Director of Public Prosecutions v Esler

[2022] VCC 1788

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-00117

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN ESLER

---

JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2022
DATE OF SENTENCE:	21 October 2022
CASE MAY BE CITED AS:	DPP v Esler
MEDIUM NEUTRAL CITATION:	[2022] VCC 1788

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Rape – not-guilty plea – trial by jury – victim asleep – standard sentence offence – good prospects of rehabilitation – previous good character – totality principle – COVID-19 pandemic

Legislation Cited: ss 5, 5B(2)(b), 11A(4)(c),18 Sentencing Act 1991 (Vic).

Cases Cited: DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Alanazi [2022] VCC 140; DPP v Hyeong-Beom Park [2021] VCC 2058; and DPP v Sapkota [2022] VCC 1466; DPP v Abdi [2020] VCC 1668; DPP v Kala [2021] VCC 151; DPP v Wright [2020] VCC 837; Wright v The Queen [2021] VSCA 243; DPP v Parra(a pseudonym) [2019] VCC 829; DPP v Dat (a pseudonym) [2020] VCC 344; Clarke ( a pseudonym) v The Queen [2022] VSCA 89; Saab(a pseudonym) v The Queen [2022] VSCA 116; Lockyer v The Queen [2020] VSCA 321; Drake v The Queen [2019] VSCA 293; Babar v The Queen [2022] VSCA 122.

Sentence:                  7 years’ imprisonment with a non-parole period of 3 years and 9 months’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Fisher with Mr A. Norris	Office of Public Prosecutions
For the Accused	Mr J. Lavery Mr T. Danos (21 October 2022)	Tony Danos Lawyers

HIS HONOUR:

1Benjamin Esler, on 18 August 2022, following trial, a jury found you guilty of two charges of raping Lisa Rogers[1]. 

[1] A pseudonym.

2The offences occurred in the early hours of the morning on 14 April 2019.  Charge 1 is based on you penetrating Ms Rogers’ vagina with your tongue.  Charge 2 is based on you penetrating Ms Rogers’ vagina with your penis. You committed both these acts without her consent and in circumstances where you did not reasonably believe that Ms Rogers consented to the penetration. 

Circumstances of offending

3By way of background, Ms Rogers moved from Queensland to Melbourne in 2019.  She moved into a share flat with her friend, Marissa Leon[2] in St Kilda.  Ms Leon and Ms Rogers had been friends for some two years. 

[2] A pseudonym.

4You and Ms Leon had been friends for many years and you were invited to have dinner with her and Ms Rogers. 

5You arrived at their flat at about 7:00 pm where you met Ms Rogers for the first time.  As the evening progressed the three of you had dinner, consumed alcohol and were otherwise interacting in a good and friendly manner.  There were various comings and goings from the flat in order to purchase alcohol and cigarettes.  At one point you and Ms Rogers had a heated argument. However, thereafter you continued talking, drinking, and playing games of Cluedo and Twister. 

6Over the course of the evening the three of you consumed wine, Canadian Clubs and tequila.  Ms Rogers gave evidence that shortly before going to bed she was outside on the balcony having a cigarette and was feeling a little tipsy from the alcohol, had a head spin from the cigarette, and was tired.  She decided to go to bed. It was around 11:30 pm.  She did not say goodnight to you or Ms Leon. 

7You and Ms Leon stayed up for approximately another hour and a half before you went to bed together.  You and Ms Leon had a previous sexual relationship and on this night, you made a number of attempts to have sexual intercourse with Ms Leon but she refused you each time.  You decided to go home. You asked Ms Leon if you should say goodbye to Ms Rogers. She said you should not as Ms Rogers was sleeping.  You left Ms Leon’s room and she fell asleep.

8You then went and entered Ms Rogers’ room. She was asleep when you entered.  Ms Rogers gave evidence that she woke to you performing oral sex upon her.  Your head was between her legs and you were penetrating and licking her vagina with your tongue.  As you were doing that, you reached up under her pyjama top, snapping the elastic of her bra, telling her to 'get rid of it'.  Charge one is based on you penetrating Ms Rogers’ vagina with your tongue.

9Ms Rogers stated that you then positioned yourself so that you were lying on top of her. You then placed your penis inside of her vagina, moving it in and out about three or four times before withdrawing.  This conduct forms the basis of charge two. You then got up onto your knees, put your penis near her face, and told her to 'suck it'.  She told you she did not want to do that, to which you responded, 'just think of your cat's name'.  Earlier that evening Ms Rogers had told you that her cat's name was [omitted].  Ms Rogers asked, 'What are you doing in here?' to which you said that you had gone into her room to say goodbye and she told you to stay, or words to that effect.  Ms Rogers gave evidence, and I accept, she did not invite you into her bedroom or her bed.  She told you several times that you needed to stop and go, which ultimately you did.  You got off her bed, dressed and left the room. 

10After she heard the front door of the flat closing, Ms Rogers went to Ms Leon’s bedroom, in a highly distressed state, and told her some of what had just happened.  She was consoled by Ms Leon for a period of time before she went to the bathroom where she vomited and showered.  Ultimately, Ms Rogers fell asleep in Ms Leon’s bed.  Later that morning, as plans had been made to meet with some friends, Ms Rogers and Ms Leon went to the St Kilda foreshore where they met with two other friends.  Ms Rogers told them of what had occurred and, following discussions, she reported the matter to police later that day and attended at the Monash Hospital for examination. Ms Rogers was examined by a doctor who noted an abrasion to the fossa navicularis area of her vagina.

11On 15 April 2019, a 'pretext telephone call' occurred between you and Ms Rogers. On 29 April 2019, you were interviewed by police and exercised your right to silence.  Following the interview, you were released pending further inquiries.  On 22 May 2019, you attended at the Moorabbin Police Station and provided police with a sample of your DNA. You were ultimately charged with the two charges of rape.   

Personal circumstances

12Your personal history is set out in the report of psychologist, Christine Kennedy, tendered on your behalf at the plea hearing.  You are the second child in a family of four boys.  You told Ms Kennedy you grew up in a family where the children received lots of love and encouragement.  Your father was employed as a surveyor and your mother as an accountant, and later a teacher.  You recalled lots of large happy gatherings with extended family but stated that both parents ran the household in an authoritarian manner. 

13You attended school to the end of Year 12 following which you worked in a number of low skilled jobs before commencing a Bachelor of Business degree, majoring in Finance.  You completed your degree over six years and supported yourself by working with disabled children, working at the Australian Taxation Office, and as a surveyor's assistant.  Following the completion of your degree, you obtained work as a manager in a brokerage firm.  That position ended after four years of employment at the beginning of 2021 due to changes within the company and factors connected to the COVID-19 pandemic.  You have not engaged in paid work since then due to your anxiety concerning the pending court case, but you did manage to engage in some unpaid work for a start-up venture.

14You began drinking alcohol as a 15-year-old and would, in your words, 'get plastered once a week or once a fortnight'.  You state that you have effectively ceased drinking alcohol since 2019 as a result of being charged with these offences.  You told Ms Kennedy you seldom have more than one alcoholic drink. 

15You have had three significant relationships.  The first ended after some two years when your girlfriend was killed in a car accident. You later were in a de‑facto relationship with another woman for approximately six years.  You have been with your current partner since mid-2020.

16Tendered on your behalf were 15 character references from friends and family. I will refer to some of the more significant parts of those references.

17Your mother writes that you have always hated violence against women and has heard you express those views many times.  She speaks of your helping nature towards others, including past girlfriends.  Your mother refers to two incidents in which you went to the assistance of a woman in trouble.  She states that you will receive the unqualified and unlimited support of your family and close friends.

18Your father speaks of his shock and distress on learning of your convictions.  He is not aware of any previous suggestion of you mistreating women in any way.  He notes that you remain on good terms with former girlfriends and partners.  He also speaks of your very strong work ethic and the work you have performed during and since the completion of your studies. 

19Your older brother states you have always been vocally critical of rapists, a defender of women, and you have always treated your girlfriends very well.  He is aware of two instances where you went to the aid of women, at risk to your own personal safety.  Your younger brother, Tim, considers that the charges of which you were found guilty are at odds with all he knows about you and your attitudes towards women. 

20Your fiancée has known you for two years. She attended court throughout your trial and describes you as honest, loyal, and trustworthy.  She states you have never been violent or used force during your relationship.  On the contrary, you have treated her with great respect, consideration, and care. 

21Your friend, Ms Baker, whom you have known for some 17 years, wrote of an occasion you went to her aid and ended up being assaulted yourself. The matter was reported to police, proof of which I have been provided.  She considers your offending as being completely out of character. 

22Jennifer Mahon has known you for 26 years when you befriended her son at school.  She states you have consistently demonstrated a complete understanding of boundaries and full respect for everyone in her home, including her daughter.  Her son, Joel, considers the charges as highly contrary to your moral principles and behaviour demonstrated over 26 years of friendship.  He has witnessed your relationships over the years noting that your former partners still consider you a close friend and that you have always been strong in your defence of women.  Ellen Mahon states she has spent much time in your company, in many different social situations.  She has only ever seen you behave in a respectful and thoughtful manner towards women and considers you to have been a protective and gentle person in her life.  You have helped her through a health issue and through a relationship issue.

23Monica Egan gave evidence on your behalf at trial and has also provided a character reference.  She is a former partner and throughout the seven years in which you lived with her and her two daughters, she states you proved to be a kind, trustworthy, dependable and principled man.  Ms Egan also states she always felt safe, respected and protected by you.  She confirms you have maintained your relationship with her and both her daughters, as well as providing for them financially when required.  She describes you as a positive, reliable male role model in the lives of her two daughters. 

24Your aunt, Mary-Anne, states she was extremely shocked to hear of your offending, it being entirely inconsistent with the man she knows.  She describes you as a loving partner in the relationships she has observed and considers your convictions to be entirely out of character.  Your aunt, Kate, writes of your intelligent and empathetic attitudes.  Your uncle, Rodney, states that he and his family members were astounded to hear the news of your convictions.  This is particularly so given his knowledge of your assistance provided to women who were in situations of danger.

25Richard Essers has known you since you were both very young children.  He has always found you to be loyal, considerate, and respectful towards family, friends and even strangers.  You share an extensive circle of friends, and he has known you to put yourself in harm's way in defending others.  He has never seen you act maliciously, nor has he heard you doing anything untoward to anyone, particularly members of the opposite sex. 

Prosecution submissions

26Mr Fisher, who appeared with Mr A Norris, on behalf of the Director of Public Prosecutions, submitted that the objective gravity of your offending, and your moral culpability, are high.  He relied on the following matters in support of that submission:

(i)     You met Ms Rogers for the first time on the night of the offending, and nothing had occurred to suggest that she was in any way interested in having any sexual relations with you.

(ii)     Ms Rogers went to bed because she was affected by alcohol and did not even say goodnight to you or Ms Leon. 

(iii)    Following your unsuccessful attempts to engage in sexual activity with Ms Leon, you left her room but before doing so, asked if you should say goodnight to Ms Rogers.  Ms Leon told you not to do that. 

(iv)    Notwithstanding Ms Leon’s advice, you went into the victim's bedroom uninvited.  It was the early hours of the morning and Ms Rogers had been asleep in bed for some hours. 

(v)     Ms Rogers was asleep when you commenced your sexual assault upon her.  You continued your conduct after she awoke to you performing oral sex upon her.  She was vulnerable.

(vi)    The jury verdicts establish that you were aware Ms Rogers was not consenting to sexual penetration in both instances. 

(vii)   You did not use a condom when you penetrated Ms Rogers with your penis.

(viii)  The episode, consisting of two acts of sexual penetration, occurred over a number of minutes, as opposed to a brief or fleeting contact. 

(ix)    There is no psychological or psychiatric disorder that impacts upon your moral culpability, nor is it relevant that you were intoxicated at the time you committed the offences.

(x)     You maintain your innocence and have not expressed any remorse for your conduct.

27The offence of rape carries a maximum penalty of 25 years' imprisonment, and a standard sentence of 10 years applies.  Rape is also a Category 1 offence and, as such, I must impose a custodial order. 

28Ms Rogers read her victim impact statement in open court.  Mr Fisher submitted, and I accept, that the statement is powerful and speaks eloquently of the impact your offending has had on her.  I have had full regard to that impact on Ms Rogers as a matter relevant to sentencing. 

29Ms Rogers stated it is hard to put into words the ways in which your conduct has robbed her of the joy to be alive and has so dramatically changed the direction of her life and future.  Her words, she said, will never truly convey the grief, suffering and desperation your conduct has had upon her.  She stated that she has been suicidal as a result.  She experiences nightmares of her house being broken into and strangers entering her room at night. As a result, Ms Rogers has become hypervigilant.

30Ms Rogers stated her emotional reaction got to the point that she commenced counselling and was placed on antidepressant medication.  Her financial position was also impacted because of her inability to work and because she was spending money on therapy, workshops and medication.  Ms Rogers concluded her statement in the following terms:

'Three years of my life have been stolen before my eyes.  Three years later and still to this day I experience adverse effects from the assault and one of the saddest things is, I know this living nightmare is still not over.'

31Mr Fisher submitted that when you offended, Ms Rogers was completely vulnerable and helpless, and you took advantage of that situation.  Moreover, the offending occurred in the victim's home, the very place in which she was entitled to feel safe and secure.  The fact that you offended metres away from where Ms Leon lay asleep in her bedroom, revealed an element of brazenness to your offending.

32Mr Fisher submitted that while all principles of sentencing apply, that of general deterrence should loom large in the sentencing process. 

33In oral submissions, Mr Fisher submitted that the fact that the offending was of short duration does not detract from the seriousness of your offending.  He pointed out that the offending occurred in the context of there being no suggestion of any prospect of intimacy or a romantic interlude, and that when you stopped one act, that is the oral penetration, you then proceeded with the next act of penile penetration.

Defence submissions

34Mr Lavery, who appeared on your behalf, relied on a number of factors which, he submitted, reduce the gravity of your offending and your moral culpability.  In relation to the offending, Mr Lavery relied upon the victim's evidence both at committal and at trial, that following the cessation of the sexual activity and you being told to leave, according to the victim, you appeared surprised.  It was submitted that you may have held a belief that the victim was consenting but, consistent with the jury verdict, it was not a reasonable belief.  Such a belief on your part, was also consistent, it was submitted, with the evidence concerning your state of intoxication.

35Mr Lavery submitted that it could not be said, based on the evidence, that you had an intention to commit the rapes before entering Ms Rogers’ bedroom.  He described your conduct, once you entered the bedroom, as opportunistic offending that was not, in any sense, protracted.  He submitted it was of short duration.  It was not, Mr Lavery submitted, offending that was premeditated or planned.  Any intention you held was formed close to the events constituting the offences. 

36Mr Lavery also submitted that the offending did not involve any threats, threatening behaviour, violence (beyond the violence inherent in the offences themselves), use of weapons or other humiliation.  You offended alone against a person of similar age and the offending did not occur in the context of family violence.  Mr Lavery referred to a number of cases that involved rapes of a sleeping victim and that are relevant to current sentencing practice.

37It was submitted by Mr Lavery that each rape charge falls at the lower end of the range for seriousness, adding that each penetration was of short duration and was voluntarily discontinued by you.  He submitted that the incident occurred in circumstances where your judgment was adversely affected by the alcohol you had consumed and that such misjudgement was evidenced by the fact that you attempted to engage the complainant in conversation and activity both during and immediately after the offending. He reiterated that you discontinued when you were told to stop and shortly thereafter you left the room.

38Mr Lavery also relied on the fact that you have no relevant criminal history nor any other matters pending.  You have used the period between your offending and the date of plea to rehabilitate yourself, particularly in changing your drinking habits.  The character references tendered on your behalf establish you have previously been a person of good character. 

39Mr Lavery tendered on your behalf a psychological report of Christine Kennedy, dated 4 October 2022.  Ms Kennedy is of the opinion that you satisfy the DSM-5 TR diagnostic criteria for Generalised Anxiety Disorder and for Major Depressive Disorder.  You also displayed symptoms of Post-traumatic Stress Disorder.  It is also her opinion that you represent a low risk of reoffending.

Sentencing considerations

40Rape is an inherently serious offence.  This is reflected by the 25-year maximum penalty that may be imposed. 

41Rape often has a devastating impact on a victim's emotional and psychological wellbeing. The impact of your crimes were well expressed by Ms Rogers in her impact statement. She has been significantly affected by your offending.

42In assessing the seriousness of your conduct, I have had regard to the submissions of both counsel and the matters on which each relied as to the nature and gravity of your offending. 

43I accept your counsel's submission that your conduct may be regarded as opportunistic. In this regard, I consider that upon you entering the bedroom and seeing Ms Rogers in bed asleep, in your intoxicated state, you decided to take advantage of her for your own sexual gratification. She had not done anything before this to suggest she was in any way interested in sexual activity with you.

44I am not, however, able to find that your offending was planned or premeditated.

45I accept that your offending did not involve any other acts of violence beyond that inherent in the very act of rape. Your offending did not involve threats or the use of weapons. There were no specific acts of degradation or humiliation beyond those constituting the offending. You acted alone.  The period of time over which you offended would appear to have been of relatively short duration. With the exception of a minor abrasion, Ms Rogers did not suffer any other physical injury.  Each of these matters are relevant to the assessment of the objective gravity of your offending. However, I am not prepared to find, as was submitted by your counsel, that you held a belief, albeit an unreasonable one, that Ms Rogers was consenting. I accept Ms Rogers’ evidence that she awoke with you performing oral sex upon her. That is, you commenced your offending while she was asleep. In that circumstance, it is difficult to find, on the balance of probabilities, that you held such a belief.

46Ms Rogers was in a vulnerable position when you commenced your sexual assault upon her.  She was in her own bed asleep when you entered her room and commenced to perform oral sex upon her. She was entitled to feel safe in her own home and in her own bed.  The seriousness of your offending on Charge 2 is aggravated by the fact that you were not wearing a condom at the time of the penile penetration. You exposed Ms Rogers to the risk of pregnancy and infection. 

47I accept that you discontinued all sexual activity upon Ms Rogers telling you that you needed to stop and leave. You then rolled to the side of the bed, lay there for a short period, before getting up, dressing and leaving the room.

48Notwithstanding the competing submissions of counsel concerning the objective gravity of your offending, and acknowledging the difficulty in making such a determination, I consider your conduct on both charges falls towards below the mid-range level of seriousness. Your state of intoxication might somewhat explain your behaviour, but it provides no excuse. Although you were affected by alcohol, you were sufficiently cognizant to ask Ms Leon whether you should say goodbye to Ms Rogers, to tell Ms Rogers to remove her bra, and to suggest that she think of her cat's name, which you knew was [omitted], as you were forcing yourself upon her. Your moral culpability, in my opinion, is moderately high.

49You have not previously been in trouble with the law, nor have you been in any trouble since the commission of these offences, some three and a half years ago. I have regard to the delay between your offending and ultimate sentencing and acknowledge your efforts during that time to cease alcohol abuse.  You have also had these charges hanging over you for a considerable period of time and I have little doubt that they have caused you a great deal of anxiety.

50As is evident from the numerous character references, you are a person who has otherwise led a good and law-abiding life.  I accept that your offending on this occasion was completely out of character.  Indeed, a common theme in a number of references is that you were a person who respected women.  It is difficult to understand, how at the age of 35, you came to commit these serious offences given your previous good character. 

51As to your prospects for rehabilitation, I accept you have significantly changed your drinking habits since the commission of these offences.  You have been assessed as representing a low risk of recidivism.  You come from a good family, and your family and close friends will continue to provide you with their support. Perhaps the only telling factor against what might otherwise be considered excellent prospects of rehabilitation is your denial of the charges and the absence of any evidence of remorse for your behaviour.  Notwithstanding those two matters, I consider you have very good prospects of rehabilitation.

52Mr Lavery submitted that you did offer an apology to Ms Rogers, but I am not persuaded that you apologised for your offending. The apology to which Mr Lavery referred, at p160 of the depositions, occurred during the pre-text call made on 15 April 2019.  You told Ms Rogers during that call that you felt you had her permission each step of the way. Whilst you made some admissions, you did not admit your offending. You did not apologise for your offending. You pleaded not guilty, and clearly the jury rejected your denials of the offending.

53In determining an appropriate sentence, I am required by s5 of the Sentencing Act 1991 (Vic) to have regard to a number of considerations in addition to your prospects of rehabilitation. These include deterrence, just punishment, denunciation of your conduct and protection of the community. I accept that deterrence of others and denunciation are significant sentencing considerations. I consider specific deterrence has limited application given your previous good character and my assessment of your prospects for rehabilitation. For similar reasons I do not consider that the need to protect the community from you is a factor that must attract much weight.

54I also have regard to the fact that this is your first time in gaol and I accept Mr Lavery's submission that because of the COVID-19 pandemic, your time in custody will be rendered more burdensome. Adding to that burden are your diagnoses of Generalised Anxiety Disorder and a Major Depressive Disorder. Both these considerations call for some moderation of the sentence to be imposed.  

55The standard sentencing scheme applies to your case.  The standard sentence for rape is 10 years' imprisonment. 

56I have taken into account the standard sentence as one of the factors relevant to the process of instinctive synthesis sentencing.  Like the maximum sentence, the standard sentence operates as a guide to sentencing but does not alter the instinctive synthesis approach.

57Section 5B(2)(b) of the Sentencing Act requires I only have regard to sentences previously imposed for the offence as a standard offence. I have done so. In addition to the cases to which your counsel referred, I have also had regard to a number of other sentencing decisions of this Court and the Court of Appeal.[3] Current sentencing practice is a factor to which I must have regard, but it is clear from the cases to which I have referred that the circumstances in which the offence of rape is committed, and their objective seriousness, vary widely, as do the personal circumstances of those who commit such offences.  In the end, each case must be decided on its own individual facts and circumstances.

[3]DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Alanazi [2022] VCC 140; DPP v Hyeong-Beom Park [2021] VCC 2058; and DPP v Sapkota [2022] VCC 1466; DPP v Abdi [2020] VCC 1668; DPP v Kala [2021] VCC 151; DPP v Wright [2020] VCC 837; Wright v The Queen [2021] VSCA 243; DPP v Parra(a pseudonym) [2019] VCC 829; DPP v Dat (a pseudonym) [2020] VCC 344; Clarke ( a pseudonym) v The Queen [2022] VSCA 89; Saab(a pseudonym) v The Queen [2022] VSCA 116; Lockyer v The Queen [2020] VSCA 321; Drake v The Queen [2019] VSCA 293; Babar v The Queen [2022] VSCA 122.

58The sentence I am going to impose in respect of each offence you committed is lower than the standard sentence, having regard to my findings as to the seriousness of the offences you committed and each of the matters that weigh in mitigation of sentence.

59In endeavouring to achieve an appropriate and proportionate sentence, I have also had regard to the principle of totality to ensure that the total effective sentence reflects your overall criminality and to ensure that the sentence is not crushing. The two offences of which you have been found guilty occurred over one relatively short continuous episode. It is appropriate, in the circumstances, that there be, as was submitted on your behalf, a significant level of concurrency, in the sentences to be imposed.  Mr Esler, would you now please stand.

Sentence

60On Charge 1 you are convicted and sentenced to 5 years' imprisonment.

61On Charge 2 you are convicted and sentenced to 6 years and 3 months' imprisonment.

62I direct that nine months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2. This makes a total effective sentence of 7 years' imprisonment. Having regard to your prospects of rehabilitation, and the reduced need for specific deterrence and the protection of the community from you, I consider it is in the interests of justice that a non-parole period below the period required to be fixed by s11A(4)(c) of the Sentencing Act be fixed. I set a non-parole period of 3 years and 9 months' imprisonment.

63Pursuant to s18 of the Sentencing Act the period of 64 days, not including today, is to be reckoned as already having been served under the sentence.

64I was not invited to, nor do I make any orders, under the Sex Offenders Registration Act.

- - -