Director of Public Prosecutions v Gaunt
[2023] VCC 850
•26 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIGEL GAUNT |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATES OF TRIAL: | 14, 17-21, 24, 26-28 April 2023 | |
DATE OF PLEA HEARING: | 11 May 2023 | |
DATE OF SENTENCE: | 26 May 2023 | |
CASE MAY BE CITED AS: | DPP v Gaunt | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 850 | |
REASONS FOR SENTENCE
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Subject:Criminal law - sentence
Catchwords: Jury verdict - guilty of one charge of rape – offending occurred at the home of the offender where the victim was sleeping a spare room – offending not premeditated but persisted in the face of the victim’s protests – no prior criminal history – previous good character – delay – age and ill-health of offender – excellent prospects of rehabilitation - current sentencing practices – equal justice - general deterrence, denunciation and just punishment paramount sentencing considerations
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Cheung v. The Queen (2001) 209 CLR 1; Stalio v. The Queen (2012) 46 VR 426; Carter (Pseudonym) v. The Queen (2018) 272 A Crim R 170; DPP v. Dalgliesh [2017] HCA 41; DPP v. Alexander [2008] VSCA 191
Sentence: Five years' imprisonment with a non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Y. Hardjadibrata | Office of Public Prosecutions |
| For the Accused | Mr I. Hill KC with Ms L. Thies | Galbally & O'Brien |
HER HONOUR:
1Nigel Gaunt, you have been found guilty, by a majority of the jury empanelled on your trial, of the offence of rape committed on 26 January 2009. The offence of rape contrary to s38(1) of the Crimes Act 1958 carries a maximum penalty of 25 years' imprisonment.
2You were born in May 1953 and were 55 years old at the time of the offending. You have no prior criminal history.
3It is now my role to sentence you for this offending. You fall to be sentenced on a basis consistent with the jury verdict on your trial.[1] In assessing your criminal culpability for this conduct, I must be satisfied of the facts relevant to these issues to the criminal standard.[2]
[1]Cheung v The Queen (2001) 209 CLR 1 ('Cheung')
[2]Cheung, at [7]
Summary of offending
4I turn now to summarise the offending for which you are to be sentenced.
5In January 2009, you were in an intimate relationship with Tori Jarrett[3] who was a close friend of the victim, Marie Sparks.[4]
[3]A pseudonym
[4]A pseudonym
6Ms Sparks was 40 years old at the time of the offending and lived alone in Caulfield South.
7Prior to the offending, you were acquainted with Ms Sparks on a social basis, having met her through Ms Jarrett in mid-2008. The three of you spent time together socially and on some occasions Ms Sparks stayed overnight at your house in Albert Park. On at least one occasion she also stayed at your holiday house in Flinders, along with other friends.
8On Sunday, 25 January 2009 Ms Sparks met with friends at a hotel for dinner and drinks at around 7 pm. The hotel was close to your house in Albert Park. Ms Jarrett was present and, at least later in the night, you also attended. Ms Jarrett gave evidence, which I accept, that everyone had been drinking 'a lot' at the hotel.[5]
[5]Transcript, p203, line 19-27
9At some time between 11 pm and midnight, the group including you, Ms Jarrett and Ms Sparks left the hotel.
10There was conflicting evidence at the trial regarding the circumstances in which the victim returned to your house that night. Ms Sparks gave evidence at the trial that both you and Ms Jarrett invited her back to your house in Albert Park.[6] However, Ms Jarrett’s evidence is that she alone invited Ms Sparks back to your house, saying she remembered asking Ms Sparks if she 'wanted to come back rather than going home by herself'.[7] In light of this evidence, I am not satisfied to the requisite standard that you invited Ms Sparks back to your house at the time you left the hotel.
[6]Transcript, p50, line 27-28
[7]Transcript, p172, line 5-8
11It was a five to 10-minute walk from the hotel to your address in Albert Park.
12There was also a conflict on the evidence as to what occurred when the three of you returned to Albert Park. Ms Sparks gave evidence that both you and Ms Jarrett suggested that she sleep in your bed with the two of you, as she had been upset and you both wanted to comfort her.[8] Ms Sparks gave evidence that she was not comfortable with that proposal, in response to which you offered her a pair of Qantas Club pyjamas to wear and offered to wear them yourself, saying you would sleep on the furthest side of the bed with Ms Jarrett in the middle, so she would 'have nothing to worry about'.[9]
[8]Transcript, p51, line 12-14
[9]Transcript, p51, line 15-22
13In contrast, Ms Jarrett gave evidence that after the three of you arrived at the house, you were all tired and she asked Ms Sparks if she wanted to stay. Ms Jarrett said Ms Sparks asked if you had any pyjamas she could wear and that in response you pulled out the Qantas Club pyjamas for them both to wear. Ms Jarrett gave evidence that she and Ms Sparks changed into the pyjamas in the ensuite. She said she 'jumped into bed' and that Ms Sparks 'jumped in next to' her, in the main bedroom.[10] Ms Jarrett could not recall what you talked about in bed but says there was 'a bit of giggling and laughing'.[11]
[10]Transcript, page 173, line 1-13
[11]Transcript, page 173, line 27-30
14Ms Jarrett impressed me as an honest witness who, despite her level of intoxication earlier that evening, was able to recall events in some detail.
15In the circumstances, I am not satisfied to the requisite standard that you asked Ms Sparks to sleep the main bedroom with you and Ms Jarrett, or that Ms Sparks was distressed when that occurred.
16The three of you put on the full-length pyjamas before getting into bed in the main bedroom at your house. Ms Jarrett was positioned between you and Ms Sparks in bed. Ms Sparks gave evidence that she began to feel uncomfortable and says that 'something happened' leading her to jump out of the bed saying, 'I want to go home'. Ms Sparks said that both you and Ms Jarrett responded by saying, 'It's late, stay here. Go and sleep in the front room', which she did. Ms Sparks said Ms Jarrett took her to the front room to sleep in your son's room.[12]
[12]Transcript, page 53, line 8-24
17In contrast, Ms Jarrett gave evidence that once the lights were turned out you began to touch her sexually and that when Ms Sparks became aware of what was happening she jumped out of the bed saying, 'I will leave you two lovebirds to it'. Ms Jarrett then spoke to Ms Sparks and offered for her to stay in the front spare bedroom and to accompany her there, to which Ms Sparks replied, 'No, no. That's ok', before leaving the bedroom. Ms Jarrett said she could not recall you saying anything at that point.
18I am satisfied that Ms Sparks left the bedroom after you and Ms Jarrett commenced some form of sexual activity. I am not satisfied to the requisite standard that it was you who suggested that Ms Sparks stay or offered for her to sleep in the front bedroom.
19Ms Jarrett gave evidence, which I accept, that you then proceeded to have consensual sexual intercourse with her. You did not ejaculate. She observed you still had an erect penis when you got out of the bed. After spending some time in the bathroom, you walked to the bedroom door. Ms Jarrett asked you where you were going and you responded by telling her to go back to sleep. You left the room and Ms Jarrett fell asleep.[13] You then entered the spare bedroom where Ms Sparks slept.
[13]Transcript, p175, line 9-29
20Ms Sparks gave evidence of the events that followed in the spare bedroom, which the jury must have accepted as truthful, credible and reliable. Ms Sparks said she awoke in the spare bedroom to being kissed on the lips. At first she thought it was Ms Jarrett and responded by asking, 'Tori, what are you doing?' When she saw that it was you, she said 'go away'. You replied, 'It's OK, Tori knows'.[14] At this point, you were on the side of the bed, leaning over Ms Sparks. Ms Sparks then rolled over onto her side and told you to go away. You then placed your hand under the doona and grabbed her hip to roll her over onto her back.[15]
[14]Transcript, p55, line 2-3
[15]Transcript, p55, line 14-17
21Ms Sparks gave evidence that you then pulled her pants down, in response to which she tried to push your hand away, all the while telling you to 'stop, no, go away'.[16] You then pulled one of her hands back above her head and moved on top of her.[17] Ms Sparks’ evidence is that you used your legs to open her legs apart and placed your hand on her vagina. Ms Sparks said she then felt your penis go into her vagina and 'thrust it in and out', during which she was screaming for you to stop.[18]
[16]Transcript, p55 line 25 - page 56, line 8
[17]Transcript, p56, line 9-11
[18]Transcript, p56, line 22-30.
22Ms Sparks said she continued to say, 'Get off me, stop, no,' when the door opened and Ms Jarrett entered the spare bedroom and began screaming at you.
23Ms Sparks gave evidence that Ms Jarrett was screaming at you saying, 'Get off her. You're raping her'. She says she heard Ms Jarrett say words to the effect, 'She said no. Get off her. Get off her'. Ms Sparks said she was not sure whether Ms Jarrett pulled you off her or whether you 'just ran away'.[19]
[19]Transcript, p57, line 16-17.
24Ms Jarrett gave evidence about what occurred after you left the main bedroom. She says that she awoken by 'murmuring noises' and then some 'loud No’s”. Ms Jarrett then put on some clothes and went into the spare bedroom. She said that when she opened the door you were naked and on top of Ms Sparks, moving 'back and forth on top of her'.[20] Ms Jarrett says said she heard Ms Sparks say no twice after she entered the room. In response Ms Jarrett said she yelled, 'Get the fuck off of her. I've heard her say… no five times now, and she's still saying no. Get off of her'.[21] She says she grabbed your shoulder and pulled you off Ms Sparks.
[20]Transcript, p191, line 13-15
[21]Transcript, p191, line 17-20
25I am satisfied that upon entering the spare room, Ms Jarrett saw you naked on top of Ms Sparks and yelled at you to get off her, saying she had heard Ms Sparks repeatedly say ‘no’ to you before she grabbed you by the shoulder and pulled you off the victim.
26Consistent with the jury verdict, I find that you sexually penetrated the vagina of the victim with your penis without her consent. Moreover, I am satisfied that you must have been aware the victim was not consenting from the time she tried to push your hand away and was saying 'Stop, no, go away'.
27Ms Jarrett said Ms Sparks was 'crying hysterically' at this point and that she tried to comfort her. After dressing, Ms Jarrett accompanied the victim to her home in Caulfield South. The next morning Ms Jarrett asked Ms Sparks whether you had penetrated her vagina and the victim confirmed that you had.
28Later that day the victim complained to two other friends when they came over to her house. She told one of her friends that you had raped her, despite her saying no. She told the other friend that you had sexually abused her. She later complained to a further two friends about what had occurred.
Investigation
29In late 2018, Ms Sparks discussed these events with her sister. She then met with staff from the South-Eastern Centre Against Sexual Assault to discuss her options.
30On 14 March 2019, Ms Sparks reported the matter to police and made her first statement on 3 April 2019. She made two further statements to police on 24 January 2020 and 11 March 2020.
31Prior to making her statements to police, on 3 April 2019, Ms Sparks conducted a recorded pretext telephone call with you. In that conversation, amongst other things, you said:[22]
'Well, I think - look, I - I can't recall what was going through my mind but I remember, you know, that we - we were all seriously intoxicated. I know that we were - the three of us were in bed together, I know that there were various things happening and various, you know, things happened. And I do recall that you moved to the front bedroom. And I remember then coming to join you in that bed and - and talking to you. And - obviously we - it was - it was intimate and I'm certainly not denying any of that.'
[22]Exhibit 1 on the trial, tendered 17/4/23
32On 6 September 2019 you were interviewed by police in relation to the rape allegation but provided no comment in response to questions asked of you, in accordance with your rights.
33You were charged with one count of rape on 18 March 2020. Following a two-day committal hearing in February 2021, you entered a plea of not guilty to the charge. A trial listed for 14 September 2022 could not proceed due to unforeseen circumstances, through no fault attributable to either party. The trial commenced on 14 April 2023 before me, with a majority of the jury empanelled on your trial returning a guilty verdict on the charge of rape on 28 April 2023.
34As this chronology demonstrates, the trial proceeded a little over three-and-a-half years after you were first interviewed by police and 14 years following the offence. I return to the relevance of this significant delay to your sentence later in my reasons.
Nature and gravity of offending
35I turn now to address the nature and gravity of your offending.
36The offence of rape is an inherently serious offence, as gauged by the maximum penalty of 25 years' imprisonment fixed by Parliament.
37The act of rape is intrinsically an act of violence that violates the personal integrity of the victim. In this case, the victim had returned to your home after a night of drinking alcohol. She was a guest in your home and had moved to sleep in the front bedroom immediately after sexual activity commenced between you and Ms Jarrett. The victim had neither said nor done anything to indicate she wished to engage in any sexual activity with you.
38Ms Sparks was entitled to be safe whilst staying overnight in your home, as she had previously.
39Instead, she was awoken from her sleep when you entered and kissed her on the lips. Presumptuously, when the victim asked what you were doing, you told her 'Tori is okay with this'. She told you to go away and rolled away from you. Despite this, you rolled her over, pulling her pants down. She tried to push your hand away as you did so. You held her hand above her head. You then forced her legs apart with yours. Then, in the face of her persistent pleas for you to stop, you sexually penetrated her vagina with your penis.
40Ms Sparks gave different evidence at the trial as to the number of times you 'thrust' your penis in her vagina, saying one or two times but perhaps up to five or six times.[23] I am satisfied that you sexually penetrated the victim's vagina with your penis on one occasion only, accompanied by at least one or two thrusting movements, but do not consider that the act of penetration could be characterised as fleeting or momentary. In reaching this conclusion, I also have regard to Ms Jarrett’s evidence of witnessing you moving 'back and forth' on top of the victim upon her entering the spare bedroom.
[23]Transcript p57, line 1-5
41From the time the victim attempted to physically resist and then told you to 'stop, no, go away', you must have known she was not consenting to the sexual act, yet you persisted.
42You acted with a breathtaking sense of entitlement. Despite the victim's repeated and audible protests, coupled with attempts to physically resist you, the sexual penetration only ceased upon Ms Jarrett entering the room and pulling you from the victim. You violated the victim's right to determine with whom and in what circumstances she consents to sexual activity, for your own sexual gratification.
43You did not use a condom, exposing the victim to the risk of disease or pregnancy.
44I accepted the submission made on your behalf that there was limited premeditation; however, your actions were not completely spontaneous. Fortunately, other aggravating features otherwise seen with offending of this kind, such as the use of threats or excessive violence, or the use of a weapon, were not present here. The presence of such factors would have made your offending objectively more serious. Nonetheless, their absence is not determinative of my assessment of the gravity of your offending, which is based on an assessment of the circumstances of your actual conduct.
45Whilst the offending was of relatively short duration and encompassed one act of sexual penetration, the fact you did so despite the victim's repeated protests and attempts to physically resist you, after having fallen asleep in your home, elevates this above a lower level example of an act of rape.
46Your offending has had an enduring and multi-faceted impact on the victim. In her victim impact statement,[24] which was read to the court by her sister, Ms Sparks describes the harm to her mental health caused by your conduct. She says this was an extremely traumatic event that has compromised her sense of safety and her ability to trust others. She says she was left feeling 'dirty, powerless, vulnerable and afraid' because of your crime. She describes how the events impacted on her relationship with others, including friends and family, leading her to isolate herself. She found the criminal justice process extremely distressing and says it impacted on all aspects of her well-being, both emotionally and financially. Ms Sparks completes her victim impact statement by saying:
'I just want to be the fun-loving caring person I was beforehand. I want to trust people. I want to feel safe. I want my confidence back. I want this to end and I fear it never will.'
[24]Exhibit A on the plea, tendered 11/5/23
47Mr Gaunt, there can be no doubt that your offending has had a profound impact on the life of the victim. I have taken that impact into account in sentencing you.
48At the time of this offending there is nothing to indicate that you did not have the capacity to reason and to reflect upon your actions. Your intoxication does not excuse your conduct. There is no material before me to conclude that your moral culpability for your offending is reduced or that the principles in Verdins are enlivened. I do accept this was not planned offending, which is a factor that lessens your moral culpability. Nonetheless, in persisting with the act of sexual penetration in the face of the victim's verbal and physical resistance, you bear a significant level of moral responsibility for your conduct.
Personal circumstances
49I turn to your personal circumstances.
50You were born in May 1953 in Norfolk, England. You were raised by your parents, Wallace and May, who then leased a farm on Crown lands. Your parents purchased a farm further south, in Suffolk, when you were one, and worked that farm until you were seven years old. You were the third of four children, with two older brothers and a younger sister.
51In 1960 your family moved to Australia and settled in Korumburra, South Gippsland. There they purchased a supermarket business and your father worked as a maths teacher at the local high school.
52You completed your primary and secondary schooling at local government schools in Korumburra. After completing your secondary education, you commenced work as a junior clerk with shipping company, Burns Philp & Co Ltd. At this company, you were transferred to the travel department to work as a trainee travel consultant, thus beginning a long and successful career in the travel industry.
53Over the next 30 years you held a number of managerial roles for national and international travel and hotel companies. You established your own travel, event and conference management company, the Forum Organisation, which operated between 1978 and 1996. You were then employed by a large hotel chain for five years, during which you lived in Hong Kong and Singapore.
54In 2001, you returned to Australia and established an incentive marketing and event management company known as the Mint Organisation. In 2008 that business was purchased by US company, BI Worldwide. You continued working for BI Worldwide until 2013.
55You then established a not-for-profit company, known as ICESAP, an acronym for the Incentive and Event Society Asia Pacific, to regulate and provide accreditation to the incentive travel, conference and event management industry. This was a successful initiative and the company was ultimately purchased by a US-based global entity.
56For a brief period in 2019 you worked for a consulting business aligned to the hotel industry, but following the COVID-19 pandemic and resultant challenges faced by the industry you decided to retire at the age of 66.
57You have had a number of significant relationships in your life.
58When you were 22 years of age, you married your first wife with whom you have two children. You separated from your first wife in 1988, after 13 years of marriage.
59Your son and daughter have children of their own and both live in Melbourne. You are close to both of your children and your grandchildren, now aged one, three and six.
60You married your second wife in 1996, with whom you have a son who is now 22 years old and studying business at RMIT. You separated from your second wife in 2003.
61You have been in a relationship with your current partner for 13 years. The two of you married in 2022. She has three daughters from a previous relationship, with whom you get along well. Your family all remain supportive of you.
62Now aged 70 years, you have a number of significant and chronic health issues.
63In March 2013, you were referred to urologist Mr Geoffrey Wells and, following investigation, were diagnosed with bladder cancer. In his report, a copy of which was tendered on your plea, Mr Wells states you were treated by way of radical resection and intravesical BCG. Mr Wells states that you have had recurrences of bladder cancer over the past 10 years and require continual cystoscopic bladder inspections to decrease the risk of aggressive bladder cancer.
64You are also under the care of Professor Mark Hew of the Alfred Hospital for adult-onset severe asthma and consultant cardiologist Dr George Proimos for recurrent atrial fibrillation and both conditions require medication.
65As stated, you have no prior criminal convictions and in the time that has passed since this offending you have no subsequent or pending matters.
Matters in mitigation
66Having discussed the objective gravity of your offending, I turn now to the various matters that were raised on your behalf in mitigation of sentence. These were outlined in the detailed and helpful written submissions made on your behalf, which were expanded upon by Mr Hill on your plea.
67First and foremost, at the age of 70, you are a person of otherwise good character, having spent the majority of your life as a law-abiding, hard-working member of the community, who is also a committed father and now grandfather. This must be taken into account in mitigation of your sentence.
68A number of character references were tendered on your plea.[25] These references came from people who have known you a long time, in both a professional and personal capacity. Those who have come to know you through your work in the travel industry speak of you as professional, widely respected and describe you as a man of integrity.
[25]Exhibit 4 on the plea, tendered 11/5/23
69Ms Holland, who first began working for you in 1994, outlines the various charitable and community organisations you have supported over the past 10 years, including fundraising for the disabled, breast cancer and dementia research, to name a few.
70These references, and those of your family, attest to your strong relationship with your family and describe you as a generous and caring father and grandfather. The character references, and the character evidence given on your trial, describe this offending as uncharacteristic of the man they know and a departure from your otherwise respectful behaviour towards others. The prosecution did not challenge the character evidence led at trial or on your plea.
71I make substantial allowance for the fact that you have otherwise lived an unblemished life, during which you have been contributing member of the community.
72I sentence you on the basis that this crime constitutes isolated offending.
73The defence submissions also highlighted the delay associated with these proceedings. You were first spoken to by police in relation to this matter on 6 September 2019. However, you were not charged until 18 March 2020. Due to the impact of COVID-19 on the criminal justice system, a committal hearing was held close to a year later in February 2021. An earlier trial date could not proceed in September 2022 due to unforeseen circumstances.[26]
[26]Public holiday announced following the death of the Queen.
74A delay of over three years in the finalisation of these proceedings is significant. This delay has been occasioned through no fault of yours. I accept that having this serious charge hanging over your head for a period of over three years, not knowing the outcome, has been a source of anxiety and stress for you. This is a form of punishment in itself. I take this fact into account in moderating the sentence to be imposed.
75In making these observations, I also note the impact of delay on the stress experienced by the victim, as outlined in her victim impact statement. The relevance of delay to your sentence in no way diminishes my acceptance that the delay associated with these proceedings has impacted on all involved in this trial.
76The other way in which delay is relevant is the fact that in the 14 years since this offending occurred, you have demonstrated an ability to remain offence-free. This is relevant to my assessment of your prospects of rehabilitation and the need for the sentence I impose to operate to deter you specifically, to which I now turn.
77You did not plead guilty to the charge of rape and still maintain your innocence in relation to this offence. This of course is not an aggravating feature and you are not to be punished for running a trial. However, there is no indication that you accept responsibility for your offending and that, whilst you expressed a degree of sympathy towards Ms Sparks during the pre-text call, you have not otherwise expressed remorse for your offending. An offender who pleads guilty to an offence, particularly where the plea is accompanied by genuine remorse, is entitled to a significant sentencing discount and you are not entitled to that benefit or discount.
78Nonetheless, a substantial period of delay may still provide evidence of rehabilitation, even where an offender pleads not guilty. The delay in this case means you have been able to demonstrate the capacity to lead a law-abiding life with healthy relationships for a period of 14 years since this offending. I am satisfied you do not present as a risk of reoffending into the future. This is for a number of reasons, including your otherwise good character, the fact you have no prior or subsequent matters and the fact you are now to be sentenced as a 70-year-old man who has otherwise made a positive contribution to the community, through both professional and charitable work. You retain the support of your family, as demonstrated by their presence throughout the trial and plea hearing.
79The lengthy period without offending since 2009 lends support to my conclusion that you have effectively reformed and pose no risk to the community. I assess you have excellent prospects of rehabilitation.
80It follows therefore that I do not consider the sentence I impose needs to act as a means of protecting the community. Specific deterrence has little to no role to play in the sentencing synthesis.
81Although it is not uncommon that victims of a sexual offence do not come forward to make a complaint for many years after the offending, and there are understandable reasons why the victim in this case did not do so, the delay of 14 years does have some consequences. One of those consequences, as I have already observed, is that you are now to be sentenced to a term of imprisonment as a man of 70 with a multitude of chronic health issues.
82In his report your treating urologist Mr Wells states that you require close surgical observations for recurrent bladder cancer and expresses the opinion that, 'The added stress of imprisonment would almost certainly have a potentially deleterious effect on his cancer prognosis'.[27]
[27]Exhibit 3, Report of Mr Geoffrey Wells, Urologist (undated)
83Similarly, Professor Hew concludes that a custodial sentence will make it 'More difficult for [you] to appropriately self-manage [your] asthma and chronic rhinosinusitis' in a number of ways, including by adjusting your medications in response to fluctuating symptoms. Professor Hew states that an inability to self-isolate effectively in custody would 'Markedly increase the frequency with which [you] will contract respiratory viral infections', a recognised trigger for your asthma attacks. Self-evidently, Professor Hew opines that your asthma places you at an increased risk of a compromised outcome if you were to contract COVID-19.[28]
[28]Exhibit 1, Report of Professor Hew, Head of Asthma, Allergy & Clinical Immunology, Alfred Hospital, dated 1 May 2023.
84Additionally, your treating cardiologist Dr Proimos expresses the opinion that the stress of incarceration will exacerbate your pre-existing atrial fibrillation, requiring medical treatment, including the possibility of 'Hospitalisation and acute treatment to prevent stroke and heart failure'.[29]
[29]Exhibit 2 - Report of Dr George Proimos, Consultant Cardiologist, dated 2 May 2023.
85I have no doubt you will experience some stress whilst in custody. Although somewhat eased, conditions in custody remain under certain restrictions to respond to risks posed by COVID-19. Having regard to the medical evidence, I consider that the burden of imprisonment will weigh more heavily upon you than a person of good health and give this weight in moderating your sentence.
Sentencing practice and comparative cases
86The applicable maximum penalty for the offence of rape as at January 2009 was 25 years' imprisonment. This remains the maximum penalty, although, as from 1 February 2018, the offence of rape falls within the standard sentencing regime where the standard sentence for a rape committed after that date is 10 years' imprisonment. The standard sentence has no application to the sentence I am to impose for this offending.
87Section 5(2)(b) of the Sentencing Act 1991 requires that I take into account as one of many factors 'current sentencing practices'. The relevant practices are those currently applied, rather than those applied by the courts at the time of your offending.[30] However, the fact the offence of rape is now a category 1 offence mandating imprisonment and is a standard sentence offence for offences committed after 1 February 2018 qualifies the extent to which I can do so.
[30]Stalio v The Queen (2012) 46 VR 426
88The concept of equal justice also requires that I should have regard to sentencing practices at the time of the offence, if they can be ascertained, on the basis that these practices are relevant to arrive at a sentence that is just in all the circumstances[31] or if it can be demonstrated that those practices required a materially lesser sentence at that time.[32] Given that current sentencing practices for offences committed after 1 February 2018 include consideration as a legislated guidepost of the standard sentence of 10 years, I have borne that in mind in my consideration of current sentencing practices. As stated, the standard sentencing scheme has no application to your sentence.
[31]Stalio v The Queen (2012) 46 VR 426
[32]Stalio v The Queen (2012) 46 VR 426; Carter (Pseudonym) v The Queen (2018) 272 A Crim R 170, 182 [57]
89In relation to sentencing practices at the time of the offending, the submissions made on your behalf referred me to sentencing statistics for the offence of rape at the relevant time[33] whilst accepting that these are of limited utility. This is because, from this data alone, it is not possible to ascertain the nature and gravity of the offence, any circumstances personal to the offender that may operate in mitigation of sentence or significantly whether the sentence was imposed following a plea (and the timing of that plea) or following trial.
[33]Sentencing Snapshot No.117, Sentencing trends in the higher courts of Victoria, 2005-06 to 2009-10
90With that qualification, I note that over the period 2005-06 to 2009-10 88 per cent of people sentenced for rape received a period of imprisonment, ranging from two years to 16 years. Moreover, that at a time when suspended sentences were available, of the 259 people sentenced for rape in the higher courts 21 received a wholly suspended sentence of imprisonment, while nine received a partially suspended sentence.
91Counsel also referred me to a number of decisions of the Court of Appeal and this court by way of guidance. I have had regard to these cases, whilst acknowledging that current sentencing practices are but one factor to be taken into account in the sentencing equation and are not 'a controlling factor' in the sentencing exercise.[34]
[34]DPP v Dalgliesh [2017] HCA 41
92The prosecution in its submissions argued that on a review of comparative cases found in the case summaries for the offence of rape compiled by the Judicial College of Victoria[35] there was only one case where a partially suspended sentence was imposed following a trial. It was submitted that that case was distinctly different from the circumstances that present here, where the offence involved a 'spontaneous' digital penetration of a dementia patient by a personal care worker while attending to the patient's hygienic care that was not sexually motivated.[36]
[35]JCV Sentencing Manual Chapter 3, Sexual offences, 3.1 - Rape
[36]DPP v Alexander [2008] VSCA 191
93As always, each case must turn on its own facts and circumstances. The cases to which I was referred are of some, albeit limited, guidance in discerning a sentencing range which act to promote consistency in sentencing, whilst not governing or controlling the sentence to be imposed.
Other relevant sentencing considerations
94I turn now to other relevant sentencing considerations.
95I have had regard to the purposes of imposing sentence as set out in s5 of the Sentencing Act 1991. In the circumstances of this case, the prosecution's submission that general deterrence, just punishment and denunciation are the paramount sentencing considerations must be accepted. In sentencing you, I must aim to discourage potential offenders by demonstrating to them the grave consequences that flow from being convicted of the crime of rape. In doing so, I unequivocally denounce your offending.
Sentencing submissions
96On your behalf it was submitted that, notwithstanding the weight that attaches to general deterrence and denunciation, there are compelling matters in mitigation of sentence which justify a period in custody that is shorter than might otherwise be warranted. It was ultimately submitted that any custodial term imposed should be partially suspended, particularly where specific deterrence and community protection have little or no role to play in your sentence. Such a disposition is available if a head sentence of up to three years is imposed.[37] At the plea hearing, Mr Hill did not press an alternate submission that a sentence of imprisonment combined with a community correction order be imposed under s44 of the Sentencing Act 1991.
[37]Section 27(2)(a) of the Sentencing Act 1991 as at 15 January 2009.
97On behalf of the prosecution, Mr Hardjadibrata submitted that the only sentence available to meet the relevant sentencing considerations was a sentence of immediate imprisonment with a non-parole period fixed. The prosecution submissions highlighted the inherent gravity of the offence of rape and the aggravating features of this offence, including the fact you ignored the victim's repeated pleas for you to stop. Nonetheless, the prosecution conceded there are significant matters raised in mitigation that allow for moderation of the term of imprisonment that would otherwise be imposed.
98In my view, the gravity of your offending warrants the imposition of a sentence of imprisonment that exceeds three years. For that reason, a partially suspended sentence is not available. That said, I accept that the gravity of your offending must be weighed against the various matters that are relevant in mitigation of your sentence, most notably your health and the related burden of your imprisonment, in addition to your previous good character and my positive assessment of your rehabilitation prospects.
Sentence
99Balancing the matters to which I have referred, whilst having regard to the maximum penalty for the offence of rape, on Charge 1, rape, you are convicted and sentenced to five years' imprisonment. I fix a non-parole period of three years.
100Pursuant to s18 of the Sentencing Act 1991 I declare that 15 days of pre-sentence detention be reckoned as served under the sentence I have imposed.
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