Director of Public Prosecutions v Dwyer (a pseudonym)
[2022] VCC 1361
•18 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WANGARATTA
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRISON DWYER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 August 2022 | |
CASE MAY BE CITED AS: | DPP v Dwyer (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1361 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic)
Cases Cited: Jurj v The Queen [2016] VSCA 57;
Mulligan(a pseudonym) v The Queen [2017] VSCA 94;
Mills [1998] 4 VR 235; Boulton v The Queen (2014) 46 VR 308; DPP v Elfata [2019] VSCA 63; Bergman (a pseudonym) v R [2021] VSCA 148; R v Simon [2010] VSCA 66; Coronado v The Queen [2016] VSCA 86; Bakshi v The Queen [2018] VSCA 83; Shrestha v The Queen [2017] VSCA 364; DPP Currie & DPP Daniels (a pseudonym) [2021] VSCA 272; DPP v Mawer [2016] VCC 1810; Clarke (a pseudonym) v The Queen [2022] VSCA 89; DPP v Jurj & Miftode [2016] VSCA 57; Azzopardi v The Queen [2011] VSCA 372.
Sentence:40 months imprisonment with a non-parole period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Pirrie | Office of Public Prosecutions |
| For the Accused | Ms E. McKinnon | Ms H. Boylan |
HIS HONOUR:
1Harrison Dwyer,[1] after a trial of nine days you were found guilty on
5 August 2022 of two charges of rape, pursuant to s38(1) Crimes Act 1958.[2] The maximum penalty for each offence of rape is 25 years' imprisonment.[1] A Pseudonym.
[2] (Vic).
Circumstances of Offending
2The facts and basis upon which you were found guilty are as follows:
3You are 24 years old now. You were born in March 1998 and you were
18 years of age at the time of the offending.4On the afternoon of 11 February 2017 you attended a gathering at a friend's house in Benalla. Your friendship group had finished year 12 in 2016. A group of about a dozen of you enjoyed an afternoon of drinking and relaxing by the pool. The group included your former girlfriend Sarah Jackson,[3] and your friend and stepbrother, as he was referred to, Thomas Smith.[4]
[3] A Pseudonym.
[4] A Pseudonym.
5The group planned to attend late-night venues in Wangaratta. At about 10.30 pm, 13 of you got into a maxi taxi and travelled to the first hotel in Wangaratta. You carried a bladder of cask wine, referred to in the trial as a Goon bag to drink at or outside the venues in order to save paying hotel prices for drinks.
6Relevantly, you, Ms Jackson and Mr Smith had all been consuming alcohol at the gathering earlier in the day. It is not clear if you all drank from the Goon bag in the taxi but you stated in your evidence that you had at least a couple of sips.
7The group, and I concentrate particularly on you, Ms Jackson and Mr Smith, entered the first hotel and stayed briefly.
8You then crossed Murphy Street to the second hotel, where Ms Jackson consumed between two to five shot glasses of a mixed drink. You gave evidence that you had two shot glasses of mixed drinks.
9Although you and Ms Jackson ended your relationship at the end of 2016, you remained friendly with her and you were both friendly on this night. Ms Jackson helped you to smuggle the wine into the venue by placing it between you and her and hugging you from behind as if girlfriend/boyfriend as you entered the hotel.
10After a period of time, you decided to go outside to consume or finish the cask wine. Ms Jackson and Mr Smith went with you. You met three of your friends outside but they declined to go with you.
11Ms Jackson told you she knew of a spot across from the first hotel, down a couple of lane ways. She led the way. You estimated that she took you to a location 400 to 500 metres from the first hotel. It took four or five minutes to walk there. The jury saw the route you took and the location on a view.
12Along the way, Ms Jackson stopped and commented that she had ‘had sex’ with another person at that point.
13You stated that most of the chat was between you and Mr Smith but as you approached the location, you and Ms Jackson were kissing, cuddling and laughing.
14When you arrived at the spot where it is agreed that sexual activity occurred,
Mr Smith went off a little distance to urinate. Ms Jackson stated in her evidence at that point, and whilst Mr Smith was away from you both, that you asked her if she would engage in a threesome with you. She said 'no'. You asked if you could have sex with her and Smith could watch. She said 'no'. You asked if she would have sex with Smith and you would watch. She said 'no'. You asked if she would perform oral sex on Smith for $100. She said 'no' and that she was 'not a prostitute'.15In your evidence, you stated that you asked for a threesome and Ms Jackson said 'no'. You then stated that on further pressing, Ms Jackson agreed to perform oral sex on Smith for $100, and that she was a willing and eager participant in the sexual activity with the pair of you. You stated that, in fact, Ms Jackson directed sexual activity. The jury rejected your evidence.
16It appears that in what followed next, you pressed a $100 note into Ms Jackson's bra or clothing. It is apparent that Ms Jackson bent over and you penetrated her vagina from behind with your penis. Mr Smith returned and he penetrated her mouth with his penis.
17After a couple of minutes, it seems that Ms Jackson changed positions on your suggestion or cue; and you penetrated her mouth with your penis while
Mr Smith penetrated her vagina with his penis.18Ms Jackson gave evidence that to stop the penetrations, she attempted to stand up but instead lost her balance and fell over. The sexual activity then stopped.
19The three of you adjusted your clothing and commenced to walk back in the direction from which you had come. At Victoria Parade, Ms Jackson stated that she needed to make a telephone call and that she would catch up with both of you later. Instead, Ms Jackson attempted to ring a friend without success but then spoke to Paige Peters,[5] and told her that she had been involved in sexual activity with you and Mr Smith.
[5] A Pseudonym.
20Ms Jackson spoke to Ms Peters, Emma Jones,[6] and Michael Hooper.[7] Peters and Hooper gave evidence of what they were told by Ms Jackson and both gave evidence of her emotional distress.
[6] A Pseudonym.
[7] A Pseudonym.
21Ms Jackson stated that she was not sober, she was confused and needed time to process matters. She did not tell Peters, Jones or Hooper that she had been raped. At Jones’s insistence, Ms Jackson spoke to police in Murphy Street within a relatively short time of the events occurring but she in effect 'shut down' their enquiries of her.
22Ms Jackson stayed at your house with Michael Hooper and Jessica Jacobson,[8] that night. You did not go home for fear of reprisal after Ms Jones told people in
Murphy Street that you had raped Ms Jackson.[8] A Pseudonym.
23After a series of text messages with Ms Jackson, you and Smith returned to your home the next morning, saw Ms Jackson and apologised to her. You stated in evidence that you did not do so (that is, apologise) for what had occurred but for giving her $100 which she stated she had rejected as she was 'not a prostitute'.
24Ms Jackson saw a CASA counsellor on 10 March 2017 and reported the matter to the police on 23 March 2017. Ms Jackson made a statement to the police on 26 June 2017.
25The police approached you in October 2017. You did not make a record of interview but you did, as I have stated, give evidence at your trial.
Objective Gravity and Moral Culpability
26I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
27The objective seriousness of the crime of rape is first marked by the fact that it carries a maximum penalty of 25 years' imprisonment. This offending predates the application of the standard sentencing provisions.
28The court recognises that all instances of rape are, by their nature, serious. In the case of Jurj v R,[9] the Court of Appeal set out factors which sentencing judges ought to have regard to in determining the objective seriousness of and an offender's moral culpability for offending.
[9]Jurj v The Queen [2016] VSCA 57.
29In this case, I take account of the fact that:
(a) The offending occurred in company although I note that there was insufficient evidence to prove that the other participant Smith either knew or did not reasonably believe the complainant was consenting;
(b) The victim was, relative to the two of you, powerless;
(c) Within the sexual activity there were two charged instances of rape committed by you;
(d) You humiliated the victim by placing a $100 note in her bra;
(e) You did not wear a condom;
(f) The victim was made more vulnerable by reason of her intoxication and the remote location where the offending occurred; and
(g) You ignored her repeated answer of ‘no’ to your various requests for her to participate in sexual activity.
30I also take account of the following factors:
(a) I accept that your actions were not planned or premeditated;
(b) The sexual activity was of relatively short duration;
(c) Your actions did not involve weapons, or threats of violence;
(d) I do not consider that Ms Jackson was so intoxicated that it should be considered an aggravating feature of your offending. I conclude that she had the capacity to exercise her choice of free agreement and that she communicated to you that she did not want to have sex; and
(e) Although charged as separate acts, they were, in effect, part of a single transaction of sexual activity. As such, I accept the defence and Crown’s submission that there should be substantial concurrency of sentences between the two charges.[10]
[10]Mulligan(a pseudonym) v The Queen [2017] VSCA 94 at [131-132].
31Ms Jackson came to court to watch the sentencing hearing. She did so with courage and dignity. She read her own victim impact statement to the court. It was eloquent in content and delivery. It was delivered entirely without hyperbole or exaggeration. After setting out the journey of pain and anguish she has undertaken for the last five years, Ms Jackson stated and I quote,
'…Recently I've started to feel a bit more of myself again. I have started to have more fun in my life and appreciate the people around me.'
32Ms Jackson concluded directly to you, Mr Dwyer, she said,
'Your actions had major hurtful consequences on my life. I can only hope that you understand what you did was so very wrong and I hope you never put someone in the position you put me in ever again.'
33I take account of the effect of your actions on your victim and the prolonged time it has taken her to overcome the consequences of those actions. It is to her credit that she has been resilient enough to start to heal.
34From all of this, I conclude that your offending was serious and that your moral culpability is high. In my view, on a proper assessment of the whole of the factors I have taken into account, whilst it is not at the least serious end, your offending is not at the most serious end of the scale.
35I consider that your offending attracts principles of deterrence, denunciation and just punishment. Of course, that is not the end of the matter. You were 18 years of age at the time of your offending and you are still a young man at 24. I will consider the effect of youth and the promotion of your prospects for rehabilitation later in the sentencing remarks; after I have outlined your personal circumstances and the submissions made on your behalf.
Personal Circumstances
36I turn then to your personal circumstances.
37You have no prior convictions.
38You were born in March 1998. You are the youngest of three children. Your parents divorced when you were aged 14. The breakdown of this relationship had a detrimental and significant impact on you.
39You attended a Catholic college in Benalla from Year 7 to 12. After you completed school, you began work at an earthmoving company in Benalla as an earth moving plant operator. You have been consistently employed with this company for approximately six years. You are a respected employee.
40You were a member of the Air Force Cadets and hoped to become an Air Force pilot. Of course, the police investigation, charges and prosecution of this matter derailed your ambition. The conviction for these crimes makes this impossible.
41You have been in a relationship with Megan Allison[11] for approximately one year.
[11] A Pseudonym.
42You did not tell your mother of these proceedings until after the verdict because you did not want to upset or worry her. Your father and sister supported you during the trial, and your family attended the sentencing hearing and will continue to support you.
43I received and read the 14 character references tendered on your behalf and I name each of the persons in my sentencing remarks.
Sentencing Submissions
44Ms McKinnon who appeared on your behalf, ultimately submitted that a lengthy Community Corrections Order was within range; citing Boulton v The Queen.[12]
[12] (2014) 46 VR 308 at [131].
45Ms McKinnon referred to the cases of :
(a) DPP Currie & DPP Daniels(a pseudonym) [2021] VSCA 272;
(b) DPP v Mawer [2016] VCC 1810;
(c) Clarke (a pseudonym) v The Queen [2022] VSCA 89; and
(d) Jurj & Miftode v The Queen; DPP v Jurj & Miftode [2016] VSCA 57.
46Ms McKinnon submitted that the following factors should operate to mitigate your sentence:
(a) Remorse. She submitted that you apologised to the victim on the day of the offending in text messages and in person;
(b) Delay:
(i)First, this matter has been hanging over your life for close to your whole adult life through no fault of your own. You were 18 years old at the time of this offending. You were 19 years of age when you were charged. You are now 24 years of age at the time of trial, plea and sentence.
(ii)Second, the COVID-19 pandemic caused a significant delay.
(iii)And third, the delay has halted your life and prevented you from being dealt with as a young offender. You were deprived of the opportunity of a Youth Justice Centre Order.
(c) Youth. You remain a youthful offender, at least in broad terms, notwithstanding what I said about the unavailability of Youth Justice orders. But the court is required to place greater value on rehabilitation than general deterrence in sentencing youthful offenders and for this proposition Ms McKinnon cited Mills;[13]
[13][1998] 4 VR 235, 241-2.
(d) Good character. You are of good character, have no criminal history and no subsequent matters;
(e)
I was not provided with a psychological report. At the plea hearing, I told
Ms McKinnon that I did not consider that to be a problem. There is no evidence that you suffer from any drug or alcohol addiction issues; that you have any mental health issues or cognitive impairments. I will sentence you on the basis that you present as a reasonably intelligent young man who is capable of gaining insight into your offending and taking a reasoned path towards your rehabilitation;
(f) Ms McKinnon submitted that this is your first time in custody which flows from the fact that this is your first interaction with the police;
(g) She submitted that this was, in effect, one incident and warrants concurrency; that your offending was not attended by premeditation or planning and in fact represents the lapse of judgement by an 18 year old male;
(h) Ms McKinnon referred to extra-curial punishment, and there are two aspects to this:
(i)First, that you have, and will, suffer to a greater degree than someone residing in a large city who could more easily be afforded anonymity. You and your family have a strong and longstanding connection to a small regional community. You have and will continue to experience intense scrutiny and stigma; and
(ii)And secondly, the other aspect of extra-curial punishment, is that you are unable to pursue your longstanding dream of joining RAAF.
(i) The COVID pandemic has made the entry into prison and your time in prison more onerous;
(j) You have excellent prospects of rehabilitation; and
(k) The standard sentencing provisions do not apply in this case.
47Ms McKinnon submitted that general deterrence should be moderated by your youth. She further submitted that general deterrence was less important because offending by young persons was not prevalent. I was not provided with any authorities or information to support these submissions.
48Ultimately, Ms McKinnon submitted that the appropriate sentence in this case was a Community Corrections Order. After some considerable discussion,
Ms McKinnon urged me to consider instead, imposing a combination sentence of imprisonment with the CCO. Finally, Ms McKinnon referred me to the Court of Appeal decision of Elfata.[14] Implicitly, Ms McKinnon submitted that a sentence similar to that imposed in that case was appropriate here.[14]DPP v Elfata [2019] VSCA 63.
49Mr Pirrie who appeared for the Crown submitted that the only appropriate sentence is an immediate custodial sentence with a non-parole period.
50Mr Pirrie stated that the Crown did not seek sex registration and I do not intend to register you as a sex offender.
51Mr Pirrie then submitted, that notwithstanding the charges reflect two separate penetrations, there should be substantial but not entire concurrency.
52The Crown concedes that you had suffered extra-curial punishment over the last five years from living in a small community and that punishment will continue if you return to your family and community.
53The Crown referred to the cases of Bergman and Bakshi to provide some guidance on sentencing principle.
54The Crown concedes that the prosecution of the matter was delayed because the informant did not file the charges until July 2018.
Analysis
55I turn now to my analysis of the submissions.
56In my view, sentencing for this matter poses a number of difficult considerations. On the one hand, principles of deterrence, denunciation and just punishment must be given proper weight in the sentencing process. I do not consider that protection of the community is particularly relevant in this case, nor do I consider that specific deterrence looms large.
57Against these factors, I do consider the following matters must inform the sentencing consideration.
58First, I am satisfied that your acts were not premeditated or planned but were opportunistic. I have already taken account of this in my consideration of the objective gravity of your offending and your moral culpability. I shall not repeat those observations here. It is sufficient to say that I will sentence on the basis that the two charges were largely but not wholly a single transaction, for which the sentence imposed must be largely but not wholly concurrent.
59I do not consider your text messages to the complainant the following day and your apology to her provide real evidence of remorse or insight. Moreover, whatever you said then must be considered in light of the evidence you gave at trial. Nevertheless, whilst you may not have expressed remorse, I am confident that you are capable of developing reasoned insight into the offending. Once you accept your wrongdoing, I am confident your prospects for rehabilitation will be greatly enhanced.
55I take into account the fact that you have no prior convictions and no matters outstanding.
56I give consideration to the fact that you were 18 years old at the time of your offending, and the law recognises, and I quote in the case of Azzopardi,[15]
[15] [2011] VSCA 372 at [34-36].
‘ First, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They "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…."
Secondly, 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 prone to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. [Rehabilitation is in the community's interest] because the effective rehabilitation of a young offender protects the community from further offending….
Thirdly, 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. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community….'
57I adopt the principles set out - the three principles - as part of my sentencing analysis and reasons.
58Whilst the promotion of your prospects for rehabilitation are of considerable importance in this case, they are not the only consideration. The law recognises that the seriousness of an offender's crimes may mean that the promotion of rehabilitation must take a backseat.
59In this case, I consider that the principles of sentencing such as deterrence, denunciation and just punishment must be given some prominence; but not so as to distinguish the need to promote your rehabilitation.
60Next, I acknowledge that there has been considerable delay in the resolution of the matter. First, it took the police 13 months after Ms Jackson's statement was made to file charges against you in July 2018. I was informed that this was due to the police workload and nothing specific to the case or due to any fault of yours. The committal proceeding was conducted in March 2019. Thereafter, trial dates were lost due to the COVID-19 pandemic.
61The net result is that due to these various delays, the trial in this matter commenced five years and five months after the commission of the offences.
62One of the factors that I must take into account is that, as a consequence of these delays, and even allowing for the plea of not guilty, you lost the opportunity to serve a sentence by way of a Youth Justice Centre order. Given these circumstances of the offending and your personal circumstances, I consider that such an order may well have been open to you.
63The character references attest to your previous good character and that you still have a solid core of family and friends. In addition to that, you have demonstrated solid work history and work ethic. As I will mention later, these factors provide solid pro-social support for your prospects of rehabilitation.
64I take into account this is your first involvement with the law and necessarily your first time in custody.
65
As a consequence of the delay, your life has been placed on hold for much of the last five and a half years. I have already recognised the difficulties that
Ms Jackson has endured over this period. However, I also acknowledge that during a crucial period of your life you have endured multiple court hearings and the prospect of this matter hanging over your head. I was told that you have, in the last 12 months, had a relationship to which you were committed but reluctant to commit further because of the uncertainty caused by these proceedings.
66I consider that the delay has given further proof to other aspects of your good character beyond this offending. The character and work references speak of your work history and ethic and the respect others have for you and you for them. These factors cannot be ignored.
67
I take into account that a career path to which you aspired has been lost to you.
I also take into account that this was no idle dream. You served six years as an air cadet and had crucial flying lessons in preparation for your hopes of becoming an Air Force pilot.
68I consider that the evidence at trial of the immediate aftermath, and your character references make it plain that you have and will suffer a degree of extra-curial punishment. Although you have a core of support, it is apparent that you have suffered a degree of public opprobrium for your actions. You were judged by many before the trial and no doubt will continue in the years to come, so long as you remain in this area. I consider that I must have at least some regard to this consequence.
69I also recognise that your first time involvement with the police, and your first time in custody will come as a true shock. I note from the references that there was something surreal in your perception of the charges and that it was thought by you or those around you, that the charges would be simply withdrawn. I note that the shock of going into custody will be real and that you may find prison a difficult experience.
70I further recognise that you have gone into custody during a heightened wave of the COVID pandemic. The pandemic affects the ability of family and friends to visit you, your ability to work and to undertake courses. It also affects your ability to move around the prison and it puts you in close quarters with other prisoners. This heightens the fear of the spread of the virus. The close nature of people in prisons has led to the use of isolation as a strategy. This can present its own problems; especially for young and first time prisoners. The law says that I ought, and I do, take into account your reception into prison during the pandemic.
71I have already said that I was not provided with any psychological reports and I have already said that you present as an intelligent young man. It was not submitted to me that you do or have suffered from any drug, alcohol or psychological/cognitive problems, and notwithstanding your apparent lack of remorse, I have no doubt that you are capable of and will develop insight into your actions on that night. I consider that you accept that it was wrong to offer or force the $100 note onto Ms Jackson, but I say that you must take your examination of your actions further.
72In my view, you do have near to excellent prospects for your rehabilitation. You have youth on your side; you have no criminal record or involvement with the police; you have at least a core support of family and friends and a very solid work history and a work ethic. In this matter, serious as it is, it stands as a single incident of wrongdoing in your life which has not been repeated or built upon despite the strain of the last number of years. I expect it is likely that you will not offend again in any manner.
73It is for these reasons I consider that you have your prospects for rehabilitation being near to excellent. The sentence I have decided upon is designed to promote those prospects, while still providing a degree of support and supervision on your release back into the community.
74In the course of the plea hearing, I was referred to a number of cases. It is necessary to make some observations about them. I was referred to the 2021 Court of Appeal decision of Bergman,[16] where an offender was re-sentenced by the Court of Appeal to 52 months' imprisonment with 30 months to serve after a trial on a charge of rape committed against a friend of the accused. The accused, in that case had a deprived childhood which justified lowering the sentence from that imposed by the sentencing judge. The accused had a number of prior convictions and had pleaded guilty to other serious offences. He had pleaded guilty to making a threat to kill and using a carriage service to menace.
[16]Bergman (a pseudonym) v R [2021] VSCA 148.
75In the same case of Bergman, McLeish JA referred to a case of Simon,[17] where after trial, the 20-year-old offender was re-sentenced on appeal to three years with 18 months to serve on two charges of digital rape and one charge of indecent assault. The offending was treated as a single continuous transaction. The appellant was 22 years of age at the time of sentence and his crimes were considered by the Court and conceded by the Crown to be at 'the lower end of seriousness'.
[17] [2010] VSCA 66.
76McLeish JA also referred to Coronado [2016].[18] The offender in Coronado was 20 years of age at the time of the offending and was convicted trial of two charges of rape: digital penetration and penile/vaginal penetration of a victim unknown to the accused who fell asleep in another room at a party. The offender discontinued the second penetration when the victim was not compliant. Initially, the offender was sentenced to three years on the first charge, four years on the second charge, with one year being accumulated making a total effective sentence of five years, with a non-parole period of three years. On appeal, the sentence was made wholly concurrent and the non-parole period reduced to make an overall sentence of four years with two years to serve.
[18]Coronado v The Queen [2016] VSCA 86.
77In Coronado, the judge in that case, Osborn JA remarked on the decision of the trial judge to accumulate the sentences, and stated he (Osborn JA) would make the sentences concurrent. His Honour also made observations on the appellant's youth, his being a foreign national, the difficulties he would face in custody and his loss of profession as being an extra-curial punishment. He also considered the importance of the principle of totality, the prospect of deportation and the need to promote the appellant's rehabilitation as he was still a young man.
78I was also referred to Bakshi.[19] I do not consider this case to be particularly comparable. The appellant was 42 years of age and had served a prior CCO for entering a building and assault; disturbingly entering a woman's room and touching her abdomen. The similarity came about and was referred to for this case because it involved a sexual encounter after the complainant had been drinking. The offender and the complainant were not known to each other. She went to the offender's place after he offered to drive her home. The sentence of five years six months with three years to serve was left undisturbed by the Court of Appeal.
[19]Bakshi v The Queen [2018] VSCA 83.
79Finally, I was referred to Elfata,[20] where a sentence of two years three months with one year to serve was imposed after trial on a charge of digital rape and stalking. The accused and his partner were having relationship difficulties and the victim gave evidence that they had entered a period of agreement where no sexual activity was occurring whilst they worked out their problems. The accused digitally penetrated the victim but stopped when she told him to. The accused was 33 years of age. Again, this offending was described as being at the lower end of the scale, that is 'a single impulsive act'. Your case is different to Elfata and also to Simon because I consider it objective gravity of your offending to be higher than in those cases.
[20]DPP v Elfata [2019] VSCA 63.
80I have also noted the observations of the Court of Appeal in the case of Shrestha.[21]
[21]Shrestha v The Queen [2017] VSCA 364.
81I have read the Sentencing Advisory Council Sentencing snapshot no 255, and I have had regard to the comments and to the figures in tables 3, 6 and 7.
Orders
82Mr Dwyer, it is now time to sentence you and I make the following orders:
83On Charge 1, the charge of rape, you are convicted and sentenced to three years' imprisonment.
84On Charge 2, the charge of rape, you are convicted and sentenced to three years' imprisonment.
85I make four months of the sentence on Charge 2 cumulative with the sentence on Charge 1. That make a total effective sentence of 40, that is 4-0 months' imprisonment. I order that you serve a non-parole period of 20 months, that is 2-0 months, before you are eligible for parole.
86I declare the period of seven days' pre-sentence detention not including today, reckoned as already served. I have already said, that I will not make a Sex Offender Registration order, one was not sought, I do not believe I have the power to make one, and even if I did, I would decline to make such an order in this case.
87Mr Pirrie are there any other orders sought, or is there anything that I have missed?
88MR PIRRIE: No, Your Honour.
89HIS HONOUR: Nothing? Nothing missed?
90MR PIRRIE: No, Your Honour.
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