Director of Public Prosecutions v Gabrielson
[2024] VCC 990
•28 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01656
CR-23-01243
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE GABRIELSON |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2024 | |
DATE OF SENTENCE: | 28 June 2024 | |
CASE MAY BE CITED AS: | DPP v Gabrielson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 990 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Guilty verdict - rape - common law assault - stalking - contravening an order intending to cause harm or fear for safety - intentionally causing injury - making a threat to kill - persistent contravention of a family violence intervention order - abusive relationship - persistent and excessive drug use - unstable early years - persistent family violence - intimate partner violence.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Reynolds [2022] VSCA 263; DPP v Mokhtari [2020] VSCA 16; DPP v Meyers [2014] VSCA 314; Verdins & Ors [2007] VSCA 102.
Sentence: Total effective sentence of 11 years imprisonment and a non-parole period of seven years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Shivakumar | Office of Public Prosecutions |
| For the Accused | Mr C. Mylonas | Valos Black & Associates |
HIS HONOUR:
1George Gabrielson, on 13 March 2024 on Indictment L12576680.2A, you were found guilty by unanimous jury verdict of: Charge 2, stalking; Charge 4, common law assault; and Charge 5, breach of an intervention order with intent to cause harm and fear. You were found guilty by a majority verdict of: Charge 6, common law assault; Charge 8, intentionally causing injury; Charge 10, threat to kill; Charge 11, rape; Charge 12, rape; and Charge 13, another intentionally cause injury. You were found not guilty by a majority verdict of Charges 1 and 7, and not guilty by unanimous verdict of Charge 3. You pleaded guilty to Charge 14, a persistent contravention of a Family Violence Intervention Order and I entered the verdict based on your plea of guilty in relation to that charge.
2The maximum penalties for these offences are as follows:
· stalking – 10 years’ imprisonment;
· common law assault – five years’ imprisonment;
· contravention of a Family Violence Intervention Order and intending to cause harm or fear – five years’ imprisonment;
· intentionally causing injury – 10 years’ imprisonment;
· making a threat to kill – 10 years’ imprisonment;
· rape – 25 years’ imprisonment;
· persistent contravention of a Family Violence Intervention Order – five years’ imprisonment.
3You also pleaded guilty to possession of a drug of dependence on indictment L12576680.3B, for which the maximum penalty is one year imprisonment.
4Rape is a category 1 offence under the Sentencing Act 1991 (Vic) (‘Sentencing Act’), and therefore a custodial sentence is mandatory for an adult offender. Rape also has a standard sentence of 10 years' imprisonment.
5I will summarise the background and the charged acts based on the evidence of the victim.
Background
6The victim had mental health issues which were the subject of cross-examination at the trial.
7She met you before you commenced a relationship with her in May 2020. You sent her a text message. You asked her out on a date. You went out together the next night.
8At that time, the victim was living alone. You were living largely with your mother in Brooklyn.
9After the first date, you and the victim spent most of your time together. You moved into her apartment. You had keys.
10The victim gave evidence that not long into the relationship you started exhibiting controlling behaviour such as accessing her social media accounts and sending messages to people she knew pretending to be her.
11You became aggressive. You would verbally abuse her, and you became violent towards her. I am satisfied beyond reasonable doubt that you were violent to her during the relationship prior to any of the charged acts and that has a contextual relevance.
12There was a great deal of evidence about this, a lot of it was covered during the cross-examination by Mr Billings. I do not intend to descend into whether I accept each and every incident took place as described by the complainant, but I am satisfied there was violence in the relationship.
13Around September 2020, an incident took place where you asked the victim about a friend of hers called ‘Sam’[1] and her relationship with him and an argument started. You assaulted the victim and tried to throw her out a glass door. Your mother came over to the apartment and told you that you needed to leave and took the keys from you. This incident was relied on as tendency evidence in the trial, and I do accept beyond reasonable doubt that that incident took place as alleged.
[1] A pseudonym.
14That was really the end of you cohabiting with the complainant at her address although there was obviously ongoing contact between the two of you after that. You continued to call her regularly and attended at her apartment to speak to her.
Charges
15Charge 2 relates to an incident on 8 October of stalking. The stalking charge was amended and narrowed to 8 October incident. On that day, the victim drove to a Telstra store to obtain a replacement SIM card. She arrived after the shop had closed. She heard a swerving of a car through the traffic and saw you arriving in your vehicle. You parked your car in the middle of the road blocking her from leaving. She said you approached her car banging on the doors and windows, trying to get in. She called Triple 0. You went back to your car and her evidence was that she then took the opportunity to drive off. She drove towards the nearest police station while the operator put her through to the police who spoke to her while she drove to the police station. That was the second Triple 0 call as I followed it. The Triple 0 call whilst she was driving was played during the trial. The victim gave a running commentary to police describing in detail your actions in following her. She said she was driving at high speed to get away from you and you chased her in your vehicle. She sounded terrified on the phone call.
16Charge 4 of common law assault was an incident at a supermarket on 10 October 2020.[2] There was an injury charge before the jury which was rejected no doubt on grounds of intent. The victim said in the middle of the day she left her apartment block, and you were waiting for her downstairs. She told you that you needed to go and that she did not want to talk to you. She said you followed her into the nearby supermarket. She asked one of the workers to call the police immediately. That worker gave evidence. You tried to grab something out of her hands, and she was fighting back yelling “call the police”. You ripped the keys out of her hands and cut her hand in doing so. You ran off with the keys. She said she was ripping at your top trying to get the keys back. There was a cut to her index finger on the inside of it. She said it took a little while to heal.
[2]Transcript (“T”) Page (“P”) 125, Evidence of the complainant.
17Charges 5 and 6 relate to 13 October 2020. The breach of Intervention Order covers all the actions on that day in the way that it was put. The common law assault also occurred on that day. An Intervention Order was made in favour of the victim against you on that day. Police applied for the order. It was a full exclusion order for a period of 12 months. You were present when the order was made by the Magistrate. After the Intervention Order was made you contacted the victim and asked to meet up with her to discuss the Intervention Order and the relationship. This happened pretty much immediately after the order was imposed. You met with the victim at a childcare centre near her address. A friend of yours, Chris Sotiropoulos, was present. He gave evidence. At the meeting the victim said she told you, 'We can’t do this anymore. I don’t feel safe around you, I don’t want this to continue, you need to leave me alone, you’re going to get yourself into more trouble if you continue doing what you’re doing'.[3] You agreed to have no more contact but later, on 13 October 2020, you attended at the complainant’s address. She refused to let you in. She gave evidence though that she later got in her car with you downstairs from her apartment block. You drove her car. During the drive you became aggressive and started asking her about whether she had slept with certain people. You became physical. You spat on her, slapped her, punched her in the face, slapped her nose. She said because of that assault her face was quite sore. So that is the basis of Charge 6 in this matter.
[3] T P 129
Charge 8
18The next matter of which you were found guilty is Charge 8. The leadup to most of the remaining charges was that on 17 October 2020 you contacted the victim and asked her to come over to your mother’s house for pizza. You told her that she would be safe because your mother would be there. You told her you missed her and wanted to see her. Your mum also wanted to catch up with her. She agreed to have dinner with you. She drove to your mother’s house. You ordered a pizza. The two of you in her car went to pick up the pizza. You began questioning her about sleeping with other people and became aggressive. She describes an assault taking place at that time. That is the context. You obtained a pizza and then went back to your house. At your house the victim fell asleep in the downstairs living room. She then describes events as taking place on 19 October 2020. You convinced her to drive you back to your car apparently. Your mother became involved. You said you were not going to hurt the victim anymore. Your mother told the victim it would be okay and just to just drive you to the car. So, this is on the 19th.
19Once you were alone in the car with the victim. You started assaulting her again. You accused her of sleeping with other people. She sat down on the floor of the car and had her hands over head trying to cover her face. She said you were filming her and asking her if she had slept with other people. If she said 'no' you would beat her. She was in the passenger seat on the floor. You punched her in the head and hit her to the side of her face and that went on for some time. That is the basis of Charge 8 which was intentionally causing injury.
20Charge 10 is a threat to kill charge which occurred in the same set of circumstances as Charge 8. She gave evidence that you said you were going to deform her. You said you were going to kill her. You said this, 'Today’s the day I’m gonna kill you. I’m just gonna, you know, end your life and bury you somewhere no one will even know'[4], and that is the basis of the threat to kill charge. She said you drove around for hours. Eventually you arrived back at your mother’s place. Again, you said to her you were going to kill her, and she should not even bother screaming for help. You said, 'My mother’s upstairs. If she hears you, I’ll fucking kill you'.[5] Those threats were relied on as relevant to the jury's assessment of your intent in relation to the charged act to which I have already referred and as relevant to the circumstances of the following charges of rape which are Charge 11 and 12.
[4] T P 167, Lines (“L”).17-19.
[5] T P 168, L 11 – 12.
Charge 11
21You got your phone out and you said, 'You’re a slut now I’m gonna show you what kind of slut you are'.[6] You pulled your pants down. You told the victim to suck your dick. She said she did not want to and that she was not going to. You produced your 'Jetty' lighter, and you held it to her face. You told her you were going to hurt her and you said, 'shut the fuck up and suck my dick'.[7] You pushed her onto your penis in the front seat. She said, 'I don’t wanna do this'.[8] You had your phone out filming these events. You said to her, 'I’m gonna torch you, I’m gonna light your face'.[9] You pushed her face onto your penis. You put your penis in her mouth. You ejaculated in her mouth, and you filmed this. You then said, 'Yeah you slut. This is what you deserve. You’re a whore.'[10]
[6] T P 168, L 13 -14.
[7] T P 168, L 19 – 20.
[8] T P 168, L 21 -22.
[9] T P 168-169, L 31-1.
[10] T P 169, L 16-17.
Charge 12
22You then pushed the victim out of the car and said, 'We’re going inside'. She tried to scream but you grabbed her and pushed her onto a rock. She hit the back of her head. You threw her inside and threw her into the bathroom downstairs near the kitchen. You came back with a large kitchen knife. You said, 'I’m not fuckin’ done with you'.[11] You sat on the toilet and produced your penis again. You threatened her with the knife and held it against her throat. You again told her to suck your penis. She did this because she was in fear and felt she had no choice. You ejaculated again. Again, you were filming this on your phone. After this incident you forced her to wash the ejaculate off her face in the bathroom and threw tissues at her to wipe her face.[12]
[11] T P 169, L 29.
[12] T P178.
Charge 13
23The victim gave evidence that you again told her not to scream or you would kill her. You forced her back to the car and started driving around again. She was falling asleep. You kept hitting her and she would fall back asleep, and this went on for hours until the sun came up. These further assaults are the basis of the Charge 13 which again was intentionally causing injury.
24You told her you were going to hold her hostage. You threatened to bury her. You hit her again and hurt your shoulder. The victim said you could not keep driving with an arm like that and you said you needed to see your mum. You drove to your mother’s house. Your mother drove the victim back to her house. You followed. The victim then drove herself back to her mother's as I follow it or back to her apartment and her mother was present and they called Triple 0 to report the incident. I am just not sure about the sequence. In any case, just bear with me for a moment. Yes, the victim drove herself home and then her mother was at the apartment. They called Triple 0 and reported the incident. Police attended at the victim's address and arrangements were made for her to be taken to the nearby police station to make a statement.
25Photographs were taken of her injuries to her eyes, nose, arms, torso and legs. These photos were shown to the victim during the trial, and she identified various injuries.
26She was taken to the hospital for medical treatment. She remained in the Emergency Department overnight.
27The following injuries were identified:
· Bruising to her left lateral eye area (outside aspect near the eye);
· Bruising to the left frontal area (forehead);
· Bruising to the nasal bridge;
· Swelling of the upper tip with a small abrasion;
· Bruising to the right trapezius area (top of the back);
· Bruising to tight the mid-humerus (upper arm) area
· Bruising to the right distal radius area (outside of forearm);
· Two bruises to the anterior aspect (inside) of the right forearm;
· Six bruises to the left forearm;
· Ten bruises on her left lower limb (leg); and
· Eight bruises on her right lower limb, as well as
· Pain on palpation of the frontal bones, nasal bridge and right maxilla (cheek).
Charge 14
28The particulars of this are really set out in the charge. It relates to contacting the victim persistently by phone after the Intervention Order was made. On 13 October 2020 you contacted the victim by telephone 12 times. On 14 October 2020 it was 63 times. On 15 October 2020, 33 times. On the 16 October 65 times. Once on 17 October and twice on 18 October. You pleaded guilty to that charge which I think would have been proved by phone records.
29The charge of drug possession relates to a small amount of dexamphetamine found in your possession when you were arrested on 1 November 2020.
Arrest and interview
30The police tried to arrest you between 21 October and 1 November 2020 on which date you were eventually arrested at your mother's address.
31When you were interviewed by police you essentially denied the offences. In respect of the victim’s injuries, you at times raised self-defence and in relation to the rape offences you asserted the sexual activity was consensual. So that is a summary based on the evidence in the trial of the acts pertaining to the charges.
Sentencing principles
32Turning then to the sentencing principles that apply to the offences in this case. In the case of DPP v Reynolds,[13] the Court of Appeal reviewed the sentencing authorities in relation to offences of family violence or intimate partner violence. The offences in this case fall into that category.
[13] DPP v Reynolds [2022] VSCA 263.
33In Reynolds, the court referred to the cases of Pasinis, Mercer, Kalala and Evans, which are just some of the authorities which deal with sentencing principles for family violence.
34In Reynolds, the court adopted the following passage from the decision of Kalala:
'The trial courts of this State are imposing sentences for family violence offences with increasing frequency. The court has repeatedly emphasised the need to condemn family violence, in line with community expectations.'[14]
[14] Ibid [75].
35The court then concluded:
'As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending.'[15]
[15] Ibid [77].
36In the case of Meyers the Court of Appeal said:
'… Those who engage, or contemplate engaging, in such violence — in whatever context —should be in no doubt that offending of this kind will attract very heavy sentences. By this means, sentencing courts express on behalf of the community the strongest denunciation of such abhorrent conduct.'[16]
[16] DPP v Meyers [2014] VSCA 314.
37All these principles apply in this case. All the offences of which you have been found guilty occurred at the end of a problematic relationship in which you had been abusive and violent and controlling towards the victim. The offending occurred in circumstances where the victim wanted to end the relationship. You were not prepared to accept this and sought to continue to exercise power over her and humiliate her.
38The stalking offence, the pursuit of her on the roads was a dangerous and terrifying incident. The intentional injury offences were protracted and resulted in multiple injuries. The threat to kill occurring after a very lengthy assault was extremely frightening to the victim.
39Turning then to the rape offences. In the case of Mokhtari,[17] the Court of Appeal said this about such offences:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim's bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.'
[17] DPP v Mokhtari [2020] VSCA 161 at [41].
40The two rape offences in this case were the most serious example of your violence towards the victim and your desire to exercise control over her. They were the culmination of your criminal conduct against the victim which really started when you asked her over for pizza.
41The offending took place even though an Intervention Order was in place, the purpose of which was to stop contacting the complainant and to stop further offending. You took no notice of it. The rape offences here involved the use of a weapon in each instance to force oral penetration on the victim, the 'Jetty' lighter in Charge 11 and the knife in Charge 12, making the offending an even more terrifying experience for her. On each occasion you ejaculated on the victim. On each occasion, you filmed the events. You treated her like a worthless object. These are obviously serious examples of rape occurring in the context of significant family violence that surrounded these incidents.
Standard Sentence
42As I have already observed, the standard sentence for rape is 10 years. The standard sentence applies to an offence in the middle range of seriousness, based only on its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case. It is a legislative guidepost. It is not a mandatory sentence, nor is it the starting point from which to add or subtract time. In fixing a sentence in this matter, I have had regard to the standard sentence amongst all the matters to which I must have regard in deciding the appropriate sentence. As will be seen, the sentences I will impose for rape are less than the standard sentence.
Personal circumstances
43You were born in November 1987. You are 36 years old. Both your parents are from a Greek background. You were born in Australia. You are an only child. Your parents separated when you were aged one. You lived with your mother in Yarraville. You saw your father every fortnight or thereabouts. He lived with his parents in Doncaster.
44You told the psychologist who assessed you, Mr Ian Mackinnon, that your father was a drug user for about 30 years. He died from an overdose, you said, in 2021. You told Mr Mackinnon you were exposed to a drug-using milieu by your father. You were always aware that your father was different from other dads because he never really worked and never had any money, and he was largely an embarrassment to you. Sometimes you would be left at your grandparents’ place in Doncaster while he went off to use drugs.
45You lament that you have followed in your father’s footsteps, using heroin since you were 16 years old. You were in gaol when your father died apparently, and you missed the funeral.
46You told Mr Mackinnon you believed these early experiences were traumatic for you.
47You have a very close relationship with your mother who is now 63 years old. You describe her as your rock. You say she has always been supportive. She remarried and you had a good relationship, you say, with your stepfather.
48Your mother has various medical conditions and suffers from stress and anxiety.
49You had a partner from the ages of 20 to 23 and then you formed a relationship with Meagan Sharp.[18] She was the victim in your prior conviction. Evidence relating to your conduct towards Ms Sharp was led as tendency evidence in the trial based on your guilty plea. Ms Sharp was apparently considerably older than you. The relationship ended when you were 30 years old. You told Mr Mackinnon that you struggled at the end of the relationship feeling rejected and abandoned. You said that you were arguing with her over cheating on you. You said she ended the relationship.
[18] A pseudonym.
50You were a reasonable student. Since you left school, you have had employment in sales roles in telecommunications and other sectors. You also had a job as a business development manager in 2018. You have a reasonable employment history. You are not an unintelligent person.
51You did complete a course to become a real estate agent, but you have a prior conviction for theft that precluded you from working in that industry.
52You described yourself to Mr Mackinnon as a highly functioning drug addict, using heroin all the time but managing to work and engage in sport for over 15 years.
53You played football and cricket in your childhood and adolescence. You stopped playing football at 19 years of age, but you continued playing cricket until you were older than that.
54You were treated for cancer of your thyroid and lymph glands when you were 21 years old. You underwent chemotherapy and then went into remission. You apparently had a relapse at 26 years of age and had another round of treatment.
55You do not have a psychiatric history or a history of self-harm. You have, however, been treated by psychologists on several occasions in the aftermath of relationship failures. You also had psychological treatment over the last two years on bail. You have received treatment from a counsellor and psychologist at Altona Gate Medical Clinic during 2017 as well.
56You are presently taking Methadone and Avanza, an antidepressant. You are not receiving any other treatment. You started using the Methadone after you were remanded in custody after the jury verdict.
57You have a long history of substance abuse which started with cannabis. In addition to using heroin, you have also used methylamphetamine, particularly over the last few years. You say you have never been an injecting drug user, rather you have smoked heroin and Ice. You have also taken Xanax and Valium. You do not consume alcohol. Related to your methamphetamine use you describe gambling problems, particularly at the pokies. You have had treatment from time to time for your drug use.
58In prison, you have started various courses, and you were working in the prison factory and started physical training.
59You have a new partner named Holly. You have known Holly since 2020 but the relationship is more recent than that.
60Mr Mackinnon, the forensic psychologist who assessed you, described your cognitive functioning as within the normal adult range.
61He diagnosed you as suffering from a longstanding Complex Post-Traumatic Stress Disorder. The cause of this was said to be your exposure to your father’s substance abuse and he also referred to a violent assault on you in prison in 2018. He also referred to your cancer and your experiences in a heroin-using milieu.
62He said in his report that your criminal record suggests you laboured with entrenched antisocial and criminal traits during the years you were habitually engaging in substance abuse.
63He noted that you have been abstinent from drug use over recent years. I accept this. I have been provided with some drug results certificates which are negative. Mr Mackinnon added though that in the context of abstinence you do not labour with entrenched antisocial when criminal traits and have the requisite potential and motivation to continue making rehabilitative progress and establish a stable and law-abiding lifestyle.
64He said that, in his opinion, at the time of the offences you were suffering from Complex Post-Traumatic Stress Disorder and a Substance Abuse Disorder. He said these disorders made significant contributions to your offending by significantly degrading your ability to reason and make sound judgements, distorting your perception, fuelling paranoid and aggressive impulses, weakening your powers of consequential thinking and engendering a self-absorbed perspective that lacked empathy and moral content. This fuelled your antisocial and criminal impulses.
65Mr Mackinnon gave evidence at the plea hearing because the prosecution sought to challenge some of his findings. He said he had not had access to the summary of offences relating to Ms Sharp. He said that when he interviewed you, you were reluctant to talk about the past and the current offences in detail. For example, in terms of Mr Mackinnon's knowledge of the past offending, he said he had not seen the text messages sent to Ms Sharp and did not discuss them in any detail with you. He added you declined to discuss the offending in this matter in detail. He accepted that if he had been aware of the full details of the offending in this case against Ms Sharp and some recourse to your account of the offending in this matter, that may have altered his assessment and his view of your prospects of rehabilitation. He did however maintain that a reduction in your drug use would lower the risk of reoffending.
66Based on the psychological material Mr Mylonas submitted that Verdins’ principles have some application.[19] I took Mr Mylonas’ submissions to mean that there should be some reduction in the weight to be given to general deterrence and a reduction in the assessment of your moral culpability. It was also submitted, as I understood it, there is a risk of a downturn in your psychological condition in prison relating to trauma of having been attacked in prison in the past. Look, I accept that it is a modest factor and I have taken that into account.
[19] Verdins & Ors [2007] VSCA 102.
67However, I am not satisfied there is in this case a realistic or direct nexus between what is said to be your complex PTSD and the offending in this case such as to reduce the assessment of your moral culpability. This was persistent family violence or intimate partner offending in the context of an abusive relationship. In my opinion the offending was motivated by jealousy and a need to control the victim and an unwillingness to accept the end of the relationship which is also what happened at the end of your relationship with Ms Sharp.
68I accept persistent and excessive drug use may well have had an impact on your personality and it has contributed to your acts of aggression but drug use and its impact on your personality does not justify a finding of lower moral culpability in this case.
69You are not an unintelligent man. You were on a community correction order for offending against your previous partner. In my opinion you well understood the wrongfulness of your offending. Indeed, in my opinion your moral culpability for this offending is very significant.
70Further in my opinion the psychological disorders as described by Mr Mackinnon some years after the offending in question are not of the type that justify a reduction in general deterrence.
71That is not to say that your upbringing and the suggested psychological issues are irrelevant. You are the product of your unstable early years as regards your father which has led to your drug use and to your anti-social impulses and I have taken that into account.
72Given Mr Mackinnon does not have a great familiarity with the facts of these offences or the prior conviction involving Ms Sharp, I give less weight to his relatively optimistic view of your prospects of rehabilitation. However, I accept as a general proposition that if you curb your drug issues, your risk of reoffending will be reduced.
73Your prior conviction against Ms Sharp - and I accept the summary that was provided - involved very nasty family violence offending and that is relevant to the assessment of your prospects of rehabilitation and the need for specific deterrence and community protection. At the time you committed these very serious offences you were on a community correction order after having served a period of imprisonment for serious intimate partner violence against Ms Sharp. The fact that you were on a community correction order is another aggravating feature.
74I have been provided with support letters from your mother, Desi Athanansiou, your Aunty, Holly Gardener, Jane Park, a friend of yours, George Kotsiris and John Hill who you know through the Kingsville Cricket Club. Also, Christine Gogliotti, a close friend of your aunt, and Craig Armour, a friend of your father's. All attest to the fact that you do have positive characteristics.
75I was also provided with drug certificates, and I have already referred to those. Additionally, I was provided with certificates for programs you have completed in custody, and I have taken those into account.
76Notwithstanding this material and the efforts, you have made in prison I can only take a guarded view at best of your prospects of rehabilitation.
77It was suggested on the plea that you have some remorse. That proposition also derives also from Mr Mackinnon’s report. Given you ran a trial in relation to the offences in this case and you maintain your denials of the offences I am unable to find that you have any remorse for the offending. You may regret some of your conduct in the relationship and the way the relationship ended but that does not equate to remorse for the charged acts which you still deny.
78In sentencing you, I must give weight to general deterrence, specific deterrence, community protection, just punishment and through the sentence I impose I must denounce this serious intimate partner violence.
79Totality has a significant role to play in this case. The totality principle requires that the overall sentence I impose must be just and proportionate to the total criminality of your offending. To comply with the totality principle, I have found it necessary to apply significant concurrency in this case.
80In fixing the non-parole period in this matter, I have had regard, as much as I have indicated to your prospects of rehabilitation. The non-parole period is the minimum period justice requires before you become eligible for release. The non-parole period mitigates punishment in favour of rehabilitation, but it must be consistent with the objective gravity of the offending.
81I will now turn to my sentences in this case.
82For Charge 2 of stalking, you are sentenced to 12 months' imprisonment.
83For Charge 4 of common law assault, you are convicted and sentenced to four months' imprisonment.
84For Charge 5 of contravening an order intending to cause harm or fear for safety, convicted and sentenced to 12 months' imprisonment.
85Charge 6, common law assault, six months' imprisonment.
86Charge 8, intentionally causing injury, 18 months' imprisonment.
87Charge 10, making a threat to kill, 12 months' imprisonment.
88Charge 11 of rape, seven years and eight months' imprisonment.
89Charge 12 of rape, seven years and eight months' imprisonment. I note I could not see any reason to distinguish between the gravity of the first or the second rape in this case.
90In relation to Charge 13, intentionally cause injury, 12 months.
91Charge 14, persistent contravention of an intervention order, six months.
92For the drug possession charge, you are convicted and discharged as I find it was a small amount of the drug. I do not see any point in fining you here and you will not be able to pay the fine.
93Now, I make the following orders for cumulation; four months of the sentence on Charge 1; three months of the sentence on Charge 5; two months of the sentence on Charge 10; two years of the sentence on Charge 12; and one month of the sentence on Charge 14 are cumulative on each other and on the base sentence which is for Charge 11, which on my maths, although I have been known to get this wrong, comes to 132 months.
94Before I proceed, could I just get you to check that? Do you want me to repeat the numbers?
95MS SHIVAKUMAR: Your Honour, I've got the numbers, I'll just check that.
96HIS HONOUR: Yes. Yes. Which is a total effective sentence if 11 years. So it is nine, eight for the rape offences and there should be additional 16 months on top of that.
97MR MYLONAS: Your Honour, I am getting something different. I am getting nine years eight - - -
98HIS HONOUR: No, no, it is two years on - - -
99MR MYLONAS: Charge 12 - - -
100HIS HONOUR: Charge 12 was two years cumulative which makes nine years and eight months.
101MR MYLONAS: Correct.
102HIS HONOUR: Right?
103MR MYLONAS: Yes, and then there is another - - -
104HIS HONOUR: So that is 116, is it not?
105MS SHIVAKUMAR: Yes.
106HIS HONOUR: Yes.
107MR MYLONAS: Yes.
108HIS HONOUR: And then as I added it up, the cumulation comes to 16 additional months; four, 11, nine. I beg your pardon. Did I announce six months on Charge 8?
109MS SHIVAKUMAR: No, Your Honour, you did not.
110HIS HONOUR: Yes. Sorry. Yes. Does that make it add up?
111MS SHIVAKUMAR: I have got 132 months now, Your Honour.
112HIS HONOUR: Yes. Yes.
113MS SHIVAKUMAR: Yes. Yes, that was missed.
114MR MYLONAS: Yes.
115HIS HONOUR: Sorry, Mr Mylonas, it should have been six months for Charge 8.
116MS SHIVAKUMAR: Yes.
117MR MYLONAS: Yes.
118HIS HONOUR: So, it is six months on Charge 8 is cumulative on the base sentence and on the other charges on which cumulation has been ordered.
119MR MYLONAS: Yes.
120HIS HONOUR: Do you agree, Mr Mylonas?
121MR MYLONAS: Yes. Thank you, Your Honour.
122HIS HONOUR: Yes. You both agree?
123MR MYLONAS: Yes.
124MS SHIVAKUMAR: Yes, Your Honour.
125HIS HONOUR: All right. So that is a sentence of 11 years.
126I indicate that in coming to these periods of cumulation, there is significant overlap. For example, the context of violence was relevant to the assessment of the rape offences and all offences arise out of the one relationship and I have taken those matters into account in deciding the periods of cumulation as well as the application of the totality principle.
127I fix a minimum non-parole period in this matter of seven years and 10 months.
128The pre-sentence detention in this matter is 594 days, correct?
129MR MYLONAS: Yes.
130HIS HONOUR: That will be deducted administratively from the sentence that I have imposed pursuant to s 18 of the Sentencing Act and I will make the disposal order sought by the Crown which is not opposed.
131All right. Nothing else needs clarification? Ms Shivakumar, nothing else?
132MS SHIVAKUMAR: No, Your Honour.
133HIS HONOUR: No. All right. I will just stand down before the next matter is ready to go. All right. Thank you.
134MR MYLONAS: Thank you, Your Honour.
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