Director of Public Prosecutions v Fraser
[2023] VCC 15
•20 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Restricted Suitable for Publication |
Case No. CR-20-01618
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON LEWIS FRASER |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2022 | |
DATE OF SENTENCE: | 20 January 2023 | |
CASE MAY BE CITED AS: | DPP v Fraser | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 15 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Rape – not-guilty pleas – standard sentence offence – very good prospects of rehabilitation – previous good character – totality principle – Covid-19 pandemic – serious offender – delay – mental health.
Legislation Cited: ss 5, 6D(a), 6E, 5B(2)(b), 11A(4)(c), 18 Sentencing Act 1991 (Vic).
Cases Cited:The Queen v Verdins (2007) 16 VR 269; Stafford v The Queen [2022] VSCA 229; Lawrence (a pseudonym) v The Queen [2021] VSCA 291
Sentence: 5 years’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Lewis Ms E. Washington | Office of Public Prosecutions |
| For the Accused | Ms S. Lacy with Ms L. Conwell | Stary Norton Halphen |
HIS HONOUR:
1Jackson Lewis Fraser, on 29 June 2022, following trial, a jury found you guilty of three charges of rape.
2Charge 1 charges that on 10 March 2019 you raped Aida Reeve[1] by introducing your finger into her vagina without her consent and in circumstances where you did not reasonably believe that Ms Reeve consented to the penetration.
[1] A pseudonym.
3Charge 2 charges that on 10 March 2019 you raped Aida Reeve by introducing your tongue into her vagina without her consent and in circumstances where you did not reasonably believe that Ms Reeve consented to the penetration.
4Charge 3 charges that on 10 March 2019 you raped Aida Reeve by introducing your penis into her vagina without her consent and in circumstances where you did not reasonably believe that Ms Reeve consented to the penetration.
5All three charges are based on an incident that took place at Phillip Island during the early hours of the morning on 10 March 2019.
6At the time of the offending, you were 28 years of age.
Circumstances of Offending
7You and Ms Reeve were part of a friendship group and had known each other since 2015.
8In approximately October 2017 you expressed your attraction towards Ms Reeve. She discussed this openly with her partner and joked about having a three-way relationship.
9On Melbourne Cup Day in 2017, you and Ms Reeve kissed and at various times between then and the offending you and she engaged in flirtatious behaviour. This included exchanging flirtatious online messages. The messages were considered to be a form of “safe” flirtation with you both agreeing you were simply friends and nothing would develop from those messages.
10In January 2019 you, Ms Reeve, and others from your group of friends decided to spend the Labour Day weekend at Phillip Island. You rented accommodation in the town of Cowes and travelled there on Friday, 8 March.
11There were, at trial, varying accounts given as to the nature and extent of interactions between yourself and Ms Reeve over the course of the weekend before the rapes occurred. I will not go into the detail as those interactions were not the subject of any jury finding and, ultimately, neither the prosecution nor the defence sought to rely upon that conduct in sentencing submissions. To be clear, I have no regard to the conduct alleged to have occurred in the spa on the Friday evening.
12On Saturday 9 March, you and the others staying at the holiday house, including Ms Reeve, spent the day relaxing on Phillip Island. In the evening, you all went to a local hotel for dinner. On your return to your accommodation, many of you stayed up talking, drinking and generally enjoying the evening. At one point, your sister Jesse and Ms Reeve were performing lap dances. Persons, including you and Ms Reeve, were also using the downstairs spa bath.
13At around midnight, Ms Reeve got out of the spa to go to bed. A number of witnesses stated she was quite drunk by this stage. Ms Reeve told her partner, Rayleigh[2], that she had a headache and he went to find her some Panadol. She showered and then proceeded to vomit. Rayleigh helped her into bed where she fell asleep naked.
[2] A pseudonym.
14At some later time, Ms Reeve was woken by you entering the bedroom. You lay on top of her, and put your hand under the doona, touching her body. You touched her vagina before penetrating it with your finger. Ms Reeve resisted by trying to keep her legs shut. This conduct is the basis of Charge 1.
15You then lifted the doona, pushed her legs apart, and placed your head between her legs, licking and penetrating her vagina with your tongue. Ms Reeve said to you “we can’t”, “no”, and “please stop”. This conduct is the basis of Charge 2.
16After that, you inserted your penis into her vagina thrusting approximately four times. By this stage, Ms Reeve was crying and saying “no” and “stop”. After those thrusts, you withdrew your penis. This conduct is the basis of Charge 3.
17Ms Reeve rolled away from you into a foetal position and was crying. You placed your arms around her and told her that you loved her.
18After you left the bedroom, Ms Reeve telephoned her partner, who was in another room near by playing video games, and told him to come to the bedroom. When he arrived, he found her crying. She told him that you had entered the room while she was sleeping and raped her.
19A short time later, you and Robbie Fisher, another friend, returned to Ms Reeve’s room where, it would seem, there was an argument over what was alleged by Ms Reeve.
20Later that morning, after Ms Reeve and her partner left Phillip Island, you sent her a text message saying “I hope we can still be friends. Is there something I can do? I don’t want to lose you guys.” Ms Reeve responded, “I will talk to you when I'm ready.”
21Ms Reeve reported the matters to the police on 14 June 2019. You were interviewed by police on 26 July 2019. You told police there had been a sexual chemistry between you and Ms Reeve over the years and in the lead-up to the long weekend. You said that everybody was drinking over the course of the weekend and that all sexual contact between you and Ms Reeve was consensual.
Victim impact statement
22Ms Reeve prepared a victim impact statement which she read to the court. It is clear from her statement and from the manner in which she read it in court that your offending has had a deep and prolonged impact upon her.
23Ms Reeve spoke of the violating and dehumanising nature of your conduct and that it had fundamentally changed her and her perspective on the world.
24She considered you to be a good friend and someone whom she had trusted. You were the godfather of her son. She stated that her inability to move or fight you off shattered her sense of self, obliterated her sense of confidence, and caused her a deep and unrelenting sense of shame. Your offending also impacted upon her work and studies. She required professional counselling over a significant period of time. Your conduct also impacted her relationship, at least for several months, with her child.
Personal circumstances
25You were born in November 1990 and are now 32 years of age. Your parents separated before your first birthday. You have a sister who is two years your senior, and an older half-sister and a younger half-sister.
26You were born in Bairnsdale where you lived with your mother for several years before moving to Mooroolbark with your mother and her then partner. Although you had some contact with your father, it was not regular and it has only been in recent years that you developed a good relationship with him.
27You attended primary school in Mooroolbark and then Mount Lilydale Mercy College for your secondary schooling. From about the age of 15, your academic performance suffered due to your increasing anxiety. You were asked to leave school during Year 11 because you were refusing to attend classes and participate in school activities. However, you went on to complete Year 11 at night school while you worked during the day. You obtained an apprenticeship in joinery but transferred to carpentry and completed that apprenticeship. You have worked as a carpenter in your own business from about the age of twenty-three. You developed a very good reputation in the field of carpentry and have won several awards over the years.
28You maintain a good and close relationship with your parents, stepfather and siblings. They continue to provide you with their love and support and have been visiting you on a regular basis since you were remanded in custody following the jury’s verdicts.
29Tendered on your behalf was a psychological report prepared by Patrick Newton, clinical and forensic psychologist, dated 25 November 2022. You reported to Mr Newton that from about the age of 15 you felt anxious about your academic performance, had considerable trouble establishing yourself in secure peer networks, and lacked self-confidence. Your challenges were exacerbated by bullying and harassment.
30You have been involved in three significant relationships, and since late 2017 you have been in a relationship with Bridie Butel.
31You have received both medical and psychological assistance in the past to try and address your anxiety. In 2016 you were diagnosed with a generalised anxiety disorder with panic episodes, and you were commenced on antidepressant medication by your general practitioner. You continue to take that medication and you are currently maintained on what Mr Newton describes as a relatively high dose of 45 milligrams per day of Mirtazapine. You also underwent psychological treatment with Garth Phillips between 2016 and 2018. You returned to treatment with Mr Phillips in 2020 and have continued to see him while in custody.
32You reported to Mr Newton a history of moderate to heavy social drinking commencing in your mid-teens. You acknowledge that most of your social activities involved drinking significant quantities of alcohol. Mr Newton states that your consumption of alcohol was clearly sufficiently severe to meet criteria for harmful use of alcohol and may well have been sufficiently severe to meet criteria for alcohol abuse. You acknowledged to Mr Newton that in the hours preceding the offending you had consumed a significant amount of alcohol. You have experimented with marijuana on occasion but your use of that drug was irregular and has never been habitual.
33Mr Newton states:
“Mr Fraser has experienced dysfunctional anxiety since (at least) his teens. Its genesis can most likely be traced to the disruption of his early attachment with his father and the instability brought about by the challenges of managing his sister’s illness. Mr Fraser’s own lack of
self-confidence, his experiences of bullying and his delays in maturing (both physically and emotionally) all assisted to consolidate this anxiety.”34Mr Newton states that you also experience prominent “free-floating anxiety”, that is, a perception of dread and concern for which no discernible trigger can be identified. He states that these features are the hallmarks of a generalised anxiety disorder which you currently suffer at a moderate level of severity, despite treatment with medication. Mr Newton is of the opinion that ongoing professional care is clearly indicated and is likely to be required throughout your time in custody. He considers you will have a good prospect of benefiting from further rehabilitative and educational input.
35With regard to your sexual adjustment, Mr Newton states that you were able to outline a clear and coherent sexual ethic based on affection, mutual pleasure and shared intimacy. Mr Newton assessed your risk of further sexual offending, based on the totality of information he had, including ratings provided by the STATIC-99R and RSVP tests, to be at the “low-moderate risk”. He anticipates the level of risk would trend relatively rapidly towards the low-risk range if you could engage with appropriate treatment.
36Mr Newton considers you are likely to be a relatively vulnerable prisoner and notes you have experienced a noteworthy deterioration in your anxiety since your remand. He considers it likely that your pre-existing anxiety will persist at moderately severe levels and that your experience of incarceration would be “highly likely to be somewhat more onerous” for you than for other prisoners who do not have your challenges.
37Also tendered on your behalf was a report from clinical psychologist Garth Phillips, dated 15 September 2022. You first presented to Mr Phillips on 3 June 2016 on referral from your doctor. Between June 2016 and the date you were remanded in custody, you attended some 25 counselling sessions. He has also seen you for counselling since your incarceration via telehealth appointments.
38Mr Phillips writes that you initially presented with an underlying anxiety condition that impacted your day-to-day functioning including your sleep, emotion regulation, relationships, occupation and alcohol use. You undertook cognitive behaviour therapy and made significant improvement. You discontinued counselling in 2018. You returned to counselling with Mr Phillips in 2020 suffering situational depression and anxiety. Mr Phillips considers that your presentation in 2020 was separate to and not related to the reasons for previous counselling. He considers that in 2020 you presented with a situational though severe depressed mood, feelings of anxiety and stress.
Defence submissions
39Ms Lacy, who appeared with Ms Conwell on your behalf, acknowledged that all sexual offending is, by its nature, serious. She did not seek to minimize the impact of your offending on Ms Reeve.
40A number of character references which provide further detail of your personal background and circumstances were tendered on your behalf. I do not propose to detail what is contained in those references but I have had full regard to each of them.
41Ms Lacy relied on those references, as well as your excellent work history and work ethic, to submit that your prospects of rehabilitation are very good. She noted that you have worked in your own business since the age of 23; that you have offered your services to others without seeking payment; and that you have performed volunteer work in Uganda, as a 19-year-old, where you assisted to build an orphanage, and in East Timor, at the age of 22, where you assisted to build a women’s refuge. Your relationship with Ms Butel and your family, it was submitted, are all strong protective factors that should give the Court confidence that you will not reoffend upon your release.
42Ms Lacy submitted that you have a strong sense of empathy and are very much relied on by other members of your family, some of whom struggle with mental health issues.
43Ms Butel was called on your behalf during the plea hearing. She is a qualified kindergarten teacher, and currently works with very young children who suffer from various disabilities. Ms Butel stated you have been a very positive influence upon her, supporting her through her own difficulties. She describes you as kind, caring and thoughtful. Notwithstanding the jury’s verdicts, Ms Butel, and indeed her immediate family, remain fully supportive of you.
44Ms Butel became aware of the charges in approximately September 2019. The delay in having the charges heard and finalised has impacted upon your plans to marry and start a family.
45Ms Butel was aware of your heavy social drinking, and stated that since the incident at Phillip Island, and up until the time of your incarceration, your drinking was much reduced and she has not seen you drunk in that time. She stated that you have always treated her respectfully, and she has not seen you behave disrespectfully towards other women.
46With regard to your time in prison, she stated that you are permitted up to 2½ hours of non-contact visits one day each weekend. That time is divided up between her and other members of your family. She stated you are allowed two phone calls per week of up to 12 minutes’ duration. She gave evidence that you experienced lockdown and isolation in quarantine as a result of the COVID‑19 pandemic restrictions. You were not permitted visits for the first six weeks of your incarceration because of those restrictions.
47Despite those difficulties, I was informed that you are currently at the Hopkins Centre, where you work in the metal fabrication foundry and are also studying a Certificate II in English.
48Ms Lacy also relied upon your good character up to the time of this incident, and the fact that you have no prior or subsequent convictions. She also relied upon the impact imprisonment has had and is having upon you. Given your mental health issues, and the report of Mr Newton, Ms Lacy submitted that Verdins[3] principles 5 and 6 apply in your case. She also noted that your mental state is impacted in the knowledge that you are not able to provide assistance to other members of your family, particularly your sister, Jesse.
[3]The Queen v Verdins (2007) 16 VR 269
49Although you are in receipt of medication, the time at which the medication is administered, that is, well before you go to sleep, is not at its most optimum.
50Ms Lacy also relied upon the hardship you are experiencing on remand during the COVID‑19 pandemic. She informed me that you were in isolation for eight days following your remand, and that as at the date of the plea hearing you had been in lockdown on some 20 days. When in lockdown, you are locked in your cell for all but five minutes of the day, when you are permitted to walk outside. Ms Lacy also pointed to your vulnerability given your mental health issues, and that this, your first time in prison, has been a frightening experience.
51Regarding the circumstances of your offending, Ms Lacy pointed to the following factors:
· The three rapes occurred during a single incident and over a very brief period. Ms Reeve herself described the digital penetration as occurring for less than a minute; the oral penetration between 30 seconds to a minute; and the penile penetration consisted of “a few pumps”.
· That whilst you did not have a reasonable belief in consent, in the circumstances, it is open for me to conclude that you had an actual and mistaken belief in consent arising out of your state of intoxication.
· You ceased the penile penetration very soon after it started without ejaculation, or without being interrupted or thrown or pushed off by Ms Reeve.
· There was no violence beyond the level of force required for each of the penetrative acts, no premeditation, and no physical injury.
52With regard to remorse, Ms Lacy submitted, assuming I accept that you had a genuine but mistaken belief in consent, your remorse for what occurred was evident in the distress you displayed shortly after the incident.
53Ms Lacy also submitted that having regard to all of the circumstances, including the absence of prior convictions and subsequent convictions, the risk assessment of Mr Newton, and your prospects for rehabilitation, minimal weight ought to be attached to sentencing considerations of specific deterrence and community protection. She also relied on the delay of almost four years between the offending and sentencing, none of which is in any way attributed to you.
Prosecution submissions
54Mr Lewis, who appeared on behalf of the Director of Public Prosecutions, accepted that the three separate penetrations occurred over a relatively brief period and that there should be substantial, but not total, concurrency in the sentences to be imposed.
55Mr Lewis submitted that I should have regard to the fact that the third penetration occurred without the use of a condom and that this constitutes an aggravating feature.
56Regarding the question of remorse, Mr Lewis submitted that the evidence does not truly speak of remorse and that distress does not necessarily indicate remorse. Mr Lewis also relied on your comments to Mr Newton that everything that occurred between you and Ms Reeve was consensual, which, consistent with the jury’s findings, it was not. This impacted, it was submitted, on your prospects for rehabilitation. But for that, Mr Lewis agreed that you would otherwise have very good prospects of never offending again. There is, thus, some work for specific deterrence and community protection, he submitted.
57Mr Lewis did not dispute Ms Lacy’s submissions concerning the third element of the offence of rape. In written submissions, filed on behalf of the Director of Public Prosecutions, at paragraph 14, the prosecution accepts that “it would be difficult for the Crown to exclude the possibility that the jury verdict was based on a conclusion that the accused had acted on a mistaken belief which arose out of his intoxication”.
58Mr Lewis also accepted that the delay of close to four years was not in any way attributable to you and is a relevant sentencing consideration.
59Mr Lewis also reminded the Court that you fall to be sentenced as a serious sexual offender on Charge 3.
Sentencing considerations
Nature and gravity of offences
60Rape is a serious crime. This is reflected in the maximum penalty of twenty-five years’ imprisonment that may be imposed.
61Rape is described as an intensely personal crime that often has a devastating impact on a victim’s emotional and psychological well-being. This is clearly evident in Ms Reeve’s Impact Statement which, with a great deal of courage, she read in open court. I am required to and do have regard to the impact of your offending on Ms Reeve.
62In 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.
63You intentionally committed acts of digital, oral and penile penetration against Ms Reeve. She was herself intoxicated and was in bed asleep when you entered her room uninvited. You did not use a condom. You thus exposed Ms Reeve to the risk of pregnancy and disease, although neither were in fact caused.
64Whilst the jury’s verdict means that you did not have a reasonable belief in consent, I accept that because of your state of intoxication I am not able to exclude the possibility that you had an actual but mistaken belief in consent. I will sentence on this basis.
65I accept your counsel’s submissions that the offences were of short duration and that you stopped, without being interrupted, very soon after you commenced penile penetration. Your conduct was not accompanied by any acts of violence beyond those inherent in the very act of rape. There was no overt aggression, psychological coercion or threats. There was no further demeaning or degrading conduct, apart from the very acts themselves. There was no use of a weapon. There was no pre-meditation. Ms Lacy submitted that no injury was caused by you. Although Ms Reeve had bruising to her legs, I am not prepared to find beyond reasonable doubt that the bruising was caused by you.
66It goes without saying that although all crimes of rape are inherently serious, the circumstances in which they are committed, and their objective gravity, vary very widely. In all of the circumstances in which the offences were committed in this case, and as imprecise as these terms are, I find that the objective gravity of your offending falls towards the lower end of the spectrum. I also find that your moral culpability falls below the mid-range of seriousness. I arrive at these conclusions because of all the circumstances in which the offending was committed and, as already stated, I cannot exclude the possibility that you had an actual but mistaken belief in consent.
Remorse
67Ms Lacy acknowledged that the question of whether you are remorseful is a complicated one in view of your pleas of “not guilty”. Nevertheless, it was her submission that I should find that remorse demonstrated in your dealings with Ms Reeve and her partner in the immediate aftermath of what occurred, and in a later telephone call you had with Ms Reeve.
68I am unable to be satisfied on the balance of probabilities that you are in fact remorseful for your conduct. This is not to say that you are not remorseful, simply that I cannot be satisfied of this on the balance of probabilities. I accept the prosecution submission that your conduct on the night after the incidents and the level of distress shown by you is not necessarily indicative of remorse. Similarly, the conversation you had with Ms Reeve when she accused you of rape is not necessarily indicative of remorse. As Mr Lewis submitted, you ran a trial in which you put in issue the second and third elements of the crime of rape, and you maintained in your interview with Mr Newton that all sexual activity between you and Ms Reeve was consensual.
Rehabilitation
69As stated above, I have had full regard to each of the character references tendered on your behalf. Your referees speak very highly of you as a young person; as a good and hard worker; as a person devoted to your family and friends; and as a young person who has positively contributed to the community, particularly through your volunteer work. From a reading of those references, your conduct towards Ms Reeve that forms the basis of the charges was very much out of character.
70I note that in addition to the voluntary work you performed in Uganda and East Timor, you have also been involved in fund raising for the Red Shield Appeal and Oxfam, food delivery for various charities through your mother’s church, and you have been a regular blood donor. You have been a contributor not just to your local community but beyond that. These are matters which, in my opinion, auger well for your prospects for rehabilitation. They speak highly of your character before you committed these offences.
71It is also apparent from the references that you are a person who has otherwise led a law-abiding life. You come from a good, tight-knit, supportive network of family and friends. They remain highly supportive of you.
72Notwithstanding your pleas of not guilty, and my finding on the issue of remorse, I am prepared to accept that you do have very good prospects of rehabilitation. I make this finding having regard to the fact that with the exception of these charges, you have not been in any other trouble with the police; your good character up to the time these offences were committed; that you have not been in any further trouble since their commission; your excellent work history; and your supportive network of family and close friends.
Burden of Imprisonment
73I have little doubt that your time on remand has been very difficult. Ms Butel’s evidence made that clear as have your mother’s letters to this court. This is your first time in custody and I am prepared to accept it is having a salutary effect upon you as a deterrent from further trouble with the law.
74I also have regard to the fact that your time on remand has been rendered more onerous because of the COVID-19 pandemic and the restrictions that have been put in place by the authorities to minimise the health risks to prisoners and staff. Such restrictions are likely to continue into the foreseeable future given the continued presence of the COVID virus. I note that as at the date of the plea hearing you had spent eight days in isolation at the Melbourne Assessment Prison and then almost three weeks in isolation when you were transferred to the Hopkins Correctional facility. I have already referred to Ms Butel’s evidence concerning the restrictions. I accept that you have found the prison experience frightening and upsetting.
75Whilst I do not take the hardship caused to your family into account, it is clear that your family is having great difficulty coming to terms with your convictions and remand. You are aware of the impact your remand is having on your family and on Ms Butel. I am prepared to accept Ms Lacy’s submission that your mental state has been affected by this knowledge. One of your referees, Ms Teed, who has visited you on remand, writes that your priority is still your family and you have a constant concern for what they are now enduring.
Mental Health Considerations
76Having regard to the contents of Mr Newton’s and Mr Phillips’ reports, concerning your current state of mental health, Verdins principles 5 and 6 are relevant to the sentence to be imposed.
77In Verdins, the Court, at paragraph 33, stated:
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health, and
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
78I accept that your diagnoses of an anxiety disorder and situational depression mean that the sentence to be imposed will weigh more heavily upon you than a person in normal health. I also accept there is a serious risk that imprisonment will have a significant adverse effect on your mental health. Accordingly, the sentence to be imposed will be moderated by reason of those two considerations.
Delay
79I consider the issue of delay is a significant consideration to the sentence to be imposed. In Stafford v The Queen[4] the Court considered that the delay of over 4 years between the commission of the offences and sentencing, none of which was attributable to the appellant, imposed a heavy burden on all parties, including the appellant.
[4][2022] VSCA 229
80The Court stated:
“Similarly, an unresolved plea of not guilty over an extended period over and above that which might reasonably be required to bring a matter to trial is a burden that must be acknowledged and taken into account by a sentencing judge as appropriate. … and the burden of a delay in trial is not to be ignored merely because the accused person is ultimately found guilty.”[5]
[5]At paragraph [28]
81The learned prosecutor accepted that the delay in your case was not in any way attributable to you. The offending occurred on 10 March 2019. A committal hearing listed to commence on 24 January 2020 was vacated and was not heard until November 2020. Your first trial commenced on 3 March 2022 and the jury was discharged without verdict on 21 March, because of a COVID related issue. The second trial took place between 14 June and 29 June 2022. Your plea hearing was listed on 8 December and sentencing was adjourned to this day. This a period of over 3 years and 10 months.
82The charges have been hanging over you for a significant period of time and I have little doubt they have caused you a great deal of anxiety. You lived with the charges and the uncertainty of trial outcome and sentence for a significant period. You have been on bail for that period. This significant delay, as recognised in Stafford, impacts upon everyone involved, including you. It is a matter that attracts much weight in the sentencing process.
83I am also to have regard, in this context, to the fact that you have not re-offended in that almost four-year period, complied with your bail undertakings, and you took steps to reduce significantly your alcohol intake.
Deterrence, Denunciation and Just Punishment
84Section 5 of the Sentencing Act requires me to have regard to a number of considerations including deterrence, just punishment, denunciation of your conduct and the protection of the community. I consider specific deterrence has limited application given your previous good character and my assessment of your prospects for rehabilitation.
85However, the need to deter others from committing similar offences is a significant sentencing consideration as is the need to denounce your conduct. Others who are minded to commit such crimes must understand that they risk being met with stern punishment, most commonly gaol terms measured in years.
86Given the sentences I am bound to impose in respect of Charges 1 and 2, on Charge 3, I am required by the provisions of Part 2A Sentencing Act to sentence you as a serious offender. This means, pursuant to s.6D(a), I must regard the protection of the community from you as the principal purpose for which the sentence is to be imposed. Mr Lewis informed me at the plea hearing that the prosecution does not seek a disproportionate sentence on Charge 3 in order to achieve that purpose. I would not, in any event, having regard to all the circumstances, impose a sentence longer than that which is proportionate to the gravity of the offences.
87Section 6E of the Act requires, unless I otherwise direct, that the sentence imposed on Charge 3 be served cumulatively on other sentences of imprisonment to be imposed. I have considered this provision and have determined it is appropriate in all the circumstances to otherwise direct and impose only some cumulation. As I have already mentioned, Mr Lewis, fairly, in my opinion, accepted that while there were three separate penetrations, there should be substantial, but not total, concurrency.
88I am required by s6E of the Sentencing Act to cause to be entered into the records of the court in respect of Charge 3 that you are being sentenced as a serious offender, and I will do so.
Standard Sentence
89The standard sentencing scheme applies to your case. The standard sentence for rape is 10 years’ imprisonment.
90I have taken into account the standard sentence as one of the factors relevant to the process of instinctive synthesis sentencing. As was submitted by the learned prosecutor, it is not a “starting point” for determining the appropriate sentence. Like the maximum penalty, the standard sentence operates as a guide to sentencing but does not alter the instinctive synthesis approach.
91Current sentencing practice is a factor to which I must also have regard. Section 5B(2)(b) of the Sentencing Act requires that I only have regard to sentences previously imposed for the offence as a standard offence. They are, however, not sentencing precedents and current sentencing practice is but one of a number of factors to which I must have regard. I have had regard to a number of sentencing decisions of this Court and the Court of Appeal.[6] 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 an offence. As was said in Lawrence[7], “[s]elf-evidently, the sentence for rape in any given case must turn on an individual consideration of the circumstances and features of the particular offence (and of the offender).”[8] In the end, each case must be decided on its own individual facts and circumstances.
[6]DPP v Flancey (a pseudonym) [2021] VCC 1225; DPP v Alanazi [2022] VCC 140; DPP v Hyeong-Beom Park [2021] VCC 2058; 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; DPP v Sang (a pseudonym) [2021] VCC 1840; Clarke ( a pseudonym) v The Queen [2022] VSCA 89; Lockyer v The Queen [2020] VSCA 321; Drake v The Queen [2019] VSCA 293; Babar v The Queen [2022] VSCA 122;
[7] Lawrence (a pseudonym) v The Queen [2021] VSCA 291
[8] Ibid at [22]
92The 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 objective seriousness of the offences you committed and of each of the matters that weigh in mitigation of sentence.
93In endeavouring to achieve an appropriate and proportionate sentence, I have had regard to the totality principle to ensure that the total effective sentence reflects your overall criminality and to ensure that the sentence to be imposed is not crushing.
Sentence
94Mr Fraser:
On Charge 1, you are convicted and sentenced to 3 years' imprisonment.
On Charge 2, you are convicted and sentenced to 3 years' imprisonment.
On Charge 3, you are convicted and sentenced to 4 years' imprisonment.
95The sentence imposed on Charge 3 is the base sentence. I direct that 6 months of the sentence imposed on Charge 1 and 6 months of the sentence imposed on charge 2 be served cumulatively on the base sentence and on each other. This makes a total effective sentence of 5 years’ imprisonment. Having regard to your prospects of rehabilitation, the fact that you have not been in further trouble since the commission of these offences, and the reduced need for specific deterrence, 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 2 years and 9 months’ imprisonment.
96Pursuant to s18 of the Sentencing Act the period of 205 days, not including today, is to be reckoned as already having been served under the sentence.
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