Director of Public Prosecutions v Feng
[2022] VCC 948
•27 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-02514
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
WEI FENG
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 June 2022 | |
CASE MAY BE CITED AS: | DPP v FENG | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 948 | |
REASONS FOR SENTENCE
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Subject: Criminal Law.
Catchwords: Sentence – Jury verdict - Rape – Sexual assaults – Assault with intent to
commit sexual offence - Recklessly cause injury – False imprisonment –
Four victims - Offending over a 3-year period - Lack of Remorse – Delay
in part due to Pandemic - Little mitigating circumstances - General and
Specific deterrence - Just punishment - Poor prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases cited:
Sentence: Total effective sentence of 14 years imprisonment with a non-parole period
of 10 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Piggott | Ms G. Mazzone |
| For the Offender | Ms N. Giorgianni | Ms C. Flocke (Giorgianni & Liang Lawyers) |
HIS HONOUR:
1 Wei Feng, on 8 July 2021, you were found guilty by jury verdict of a number of serious violent and sexual offences committed against four victims. As to the fifth complainant, the jury could not reach a unanimous or majority verdict on that matter and it was adjourned to a retrial of those allegations. You were acquitted on counts 7 and 8, which pertained to similar allegations made by a sixth complainant. This case is unusual in terms of the timeframes involved which should be clarified by chronology which gives an understanding of the delay involved. The original offending of which you were found guilty occurred between 2014 and 2017. You were remanded in custody on 2 March 2017 and on that day you were interviewed by police following your arrest and you were charged.
2 Upon refusal of a bail application made on your behalf on 23 June 2017, you changed your legal representation. However, a committal was listed and then proceeded in December 2017 in which you were legally represented. The first listing of the trial before Her Honour Judge Marich in October 2018 did not reach the jury empanelment page because you fired both solicitor and counsel and you refused Victoria Legal Aid representation. In April 2019, you then fired counsel who had been briefed for a directions hearing before Her Honour and you instructed another set of lawyers. Legal aid funding was approved and transferred in July 2019. All complainants' evidence was pre-recorded before His Honour Judge Carmody.
3 That is the evidence of the witnesses and I will use a pseudonym for the four witnesses concerned - Rachel Montague,[1] Julia Nguyen,[2] Tania Chircop[3] and Melissa Tu.[4] These pseudonyms are used in order to protect the identity and anonymity of complainants. These are the four complainants whose allegations were ultimately accepted by the jury. You were represented by counsel at the pre-recording and he cross-examined these witnesses. By early October 2019, another solicitor had ceased to act for you. You were, however, represented in October 2019 when an order was made under the Confiscation Act for conditional funding with an equitable charge over your home.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
4 Judge Marich ordered in late October for the defence to be funded by Victoria Legal Aid under s197 for the trial. You obtained representation in relation to some evidentiary pre-trial arguments which proceeded in November 2019, but you again indicated you did not wish counsel to continue to represent you. In November 2019, upon the hearing to pre-record the evidence of another complainant who had been available who had been not available due to unfitness, you refused Victoria Legal Aid representation once again. A Forensicare report of December 2019 ordered by Her Honour Judge Marich found you fit to plead and characterised your conduct as either consciously or unconsciously behaving in a way to delay proceedings.
5 In March 2020, before His Honour Judge O'Connell, other witnesses were pre-recorded but the hearing was cut short because of lack of co-operation from you. Further procedural matters went ahead in April and May 2020. Funding mentions were listed in July 2020 and October 2020 and the trial could then not proceed because of the COVID pandemic. By September 2020, new solicitors were representing you as well as counsel. A directions hearing proceeded in February 2021 and a trial date of 21 June 2021 was provided. In May 2021, counsel was no longer briefed and new counsel appeared at a directions hearing before Judge O'Connell on 7 May 2021.
6 The trial then proceeded on the assigned date and you were represented and that trial was before me. I have recited this chronology because I wanted to make clear that procedural steps undertaken and which largely explained the unusual extended period of pre-sentence detention with which you come to be sentenced. In my view, I should take into account the finalisation of this matter was delayed by the pandemic in 2020 and 2021 despite the consistent efforts of the court to proceed to deal with pre-trial issues, funding issues and pre-recording of evidence. To a very significant extent, your lack of co-operation and willingness to facilitate this process has been the major factor for the delay. Accused are perfectly entitled to contest the charges which they face and endeavour to put the prosecution to its proofs.
7 It is another matter to seek wilfully to frustrate the legal process by obstinate and intractable conduct. Nevertheless, these matters do not aggravate your offending and no part of the sentence relates to this aspect of your conduct. Five of the complainants in this matter are street sex workers working in the St Kilda area. Julia Nguyen was the first complainant, the earliest in time, with allegations arising in March 2013. In the case against you in relation to Ms Nguyen's allegations, the jury were unable to reach a unanimous or a majority verdict. Subsequently, the prosecution decided to pursue a retrial in relation to those matters of Ms Nguyen and at the time of the conclusion of the trial in relation to the others, it was decided by me to wait for that trial to also reach a conclusion before moving onto sentencing you because it had been anticipated that it would proceed relatively soon thereafter.
8 As it turned out, the rest of the year was again impacted significantly upon by pandemic conditions, although it was always hoped the retrial would proceed as soon as possible. Finally, the trial commencing Ms Nguyen came before the court in April 2022 but you soon after its commencement sacked counsel appearing for you. At that point, I decided to proceed to sentence you upon the trial which had been concluded in 2021 and I do so now following a plea hearing in May 2022. The plea proceeded with different counsel from trial counsel representing you. I am therefore here concerned to sentence you on Charges number 2, 3, 4, 5, 6, 9, 10, 11, 12 and 13, of which the jury found you guilty. The circumstances of your offending may be briefly summarised.
9 At the relevant dates, victim Montague, Chircop and McNamara[5] were street sex workers working in the St Kilda area. At the time of your offending, you lived in the western suburbs of Melbourne with your wife and daughter. You were the registered owner of a grey 2008 Suzuki Swift hatch. In early 2014, Rachel Montague was working in the St Kilda area. On a particular night around 10 pm near the corner of Inkerman and Greeves Street, you approached her while in your car. You agreed with her upon a price of sexual services and she got into the passenger seat of your car. You drove down Barkly Street towards the beach and turned into an area near the Elwood Canal behind a block of flats. As soon as you parked your car, you grabbed her handbag and told her you would not be paying for any services.
[5] A pseudonym.
10 You went to your back seat and produced a large knife that looked like a meat clever. You returned to the driver's seat and told Ms Montague that if she did not do what you said, you would take her somewhere and shoot her, saying you had a gun in the boot. Ms Montague tried to unlock the door but she could not do so as the door appeared to be locked. She was very scared and felt that she had to comply in order to save her life. You pushed her head towards your exposed penis and forced her to perform oral sex on you. She was gagging and in pain. You were aggressive and very rough with her. You told her you were going to have sex without a condom and out of fear, she agreed.
11 You raped her as she was seated in the passenger seat by inserting your penis into her vagina. You held your hand over her mouth as you did so and pulled the passenger seat back down so it was effectively horizontal. She said this incident lasted about 40 minutes in total and that you slapped her face and body a number of times. She could not recall how the event ended but she walked back to St Kilda from Elwood. You kept her bag. A couple of months later, Ms Montague saw you driving seemingly laps around some sex workers in St Kilda area and you yelled at her that she had gone to the police and called her a 'dog'. You yelled out to her that you had a gun. You got out of your car and you yelled abuse at her. Up to that point she had not gone to the police.
12 Ms Montague made a statement to the police in 2017 concerning these matters. These were the circumstances of your offending in relation to charges 2 and 3, two counts of rape. In July 2016, victim Tania Chircop had commenced work in the St Kilda area and was standing on Greeves Street. After a break, she had returned to work at about 1 am. She walked down Inkerman Street and the Suzuki driven by you stopped in the middle of the road nearby. She had seen you driving around earlier that night. She had a conversation with you about providing sexual services and you asked her for oral sex, agreeing on a $50 price. Ms Chircop got into your car and you said you wanted to go to your usual place.
13 You stopped at a service station on Barkly Street and got some petrol. You then drove towards Elwood. Ms Chircop asked you to stop a number of times because she was concerned and told you that you were going too far away from her area and you needed to turn around and go back. You refused to stop or turn around. This is charge 4 of false imprisonment. You drove to a laneway off the Ormond Esplanade. When you got to a place chosen by you, you unzipped your trousers, you put your hand on her neck and tried to force her head onto your crotch as you were slowly driving. Ms Chircop told you to stop as you were hurting her.
14 This was the assault with intent to commit a sexual offence. You stopped the car and you wanted her to get out. When she refused to get out of the car, you poked her with your finger on her body, chest and arms. You slapped her face and called her 'a bitch', yelling at her as you grabbed her by the arm, pulling her towards you as you tried to kiss her. When she saw you reach for something in the car, she tried to get out but you restrained her, ripping her bracelet from her wrist, with beads going into the cabin. They were later recovered by police from your car. You continued to demand oral sex and you were verbally abusive but finally agreed to drive her back to St Kilda.
15 When you got close to the Elwood Canal, Ms Chircop grabbed her bag and jumped out of the car, walked back to St Kilda and called the police. At the time she did not wish to pursue the matter further. She then signed her statement to police in 2017. In her evidence, she said your anger was indescribable and she was terrified. On 14 October 2016, Amy McNamara was working at the intersection of Greeves and Carlisle Street. You approached her in your car. You had a conversation about sexual services and you requested unprotected sex and that you go to 'your spot' in Richmond. She refused to have unprotected activity with you and refused to go to your spot. You became angry. Ms McNamara was leaning on the driver's seat open window.
16 You then put handcuffs around her right wrist and accelerated your vehicle, dragging her down the street. You proceeded to pull her into the car up to her waist. You called her a slut and a whore and said, 'I should fuck you in the arse', among other things. When you stopped the car, you pulled at her hair and she was in pain and asking you to stop. You pushed her back and she fell onto the roadway causing pain, a graze to the right knee and ankle. She was bleeding. These were injuries which did not adequately heal and she had to undergo surgery in February 2017 to deal with abscesses on her right ankle. This was Charge 6 of recklessly cause injury. Ms McNamara flagged down a police car and later that night you were seen in Greeves Street.
17 You were aggressive to police and served with a banning notice under the Sex Work Act banning you from the St Kilda area until 17 November 2016. In early January, Ms McNamara again saw you approaching workers in the St Kilda area on multiple occasions. The next five charges arose in relation to victim Melissa Tu. At about 10 pm on 26 February 2017, Ms Tu was walking along Devonshire Road in Sunshine. She was near an address to which she was headed to collect a jacket she had left there. The friend who resided at that address was not home when she got there so Ms Tu walked back along the road and saw you driving slowly along that road. You drove past her and then drove back towards her.
18 You stopped in front of her. The front passenger window was down. After some brief initial exchanges about cigarettes and a lighter, you said that you knew Ms Tu and opened the front passenger door. You said to her, 'Have I dropped something?', and as she stepped closer to the open door to look, you grabbed her left arm and said, 'Get in the car or I'll shoot you'. You then grabbed her other arm with your hand and pulled her into the car. Ms Tu yelled that she did not know you and asked you to let her go. You drove off. Ms Tu attempted to open the door but you had locked it and you were still holding her hand. When she asked you where you were going, you said you were going to have a party and a good time and that you would bring her back.
19 You said you had 'a few houses'. Ms Tu noted it was very hot in the car. The car was then pulled over by a police car for a random check. You told Ms Tu not to open her mouth or you would shoot her. She was very scared. You then drove off for a while. Ms Tu again complained to you and you pulled over near a vacant block. You asked her to take her back. You started touching her, trying to put a finger in her anus. As you did so, you were trying to take off her clothes. You kissed her on the lips by grabbing the back of her neck and pulling her head towards you. You then put your head in her groin area and, holding her head, pushed her towards the back seat towards the baby seat which you had in the back of your car.
20 When you did this, she was struggling with you but you had both of your hands around her neck, choking her. She was still screaming at you to take her back. While she was with her head in the baby seat, you forcefully put your hand up her skirt and put your fingers into her anus. She yelled at you to stop but you told her you were going to, 'fuck her in the arse'. While you had your fingers in her anus, she recalls that you were touching her breasts. You said to her, 'Have you ever seen a big pile of drugs?', and, 'I'll take you back after we have some fun'. When you stopped, you again leaned over her, trying to kiss her. You pulled your pants down.
21 You grabbed her hand and put it onto your penis to make her rub it. When she would not comply, you slapped her across her face, hitting her about six times. You said, 'Just do what I tell you to do or I'll hurt you', yelling at her. You grabbed her by the hair, trying to force her down on your penis. She turned her head away. You took off her top, grabbed at her by her throat, touched her breasts and touched her vagina. She was able to move so that you did not penetrate her again. You said, 'You're making me angry. Listen to what I say', and you kept restraining her. She was saying, 'Have you mistaken me for a hooker because I'm not one?'. You told her you would give her money if she wanted. She said she did not.
22 You slapped her face twice more. You then tied her hands together with her top in front of her but she got out of that hold and you then tried to tie her top around her mouth but again she freed herself. You again slapped her face. You then tied her hands together and hit her on the back of the head, pulling her hair. She was making a lot of noise and struggling. You again tried to penetrate her anus but Ms Tu managed to get back onto the passenger seat proper. She was yelling that she wanted to go. You asked her, 'Aren't you going to come with me to my house in Laverton?'. She said to you, 'No fucking way in hell'. You unlocked the doors and let her out.
23 When she got out, she saw two cyclists on the road and she yelled out for help. They stopped to assist her and at the trial they gave evidence that described her distressed state. She pointed to you in your car and as she did so, you drove away and then turned and drove back past them. You had turned Ms Tu's phone to airplane mode and had put it back in her bag. These events are covered by charge 9, sexual assault by compelling sexual touching referable to getting Ms Tu to rub your penis by threats and violence; charge 10, an assault with intent to commit a sexual offence referable to grabbing her hair and attempting to force her mouth onto your penis; charge 12, sexual assault by reference to touching the vagina; and charge 13, rape by reference to anal penetration by your fingers.
24 The following day to these offences, Ms Tu spoke to police. She recalled vomiting twice in the car. A DNA profile from the inside of her bra identified you as a likely contributor. On 2 March, you were interviewed after being arrested. You made no comments. You declined a further interview about a month later and you were remanded in custody on the day of that interview and you have remained in custody. Victim impact statements were received from Rachel Montague, Amy McNamara and Melissa Tu. Ms Montague wrote in her statement that she suffered bruising to her nose, throat and abrasions to the legs and vagina, as well as facial wounds. Her front teeth were damage and have fallen out subsequently due to nerve damage.
25 In the assault she lost valuables which were expensive to replace, including some jewellery of sentimental value. She lost her sight eyeglasses as well. She experiences anger, depression and has post-traumatic stress disorder. She feels overwhelmed with fear, hypervigilant over her wellbeing and safety. She says she feels permanently broken by the threats and physical and verbal assault upon her. Ms McNamara wrote in her statement that the violence perpetrated upon her changed her as a person. It has changed the way she goes about her life and work, her concern for safety in public and at home. She is much more vigilant and fearful of being found by you, creating anxiety and fear. Her sleeping patterns have changed.
26 She often stays up late reliving the terror you inflicted on her. She sleeps upright to feel safe at home but cannot usually have a peaceful night's sleep. Her legs are as a result of the assault scarred with permanent marks which are unsightly, but worse, serve as a constant reminder of your violence. She writes that her life will never be the same because she is not the same person as before your assault on her. Ms Tu also wrote a victim impact statement. She writes that the physical pain of your violence on her will never leave and will be a reminder for life of what was done to her. After the assault, she could not get out of bed, feeling helpless and worthless, leading to mental, physical and economic damage.
27 She felt violated, mentally scarred, afraid to leave the house and suicidal. She experienced nightmares and flashbacks. She writes, 'I feel like I lost myself and I won't ever be the same'. These impacts on your victims are reflective of the seriousness of your criminality. The violence which you inflicted on these young women had understandably had a very heavy impact and created trauma of significant weight in their lives. The offences of which you were found guilty are each serious offence. Apart from reckless cause injury, which carries a maximum of five years' imprisonment, the other charges carry a maximum of 10 years' and 15 years' respectfully, with rape being the most serious, carrying a maximum of 25 years' imprisonment.
28 Your offending was particularly egregious, contumacious and appalling. Over a period spanning a number of years, you engaged in conduct which can only be described as not only inexplicable but vicious, cowardly and revolting. You treated these women with utter contempt. You violated their bodily integrity. You treated them as objects only fit for your perverted and abhorrent sexual wishes. You humiliated them and subjugated them to your vile whims. The fact that three of them were sex workers made them even more vulnerable to your aggression and violence, exemplified by your expressed desire for unprotected sex and the threats which accompanied your violence.
29 Their work situation is irrelevant to the treatment at your hands. They are not less worthy of dignity and respect. Such treatment in a civilised society is utterly unacceptable and the court must denounce such behaviour. In my view, the worst offending is that perpetrated against Melissa Tu although the offending against Rachel Montague comes close to it. You assaulted Melissa Tu repeatedly over an extended period and then raped her. This kind of 'stranger rape', as it has been termed, is misconduct that leaves the community, and women in particular, in fear and consternation. The court must not only denounce this conduct but endeavour to deter the offender and anyone who is so minded in no uncertain terms.
30 It is clear that just punishment, general and specific deterrence and community protection must be the primary aims of this sentencing process. Throughout these proceedings, you have sought not only to impede, slow down and render more difficult your prosecution. I mention this not because it aggravates your offending as I have already said but because it bespeaks of your complete lack of regret for your actions, much less any scintilla of remorse. Your moral culpability is of the highest order in this most serious series of offences. As I intend to imprison you for the first two of the offences of which you have been found guilty, you fall to be sentenced as a serious sexual offender under Part 2A of the Sentencing Act 1991 on the remaining charges.
31 Under s6D(a), in determining the length of the sentence, I must have regard to the protection of the community from you as a principal purpose for which the sentence is imposed. The sentence which I proposed will not need to be longer than that which is proportionate to the gravity of your offending considered in the light of its objective circumstances and the prosecution did not submit otherwise. I was informed of your background during your plea and I take it into account as part of the sentencing synthesis. You were born in 1972 in a small village in Hong Kong of Chinese heritage. You are the middle child of three sons.
32 Aged 12 you came to Melbourne with your parents and family. Your father was an authoritarian type and not sociable. Your mother was caring and compassionate. Your childhood was strict but you did not suffer any disadvantage or abuse. The rest of your life has also been unremarkable. Both of your parents were employed in a restaurant working long hours. You attended University High School and worked part-time in Victoria Market. You left school in Year 10 due to your struggle with the English language and so you went to work full-time at the market. After two years, you went to work in a bakery and later in a kitchen of a Chinese restaurant. In 1994, your parents purchased a restaurant and you worked in the family business for two years.
33 You then did a TAFE course in preparation for Year 11 and attended RMIT to complete VCE but you did not sit the exams. Some time after that, your family sold the restaurant. In the year 2000, you met and married your wife, who is Vietnamese. She had to return to Vietnam to lodge her application to immigrate to Australia and you accompanied her back to Vietnam to do so but you only remained there for two weeks before you returned whilst she remained in Vietnam. In 2004, after a two-year separation, a visa was granted to her. Upon her return, you purchased a unit after residing with your parents for a period of time.
34 You have recounted an alleged assault by another tenant in that block of apartments who assaulted you with a bat. It was said that this still caused you pain and anxiety in public places, as well as depression and some mood swings. You have been prescribed anti-depressants in the past and it also stopped you working for a period. In 2012, a daughter was born who is now 10 years old. Your instructions to counsel were that your contact with sex workers occurred in the context of issues in your sexual relationship with your wife which was exacerbated by your lack of employment at the time, leading to further conflict in the marriage. This provides of course neither explanation nor excuse for your conduct in this offending.
35 It was submitted that a mitigating factor is the hardship of your incarceration so far. Your remand was your first time in custody. Pandemic conditions have rendered more onerous this period due to the risk of contagion, a restriction of movement, transfers and visits, the curtailing of programs and other rehabilitative educational and vocational opportunities, the use of lockdowns and isolation required for the safety of prisons. I accept that such conditions are unusual and made detention more burdensome in the relevant period of the pandemic from 2020 onward and I will take this effect into account to reflect these added hardships. The second matter raised was your concern for your wife and daughter's welfare.
36 You instructed that your wife does not drive and suffers from health difficulties, including blood circulation cataracts. She has not been in employment since your incarceration and is struggling financially. You have sent her some $2,600 which you have earned whilst in custody. These matters have caused you anxiety. However, I do not consider that such hardship as derived from your concern for your family rise to the level of exceptional. A loss of the ability to care directly for family members is the unfortunate consequence of imprisonment. It is a hardship which is visited upon offenders' families as well as the offender. You now appreciate your daughter will grow without your in-person input into life and will be limited to phone calls and visits which I am told have now resumed.
37 I accept that this is a hardship which must render all incarceration a burden. This includes concerns about your family living arrangements given the restraining order on your property. I understand your wife and daughter are now living in another residence with the help of your parents, who have helped her with money for mortgage repayments in repayment of principal and interest as well as rates. I will take these matters into account. The third aspect raised on your behalf was your concern for your own personal welfare. You have been isolated and have been subject to verbal and physical abuse upon discovery of the nature of your offending, leading to extended periods in managed custody and transfers between prisons, as well as 23 hours lockdowns.
38 You have alleged assaults upon you by the prisoners and unfair treatment by correctional staff. I can only express confidence that correctional services will endeavour to ensure your future safety and welfare whilst in their facilities. It was submitted that the prospects of rehabilitation are strongly linked to engagement by you in appropriate sex offender behaviour programs, as well as appropriate mental health treatment. At this juncture of time, having heard you in the context of court proceedings and remarking upon the clear lack of remorse, it would appear that such engagement and insight is currently a forlorn hope. However, the court should be slow to declare prospects of rehabilitation as extinguished.
39 It may be that the period of reclusion to come and the potential for self-examination and engagement in appropriate programs may prove fruitful. Currently, your prospects are in my view very bleak. You have a prior criminal history. In June 2009, you were placed on a community corrections order with 50 hours of community work for an assault, resisting police and behaving in an offensive manner in a public place. In December 2009, you contravened that order and one month imprisonment was imposed and suspended. In 2013, you faced charges related to the possession of a controlled weapon and a dangerous article in a public place and you were fined. The fine later converted to community work.
40 I note this history does not contain sexual offending but does have a prior for assault and charges in relation to possession of a weapon, both relevant matters. In my view, consonant with your prospects of rehabilitation, specific deterrence is certainly enlivened by the offending, as well as your criminal history, albeit it is limited. Your counsel was provided by you with an extremely long handwritten letter which, however, he felt should not be tendered as the contents were irrelevant. I indicated that I would nevertheless read it. I have read it. It is a diatribe of a myriad complaints, conspiracy theories and a litany of allegations of mistreatment, familiar in content and tone to your demeanour in court, such mistreatment which has in your perception to do with racist attitudes of both prisoners and staff, persistent bullying and violence in a repetitive pattern seemingly in every part of the correctional services in which you portray yourself as an innocent victim.
41 This is accompanied as well by complaints about incompetent lawyers who have not adequately represented you. It is a document wholly focused on your predicament as a victim of injustice. Beyond repetition of matters about your family and background, I find it to be irrelevant and self-serving, unable in its contents to assist in the sentencing process, except to show you are only focused on yourself and unrepentant. I need not decide when it was that you formed the intention to commit in particular the sexual assaults and rapes. Whether you formed that intention before approaching the victim or only later when you took them to a secluded place in your car, all that can be said is that either is possible and that the former is more likely.
42 The fact that on subsequent occasions you engaged in similar conduct does not in my view assist in reaching the conclusion to the required standard as to each instance. Therefore, I sentence you on the basis that intention was formed when you got to the place where the assaults took place. Nevertheless, in view of the gravity of what followed, this is neither mitigatory or ameliorating of sentence in any realistic sense. These were vicious and violent assaults and rapes committed on vulnerable women and I repeat that your moral culpability and criminality is very high. I was referred to some authorities by the prosecution, particularly as to rape.
43 That charge may take many forms and sentences as to those charges must primarily reflect the gravity and nature of the offence by an analysis of the factual matrix involved, so that such cases as were referred to were not of significant assistance. I am conscious of the principle of totality in an endeavour to properly structure a proportionate sentence which deals with the several aspects of your criminality and global impact of it. In my view, there should be partial cumulation in respect of each charge in recognition of the separate and distinct criminality of each count. Each contain actions which are distinct and separate from the elements of the other offences and such distinction separates the basis of punishment in order to avoid double punishment for offences committed within the ambit of a single incident.
44 On charges 2, 3 and 13 of rape, you are convicted and sentenced to seven years' imprisonment on each. On charge 4 of false imprisonment, you are convicted and sentenced to two years' imprisonment. On charges 5 and 10 of assault with intent to commit sexual assault, you are convicted and sentenced to three years' imprisonment. On charge 6 of recklessly cause injury, you are convicted and sentenced to one year imprisonment. On charge 9 of assault by compelling touch, you are convicted and sentenced to two years' imprisonment. On charges 11 and 12 of sexual assault, you are convicted and sentenced to two years' imprisonment for each.
45 I order that two years on charges 2 and 3 be cumulative on each other and on the sentence on charge 13, which is the base sentence; that nine months on each of charges 5 and 10 be cumulative upon each other and on the sentence for charge 13; that two months on charge 6 be cumulative on the sentence for charge 13; that four months on charges 4, 9, 11 and 12 be cumulative upon each other and upon the sentence on charge 13 and upon the other cumulative charges for each of these cumulative orders. That makes a total effective sentence of 14 years. I order a non-parole period of 10 years.
46 I declare that you have served 1,943 days imprisonment by way of pre-sentence detention, excluding today, which will be noted in the records of the court. As to the Sexual Offender Registration Act, I have received no submissions to that matter and if required, will make further orders pursuant to that act when available. I have no other ancillary orders to make. That is the sentence of the court.
47 MS PIGGOTT: As Your Honour pleases.
48 MS GIORGIANNI: As the court pleases.
49 HIS HONOUR: Thank you. Are there any other matters that you wish to raise, Ms Piggott?
50 MS PIGGOTT: No, thank you, Your Honour.
51 HIS HONOUR: Yes, thank you. Yes. The court is adjourned.
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