Director of Public Prosecutions v Dyer
[2023] VCC 1758
•27 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02165
CR-22-00107
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASPAR DYER |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2023 | |
DATE OF SENTENCE: | 27 September 2023 | |
CASE MAY BE CITED AS: | DPP v DYER | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1758 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – SENTENCING.
Legislation Cited: Crimes Act 1958 (Vic), s38, s40; Sentencing Act 1991 (Vic) s3(1)(d), s5A(1)(b), s5A(3), s5B(3)(a), s5B(3)(b), s5(2H), s6D, s6E; Sex Offenders Registration Act 2004 (Vic) s8, s11(3), s34(1)(c)(i)
Cases Cited:R v Verdins & Ors [2007] VSCA 102; Sayer v R [2018] VSCA 177; Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of 6 years and 2 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Lee | Office of Public Prosecutions |
| For the Accused | Ms T. Skvortsova | SLKQ Lawyers |
HER HONOUR:
1Jaspar Dyer, on 20 March 2023, you were found guilty by a jury of your peers on all charges on indictment no. C12114380.B ('indictment B'), being:
· One charge of common law assault, which carries a maximum penalty of five years' imprisonment;[1] and
· Two charges of rape, each carrying a maximum penalty of 25 years' imprisonment,[2] and I note that those charges are subject to the standard sentencing regime.
[1]Contrary to common law
[2]Crimes Act 1958 (Vic) s38
2Subsequent to those findings of guilt, plea indictment no. C12114380.A1 ('indictment A1') was filed over an earlier indictment and you pleaded guilty to:
· One charge of sexual assault, which carries a maximum penalty of 10 years' imprisonment.[3]
[3]Ibid at s40
3You have also admitted your prior criminal history.[4]
[4]Exhibit B – Criminal History of Jaspar Dyer
Circumstances of Offending
4Given the jury's finding of guilt on the charges on indictment B, the evidence adduced at trial is the factual basis for sentencing.
5The circumstances of your offending on indictment A1 are set out in the summary of prosecution opening for plea dated 2 May 2023,[5] the accuracy of which you accepted through your counsel.
[5]Exhibit A - Summary of Prosecution Opening for Plea
6The following is a brief overview of the entirety of your offending.
Indictment B – Victim Madeleine Croft[6]
[6]A pseudonym.
7Madeleine Croft is the victim of the offences for which you were found guilty at trial. She was 19 years old at the time of your offending and suffers a cognitive impairment.
8You and the victim both resided in your own rooms in a shared specialist community accommodation facility. On the night of 25 October 2019, you had been out drinking with some friends. You returned to your home heavily affected by alcohol.
9The victim was in her room, alone and in bed asleep. The door to her room was closed and latched, but not locked.
10At approximately 2.00 am, Ms Croft woke to find you in her room. You told her to take her clothes off and that you were going to have sex. Ms Croft refused and told you to go away, even offering you money if you left the room. You nonetheless continued. You approached Ms Croft in her bed and pulled her skirt and underwear off. She tried to fight you and push you away. At some point, you placed both hands around Ms Croft’s neck and started to strangle her (Charge 1 – common law assault). A struggle then began between you and the victim and you both fell onto the floor. On the floor, you continued to strangle the victim and she tried to push you away, claiming she could not breathe. Ms Croft gave evidence that she was in fear for her life.
11At one stage, Ms Croft tried to get away from you, but you grabbed her leg and pulled her back onto the bed. You then penetrated Ms Croft’s vagina with your penis (Charge 2 – rape). You then knelt next to the victim and told her to suck your penis. You then inserted your penis into her mouth (Charge 3 – rape). After you did this, you got up, covered the victim with a blanket and left the room.
12Shortly afterwards, Ms Croft reported the sexual assault to the community mental health practitioner associated with the community residence. She was observed to have bruising and abrasions upon later forensic medical examination.
13You provided a no comment interview that same day.
Indictment A1 – victim Annalise Borg[7]
[7]A pseudonym.
14Shortly after the conclusion of the trial of the matters concerning Ms Croft, you pleaded guilty to the offending involving victim Annalise Borg.
15Ms Borg was 16 years old at the time of the offending.
16On 19 July 2019, Ms Borg organised to meet up with a friend, Riley Blake[8].
[8]A pseudonym.
17You, Ms Borg, and Mr Blake met up at 2.00 pm at a train station. You all returned to a house in Kensington, where you consumed alcohol and played video games in a lounge room. Chris Sewell[9], a friend of Mr Blake, was also present.
[9]A pseudonym.
18In the late afternoon, Ms Borg was affected by alcohol, and she vomited in the bathroom. She stopped drinking alcohol at this point.
19At approximately 9.00 pm, Mr Sewell went to bed and Mr Blake went for a walk, leaving you and Ms Borg alone in the lounge room.
20You leaned over and kissed Ms Borg on the lips. She pushed you away and said, 'We shouldn't', given that she was there to be with Mr Blake. You were kissing Ms Borg again when Mr Blake entered the front room, so you pushed Ms Borg away.
21Mr Blake went upstairs to bed. You then pushed Ms Borg’s head towards your groin where your pants were partly pulled down. Ms Borg moved her head away and the act stopped.
22You tried to kiss Ms Borg again and she said no. You then stopped.
23Ms Borg went upstairs to the spare bedroom to go to sleep. She laid down fully clothed on the bed. You entered the bedroom a short time later saying that you usually sleep in the room. Ms Borg said you could lay next to her but stated that nothing was going to happen between you.
24You put your arm under Ms Borg’s neck and you put your other hand up her top. Ms Borg grabbed your arm and pushed it away. You waited a few seconds and forced your hand down Ms Borg’s underwear. Ms Borg pushed your arm away.
25You then forced your hands down Ms Borg’s jeans and touched the outside of her vagina. Ms Borg pushed you away causing your back to be against the wall. Ms Borg told you to stop.
26There was a brief struggle. You held Ms Borg down on her stomach momentarily. She looked over her shoulders and saw that you had your pants down. She struggled, rolled, and then she pushed you and you fell to the floor.
27You lay on the floor for a short time before you left the room.
28The next morning, Ms Borg told Mr Blake what happened with you the previous night.
Investigation
29You were arrested on 21 October 2020 in relation to this matter and provided a no comment interview.
Nature & Gravity of Offending
30Your offending against both victims, who were previously effectively unknown to you, is objectively serious, particularly that against Ms Croft. Strangulation of a woman at the hands of a man is well accepted to be a serious type of assault. Your offending against Ms Croft occurred some three months after that against Ms Borg and is an escalation in offending gravity.
31Your offending is aggravated by your intrusion into a place where Ms Croft was entitled to feel safe, asleep in her bedroom. She had her door shut when you burst in in the middle of the night, uninvited and unannounced. Those vulnerabilities are exacerbated by her own cognitive impairment. You did not use a condom and exposed her to the risk of pregnancy and sexually transmitted diseases.
32Your moral culpability for the offending against Ms Croft is further aggravated by your persistent and protracted use of force to strangle, contain and prevent her escape; and by putting your hand over her mouth to prevent her screaming.
33Ms Borg was vulnerable at the time of your sexual assault, due to her state of intoxication and limited prior knowledge of you and the other men present at the house.
34Ms Borg clearly said 'no' to your persistent advances and walked upstairs to get away from you. Your offending is aggravated because you used force to sexually assault her regardless of her expressed lack of consent.
Genuine but Unreasonable Belief in Consent
35Your counsel, Ms Skvortsova, submits that it is open to the court to find that you held a genuine, albeit unreasonable, belief in both victims' consent to the sexual acts committed against them. I note that consent was a live issue in the trial concerning Ms Croft. Ms Skvortsova submits that such a finding will inform the assessment of the objective seriousness of your offending and would warrant a conclusion that it is within the 'lower range'. If I do not accept this submission, she concedes that the offences fall 'squarely in the mid-range of objective seriousness'.
36Mr Dyer, your acquired brain injury specifically impairs your executive functioning, and you were highly intoxicated at the time of your offending.
37Dr Anderson's evidence during your trial was that you would struggle to understand 'conflicting' external stimuli, where someone might verbally indicate 'yes', yet the objective circumstances may point to the opposite intention on their part. She is a neuropsychologist who also gave evidence that you understand right from wrong.
38Ms Croft’s own cognitive difficulties were such that her outward communication was often incongruous with her inner emotional state: she spoke with a smile, she was often difficult to understand when speaking. She had difficulties with both verbal and non-verbal communication. You were unaware of her specific challenges prior to your offending.
39Whilst I accept that you did say to Ms Croft 'let's have sex' (T23.28-31), she did not accede to your request until after you displayed significant physical aggression towards her. Your use of force was protracted and included strangulation, to the point where she was unable to breathe and was in real fear for her life.
40On these facts, it is simply not open to the court to conclude that even with your specific cognitive impairment, you held a genuine, albeit unreasonable belief, that Ms Croft consented to have sex with you during this offending.
41Similarly, Ms Borg repeatedly said 'no' to your advances and told you to stop. She pushed you away and struggled with you before you sexually assaulted her. I do not accept that you had a genuine belief that Ms Borg was consenting to your advances.
42I conclude that the offending against Ms Croft is a serious example of the offences of rape and common assault, and that the offending against Ms Borg is a mid-range example of the offence of sexual assault.
43Your objective moral culpability will, however, be appropriately tempered by your own cognitive impairment which I will discuss shortly.
Victim Impact Statements
44Both victims of your offending have bravely and patiently attended court throughout the plea and sentencing process. They ought be commended for their dignity and composure. I hope that the finalisation of your sentence today, Mr Dyer, can serve to provide them with some form of closure upon this sorry chapter of their lives.
45Ms Croft read her victim impact statement to the court during your plea.[10] She described the extensive traumatic impact your offending has had on her emotional wellbeing. Ms Croft has isolated herself from supports, her parents, and social situations. She was unable to sit her VCE exams at the end of 2021, because she was overwhelmed with stress and anxiety. She now no longer feels safe or confident to start an intimate relationship with a male. Ms Croft never feels safe in public and often panics when men similar in age to you sit near her. She has had to move from her residence due to feeling unsafe and as a result has experienced unstable housing. Immediately following the offending, Ms Croft felt the need to repeatedly purchase new bedding and has had multiple locks on her door to feel more comfortable at night.
[10]Exhibit C - Victim Impact Statement of Madeleine Croft
46In her victim impact statement,[11] Ms Borg described experiencing panic attacks, night terrors, isolation, and loss of appetite since your offending. She has been diagnosed with complex post-traumatic stress disorder and suffers from unstable moods, difficulties regulating her emotions, and experiences exaggerated reactions to everyday situations. Previously a high achiever academically, with a strong interest in pursuing legal studies, the trauma of your offending prevented her from graduating from high school. She now finds herself in debt from lost wages and medical bills. Her innocence was taken from her at an age that should have been amongst the best years of her life.
[11]Exhibit D - Victim Impact Statement of Annalise Borg
Personal Circumstances
47Mr Dyer, you were 19 years old at the time of your offending and you are now 23.
48You were born in Seymour to parents who separated when you were three. You have a number of siblings and half siblings from their respective partnerships. You had minimal contact with your biological father growing up.
49At approximately two years of age, you experienced multiple strokes resulting in an acquired brain injury. You were also diagnosed during childhood with Attention Deficit Hyperactivity Disorder and at age 17, you were neuropsychologically assessed as 'lower than age expectations, with impact of [your] early childhood brain injury being most prominent in [your]processing speed and complex higher-level attention and executive functions.[12]
[12]As summarised in report of Dr Laura Anderson dated 14 August 2023, Exhibit 3 at [4.1.1]
50You attended school in regional Victoria. Throughout your school years, you had academic and behavioural difficulties. You received behavioural support and repeated Grade 1. You enjoyed subjects such as cooking, woodwork and metalworks. Despite these interests, you left school before completing Grade 11.
51In your teens, you were exposed to family violence between your mother and her subsequent partners. You would often 'get into the middle' of it to protect your mother. This would result in you then being the subject of physical violence. You eventually left home in your teens after one of these incidents.
52You were introduced to drugs through peers at school. You began using marijuana at 13, and after a few years you turned to methylamphetamine. You attended rehabilitation at Birribi in Eltham. You stayed for a few months, left, and returned twice between 2017 and 2019.
53You now have the support of your half-sister and half-brother, with whom you re-established relationships during your time at Birribi. You plan to live with them upon your release from custody and state that you wish to remain drug and alcohol free in the future.
54You have plans to start a Certificate III in construction and obtain a job in the future.
References
55A number of people wrote references to the court.
56Your brother, Mr Mason Dyer, spoke of the emotional toll your legal problems have taken on you. He referred to the traumatic effect of your mother's methamphetamine addiction, followed by your own struggles with addiction.
57Your brother has witnessed positive changes in you, as you became clean from methamphetamines and gained stability through work. He noted you are remorseful for your past mistakes. He knows you are a helpful person, who has had to overcome a lot of difficulties in your life.[13]
[13]Exhibit 5 – Bundle of Character References
58Your sister-in-law, Ms Dalton, spoke of the negative effect your offending has had on your mental health. She acknowledges that you have struggled with your addiction to alcohol and drugs and is proud that you have not touched methylamphetamine for the past 12 months. Ms Dalton speaks highly of your kind nature and acknowledges that you are an amazing uncle to her young daughter.[14]
[14]Ibid
59Your friend, Mr Ellingburg, stated that you are a caring and emotionally significant person to him. He has a chronic disability and told the Court that he has been able to rely on you when he has not had anyone else.[15]
[15]Ibid
60Your friend, Mr Riddick, wrote a reference stating he has always known you to be of good character and spoke of the positive impact your friendship has had on his life.[16]
Psychological Reports
[16]Ibid
61Past neuropsychologists have consistently said that your early childhood brain injury was likely to have negatively impacted on your ability to monitor your behaviour and regulate your emotions, increasing your propensity to engage in risk taking behaviours and cause you to experience mental health difficulties.
62Dr Anderson tested your cognitive functioning on two occasions. She opined that the significant neurological damage you received during your infancy contributed to the delays in your cognitive and emotional development.
63She also stated that your executive dysfunction is of a mild severity.[17] Meaning, your ability to critically assess numerous pieces of external information/stimuli and react appropriately is impaired. At trial, Dr Anderson gave evidence that this impairment is exacerbated by acute intoxication.[18]
[17]Exhibit 3 - Addendum Report of Dr Anderson dated 14 August 2023 at [4.1.2] (‘Exhibit 3’)
[18]Anderson, Trial Evidence T97.12 – T98.15
64It is Dr Anderson's clinical opinion that your level of cognitive functioning at the time of the offending would have been commensurate with your current level of cognitive functioning[19] and that you met the criteria for Alcohol Use Disorder.[20] You currently, provisionally, meet the criteria for Schizoid Personality Disorder[21] and Adjustment Disorder with mixed anxiety and depressed mood.[22]
[19]Exhibit 3 at [4.1.2]
[20]Ibid at [5.2.4]
[21]Ibid at [5.2.2] and [5.3.2]
[22]Ibid at [5.3.1]
Sentencing Considerations
Plea of Guilty & COVID 19 Considerations
65You pleaded guilty on indictment A1 after the jury returned guilty verdicts on the trial of indictment B. Although by no means an early plea, you avoided the need for a second trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting that trial. I take the utilitarian value of your plea of guilty on indictment A1 into account.
66Consistent with the principles enunciated in the Worboyes’ case,[23] your sentence will be appropriately ameliorated given the timing of your plea at a point where the criminal justice system is still experiencing the consequences of the COVID‑19 pandemic.
[23]Worboyes v The Queen [2021] VSCA 169
67You will not be punished for exercising your right to take the matters in indictment B to trial, but nor will you receive any sentencing discount in respect of those charges.
Remorse
68Given the timing of your plea, I do not regard your plea in respect of indictment A1 as evidence of genuine remorse.
69However, I do acknowledge Dr Anderson's opinion that because of your acquired brain injury, 'it is difficult for [you] to extrapolate out from [your own] experience [of the offending] and extend empathy and understanding to others because to do so is too abstract a cognitive process for …[you]'.[24]
[24]Exhibit 3 at [5.7.2]
Verdins’ Principles[25]
[25] R v Verdins & Ors [2007] VSCA 102
70Consideration of your significant cognitive impairments is relevant to reducing your overall moral culpability to a significant degree. Appropriately, denunciation will be a less relevant sentencing objective than it might otherwise be for you. Your executive functioning skills were further reduced as a result of your alcohol consumption. Accordingly, while the purpose of denunciation is diminished, protection of the community remains a relevant sentencing consideration and is not extinguished entirely by your absence of subsequent offending. In drawing this conclusion, I have regard to the principles in Verdins case and I continue to consider the limbs outlined in that case.
71Dr Anderson confirmed that you understood right from wrong. The aggravating features of your use of force in the strangulation of Ms Croft prior to your sexual offending, must be weighed against the factors diminishing your moral culpability. Accordingly, a modest level of just punishment and denunciation are warranted in the sentencing synthesis.
72While you do live with a mental impairment, given the serious nature of your offending and the constraints of the sentencing regime, a term of imprisonment with a non-parole period remains warranted.
73I accept that Dr Anderson's opinion on your subjective issues, and their nexus to your offending behaviour, do act to moderate the need for general and specific deterrence in your case.
74Dr Anderson opines that despite your current impairments, you have the capacity to function and 'get by' in a custodial environment.[26]
[26]Exhibit 3 at [5.6.1]
75Dr Anderson suggests that you present as an individual who is extremely vulnerable to negative influence from other peers in custody and opines that you are unlikely to be able to develop the necessary adaptive strategies required in custody and may be vulnerable due to your underlying disability.[27]
[27]Ibid at [5.6.2]
76You will no doubt experience the hardships of the custodial setting more keenly than another prisoner who does not live with your cognitive impairments. I am not satisfied, however, that imprisonment will have a significant adverse effect upon you in all the circumstances.
Criminal History
77You do not have a prior criminal history for sexual offending nor priors in the adult jurisdiction. Your recent time on remand has been your first time in custody. Due to the delays in your case, you have missed the opportunity to spend the time in a Youth Justice Centre rather than in adult gaol.
78You were on bail for this matter for an extended period until your remand post- verdict. There are no subsequent matters alleged against you.
Youth
79Now at 23 years of age, you are not technically a 'young offender' at the time of sentencing, but you remain a young man with a long life ahead of you. Rehabilitation remains an important consideration in your case. This is, however, mitigated by the seriousness of your offending and the need for community protection.
Time in Custody
80You have served 142 days on remand to date.
81Your family remain supportive, but due to their regional locations, it has been difficult for them to visit you in prison.
82Ms Skvorstova reported to the court on the previous mention of this matter, that given your cognitive impairment, you have been slow to adjust to certain aspects of prison life.
83But you have however, completed a commendable range of courses whilst in custody.
Delay
84The offences before me date back to 2019. You chose to contest these matters, as is your right, but pandemic related delays to the justice system, resulted in your first trial not proceeding until earlier this year. You remained on bail until you were remanded post-verdict on 8 May 2023. The delay in sentencing you was caused by the time required to obtain further plea material to support sentencing submissions, which were subsequently not advanced on your behalf. You did not offend whilst you were on bail and I accept that the time taken to finalise these matters has had an adverse impact on your mental health.
Prospects of Rehabilitation and Risk of Re-Offending
85Your relative youth, limited criminal history and prosocial use of time whilst you were on bail and whilst you were on remand, all weigh in favour of your reasonable prospects for ultimate rehabilitation.
86You were intoxicated by alcohol at the time of your offending in both cases. Submissions were made on your behalf that this intoxication, coupled with your acquired brain injury, rendered your cognitive function to such a level that your moral culpability was reduced. Dr Anderson's evidence confirmed that your executive functioning and ability to navigate complex social cues is significantly depleted when intoxicated.
87You self-reported that you were significantly intoxicated from alcohol use just prior to your trial commencing, using it as a coping mechanism for dealing with the increasing emotional stress related to the upcoming trial.
88You have had an 'on and off' relationship with drug and alcohol rehabilitation, engaging in alcohol and other drug rehabilitation programs on several occasions from late adolescence until the offending.
89Dr Anderson expressed a 'firm clinical opinion' that you require 'a comprehensive psychological and psychiatric assessment … to determine … [your] specific clinical profile and develop an appropriate treatment and support plan'.[28] She also observed that you are currently in remission for Alcohol Use Disorder in a controlled environment.[29]
[28]Exhibit 3
[29]Ibid at [5.3.3]
90I regard your prospects of rehabilitation as reasonable if you can remain abstinent from drugs and alcohol and obtain the necessary clinical assessments and treatment you require. If you relapse, your risk of re-offending will increase.
Current Sentencing Practices
91Section 5 of the Sentencing Act 1991 (Vic) sets out the sentencing principles which I must consider in your case, Mr Dyer. Just punishment, deterrence and denunciation are paramount sentencing considerations for all sexual offences. Community protection also looms large in your case given that you have committed two separate incidents of sexual offending involving the use of force against two separate victims.
92In sentencing you, I must have regard to a range of matters such as the seriousness of your offending, your reduced moral culpability for it and your personal circumstances. I must balance the interests of the community in denouncing your criminal conduct and protecting the community with the interests society clearly has in seeking to ensure, as far as is possible, that offenders are rehabilitated and reintegrated into society. I must impose a sentence which is proportionate to the gravity of your offending and which is no more than is necessary to satisfy these various objectives of sentencing. I also have regard to current sentencing practices for the offences before the court.
Standard Sentencing Regime
93The two charges of rape for which you were found guilty are subject to the standard sentencing scheme as outlined in s5A of the Sentencing Act 1991. A standard sentence is intended to represent the middle range of seriousness when considering only the objective seriousness of the offence.[30] These objective factors affecting the relative seriousness of your offending are to be determined without reference to matters personal to you, or to a class of offenders, and rather are wholly by reference to the nature of your offending.[31]
[30]Sentencing Act 1991 (Vic), s5A(1)(b) and (3)
[31] Ibid at s5A(3)
94I do not accept that I can 'depart' per se from the standard sentencing regime prescribed by legislation as urged by Ms Skvortsova. Under s5B of the Sentencing Act, I must consider the standard sentence as one of the factors relevant to sentencing and must only have regard to the sentences previously imposed for these offences as standard sentence offences. This does not limit the matters I am otherwise required or permitted to consider in determining the appropriate sentence for a standard sentence offences,[32] nor is it intended to affect the instinctive synthesis[33] approach I must undertake to sentencing.
[32] Ibid at s5B(3)(a)
[33] Ibid at s5B(3)(b)
95Accordingly, I take into account the standard sentence stipulated under legislation as a factor in my application of the instinctive synthesis. In a similar way, I take into account the maximum sentences prescribed by legislation. I consider the seriousness of the specific offences to which you have been found guilty of committing, and adjust the standard sentence accordingly. However, the mere fact that some of these charges are standard sentencing offences does not outweigh or negate other sentencing considerations which I must consider.
96The sentence I will impose upon you, however, will be lower than the standard sentence for the offence of rape which is 10 years' imprisonment. Having identified and considered the relevant factors in assessing the sentence, including the serious nature of the offending tempered by your reduced moral culpability, due to your cognitive impairment, I have formed the conclusion that this is appropriate.
Mandatory Sentencing
97Both charges of rape are also Category 1 offences.[34] Accordingly, pursuant to section 5(2G), the mandatory sentencing provisions apply, and the court must impose a custodial order unless exception applies.[35] The available exceptions are not open for charges of rape.
[34]Ibid at s3(1)(d).
[35]Ibid at s5(2H).
98A 'combination sentence' as initially submitted by your counsel as appropriate, is not open to the court.
Serious Sexual Offender Provisions
99Rape and sexual assault are both 'sexual offences' pursuant to Schedule 1 of the Sentencing Act. Accordingly, if you receive a term of imprisonment on Charge 1 on indictment A1 and Charge 2 on indictment B, you fall to be sentenced as a serious sexual offender on Charge 3 on indictment B.
100Every term of imprisonment imposed by a court on a serious offender for a relevant offence, must, unless otherwise directed by the court, be served cumulatively upon any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.[36] While protection of the community will become the primary sentencing purpose in your case[37] given your relative youth, lack of relevant prior convictions and reduced moral culpability, I consider that to order complete cumulation for the second offence of rape on indictment B, would result in a disproportionate sentence and not adequately reflect the gravity of the offence, were I to otherwise reduce any sentence imposed on that charge.
[36]Ibid at s6E
[37]Ibid at s6D
Comparable cases
101I have regard to relevant comparable cases to which I was referred by counsel. Other than the youth of the offender and offence type, all the post standard sentence cases were quite different from your case Mr Dyer, on either the basis of the plea involved, their facts, the offender’s background or a combination of those factors. Unfortunately, therefore, they provided little assistance to the court. I do not propose to have regard to any of the pre-standard sentencing regime cases for the purpose of determining comparable cases - as a comparable case.
Non parole period
102Section 11A of the Sentencing Act proscribes the matters to which I must have regard in fixing your non-parole period. I do not consider that in all the circumstances, it is in the interests of justice to fix a non parole period, otherwise than in accordance with this provision.
Sentence
Imprisonment
103Jaspar Dyer, for the reasons I have expressed, I will sentence you as follows. On indictment no. C12114380.B, that being indictment B, on Charge 1 of common law assault, you are convicted and sentenced to twelve months imprisonment. On Charge 2 of rape, you are convicted and sentenced to four years imprisonment. This is the base sentence. On Charge 3 of rape, you are convicted and sentenced to three years imprisonment. You have been sentenced as a serious sexual offender on this charge.
On indictment no. C12114380.A1, indictment A1, on Charge 1 of sexual assault, you are convicted and sentenced to 12 months’ imprisonment.
Partial Concurrency
104The sentence of four years on Charge 2 in indictment B is the base sentence and I order that two months of the sentence on Charge 1 and eighteen months of the sentence on Charge 3 on indictment B, be served cumulatively upon the base sentence of four years on Charge 2. Six months of the sentence on Charge 1 of indictment A1 is to be served cumulatively upon the base sentence of four years on Charge 2 of Indictment B.
105That is, the total effective sentence is six years and two months’ imprisonment.
106I order that you serve three years and nine months before being eligible for parole.
Pre-Sentence Detention
107Pursuant to s18 of the Sentencing Act 1991, the period of 142 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the court record.
Section 6AAA Declaration
108Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial on the charge of sexual assault on indictment A1, I would have sentenced you to a term of two years imprisonment, with a non-parole period of 18 months.
Sex Offence Registration
109Pursuant to s11 of the Sex Offenders Registration Act 2004 (SORA), the prosecution seeks that you be subject to a Sex Offenders Registration Order. This is because you have been found guilty of the offences of rape, which are Schedule 3, Class 4 offences and you plead guilty to sexual assault, a Class 4 offence.[38]
[38]Sex Offenders Registration Act 2004 (Vic) s8
110The court can only make such an order 'if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community’.[39]
[39]Ibid at s11(3)
111The risk must be real rather than fanciful[40] and is directed to the risk upon your release into the community, assessed by what I know now.
[40]Sayer v R [2018] VSCA 177 at [92]
112The prosecution submits that you pose a real risk to the sexual safety of women because of the following factors:
(a) the short period between and escalation in your offending;
(b) your use of force,
(c) the brazen and persistent nature of your offending, despite attempts by both victims to escape from you;
(d) the vulnerability of both victims; and
(e) your cognitive impairment when combined with alcohol intoxication causes a deterioration in your cognitive functioning therefore elevating the risk you pose to the sexual safety of women, in particular, when you are drinking.
113Given your cognitive impairment, if you continue to abuse alcohol or illicit drugs, there is no doubt you will pose some risk to the sexual safety of members of the community. As a young man, having now experienced a criminal trial and been held accountable for your offending, you will eventually emerge from gaol having matured and hopefully having gained significant insight into the need to gain true sexual consent in the future.
114Given your youth and cognitive impairment, the registration scheme would be particularly onerous for you, Mr Dyer. The reporting period applicable to you would be life reporting, given that you were found guilty of rape and sexual assault.[41] The restrictions would severely impact your prospects of successfully reintegrating into the community upon your release.
[41]Sex Offenders Registration Act 2004 (Vic) s34(1)(c)(i)
115Balancing all of the relevant factors, I am not satisfied that registration is necessary to reduce the likelihood of you re-offending in the future. I therefore refuse the application for registration under the Sex Offenders Registration Act.
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