived, she and Ms Lucas had a discussion with you about where they would sleep, as Ms Reynolds was keen to avoid another friend at the party, Daniel Rich[6].  You discussed sleeping in the spare room but ultimately showed them your bedroom and they said that they could sleep there.

[5] A pseudonym.

[6] A pseudonym.

5.A number of witnesses gave evidence about your state of intoxication on the night. It is clear that you consumed a considerable quantity of alcohol voluntarily and also by virtue of people giving you a beer bong and pouring alcohol shots down your throat despite your refusal of some of those shots.  Ms Lucas gave evidence that a number of the partygoers were taking great delight at getting you intoxicated, something that is perhaps not uncommon at an 18th birthday party.  At one stage in the evening you threw up in the kitchen sink due to heavy alcohol consumption and shortly thereafter the complainant and Ms Reynolds checked on you and found you lying on your bed.  They helped you up and took you back outside to the party, which later moved down to a bonfire in the back paddock.  You were still intoxicated and at one stage fell into a ditch, which made you muddy.

6.After spending time at the bonfire, the complainant and Ms Reynolds helped you walk back to the house. CCTV footage played during the trial shows you stumbling back into the house with both women on either side of you.

7.A photograph taken by your mother at 11:58pm showed you lying in bed with a number of young people who were at the party sitting on your bed and on the floor, including the complainant. It is uncontroversial that you were quite intoxicated at this stage and this is apparent from the photograph.  Shortly after these photographs were taken, your mother asked those present to leave your bedroom so that you could sleep.  Some discussion then ensued as to where the complainant and Ms Reynolds would sleep.  Both women wanted to sleep in your bedroom. Ms Reynolds did not want to sleep anywhere near where Daniel Rich might have access and suggested that she sleep in your room and that the complainant go and sleep next to her boyfriend.  The complainant gave evidence that, as Ms Reynolds was going to be deployed interstate, Ms Lucas wanted to spend time with her.

8.The complainant and Reynolds lay down on the floor and you were sleeping in your bed.  At one point you awoke and asked if you could sleep on the floor.  Your bed was broken (from earlier).  Ms Lucas told you that you could sleep next to her and you got down on the floor with a pillow and blanket on the complainant's right side.  The two of you had some discussion about things being awkward, as Ms Lucas had a boyfriend, but she told you that you could put your hand on her hip.  She then fell asleep.

9.At around 1:00am, Ms Lucas got up to go to the toilet and in doing so she leaned on you, which she thinks may have woken you up.  At that point you slapped her on the behind.  She returned to the bedroom and lay on the ground but realised she had drooled on the blanket, and so you offered her your blanket.  She moved closer to you so that your legs were touching, but her evidence was that she tried to avoid your pelvic area and you then put your hand back on her hip.

10.Not long after she returned from the toilet, you started grabbing her behind and squeezing it.  You then began moving your arm closer to the front of her pelvic area.  Ms Lucas was shocked but did not say anything as she froze.  You then began moving your right hand slowly towards her vagina as she lay on her side facing away from you.  You began pushing your pelvic area against her buttocks as you were rubbing her vagina.  She could feel your erect penis hard up against her buttocks (Charge 1: Sexual Assault).

11.You then tried to pull her pants down, which you got halfway down to her thighs.  She was wearing her leggings and underpants with a T-shirt over the top.  You removed your pants and you were doing thrusting motions while she lay on her side not responding.  Ms Lucas continued to lay there motionlessly while you pulled her underwear and leggings about halfway to her thighs.  Her leggings were tight and you struggled to get them off.  You continued to rub your penis against her behind and she could feel you pushing yourself into her.  You lowered her pants further saying, '[Amelia], [Amelia], take off your pants'.  She did not move or respond.

12.You moved her legs and pulled her pants completely off.  In doing so she was then on her back and she continued not to speak or move, pretending to be asleep because she was scared that something bad might happen, as you were a taller and bigger-built person.

13.You tried to insert your penis into her vagina, but due to a lack of lubrication you were only able to penetrate her with the tip of your penis.  You then began penetrating her vagina with your fingers (Charge 2: Rape) and you then began licking her vaginal area, which by the jury's verdict the jury accepted resulted in you penetrating her vagina with your tongue (Charge 3: Rape).[7]  You were endeavouring to lubricate her vagina.  Eventually you penetrated her vagina with your penis.  She gave evidence that you, in her words, 'shoved it in', which really hurt and she felt your penis hit the top of her cervix (Charge 5: Rape).

[7] Charge 4 was an alternative charge of sexual assault.

14.You withdrew your penis from her and continued to lick and finger her. She gave evidence that she was on her back and she began tapping Ms Reynolds on the lower back in an effort to wake her up.  She continued to lay quietly and otherwise pretend to be asleep, as she was unable to physically say or do anything.

15.Ms Reynolds woke up and asked you what you were doing.  You told her that you were looking at the complainant's tattoo which was on her right leg.  According to Ms Reynolds, you asked Ms Lucas to come up onto the bed with you; you asked her to have sex with you.  You then asked Ms Reynolds to have sex with you.  She refused and told you to go back to sleep.  You then began masturbating.  Ms Reynolds sent Ms Lucas a text message at 1.46 am asking if you had done anything to her, which the complainant read on her watch.  Ms Lucas indicated by motioning her head that you had.  The two women then got up and went to the bathroom where, Ms. Lucas disclosed offending to Ms Reynolds.

16.The following day the complainant, after leaving your house, disclosed the offending to a number of others including her boyfriend and his mother.  Her own mother later took her to the police.  A forensic examination took place and DNA samples were taken.

17.Police arrested you on 19 May 2021 and you were invited to take part on a taped record of interview.  During the interview you told police that you did not have a good recollection of the night due to alcohol.  You stated you had no recollection of laying on the floor or any sexual activity with the complainant and essentially you denied the offending.

18.A filing hearing took place in December 2021 and you were committed to stand trial on 11 August 2022.  You have not spent any days in custody for this offending.

19.A trial was held in March 2023, but the jury was unable to reach a verdict.  You were ultimately found guilty following a retrial by a second jury on 22 June 2023.  The retrial was conducted almost entirely by way of replaying the evidence of all witnesses with the exception of the informant.

20.At trial, you did not dispute that there was some sexual activity with the complainant, although there was a question for the jury as to whether you licking the vaginal area resulted in your tongue penetrating her vagina and whether she could have been mistaken about penile penetration.  The main issue for the jury's determination was whether you had a reasonable belief in consent.  Clearly by the jury's verdict they were satisfied that the prosecution had established that you did not.

Victim Impact

21.Ms Lucas has prepared a victim impact statement.  It is clear from that statement that your offending has had a profound impact upon her. She describes how she felt after the offending at the hospital. She states:

'When I was having a shower at the hospital and I had broken down into tears [in the shower] as I just felt like filth and no matter how long I scrubbed and scrubbed, I still didn't feel clean.'

22.Ms Lucas states she felt like she wanted to cut the pieces from her that had been touched and now wishes she could remove her tattoo.  Since the offending Ms Lucas has felt ashamed of herself for not being brave enough to say or do anything during the assault.  Your offending has affected her ability to feel comfortable within her relationship with physical intimacy.  More recently, during the trial, she experienced difficulties at work particularly when dealing with males.  As a result she has had time off work.  I take into account the impact that your offending has had on the victim.

Personal Circumstances

23.Your personal circumstances were canvassed during a plea hearing on 30 June 2023.  You come before the court with no prior criminal history.  You and your younger brother were brought up in a stable and loving environment with a hardworking family. You still reside with your parents in the family home.  Your parents run a family business.  Both your mother and father attended court every day to support you throughout the trial and you continue to have their full support.

24.In 2009, you and your family experienced the Black Saturday fires.  You and your brother were forced to seek shelter with your mother, leaving your father to defend your home and property as fires destroyed the area near your premises. The uncertainty of knowing whether your father was safe is understandably said to have been extremely traumatic for you.

25.You were educated at a small primary school, but due to academic struggles your parents sent you to a private school, until halfway through Year 9. You then moved to another secondary school, where you remained until transferring to VCAL in Year 12 owing to poor academic performance. You commenced an apprenticeship as an electrician but found the theoretical aspects difficult particularly as it involved online learning.  You did this for a year and a half before ceasing the apprenticeship.  You now work as a fork-lift driver, working generally from 6 am until 3.30 pm most days.  You also assist you mother in the family business regularly on weekends.  You are described as diligent, reliable and hard-working person.

26.You formed a large circle of friends whilst at high school, including the complainant.  However, after the offending you were ostracised from your friendship group, with only a few friends who have stood by you.  This has had a considerable effect on you and you now rarely attend social events, in part because of the loss of your friendships but also in an effort to avoid bumping into a friend of the complainant.  You have purportedly been subjected to threats whilst getting petrol on one occasion, which you did not wish to have your parents know about.

27.You reportedly feel that you have lost significant enjoyment in life and are cautious to avoid finding yourself in a similar position again.  The offending occurred on one of only two occasions in which you have become highly intoxicated.  You have ceased drinking alcohol as you are now said to be terrified of the consequences of heavy inebriation.

28.A number of character references were tendered on your behalf by family and friends and associates who have known you for a long time.  Each of these people speak very highly of you and note that this offending is extremely out of character.  Your parents state that you are a kind, considerate, gentle soul who goes out of his way to help friends and family.  They note that you have a strong work ethic, have never had trouble with females, you do not fight and that you were a rare drinker prior to this party.  Since the offending your parents have noticed a change in your demeanour, observing that you have become introverted and appear to struggle at times. According to another referee, Ms Moone,[8] you have lived a somewhat sheltered life within your local country community and helping out in the family business.

[8] A pseudonym.

29.Ms Gia,[9] a referee who has known you for many years, considers that you have been deeply affected by these proceedings.  She describes you, as do your other referees, as a hard-working and trustworthy person who is always willing to lend a hand to others.

[9] A pseudonym.

30.Clearly you are a much-loved son, brother and friend.  The glowing way in which those who know you describe you suggests that the offending on this occasion was indeed an aberration and inconsistent with the person they have come to know.

Delay

31.There has been some delay involved in this matter.  The offending took place over two years ago, but for reasons outside of your control it has taken time for the matter to be finalised.  Whilst the delay has not been inordinate, for a young man charged at the age of 19 years that two-year delay has consumed a significant part of your adult life.  You have endured the stress and anxiety associated with an earlier jury being unable to reach a decision in March this year and you were ultimately found guilty upon a retrial.

32.You have exercised your right to trial and you are not to be punished for doing so; however, a consequence of this is that you are not entitled to any discount to which you would have been entitled had you pleaded guilty.

33.A further consequence of the delay is that these proceedings have been in effect hanging over your head for over two years.  This has no doubt weighed heavily upon you, yet you have continued to work hard and there have been no further incidents of criminal behaviour.  I take this into account.

Prospects of Rehabilitation

34.Given that you have no prior criminal history, no history of antisocial behaviour coupled with the fact that you have you have the ongoing support of your family and a good work history, I consider it unlikely that you will reoffend in this manner again.  I am of the view that you have extremely good prospects of rehabilitation.

Youth

35.The Sentencing Act 1991 sets out the basic purposes for which a court may impose a sentence, being just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

36.The offending occurred when you were 18, as I have said, and celebrating your birthday, which had been delayed due to the COVID-19 pandemic.  No doubt there was a degree of youthful exuberance which led to your intoxication, coupled with a sense of making up for lost time when people had experienced a period of being unable to socialise together.  Add to this the sport of getting the birthday boy drunk and it becomes a recipe for disaster.  Your intoxication, your age and lack of maturity no doubt played a role in your offending, but ultimately you took advantage of a young woman and there must be consequences.

37.The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  Given your age, rehabilitation assumes primacy in the sentencing exercise.

38.As Redlich JA recognised in Azzopardi v R,[10] young offenders 'May lack the degree of insight, judgment and self-control that is possessed by an adult'.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.  Citing from that judgment, His Honour noted:

'Courts "recognise the potential for young offenders to be redeemed and rehabilitated".  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of antisocial behaviour.  No doubt because of this potential, it has been stated that the rehabilitation of young offenders "is one of the great objectives of the criminal law".'

[10] [2011] 35 VR 43.

39.As was emphasised in that case, rehabilitation of a young offender is in the community's interests.

40.Furthermore, as was discussed in Azzopardi, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation, given potential exposure to corrupting influences

41.You are a few days short of turning 21 and therefore by definition under the Sentencing Act you are a 'youthful offender'.

42.In R v Mills[11] the court recognised that the youth of an offender, particularly a first-time offender, should be a primary consideration for a sentencing court where the matter properly arises.  In the case of a youthful offender, as I have said, rehabilitation is usually far more important than general deterrence.

[11] (1998) 4 VR 235.

43.As Batt JA said in that case:

'A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality.  [Pausing there, you have not prior criminal history.]  The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.'[12]

[12] Ibid [241].

44.Having said that, the courts and community are also less tolerant of people committing offences of this nature.  The need for rehabilitation must be balanced against the need for the court to denounce your conduct and to deter other people who might be inclined to behave in this way.  I do indeed denounce your conduct.

Nature and Gravity of Offending

45.The crime of rape is by its very nature serious.  This is reflected in the high applicable maximum penalty.  Rape involves the violation of another person's person and dignity.  It is a deeply personal crime.

46.You were a good friend of Ms Lucas, which was why she felt entirely comfortable sleeping next to you on the floor of your bedroom, in part to ensure that you would be all right after you had consumed a considerable amount of alcohol.  According to evidence given by the complainant herself at trial, and that of Jessie Reynolds, you were known to be kind to your friends, including Ms Lucas, who considered you to be one of her best friends.

47.The fact that you were viewed by your female friends in this way makes your offending all the more inexplicable.  As a person of previous good character, it seems that your conduct came about as a result of you having consumed too much alcohol and failing to recognise that your advances towards Ms Lucas were unwanted.  The lack of reciprocation was evidently ignored by you as you continued to make advances and then sexually offend against her over a fairly protracted period of time as her friend slept beside her on the floor.  As I have noted, likely this behaviour was a reflection of the combination of youth, immaturity, coupled with alcohol-impaired judgment.  Unfortunately, whilst this may be something that can occur amongst young people, it is for this very reason that the sentences imposed for this type of offending must act as a deterrent to other young people.

48.I accept that the offending was opportunistic and was absent some of the aggravating features identified in Jurj & Miftodev v The Queen[13] such as physical violence, threats, use of a weapon, acting in company, humiliating or degrading the victim, nor did it involve you ignoring protests by the victim.  It was nonetheless serious.  You violated a young woman who was there to celebrate your birthday, a close friend, and this was undoubtedly a very frightening experience for her.  Your offending involved you committing multiple discrete acts which had the effect of violating her in different ways.  Furthermore, you penetrated her vagina with your penis without a condom, which carries with it a degree of recklessness with regard to the risk of unwanted pregnancy and sexually transmitted disease.[14]  Although it is not alleged that you ejaculated, a level of risk nonetheless existed.

[13] [2016] VSCA 57.

[14] Hasan v The Queen [2010] VSCA 352 [38].

49.The offences involve distinct and serious conduct, and so each offence warrants individual punishment.  There is a need for the sentence to reflect the individual charges and the conduct they comprise.  However, the offending occurred as part of a single episode, and so there should be a degree of concurrency appropriate to satisfy the principle of totality.  I must ensure that the totality of the sentences imposed for these closely connected yet separate crimes is met with a just and proportionate sentence.

Sentencing Act Provisions

50.The offence of rape is a category 1 offence pursuant to the Sentencing Act 1991. Imprisonment is mandatory and cannot be combined with a community correction order. I take it from sentences imposed in other matters involving rapes committed by young offenders that this does not preclude the imposition of a sentence in a Youth Justice Centre where considered appropriate.

51.Rape is also a standard sentence offence.  The standard sentence on this charge is 10 years' imprisonment.

52.I have had regard to the standard sentence for the offence of rape.  Whilst this is not a determinative factor, it is a matter that I must take into account in the overall assessment of the appropriate sentence.  As the Court of Appeal clarified in Brown v The Queen,[15] it is to be treated as a 'legislative guidepost' and does not affect the established 'instinctive synthesis' approach to sentencing, nor does it require or permit 'two-stage sentencing'.  I regard your offending as approaching the mid-range of seriousness.  Given the context in which the offending occurred and the circumstances of the offending, I have determined that the sentence to be imposed should be less than the standard sentence.

[15] [2019] 59 VR 462.

53.Additionally, I note that a court must not have regard to sentences imposed in other cases unless they involve standard sentence offences.  I have been provided with a number of County Court cases involving standard sentences for the offence of rape where the offending was committed by young offenders.[16]  Self-evidently, each case is different and I note that some of the sentences in those cases were imposed after a plea of guilty.

[16] DPP v Amin [2019] VCC 1756, DPP v Hyde [2019] VCC 712, DPP v Mullins [2020] VCC 1257.

Youth and Prospects of Rehabilitation

54.In order to consider the appropriate sentence in this matter, a pre-sentence report from Youth Justice was requested. Given the short period before you turn 21, Youth Justice was able to expedite an assessment so that a report could be prepared as a priority.  The court is most grateful that this could be accommodated within such a short time frame.

55.A report dated 28 June 2023 was prepared by Bridget McGeoch and endorsed by Acting General Manager of Broadmeadows Youth Justice, Amelia van Lint. This report helpfully assessed your background and circumstances and examines your suitability for confinement in a Youth Justice Centre pursuant to s32 of the Sentencing Act by assessing whether you have reasonable prospects of rehabilitation and whether you are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

56.Ms McGeoch notes that the offending relates to one incident and appears to be somewhat opportunistic.  Your education and employment history indicates that you have the ability to lead a prosocial life and contribute to the community.  You have the ongoing support of your family.  Although you seem to have exhibited limited victim awareness, she notes that you have indicated a willingness to engage in offence-specific treatment.  It is the assessment of Youth Justice that you have good prospects for rehabilitation.

57.Noting that you have never been in a custodial environment and thus have limited knowledge or understanding of the social norms of such an environment, Ms McGeoch opines you 'could be considered as impressionable and subjected to undesirable influences in an adult prison'.

58.It is the assessment of Youth Justice that you meet the threshold for prospects for rehabilitation and are particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison. You are therefore considered suitable for detention within a Youth Justice Centre.

59.The prosecution submits that the offending warrants the imposition of a term of imprisonment with a head sentence and a non-parole period.  Mr D'Arcy on behalf of the Prosecution notes that you have been assessed as suitable for Youth Justice Centre and submits that it is a matter for a court but reiterated the prosecution position that a head sentence with a non-parole period is warranted.  Your counsel has submitted that given your age and the primacy of rehabilitation that a custodial sentence may be served in a Youth Justice Centre.

60.Having regard to your age, lack of prior criminal history, family supports and prospects of rehabilitation, I have come to the conclusion that a custodial sentence served within a Youth Justice Centre is appropriate. I have taken into account the criteria set out in section 32 of the Act and the fact that you meet all of those criteria. In addition, I have taken all of the matters set out in section 5(2) of the Sentencing Act into account.  I consider that confinement in a Youth Justice Centre rather than adult prison would represent a just and appropriate sentence.  Accordingly, the sentence that I will impose will be such that permits you to serve your sentence at a Youth Justice Centre.

Sentence

61.Mr Croft, I sentence you as follows:

62.On Charge 1, the charge of sexual assault, you are convicted and sentenced to be detained in a Youth Justice Centre for four months.

63.On Charge 2, a charge of rape, you are convicted and sentenced to be detained in a Youth Justice Centre for 18 months.

64.On Charge 3, rape, you are convicted and sentenced to be detained in a Youth Justice Centre for 18 months.

65.On Charge 5, the charge of rape, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of two years and six months.  This charge, Charge 5, will be the base sentence.

66.I order that the sentence imposed on Charge 1 be served concurrently with the sentence imposed on Charge 5.

67.I order that three months of the sentence imposed on Charge 2 be served cumulative with the sentence imposed on Charge 5.

68.I order that three months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 5 and with other sentences imposed this day.

69.This means it makes a total effective sentence of three years to be served by way of detention in a Youth Justice Centre.

70.I note that there is no pre-sentence detention.

71.Although you have been convicted of a number of charges of rape, the provisions related to serious sexual offenders do not apply as you are a young offender.

72.Accordingly, the provisions of the Sex Offenders Registration Act do not apply.

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