Director of Public Prosecutions v Foster (a pseudonym)

[2023] VCC 1648

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01715

DIRECTOR OF PUBLIC PROSECUTIONS

v

Justin Foster (a pseudonym)

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2023
DATE OF SENTENCE:	27 September 2023
CASE MAY BE CITED AS:	DPP v Foster (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1648

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Rape (1 charge); attempted rape (1 charge); false imprisonment (1 charge); making threat to kill (2 charges); criminal damage (1 charge); common law assault (1 charge); conduct endangering persons (1 charge); theft of a motor vehicle (1 charge); theft (2 charges); drive vehicle whilst exceeding the prescribed concentration of a drug (1 summary charge).

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offences Registration Act 2004 (Vic); Road Safety Act 1986 (Vic).

Cases Cited:Brown v The Queen [2019] VSCA 742; DPP v Granata [2016] VSCA 190; Clarke (a pseudonym) v The Queen [2022] VSCA 89; DPP v Dalgliesh (a pseudonym) [2017] HCA 41; DPP v Drake [2019] VSCA 293; DPP v Lian [2019] VSCA 75; Gray (a pseudonym) v The Queen [2019] VSCA 163; R v Fuller-Cust (2002) 6 VR 496; Worboyes v R [2021] VSCA 169.

Sentence:                  Total effective sentence of 14 years’ imprisonment (1,362 days reckoned as time served) with a non-parole period of 10 years; licence disqualification for 3 months (charge 3); fine of $1000 (charge 5); fine of $500 (charge 20); fine of $500 (charge 22); fine of $500 and licence disqualification for 12 months (summary charge 14).

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Grant	DPP
For the Accused	Mr J Lavery	Greg Thomas Barrister & Solicitor

HER HONOUR:

1Justin Foster, you have pleaded guilty to five charges on the 23 count indictment: charges 3 (theft of a motor vehicle), 4 (criminal damage), 20 (theft), 21 (conduct endangering persons) and 22 (theft). The maximum penalty for theft, theft of a motor vehicle and criminal damage is 10 years’ imprisonment. The maximum penalty for conduct endangering persons is 5 years’ imprisonment. It is common ground that you indicated your willingness to plead to those charges at an early stage of the proceeding, that your plea has utilitarian benefit in limiting the length of the trial and warrants a discount in sentence, and that because it was entered during the currency of the COVID-19 pandemic, you are entitled to an additional amelioration of sentence in relation to these charges. In sentencing you on those charges I have taken these matters into account and considered them separately from the charges on which you were convicted by the jury.

2You have also consented to the uplifting of summary charge 14 (drive vehicle whilst exceeding the prescribed concentration of a drug) and pleaded guilty to that charge on 28 August 2023. Given that you have one prior conviction for this offence, the maximum penalty for this charge is a fine of not more than 60 penalty units.[1] The same considerations that have been made regarding the aforementioned guilty pleas have been made with regards to this charge.

[1] Which is currently $11,538.60; for the period 1 July 2023 to 30 June 2024, the value of a penalty unit is set at $192.31.

3By jury verdict entered on 12 May 2023 after a three-week trial in relation to the 23 count indictment, you were found guilty on charges 5 (make threat to kill), 7 (common law assault), 13 (attempted rape), 17 (false imprisonment), 18 (make threat to kill), and 19 (rape). By its verdict, the jury must be taken to have been satisfied beyond reasonable doubt of each of the elements comprising each of those offences.

4The maximum penalty for rape is 25 years’ imprisonment; the maximum penalty for attempted rape is 20 years’ imprisonment; the maximum penalty for making a threat to kill is 10 years’ imprisonment; the maximum penalty for false imprisonment is 10 years’ imprisonment; and the maximum penalty for common law assault is 5 years’ imprisonment.

5You were found not guilty on the remaining charges on the indictment and it is common ground that you are entitled to the full benefit of the acquittal on those remaining charges.

6In sentencing you, I have considered the written submissions made by counsel and their oral submissions made at the plea hearing, the psychological report of Ms Gina Cidoni dated 18 July 2023,[2] the victim impact statement of Diane Patterson,[3] as well as the cases to which I was referred by counsel.

[2] Exhibit A.

[3] A pseudonym.

7I note that you have consented to the disposal order sought by the prosecution in relation to a pink rope, a parking receipt, a SIM card removed from Ms Patterson’s mobile phone, a Jack Daniel’s can, a blue and yellow rope, and a black coffee Thermos lid.

8I note that you were remanded on 7 January 2020 and have served pre-sentence detention of 1,362 days, not including today.

Personal circumstances

9Your personal circumstances were set out in the psychological report of Ms Cidoni. You were 39 years old at the time of offending. You were raised by your parents. Your father struggled with alcoholism and worked as a labourer. Your mother stayed at home but abused alcohol as well. When you were 12 years old, your father left the family and you have had no contact with him for the past decade. You left home at age 15 and got involved with a crowd of young offenders. You spent six months in youth detention. You were expelled from school in Year 8 due to your behaviour. You have worked sporadically in labouring for a few months at a time, but have not worked since 2008. You began using cannabis at the age of 17, then switched to amphetamines at the age of 21, which you smoked and used intravenously until your arrest. You have a problem with drug and alcohol abuse and gambling.

10At age 17, you had a relationship with Angela Edwards,[4] which produced two children. However, you were both involved in drugs and separated in 2009. Your two children live with her, and you last saw them more than three years ago. You have a daughter, born in 2013, with another partner from whom you separated. Your sister died of a drug overdose in 2013 and your mother died of lung cancer in 2019. You have a brother interstate.

[4] A pseudonym.

11You were in a relationship with Ms Patterson for a few months in high school. You reunited in your twenties, and then again more recently prior to the offences occurring.

12You have a family friend with whom you can live upon your release. Your niece is also supportive.

13Ms Cidoni diagnosed you with some difficulty learning new verbal information, and with Borderline Personality Disorder, Generalised Anxiety Disorder, and Stimulant Use Disorder (sustained remission). She considered that these conditions, your background of traumatic events and substance abuse impacted on your behaviour in intimate relationships. She assessed you to be at a moderate to high risk of further offending, and recommended treatment for your diagnosed conditions.

Chronology of events

14It was common ground that the circumstances of your domestic relationship with Ms Patterson were unusual and complex. Given the jury’s verdict, it is useful to place the various counts on the indictment in a chronological context. I do so by reference to the Subsequent Summary of Prosecution Opening for Trial dated 6 January 2023 and the Summary of Prosecution Submissions for Plea Hearing.[5]

[5] Dated 28 August 2023.

15I note that it was common ground that you are entitled to the full benefit of your acquittal on charges 1, 2, 6, 8, 9, 10, 11, 12, 14, 15, 16 and 23 and in sentencing you I have acted on that basis.

16You and Ms Patterson were in a relationship, and you had been living at her home on and off. You were in prison for 2 months until 18 November 2019, and then were homeless and unemployed. Ms Patterson allowed you to move in with her, but you became controlling of her, deciding when she used her phone or her car or could see her children. You were acquitted by the jury of charge 1 (intentionally causing injury involving choking her to the point of unconsciousness on 26 November 2019) and charge 2 (rape involving introducing your penis into her mouth on 13 December 2019).

17Ms Patterson was in hospital between 20 and 24 December 2019.

Charges 3 and 4 – theft of a motor vehicle; criminal damage (pleas of guilty)

18Charges 3 and 4 concern your theft of a Holden Commodore from a car yard in Coburg North on 30 December 2019 and, later that day, your destruction of that vehicle by pushing it into the ocean at Point Henry. Each of these offences carries a maximum penalty of 10 years’ imprisonment. You pleaded guilty to these offences at an early stage.

19The prosecution submitted that the car theft was a serious example of the offence of theft of a motor vehicle because it involved attending at a car dealership and taking the car despite being pursued by the employees at the dealership. While conceding that there is some overlap between these two offences, it was submitted that there should be some degree of cumulation on the penalty imposed to separately represent the criminality involved in each offence.

20Your counsel submitted that your offending in relation to both offences was at the lower end of the scale of seriousness for these types of offences.

Charge 5 – making threat to kill (Ms Edwards)

21The jury convicted you of charge 5, making a threat to kill Ms Edwards on 1 January 2020. The offence occurred shortly after an incident on 25 November 2019 at your mother’s house after her funeral when you became enraged and abusive upon seeing Ms Edwards and Ms Patterson talking to each other.

22Ms Patterson told you on 31 December 2019 that you could not stay at her place if the police were looking for you in relation to the theft. You expressed your concern that she would leave you if you went back to prison and, when she reassured you that this would not occur, you told her that you would hand yourself in after you spent New Year’s Day and a few days together. You suggested that you go camping together in the You Yangs.

23Instead of going there, the next day you drove Ms Patterson to your former partner, Ms Edwards’, address. She and a friend were standing at the front of her premises. According to Ms Patterson, you screamed at Ms Edwards words to the effect of, “I’m going to fucking kill you, you cunt”. Ms Edwards stated that you had the window down and swore at her saying: “You’re fucking dead, you fucking dog, I’ll fucking kill you”. She turned around to walk home and you sped up, going over her nature strip and doing a burnout. She stated that she bolted indoors. An acquaintance of Ms Edwards’ who was present stated that you said: “You’re fucked, you fucking dog”.

24The prosecution submitted that the offence was committed while you were driving erratically and was a serious example of the offence of making a threat to kill. Your counsel submitted that your conduct should be viewed as “angry mouthing off” and as conduct falling at the very low end of the scale of seriousness because it was made in the open to a person who knew you, and because you did not have any weapons with you. I note that you have no prior convictions for this offence.

25You drove to Lara with Ms Patterson, where you stopped for fuel and then Ms Patterson drove, at your direction, past Fairy Park. You parked near a creek.

26The jury acquitted you on charge 6, which was a charge of intentionally causing injury at that location by producing a small knife and cutting Ms Patterson on the wrist with it.

27Later that day, you and Ms Patterson went to her home where she showered and packed some things. You went together to buy a blow up mattress and other groceries and camping supplies.

28By nightfall, you had arrived at the Coopers Bridge campground near the Steiglitz Historic Park. You were drinking Black Jack Daniel’s cans as you both tried to set up the tent.

Charge 7 – common law assault

29Ms Patterson’s evidence was that by this stage you had not slept for days and were very erratic. You went into the tent with a lighter, a spoon and a bag of what she believed was ice. You injected yourself with ice. You told her that you had a few days left before you handed yourself in and that you and she were going to have fun. Charge 7 (common law assault), alleged that you then knelt on her arm and, although she asked you not to and said she did not want you to inject her, you told her to shut up and used the same syringe to inject her with ice. The jury found you guilty of this charge.

30The prosecution submitted that by its verdict the jury found that you injected her with the drug without her consent. It was submitted that this offence is a serious example of the offence of common law assault. Your counsel submitted that the verdict on this charge should be seen in the context that Ms Patterson had used drugs with you, including using syringes, voluntarily on previous and subsequent occasions, and so this assault was not “out of the blue”.[6]

[6] In the context of this case, no evidence of voluntary use of ice prior to Charge 7, only subsequent.

31I note that you have five prior convictions for assault-related offences between 1998 and 2008 and one conviction for common law assault in 2016.

32You then went back to the tent. You were acquitted of charge 8, rape, which concerned an allegation some hours later of non-consensual penile-vaginal penetration.

33On 2 January 2020, you drove around with Ms Patterson, looking for a campsite. On the way, you pulled over and injected yourself with ice. You were acquitted of charge 9, common law assault in relation to the allegation that you also injected Ms Patterson with ice from a clean syringe.

34Later on 2 January 2020, you arrived at the Moreep Reserve on Slate Quarry Road and tried to set up the tent with Ms Patterson. You were only able to get one side up. You injected yourself with ice. You were acquitted of charge 10 (common law assault), which was an allegation that you then forcibly injected Ms Patterson with ice. You were acquitted of charge 11 (common law assault), which was an allegation that you then picked up a stick and hit her with it a number of times. You were acquitted of charge 12 (rape), which was an allegation of penile-vaginal penetration after the alleged common law assault.

Charge 13 – attempted rape

35A few minutes after the conduct which was the subject of charge 12, Ms Patterson was lying on her back. You had tied her hands together above her head with a pink rope, which was also tied around her neck. You told her to roll over. She said she did not want to, and asked you to desist, but you grabbed her and tried to turn her over. She squirmed and fought your efforts to put your penis into her anus. This is the subject of charge 13 (attempted rape). The jury found you guilty of this charge.

36After this incident, charges 14, 15 and 16 alleged that you raped Ms Patterson by penetrating her vagina with your penis, penetrating her mouth with your penis; and penetrating her vagina with your penis. The jury acquitted you on each of these three charges.

37The prosecution submitted that the conduct the subject of charge 13 is a very serious example of the offence of attempted rape, particularly because it occurred a very short time before the false imprisonment which was the subject of charge 17. It was submitted that there ought to be an appropriate degree of cumulation to reflect the separate criminality involved in the offence.

38Your counsel submitted that because shortly before and some time after the attempted rape occurred, you and Ms Patterson had been naked and had engaged in penile-vaginal intercourse, the attempted rape falls at the lower end of the scale of seriousness.

Charge 17 – false imprisonment

39A short time after the offence which was the subject of charge 13, while you were still at the same campsite, Ms Patterson was still naked and still had a rope around her neck. The jury convicted you of charge 17, false imprisonment, which concerned your conduct when you pulled her out of the tent by the rope, and dragged her to a tree. You tied her hands around the tree with the pink rope, above her head. She felt rocks and sticks sticking into her, which was painful, and tried not to sit down, but, as the hours passed, she slumped down and her hands also dropped down closer to her neck. She told you she was cold, and embarrassed, and asked you  to take her back to the tent so that she could get her clothes and a blanket. You left her tied to the tree, naked, during the night, for some hours.

40The prosecution submitted that this is a serious example of a serious offence in that you left Ms Patterson tied to the tree, naked, in the middle of the night, in the cold, for some hours. It was submitted that there should be an appropriate degree of cumulation to reflect the separate criminality involved in the offence.

41Your counsel submitted that this offending occurred in the same evening as the conduct the subject of charges 13, 17, 18 and 19 and should be viewed in the context of other occasions on the night (which included the conduct the subject of the acquittals on charges 14, 15 and 16) when you and Ms Patterson had sex, some of which involved use of a rope around her neck.

Charge 18 – making a threat to kill (Ms Patterson)

42The jury convicted you of this charge which concerns your conduct after you untied Mr Patterson from the tree. You told her to go back into the tent and you walked towards the car. She ran away, naked,  down an embankment and onto a gravel road, and tried to hide from you. However, you drove your car towards her and told her angrily: “Diane get back here, I will kill you, you cunt”.  You then grabbed her by the arm, forced her into the passenger seat and drove back to the camp site.

43The prosecution submitted that this was a serious example of a serious violent offence warranting the imposition of an appropriate degree of cumulation to reflect the separate criminality involved in the offence.

Charge 19 – rape

44Once back at the camp site, you forced Ms Patterson back into the tent. Ms Patterson’s evidence was that at that stage she felt defeated and had given up. You engaged in sexual activity with her for a time, with your hands around her throat. You were using a great deal of personal lubricant.

45Charge 19, upon which the jury convicted you, involved your conduct in intentionally sexually penetrating Ms Patterson  by introducing a bottle of personal lubricant into her vagina. Ms Patterson’s evidence was that after using the personal lubricant on yourself, you pushed the bottle of lubricant into her vagina, causing her pain. Ms Patterson stated that she asked you not to do that, and to stop but you kept pushing it in and out of her, while masturbating yourself. After that, you had rough sex with her while she was on her back, pulling her hair, and then ejaculated, half inside her, and half on her skin. Ms Patterson said that she stayed inside the tent while you were outside. She heard cars getting closer, and then you told her to get up and pack up as you were leaving.

46The prosecution accepted that the circumstances of your offending were complex and somewhat unusual, but submitted that it was not unusual for sexual offending to occur in the context of a personal or sexual relationship and that this does not reduce the gravity of your offending. On the contrary, it was submitted that this offending occurred in the context of a relationship between you and Ms Patterson and that it represented a significant breach of trust. In addition, the insertion of the bottle caused her significant distress, pain and humiliation. The prosecution cited authorities to the effect that rape accomplished by use of an object is very often accompanied by significant violence additional to the act of penetration.[7] For these reasons, it was submitted that your offending is a serious example of the offence of rape.

[7] See, eg, R v Fuller-Cust (2002) 6 VR 496; DPP v Granata [2016] VSCA 190; cf Clarke (a pseudonym) v The Queen [2022] VSCA 89 [29].

47Your counsel submitted that the offending comprising charges 13, 17, 18 and 19 occurred on the same evening as other sexual conduct occurred (charges 12, 14, 15 and 16) that was the subject of acquittal. From these acquittals, he submitted that you and Ms Patterson were well known to each other and had engaged in numerous other sexual acts during the course of that night. For this reason, while conceding that rape is always a serious offence, he submitted that your sexual offending on this night is “in a different category of seriousness to most other rape offences” and that it falls at the lower end of the scale for sexual offences. He noted that in spite of your extensive prior criminal history, you have no prior history of sexual offending.

Charge 20 – theft of number plates (plea of guilty)

48You pleaded guilty to this offence at an early stage. The offending occurred while you were fleeing police on 3 January 2020. At one point, you stopped the car near Werribee, stole some registration plates from another vehicle and put them on the car you were driving. Your counsel submitted that your offending in this case is a relatively low level example of this offence.

Charge 21 – conduct endangering persons (plea of guilty)

49You pleaded guilty to this offence at an early stage. The offending occurred on 4 January 2020, after the conduct that was the subject of charge 20, as you drove towards Gisborne. You pulled over in order to inject yourself with ice. While you were stationary in the car, a police car appeared. The occupants, Senior Constable Sam Newton and Constable David Morrice, noticed that you were parked in an unusual place in the road, and stopped in front of your car to talk to you.

50According to Ms Patterson, when Constable Morrice got out of the police car, you said to Ms Patterson “I’m not gonna let him catch me”. As Constable Morrice approached your car, you drove off around the police car rapidly and narrowly missed colliding with him, forcing Constable Morrice to jump out of the way.

51The prosecution submitted that this offending is a serious example of the offence as police were in a marked police vehicle at the time and your conduct was directed at a member of Victoria Police in the execution of his duty.

52Your counsel submitted that your offending falls at the very low end of the scale for this offence, as it was brief, relatively low speed, did not involve contact, and Constable Morrice could see what was happening and could and did take evasive action. It was submitted that any cumulation of sentence imposed for this offence should be minimal.

53You have prior convictions for two offences in 2011 of reckless conduct endangering a person.

Charge 22 – theft of petrol (plea of guilty)

54You pleaded guilty to this offence at an early stage. The offending occurred some minutes later on 4 January 2020, as you were speeding in order to evade two other police members who were pursuing you in a different police vehicle. When they briefly lost sight of you, you stopped at a Caltex Service Station where you filled the car with petrol before driving off without paying.

55The prosecution noted that you have 31 convictions for this offence between 2004 and 2020.

56Your counsel submitted that your offending falls at the very low end of the scale of seriousness for this offence.

Victim Impact Statement

57Ms Patterson provided a Victim Impact Statement sworn 25 September 2023 in which she stated that after your offending she was traumatised, unable to eat, or sleep and was terrified for her safety and that of her family. A few months later, she moved the family out of her home, due to her safety concerns. She became unable to work. She has remained single since your offending because she is frightened of letting anyone into her life and that of her children. Although she got back to work and occasional socialising, when reminded of you she goes into hiding for days. The trial process made her relive her trauma and left her hypervigilant and fearful, and she has resumed taking antidepressants. She has been referred to a psychiatrist.

Prosecution submissions as to disposition

58As outlined above at paragraphs 37 and 46, the prosecution submitted that your sexual offending are serious examples of serious offences.

59It was submitted that given the gravity of your offending, the relevant sentencing principles could not be satisfied by the imposition of a combination sentence, and that overall your offending warrants the imposition of a significant term of imprisonment with a non-parole period.

Defence submissions as to disposition

60Your counsel emphasised that you have been in custody since 4 January 2020, prior to the commencement of the COVID-19 pandemic. You have endured numerous lockdowns, loss of contact, inability to access rehabilitative programs as well as the fear and uncertainty of imprisonment throughout the duration of the pandemic. Your counsel relied on the diagnoses made by Ms Cidoni as warranting a conclusion that your time in prison is more burdensome for you than for prisoders without those psychological conditions. In addition, your counsel emphasised that you have no prior convictions for sexual offending, that your sexual offending is the most serious of the offences you have committed, but that your sexual offending is unusual in its context and falls at the lower end of the scale for sexual offences. It was submitted that the remaining offences would not justify a sentence of anything like the duration of your pre-sentence detention. For these reasons, it was submitted that the Court could now impose a combination sentence, and that you should  be assessed for your suitability for a Community Corrections Order.

Sentencing considerations

Charges the subject of jury verdict - charges 5, 7, 13, 17, 18, 19

61In sentencing you on these charges, the principles of denunciation, just punishment, and general and specific deterrence loom large. Sexual offending in the context of a domestic relationship is to be condemned and punished according to law. There is no evidence of remorse for your offending. Whilst I acknowledge that you have no prior convictions for sexual offending, there was no material before me in relation to your prospects for rehabilitation. In the light of your offending, I conclude that your prospects of rehabilitation are guarded.

62I have taken into account the delay in this case (which was due to the large number of initial charges and the lengthy negotiations required to produce the trial indictment). I also accept that due to your psychological conditions your time in prison will be more burdensome than would be the case for prisoners without those psychological conditions. I also have taken into account that as you have been in custody since early 2020, you have endured the restrictions, fear and uncertainty throughout the duration of the COVID-19 pandemic. I have applied the principles of totality and parsimony to avoid imposing a crushing sentence in relation to these charges.

63The most serious offending for which you are to be sentenced is the sexual offending comprising attempted rape (charge 13) and rape (charge 19).

64Rape is a Category 1 offence and therefore requires that you be sentenced to a term of imprisonment.[8]

[8] Sentencing Act 1991 (Vic) ss 3, 5(2G) (‘Sentencing Act’).

65In addition, rape is an offence to which the standard sentencing scheme applies. On the authorities, this means that the Court must take into account, in engaging in the process of instinctive synthesis, the ‘standard sentence’, which is one of 10 years’ imprisonment.[9] ‘Standard sentence’ is defined as the sentence for an offence that, taking account of only the objective factors affecting the relative seriousness of that offence, without reference to matters personal to the offender, is in the middle of the range of seriousness.[10]

[9] Ibid s 5A; 38(3); Brown v The Queen [2019] VSCA 742; DPP v Drake [2019] VSCA 293.

[10] Ibid ss 5B(2)(a), 5A (1)(b), s5A(3), s 5A(1)(b); DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41.

66I turn to the serious sex offender provisions of the Sentencing Act. I note that you may qualify as a serious sex offender under these provisions if, in the current proceeding, you are “convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which you are sentenced to a term of imprisonment”. [11] Charges 5 and 18 (threat to kill) are defined as violent offences for the purpose of these provisions.[12]

[11] Ibid s 6B.

[12] Ibid sch 1(2).

67This means that, if the Court considers that all of the current offences arose out of the one course of conduct, and imposes a sentence of imprisonment on you for charge 5 (threat to kill Ms Edwards) and charge 13 (attempted rape of Ms Patterson), you would qualify as a serious sexual offender when sentenced on charges 18 (threat to kill Ms Patterson) and 19 (rape). I indicate that I do not consider that all of the current offences arose out of the one course of conduct. They comprise different kinds of offences, occurring at different times of a day, and on different days over a four day period, and involved more than one victim.

68In spite of this finding, you would still qualify as a ‘serious sexual offender’ if you are imprisoned for charge 13 (attempted rape) and charge 19 (rape) and the other offences being considered by the Court are ‘relevant offences’. I indicate that you will be sentenced to a term of imprisonment on each of charges 13 and 19. In the context of this case, the relevant offence would be charge 18 (threat to kill), upon which I propose to impose a term of imprisonment.[13] I indicate therefore that you stand to be sentenced as a serious sexual offender for charge 18. In those circumstances, s 6D of the Sentencing Act requires the Court to regard protection of the community from you as the principal sentencing purpose, and the Court may impose a sentence longer than that which is proportionate to the gravity of the offence. I note that the prosecution does not seek a disproportionate sentence in this regard, and I do not propose to impose one.

[13] Ibid s 6B(3)(c).

69Finally, I note that you have not previously been convicted and sentenced to a term of imprisonment for a serious violent offence. As a result, the serious violent offender provisions of the Sentencing Act will only apply to you if you qualify as a serious violent offender in the current proceedings. The offence of making a threat to kill is a serious violent offence. Therefore, if you are sentenced to a term of imprisonment on charge 5, you would stand to be sentenced as a serious violent offender on charge 18. In those circumstances, s 6D of the Sentencing Act requires the Court to regard protection of the community from you as the principal sentencing purpose, and the Court may impose a sentence longer than that which is proportionate to the gravity of the offence. I note that the prosecution does not seek a disproportionate sentence in this regard. I indicate, for the reasons outlined below, that I do not propose to impose a term of imprisonment in relation to charge 5. Accordingly, you will not be sentenced as a serious violent offender on charge 18.

70I also note that, although you have been convicted of two class 3 offences (charges 13 and 19), which would made you a serious sexual offender pursuant to s 8(3) of the Sex Offences Registration Act 2004 (“SORA”), registration is discretionary and the prosecution does not apply for registration as it does not submit that the offences being considered during the plea are capable of proving that you pose a risk to the sexual safety of the community. For this reason, I do not propose to order that you be registered as a serious sexual offender.

71I turn to the most serious offences of which you were convicted at trial, namely attempted rape (charge 13) and rape (charge 19).

72I consider that the rape (charge 19) of which you were convicted by the jury to be the most serious of the offences for which you are being sentenced. The seriousness of the offence is indicated by: the maximum penalty imposed by Parliament; the fact that, as a Category 1 offence, the Court is required to impose a term of imprisonment for it; the fact that the standard sentencing regime applies to it; and by the authorities which indicate that, absent exceptional circumstances, rape offences usually attract an immediate custodial term, and the Court should ensure that a substantial part of the sentence will actually be served.[14] In addition, the Court must give proper weight to the impact of this intensely personal crime on the victim, that is, to the effects flowing from the physical invasion of their person and security, and from the more intangible loss of their rights and freedoms.[15]

[14] DPP v Lian [2019] VSCA 75 [53].

[15] Gray (a pseudonym) v The Queen [2019] VSCA 163 [53].

73I consider that the objective gravity of your offending is high as is your moral culpability for it. It was also a significant breach of trust. I reject your counsel’s submissions that the offending is less serious because it occurred in a context of other sexual activity in relation to the charges upon which you were acquitted. This offending occurred in the context of a domestic relationship, after Ms Patterson had been falsely imprisoned by you, tried to escape, and been subject to a threat to kill by you. The use of an object to penetrate Ms Patterson’s vagina at that time, when she asked you not to, would have contributed to her heightened fear, distress, pain, degradation and humiliation. I consider that your conduct falls towards the middle of the range of seriousness for this offence. In sentencing you for this offence, I take into account the maximum sentence of 25 years’ imprisonment, the standard sentence of 10 years’ imprisonment, as well as the sentencing considerations of denunciation, just punishment, general and specific deterrence, protection of the community and your prospects of rehabilitation. I note that you have no prior convictions for rape. I indicate that I propose to impose a significant term of imprisonment upon you in respect of this offence. The sentence I impose for this offence will be the base sentence.  

74Unlike any of the other rape charges of which you were acquitted (all of which concerned allegations of penile penetration of the vagina), the attempted rape of which you were convicted by the jury involved an attempt to penetrate Ms Patterson’s anus with your penis. It was most vehemently resisted by Ms Patterson, who must have suffered fear, distress, angst and humiliation at your conduct. I reject your counsel’s submissions that the offending is less serious because it occurred in a context of other sexual activity the charges in relation to which you were acquitted. The offending occurred in the context of a domestic relationship with Ms Patterson and I consider that the offence involved a significant breach of trust. Your moral culpability for your offending is very high. I consider this offending to be a serious example of a serious offence. Given the maximum penalty imposed by Parliament for this offence, the authorities concerning the seriousness with which such sexual offending is to be viewed, your high moral culpability for the offending and the high objective gravity of the offending, I propose to impose a significant term of imprisonment upon you in respect of this offence. I will impose some cumulation upon the base sentence to reflect the separate criminality of this offending.

75I consider that the offending involved in charge 5 (threat to kill Ms Edwards), even though it was made from a car which you drove erratically, falls at the lower end of the scale of seriousness for this offence. You have no prior convictions for this offence. I propose to impose a fine for this offence.

76I consider that the offending involved in charge 7 (common law assault) does not fall at the lower end of seriousness for this kind of offence, as it involved the use of force to inject Ms Patterson with ice against her will. You have prior convictions for assault-related offences and for common law assault. In the circumstances, I propose to impose a sentence of imprisonment for this offence, with some minor cumulation upon the base sentence.

77I consider that the offending involved in charge 17 (false imprisonment), is a very serious example of this offence. You dragged Ms Patterson naked from a tent by a rope which was tied around her hands and tied her to a tree with her hands above her head. You left her there, in the cold, for some hours during the night. I consider that you bear high moral culpability for this offending, which was callous, degrading, and exposed her to the elements, resulting in fear, discomfort and humiliation.  Although you have no prior convictions for such offending, I propose to impose a term of imprisonment for this offending, with some cumulation upon the base sentence to reflect the separate criminality of this offending.

78I consider that the offending involved in charge 18, is a more serious example of the offence of making a threat to kill than that involved in charge 5. The offending came after you attempted to anally rape Ms Patterson, had left her tied naked to a tree for hours during the night, and, when she attempted to escape from you after being untied, you forced her back into the car with a threat to kill her. I propose to impose a term of imprisonment for this offence, with some cumulation upon the base sentence to reflect the separate criminality of this offending.

Charges the subject of a plea of guilty - charges 3, 4, 20, 21, 22

79You are entitled to the full benefit of your early plea of guilty in relation to these offences, as well as to an additional amelioration of sentence for pleading guilty to these offences during the currency of the Court’s backlog flowing from the COVID-19 pandemic.[16] Given the sentences I propose to impose upon you in relation to the charges of which you were convicted, and taking into account the principles of parsimony and totality, I propose to direct that any sentences of imprisonment imposed on the charges to which you pleaded guilty be served concurrently with the base sentence.

[16] Worboyes v R [2021] VSCA 169.

80In relation to charges 3 (theft of a motor vehicle) and 4 (criminal damage), I note that you have two prior convictions for theft of a motor vehicle (1998 and 2016), and four prior convictions for criminal damage (between 2001 and 2014). I consider that your offending in relation to each of these charges falls above the lowest range of seriousness for these offences. I propose to impose a short period of imprisonment in relation to each of those charges. I consider that the application of the principle of totality warrants that in relation to charges 3 and 4, any sentences of imprisonment imposed for the offending to which you pleaded guilty are to be served concurrently with the base sentence.

81In relation to each of charges 20 (theft of number plates) and charge 22 (theft of petrol), I propose to impose a fine.

82In relation to charge 21 (conduct endangering persons), I consider that as you have relevant prior convictions and your conduct on this occasion was directed at a member of Victoria Police who was in a marked car and performing his duties, the offending sits higher than the lowest level of seriousness for this offence. For this reason, I propose to impose a short sentence of imprisonment in relation to this offending.

Sentence

83Would you please stand.

84On charge 19, rape, you are sentenced to 10 years’ imprisonment. This is the base sentence.

85On charge 13, attempted rape, you are sentenced to 5 years’ imprisonment. Two years and three months of the sentence on this charge is to be served cumulatively upon the base sentence.

86On charge 17, false imprisonment, you are sentenced to 3 years’ imprisonment. 12 months of the sentence on this charge is to be served cumulatively upon the base sentence.

87On charge 18, threat to kill, you are sentenced to 18 months’  imprisonment. Six  months of the sentence on this charge is to be served cumulatively upon the base sentence.

88On charge 5, threat to kill, I impose a fine in the sum $1000.

89On charge 7, common law assault, you are sentenced to 12 months’ imprisonment. Three months of the sentence on this charge is to be served cumulatively upon the base sentence.

90On charge 3, theft of a motor vehicle, you are sentenced to one months’ imprisonment, to be served concurrently with the base sentence.

91On charge 4, criminal damage, you are sentenced to one months’ imprisonment, to be served concurrently with the base sentence.

92On charge 20, theft of number plates, I impose a fine in the sum of $500.

93On charge 21, conduct endangering persons, you are sentenced to six months’ imprisonment, to be served concurrently with the base sentence.

94On charge 22, theft of petrol, I impose a fine in the sum of $500. 

95On summary charge 14, driving a vehicle whilst exceeding the prescribed concentration of a drug, I impose a fine of $500.

96I note that the conviction on charge 3 carries a mandatory licence disqualification of 3 months, and the conviction on summary charge 14 carries a mandatory licence disqualification for 12 months, which will take effect from today.

97The total effective sentence is one of 14 years’ imprisonment with a non-parole period of 10 years. I declare that pre-sentence detention of 1,362 days, not including today, is to be deducted administratively from this sentence.

98I indicate pursuant to s 6AAA of the Sentencing Act that, but for your pleas of guilty to charges 3, 4, 20, 21 and 22, I would have imposed a total effective sentence of 14 months’ imprisonment with a non-parole period of 8 months on those charges.

99Finally, I will make the disposal order sought by the prosecution.