Director of Public Prosecutions v Gabriel
[2025] VCC 595
•14 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEROME GABRIEL |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2025; 14 April 2025 | |
DATE OF SENTENCE: | 14 April 2025 | |
CASE MAY BE CITED AS: | DPP v Gabriel | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 595 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Assault with Intent to Commit a Sexual Assault — Causing Injury Recklessly— Rape — Armed robbery — robbery — Theft — False imprisonment — Jury verdict — Plea of guilty — High objective gravity — Drug and Alcohol dependency — Youthful offender — Delay — Totality — Double punishment — Sex Offender’s Registration
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:Brown v The Queen (2019) 280 A Crim R 257; Sayer v The Queen [2018] VSCA 177; Bowden v The Queen [2013] VSCA 382; Mulligan v The Queen [2017] VSCA 94.
Sentence: Total effective sentence of 10 years gaol with a non-parole period of 5 years 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie (Trial) Mr A. Moore (Plea) | Office of Public Prosecutions |
| For the Accused | Mr C. Thompson (Trial) Ms P. Marcou (Plea) | Garde-Wilson Lawyers |
HIS HONOUR:
Introduction
1Jerome Gabriel, you have been found guilty by jury of one charge of assault with intent to commit a sexual offence, two charges of rape, one charge of armed robbery and one charge of false imprisonment, the maximum penalties for which are as follows:
· Charge 1, assault with intent to commit a sexual offence — 15 years' imprisonment;
· Charge 6, rape, 25 years' imprisonment;
· Charge 7, rape, 25 years imprisonment
· Charge 8, armed robbery. 25 years' imprisonment;
· Charge 11, false imprisonment, 10 years' imprisonment.
2Charges 6 and 7 are standard sentence offences. The standard sentence for rape is 10 years' imprisonment.[1] In fixing your sentence for the rape charges, I am guided by the principles in Brown v The Queen.[2]
[1] Crimes Act 1958 (Vic) s 38.
[2] (2019) 280 A Crim R 257.
3Pursuant to Part 2A of the Sentencing Act 1991 (Vic) (‘the Act’), if sentences of imprisonment are imposed for Charges 1 and 6, you fall to be sentenced as a serious sexual offender in relation to Charge 7. The prosecution has not sought a disproportionate sentence pursuant to s6D of the Act.
4Charges 6 and 7 are class 3 offences under the Sex Offenders Registration Act 2004 (Vic). Pursuant to s11(1), the court has the discretion to order that you comply with relevant reporting obligations under that Act.
5You were found not guilty by jury on Charge 3, aggravated burglary, and Charges 4 and 5 of rape. I note that Charge 2, Charge 9 and Charge 10 were alternatives and the jury was not asked to return verdicts on those charges.
6Below are the relevant facts corresponding to the jury’s findings and the verdicts of guilt it returned.
Summary of offending
7On 19 January 2022, you saw GZ’s advertisement for sexual services on the 'Locanto' website. The advertisement included her phone number. At 11.07 pm you sent her a text message asking about her availability. She provided you with her address. You asked to meet somewhere public instead. She refused. You indicated you were still hoping to meet with her. She did not respond thereafter. Your last message was sent at 12.03 am asking ‘how do I find your address’.
8You attended her home shortly after that exchange in the early hours of 20 January 2022. GZ was having a cigarette outside her front door when you approached and asked if you were at the address she had provided you in her text. She said yes.
9You looked around to see whether anyone was watching before pushing GZ back into her unit. You punched her with a closed fist to the right eye. This offending is the subject of Charge 1, assault with intent to commit sexual act.
10You dragged GZ from the front door to the bed by holding onto the shoulders of her dressing gown. You pushed her onto the bed and removed her dressing gown and underwear. You forced her to give you oral sex. GZ said that you slapped her face throughout. This offending is the subject of Charge 6, rape.
11You then forced GZ to have penile-vaginal sex with you. This offending is the subject of charge 7, rape.
12At some stage, you asked GZ for money. She told you that she had $200 in the bedside table. You placed a pillow over her face and demanded more money.
13You went into the kitchen area and grabbed a meat cleaver. You waved it around demanding more money. You asked if she had money in her bank and she told you she did. You demanded her iPhone and the password to the banking application on her phone. At 12.26 am, you transferred $1,200 to your Bendigo Bank account. You then ransacked the premises and located a black backpack. You placed several items, including a second iPhone, cigarettes, medication, GZ's drivers’ licence and Red Bull cans into the backpack. This offending is the subject of Charge 8, armed robbery.
14You left the unit, taking the key from the front door with you. You told GZ not to call police and said that you would be back. You locked the front door, confining GZ inside. This offending is the subject of Charge 11, false imprisonment.
15GZ managed to obtain a spare key and let herself out. She ran to her neighbour’s residence screaming for help. A nearby neighbour heard her and called Triple 0. Police were then notified and attended the scene. Body worn camera footage from Senior Constable McCallum was played at trial depicting his arrival at the scene from approximately 1.53 am until approximately 2.34 am.
Victim Impact Statement
16GZ provided the court with a victim impact statement dated 17 March 2025. She did not want her statement read aloud in court so I will summarise it in broad strokes. GZ writes of the fear and paranoia she has experienced since the offending. She described the isolation she feels being separated from her family and alone in a community where there are language and cultural barriers in place. She wrote of the social and financial challenges she now faces after her need to relocate due to the offending having taken place in her home.
Circumstances of offender
17You were born in January 2000. You were 22 years old at the time of the offending and you are now 25. You have no prior criminal history. You struggled with alcohol and drug addiction since 2021. You are the only child to your parents, with three older half-sisters from your mother’s relationship with a former partner. Your parents’ marriage dissolved in 2021.
18From the age of 17, you began working servicing cell phone towers, often travelling away from home. Your employment there was terminated, and you began working at Kordia. After your initial remand, you were again terminated. You obtained employment as a concreter, then at a fire hauling company, and then transferred to rigging in late 2022.
Procedural History
19I was not provided with a chronology by either party. From the material I have available to me, you were first charged on 21 January 2022. The matter was listed for trial in the Warrnambool circuit commencing 8 April 2024 and given a not before date of 22 April 2024. It was not reached during that circuit and adjourned to 19 August 2024. It was again not reached. The trial commenced on 9 October 2024 before me. The jury returned its verdicts on 17 October 2024.
Defence Submissions
20Ms Marcou on your behalf submitted that I ought to impose a moderate term of imprisonment with a short non-parole period taking into account your youth at the time of the offending, the delay you have encountered and the principles of totality and double punishment.
Prosecution Submissions
21Mr Moore submitted that a head sentence with a non-parole period is the only appropriate sentence available to me considering the objective gravity of your offending and your high moral culpability.
Gravity of Offending and Moral Culpability
22Ms Marcou conceded that your offending is serious. She relied on the following factors:
(a) the offending was, she said, of short duration;
(b) the jury verdicts are consistent with an acceptance that your offending was spontaneous and unplanned;
(c) your offending lacks aggravating features such as being in company or the degradation of a domestic partner; and
(d) the motivation for the theft was your escalating drug use, gambling and financial pressures.
23Mr Moore submitted that the offending is objectively serious. He highlighted the protracted violence involved, that the complainant was entitled to safety in her own home and the use of the meat cleaver to intimidate.
24Ms Marcou in oral submissions argued that the jury’s verdict of not guilty in relation to the aggravated burglary charge suggested that the only sensible finding is that the offending was not a planned or pre-meditated attack.
25Your offending took place against a backdrop of escalating drug and alcohol abuse. You told Mr Armstrong that you first began using cannabis when you were 16 years old, you began experimenting with ecstasy and cocaine in your late teens.[3] You started binge-drinking and using ice midway through 2021.
[3] Armstrong report p 3.
26Mr Armstrong writes that you were drug addicted in the months before the offending.
27There are a number of disturbing features to this offending. You assaulted GZ immediately upon entering her unit. You exercised dominion over her and carried out your assaults with a nonchalant, unhurried indifference to the risks you were running. From the moment you were inside her unit, you subdued her with violence or the threat of violence, you controlled her, used her and contemptuously drained her account. You threatened her with a meat cleaver and eventually left her flat, but only after you had turned it inside out in your search for goods to steal. By her reckoning, you spent two hours raping, assaulting and robbing her. The time between your last text to her and her neighbour’s Triple 0 call is a little under two hours. By any measure, her ordeal was lengthy, demeaning, life-altering and terrifying. She says you did not use a condom. You said to police that you initially penetrated her without a condom, later put one on and disposed of it in a storm water drain. No condom was recovered by police. I accept her account that you did not use a condom. That is an aggravating feature of your offending. I also accept her estimate of approximately two hours. The objective gravity of your offending is high.
28Whilst you were acquitted of aggravated burglary, the jury found you guilty of assault with intent to commit a sexual offence. That assault was committed as soon as you crossed the threshold and it is powerful evidence of your intention to overbear GZ's will, rape her and treat her as something sub-human. You menaced her, lingered in her home with an insouciant indifference to being caught, rifled through her belongings and forced her to transfer her funds to your account. When you left, you covered your tracks by disposing of her phones, but your detection was inevitable given the exchange of text messages between you and the forced transfer of funds from her account to yours.
29Your moral culpability is high. It has not been argued that your moral culpability is reduced by your use of drugs in the period preceding your attack on GZ. It was submitted that you robbed her to buy drugs. That does not reduce your moral culpability. You sought her out, tried to lure her to the botanical gardens and when you were rebuffed you made your way to her address. The jury found that your initial assault of her was effected in order to rape her. At some stage during her ordeal, you also decided to rob her. I do not accept that you intended to pay her and the jury by its verdicts rejected that aspect of your account. You justified your actions to police by claiming that you had a dispute with her about the fee payable after sex and that was the context in which you demanded cash from her. I cannot conclude that you went to her unit intending to rob her, and the meat cleaver you used was taken from her kitchen, which supports the conclusion that after you raped her you decided to rob her also. The armed robbery is nonetheless a serious example of a serious crime. GZ was alone, spoke poor English and was physically slight. You had already punched her in the face when you menaced her with the cleaver to extract the money in her account.
30You told police that there was another person present in GZ's flat and that you felt threatened. When that proposition was put to GZ in cross-examination, she was withering in her rejection of this aspect of your account. I do not accept that there was another person in her unit. When she sourced the spare key, she fled screaming to a neighbour’s unit for help. She was alone and was required to communicate to police through an online interpreter.
31When you left GZ, you locked the door and took the key to her house with you. You doubtless believed you had trapped her inside and had relieved her of her phones, depriving her of the ability to raise the alarm. When she escaped, as noted elsewhere, she ran to a neighbouring unit. I need to exercise care in assessing the gravity of the false Imprisonment charge, but on the evidence, consistent with the verdicts, you imprisoned a woman you had just assaulted, raped and robbed. You locked her in her home, hoping she would be deprived of the capacity to complain or seek help. This is a serious example of a serious crime.
Prospects of Rehabilitation
32Ms Marcou submitted that you have reasonable prospects of rehabilitation owing to the excellent supports you have in the community and within your family. Your parents were both present at the plea hearing as was your half-sister and your partner. Your parents attended each day of the trial.
33In early 2024, I am told your sister assisted you in enrolling in a private outpatient rehabilitation programme. You attended for 2 to 3 months, four nights a week. You reported that this helped you to stop your heavy consumption of drugs, though you admit that you have used drugs approximately three times since early 2024.
34Your offending is unusual in its audacity. That said, you do not have a track record of antisocial conduct. You have a decent work history, and you have a deeply concerned, supportive network. On the strength of Mr Armstrong’s assessment, your prospects are guarded, but there is some scope for hope given your age and the scaffolding around you. It is probable that you will emerge from prison with the tools to lead a conventional, unexceptional life.
Character References
35I was provided with a bundle of seven-character references.
36Your aunt, Ms Shirley Gabriel, writes that you have always been a trustworthy and hard-working person. She described you as someone who values your family and friends.
37Your fiancé, Ms Carly Kretiuk, describes you as an open and honest person who has been kind and caring to her and her son. She describes you as deeply remorseful for your actions and maintains a desire to build a family with you.
38Your sister, Ms Kelly Bayliss, writes that you have been significantly stressed by your parents’ separation. She says your offending is wholly out of character. She describes you as a decent, hardworking, trustworthy person, a caring brother and uncle.
39Ms Kim Repcak has known you since October 2022, when you dated her niece, Ms Taylah Milner. She described you as a polite, respectful and caring person, hardworking and considerate.
40Your father, Mr Frank Gabriel, writes that you have always been a decent, respectful young man and that you are extremely sorry for your offending behaviour.
41Your mother, Ms Wendy Gabriel, writes that she has relied on you through her health difficulties and that you have always been caring and respectful. She maintains that what you have been charged with is out of character.
42Your uncle, Mr Andrew Franklin, writes that you have always been a hardworking young man. He noted that you struggled with your parents’ separation.
Guilty Plea and Worboyes
43You pleaded guilty to Charges 2, 9 and 11 at arraignment, in the presence of the jury. Charges 2 and 9 were lesser alternatives to Charges 1 and 8. You were found guilty of the more serious charges.
44Your plea of guilty to Charge 11 entitles you to some slim mitigation.
Youth/old age
45Ms Marcou submitted that you were 22 years old at the time of the offending and ought to be sentenced as a youthful offender. She relied on Mr Armstrong’s report where he noted that you are ‘still young’ and not ‘unsalvageable’.
Delay
46
Ms Marcou submitted that you have had these charges hanging over your head for three years. She argued that you have suffered significant stress, culminating in a suicide attempt whilst awaiting trial. She submitted that you have
well-established support in the community and in your family; given your lack of re-offending, you have demonstrated a capacity to ply the straight and narrow, abide by stringent bail conditions and attend to the advancement of your rehabilitation.
47You are entitled to the mitigatory effect of both limbs of delay. I have reduced your sentence accordingly.
Double Punishment
48Ms Marcou submitted that I need to guard against relying on instances of charged conduct in elevating the objective gravity of other charged conduct. She submitted that the rule against double punishment, when applied, should result in substantial concurrency between the sentences. She argued that your offending needs to be viewed as a continuous episode, one that calls for substantial concurrency between each count. She referred me to the case of Mulligan v The Queen,[4] where the Court of Appeal held that separate penetrations which were charged individually were in effect part of a single continuing transaction.
[4] Mulligan v The Queen [2017] VSCA 94 (‘Mulligan’).
49Mulligan was an appeal against conviction and sentence. The applicant submitted that the trial judge had imposed a manifestly excessive sentence with respect to Charges 3 and 4 of rape. The offending the subject of those charges involved the applicant waking the complainant up, forcing her to perform oral sex on him and then penetrating her vagina with his penis. The trial judge imposed individual sentences of seven years on each charge with cumulation of two years, leading to an overall sentence on those charges of nine years. The Court of Appeal held that the cumulation was manifestly excessive for what was, in essence, a single episode of offending. The applicant was resentenced to seven years each on Charges 3 and 4 with the cumulation reduced to 12 months.
SORA
50
Mr Moore submitted that under s11(1) of the Sex Offender Registration Act, I ought to exercise my discretion to impose reporting obligations upon you due to your risk of further sexual re-offending. This submission was made on the basis of
Mr Armstrong’s report, in which he assessed you as an above average risk of sexual recidivism.
51Ms Marcou provided further written submissions on 2 April 2025 and referred me to the principles in Sayer v The Queen,[5] where the following propositions were identified arising from the decision in Bowden v The Queen[6]:
(a) The inquiry whether to make a registration order involves a two-stage process.
(b) The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.
(c) For the court to be so satisfied, the risk must be real rather than fanciful.
(d) The evaluation of risk is directed to the risk upon the offender’s release into the community, assessed by what is presently known.
(e) The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.
(f) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender’s right to enjoy freedom and autonomy of action.
(g) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.
[5] Sayer v The Queen [2018] VSCA 177 at [92].
[6] Bowden v The Queen [2013] VSCA 382.
52
In relation to the first question, Ms Marcou submitted that your conduct before and after your offending demonstrates that you are not a real risk to the sexual safety of a member of the community. Ms Marcou pointed to several factors in support of this position, including that your offending was not family-violence related, that you are now in a long-term relationship and do not use the services of sex workers, and that you ceased taking drugs following your offending. She noted that you have no criminal history, including in the almost three years where you have remained in the community following your offending. Ms Marcou further noted that you are a young offender, that you do not have any personality disorder diagnoses, that you have taken steps to voluntarily engage in community-based drug rehabilitation, and that you are in a stable relationship with a woman who has a
seven-year-old child.
53As to the second question, Ms Marcou submitted that reporting obligations would be very onerous, particularly where your partner has a child and you offended against a mature adult. She noted that if you were subject to reporting obligations, you would need to provide the name and details of each child with whom you have come into contact, and any details of affiliations with clubs or organisations that have child membership or participation. Further, it would require you to report any changes to your personal details and other details such as any plans to travel outside of Victoria.
54Ms Marcou referred to Mr Armstrong’s report, noting that he qualified his risk assessment by stating that:
'The recidivism estimates provided by the Static-99R are group estimates based on reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond with the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the Static-99R depending on other risk factors not measured by this instrument'.
55It was submitted, and I agree, that Mr Armstrong’s classification of risk does not absolve me of the need to make my own assessment. In my view, your risk of reoffending is not such that it requires the imposition of reporting conditions.
Standard Sentence
56Ms Marcou referred me to sentencing statistics obtained from the Sentencing Advisory Council’s website for the offence of rape. She referred me to Snapshot 279 which analyses the sentencing outcomes for people charged with rape from 2017-2022 and found that of 60 charges, the average imprisonment length was six years and four months, irrespective of the offender’s age.[7] She contrasted this with Figure 22A which found that 13.2 per cent of offenders are less than 25 years of age and 43.8 per cent of those received a non-parole period of 3-4 years.
[7] Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2017–18 to 2021–22: Rape (Sentencing Snapshot No. 279, September 2023) at p 7.
57She relied on these statistics to submit that you ought to receive a sentence with a low non-parole period and a moderate head sentence, considering your youth and your capacity to reform. These statistics have been helpful in illustrating current sentencing practices, but they do not bind my instinctive synthesis. I note moreover that your rape charges are accompanied by three serious charges including armed robbery and false imprisonment.
Sentencing Principles
58Pursuant to s 5 of the Sentencing Act, the purposes for which you are to be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
59Your offending against GZ was audacious, entitled, demeaning and arrogant. It was also violent. You did not apprehend her as a person. You resolved to strip her of all you could take from her. You then locked her up in a state, you hoped, of mute helplessness. Specific and general deterrence have central roles to play in my sentence. Your conduct needs to be denounced. I intend to leave the door open to your rehabilitation by fixing a lower than usual non-parole period. I have had regard to the principles of proportionality and totality in fixing the head sentence.
60Pursuant to s11A(4) of the Sentencing Act, a court must fix a non-parole period of at least 60 per cent of the relevant term if that term is less than 20 years, unless it is in the interests of justice not to do so. In your case, I have determined that it is in the interests of justice to fix a non-parole period of slightly less than 60 per cent. I have done so because of your youth, your lack of antecedents and the need to hold the door open to your rehabilitation.
Sentence
61On Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to two years' gaol.
62On Charge 6, rape, you are convicted and sentenced to six years' gaol.
63On Charge 7, rape, you are convicted and sentenced to seven years' gaol.
64On Charge 8, armed robbery, you are convicted and sentenced to three years' gaol.
65On Charge 11, false imprisonment, you are convicted and sentenced to three years' gaol.
66The sentence on Charge 7 is the base sentence. Six months on Charge 1 is to be cumulated on that sentence. Twelve months on Charge 6 is to be cumulated on that sentence. Twelve months on Charge 8 is to be cumulated on that sentence and six months of Charge 11. That produces a head sentence of 10 years' gaol. I fix a non-parole period of five years, six months before you are eligible for parole.
67You have served 213 days of pre-sentence detention and I declare that as time served against this sentence.
68Pursuant to s6F(1) of the Sentencing Act, I declare that on Charge 7 you are sentenced as a serious sex offender. Section 6E creates a presumption of cumulation, but I have directed partial cumulation only in your case, factoring in the matters relied on by Ms Marcou. In doing so, I have not lost sight of s6D which obliges me to regard the protection of the community as the principal purpose of my sentence.
69A forfeiture order is sought by the prosecution. The making of that order is not opposed, and the order will be made in the terms sought.
70Pursuant to s6AAA of the Sentencing Act, I declare that, but for your plea of guilty on Charge 11 of false imprisonment, I would have sentenced you to a total effective sentence of 11 years with a non-parole period of six years, six months.
71Mr Moore, are there any further ancillary orders? I am presuming not.
72MR MOORE: Sorry, Your Honour, yes. No, other orders.
73HIS HONOUR: Thank you. Mr Gabriel can be removed.
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