Director of Public Prosecutions v Halford (a pseudonym)
[2021] VCC 1175
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XAVIER HALFORD (a pseudonym) |
---
JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 August 2021 |
DATE OF SENTENCE: | 20 August 2021 |
CASE MAY BE CITED AS: | DPP v Halford (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1175 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Rape – Guilty verdict – Intimate partner - Violent – Victim impact statement – Imprisonment – Delay – COVID 19 – Limited criminal history – Good prospects of rehabilitation – Psychological reports – Mental health.
Legislation Cited:
Cases Cited: R v Verdins [2007] VSCA 102 – DPP v Li (a pseudonym) [2021] VCC 1815 – DPP v Short [2006] VSCA 120.
Sentence: 4 years and 9 months imprisonment, non-parole period of 2 years and 10 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Champion (For Plea) Ms N. Radzaj (For Sentence) | Ms N. Radzaj |
For the Accused | Ms N. Karapanagiotidis (For Trial) Mr T. Marsh (For Plea & Sentence) | Ms M. Carroll |
HIS HONOUR:
1Xavier Halford,[1] after a short trial, during which you gave evidence, and three days of jury deliberations, a jury found you guilty of the crime of rape, which carries a maximum penalty of 25 years' imprisonment. The offence occurred in 2008 at your home in Regional Victoria. The complainant was your fiancé.
[1] A pseudonym.
Circumstances of the offence.
2I am required to sentence you in accordance with the jury verdict. The overall context of the offending is somewhat unusual in that at the time of the offending you were engaged to the complainant. You were both in your mid-40s at the time of the offence. Subsequently, the two of you were married and later divorced in circumstances where there were significant differences as to the appropriate property settlement.
3Unsurprisingly, evidence as to matters arising during the relationship but subsequent to the offence intruded into evidence, but the parties were agreed and the trial and plea was conducted on the basis that these matters were not relevant to the circumstances of the offence and thus for sentencing purposes it is unnecessary to make reference to them.
4The overall chronology leading to the offending and subsequently was not the subject of dispute. You and the complainant met in around 2005. She was living in public housing with the youngest of her children, in Regional Victoria, and you were also living in Regional Victoria, in a different community. You formed a relationship and became engaged and there was discussion about the purchase of a matrimonial home.
5In 2006 you purchased a property in a suburb outside of Melbourne. You moved into the property while the complainant remained in her home in Regional Victoria. You and the complainant had arranged for a seaside wedding to occur in NSW in late 2008.
6In mid to late 2008, the complainant’s father, who lived in the area, fell ill. You were working interstate at the time but returned to support the complainant at this time. The complainant’s father passed away and the funeral occurred a short time later, in 2008. The funeral took place at a funeral chapel in Regional Victoria, followed by a wake at a nearby hotel. Unsurprisingly this was a very upsetting day for the complainant, as she was close to her father.
7Her account was that after the wake she accompanied you to your home. She gave evidence that she collapsed during the service and was hysterical when she arrived at your home in the late afternoon. She had had two glasses of wine that day.
8When she arrived at your home she went to the main bedroom and proceeded to get undressed, as she wanted to go to bed, as she was tired and exhausted. She took off her dress and was wearing her underpants, singlet top and bra. You then approached her and said that, 'We could have sex. It will make you feel better'. You made reference to her father's passing and that she needed to get over it. She became angry and upset at the tone of the comment and just wanted to be left alone to go to sleep.
9She then went into the walk-in robe, closed the door, sat on the floor and put her feet against it. You tried to get into the robe and she sought to prevent you pushing open the door. Eventually you got the door open and pulled her out of the robe by her feet. She was trying to kick you away. You then pulled her out on the carpet and grabbed her by the hair to make her stand up. You then pulled her up by the body and threw her on the bed. She was hysterical and crying, saying what you were doing and that she wanted to go to sleep.
10You then positioned yourself across her body. She was trying to resist you. You put her hands above her head and held them and you then tore off her G‑string, ripping it in the process, and she made comment that it was expensive and you would have to pay for it and you agreed. You pinned her arms above her head, lay on top of her, making it difficult for her to breathe. She was telling you she cannot breathe, to get off and she did not want to have sex. You forced her legs open and proceeded to have intercourse with her.
11She made reference to that what you were doing was, 'A four-letter word starting with R, called rape'. You denied and you said to her, 'You're my wife and it's my conjugal right'. She begged you to stop and one of her hands was free and she was trying to punch you and push you off, but you would not get off and you were heavier than her. She believed you stopped penetrating her when you ejaculated and you then went out of the room and she stayed in bed and cried herself to sleep. She was unable to recall whether she spoke to you on the next morning.
12Within a couple of days you had apologised to her, said that you associated sex with love and said it would not happen again. The complainant rang her daughter later that night and the daughter gave evidence supporting the complainant’s account. A few days later she told a close friend about the event, although this friend gave evidence that the complainant had told her that the event occurred in the complainant's home in a different suburb. The prosecution also relied on evidence of complaint made to your ex-partner a few months after the rape.
13Subsequently you and the complainant went ahead with the wedding in NSW and a short holiday. The complainant was strongly challenged as to why she went ahead with the marriage. She gave evidence that she thought the two of you could rectify the marriage. She said she was a Christian, believed in forgiveness and wanted to give you another chance.
14In December 2008 the complainant moved into your home and relinquished her public housing unit. The two of you continued to live together with her son as well until September 2009. At that point there was a domestic violence incident. The police were called. The complainant left the property and moved into the local caravan park.
15From then until March 2013 you and the complainant continued a form of relationship that was described by the complainant as 'sex friends'. Both your daughter, who you were having weekend access to, and the complainant's son enjoyed each other's company and for the sake of their relationship you and her would see each other episodically.
16In early 2013 you commenced divorce proceedings against the complainant and this led to the complainant placing a caveat on your property to secure what she believed was her entitlement. In text messages exchanged at the time the complainant accused you of rape. Lawyers became involved but no resolution occurred at that time.
17In May 2013 there was an event that led to the complainant taking out an intervention order against you. In the statutory declaration in support of the intervention order the complainant made an allegation of rape against you. Subsequently the divorce was granted and in 2014 the complainant went to the police alleging that you had raped her. In 2015 she initiated Family Law proceedings seeking a financial agreement, which was ultimately resolved in March 2016.
18On 30 March 2016 the complainant resumed contact with the police and completed her statement on 9 May 2016. You were interviewed by the police on 10 February 2017 and at first said you could not recall going to the funeral and later remembered that you did. You admitted to the police that the complainant had in the context of you seeking a divorce and having the caveat lifted made an allegation of rape against you. In the record of interview you emphatically denied the allegation.
19Your defence at the trial was that this was a false allegation by the complainant made in the context of the contested divorce proceeding. You led evidence that you had remained in the area of the funeral after the service and had stayed at the complainant's home that night. It was also put by your counsel to the complainant as a motive for her making a false allegation against you that she was disappointed with the property settlement that she had obtained from your lawyers and that led to her withdrawing the caveat that she had placed on the property.
20The jury must be taken to have rejected your sworn account and accepted the complainant's account, supported as it was by the complaint witnesses and by the prior reference to an allegation of rape in text messages exchanged before the final rupture of the relationship in May 2013.
Victim impact statement
21The complainant read a powerful victim impact statement.[2] In the statement she described you as a wolf in sheep's clothing. She was still trying to unpack the demons arising out of this event. She has memories of the confusion, of the fear and the panic and the trust and the regret and the anger. She cannot watch movies that have violent scenes, as they trigger nightmares. She has feelings of guilt, 'Emotional and mental shame, a loss of my self-worth'.
[2] Exhibit A on the Plea.
22She is seeing a psychiatrist and wants to move forward and put her life back together. This is still a work in progress, as she will continue to heal and never give up, despite you stealing her strength and her past. The victim impact statement indicates that this event has had a significant and continuing impact on the complainant and this must be taken into account in sentencing and in assessing the seriousness of your conduct.
Assessing the seriousness of the offence
23The crime of rape is an inherently serious offence, as evidenced by the maximum penalty and involving as it does the violation of the bodily integrity of the complainant. This was a serious example of a serious offence both in its execution and its impact. It involved physical force and restraint and was a high-handed and demeaning assault on a vulnerable individual grieving her father's passing in circumstances where the complainant was hysterical and both physically and verbally refusing her consent.
24Your reference to conjugal rights smacks of long-outdated values governing marital relationships and evidenced an arrogant and high-handed attitude. It says much for the fortitude of the complainant in this matter that notwithstanding your humiliating violation of her, in accordance with her Christian values and consistent with her engagement to you she went ahead and married you, subsequently gave up her own house and moved in with you and sought to make a go of the relationship.
Matters in Mitigation
25I now turn to matters in mitigation that were put on your behalf in a comprehensive plea. First, you come before the Court as a 60-year-old to be sentenced for an offence that occurred nearly 13 years ago. You have only an irrelevant prior matter and, on the evidence of the police informant, nothing outstanding against you. You are thus to be sentenced for an offence which is very much out of character.
26Your personal circumstances are set out in the plea submission.[3] You were brought up in a dysfunctional household in suburban Sydney as one of five children. Your parents separated when you were aged seven and after that you had little to do with your father. He passed away earlier this year and your mother passed away in 2014. A sister and brother have both passed away. You have another brother in New South Wales who you are not close to, and another sister lives in New South Wales and she has provided a supporting reference for you.
[3] Exhibit 1 on the Plea.
27Your childhood was marked by significant neglect and abuse, as your mother was addicted to the pokies, and you were brought up in strained circumstances. Notwithstanding the difficulties, you were able to achieve Year 12 and subsequently completed the first year of two university degrees in New South Wales but had to discontinue for financial reasons.
28When you were aged 23 you went to Western Australia and worked in agriculture and the mining area. Whilst in Western Australia you entered a relationship with a woman and had a daughter You moved with your then partner to Brisbane. The relationship ended and your daughter and her mother moved to Regional Victoria and this led you to relocating to Victoria. It was around this time that you formed the relationship with the complainant.
29Since arriving in Victoria, you have been employed. You worked as a pipeline controller for four and a half years. This involved long hours, travel and shift work and you were working in that capacity at the time of the offence. In 2012 you commenced work with WorkSafe. You were the subject of workplace bullying and harassment over a period from 2015, leading you to be forced to cease work in early 2018, and you have remained on workers' compensation since that time.
30In 2014 you commenced a new relationship and you and your now partner have relocated to western Victoria. This is a rural property and you and her have been seeking to develop some facilities to provide respite for families.
Your mental health
31It was not in dispute that you are suffering significant mental health problems. You were the subject of workplace bullying, as I have indicated, and a medical report from a forensic psychiatrist, Dr Turnbull, states that as at 27 March 2018 he diagnosed you as having a major depressive disorder and states that at that point you were too psychiatrically unwell to return to work.[4] He suggested that you required three to six months of conventional psychiatric treatment to regain your ability to work.
[4] Exhibit 6 on the Plea.
32You have been seeing a psychologist on a regular basis from August 2018 to the present time and are on antidepressants. A certificate from the psychologist, Ms Garfi, notes that you have an adjustment disorder with depressed mood and anxiety and that as at 3 March 2020 your symptoms made a return to work unlikely and it was unknown when you would be fit to return to work given the severity of your symptoms.[5] You are also being monitored for a heart condition.
[5] Exhibit 4 on the Plea.
33On the plea your counsel relied on a report from a psychologist Ms Cokorilo.[6] From her examination on 5 July 2021 she found that you are suffering from extremely severe symptoms of depression, anxiety and severe stress. She was of the view that you would have benefited from immediate therapeutic intervention to stabilise your mental health and to prevent further deterioration. She found you met the criteria for PTSD, major depressive disorder, severe, and recurrent generalised anxiety disorder. She noted some borderline personality traits.
[6] Exhibit 2 on the Plea.
34The examiner was of the opinion that a prison environment would trigger additional deterioration of your mental health and there may be a risk of self-harm. She was of the view that you required continuing engagement with therapeutic interventions. She opined that you were at low risk of sexual reoffending but that you ought engage with a psychologist with forensic experience, as you require offence-specific intervention to address your criminal risk factors.
35On the plea the prosecution accepted that limbs 5 and 6 of R v Verdins[7] were engaged. A term of imprisonment will weigh more heavily on you than a person without your psychological conditions and there is a risk that your condition may deteriorate in prison.
[7][2007] VSCA 102.
Other matters in mitigation
36Your counsel tendered a number of references from other family members and neighbours. Those references opined that the offending was completely out of character and that you have supported family members and neighbours and you are held in very high regard. Your current partner states:[8]
'Xavier is a genuine man with old-school morals and values. He is kind, caring, extremely generous and honest, and it is for these reasons and so many more that I will continue to provide my support for him through these troubling times'.
[8] Exhibit 7 on the Plea.
37You are entitled to bring to bear to your credit the high regard in which you are held, your good work record and your contributions to the community, all these in circumstances where you commenced life with a pretty tough childhood upbringing. All these matters lead to the conclusion that you have very good prospects of rehabilitation.
Sentencing submissions
38A key issue on the plea was that of delay. It is now nearly 13 years since the offence occurred. The allegation of rape against you was first made by the complainant in the context of the matrimonial property dispute in the early months of 2013, more than eight years ago. It is five and a half years since the complainant completed her statement to the police in 2016. It is four and a half years since you were interviewed by the police. It is three and a half years since you were charged with this offence. The original trial date scheduled for March 2020 was delayed due to COVID and the trial ultimately proceeded in June of this year.
39The delay from when the offending occurred and when the complainant completed her police statement was explained by her in her evidence and is explicable on the basis that the relationship continued, then she was seeking to negotiate a financial resolution and then the impact that the offence had on her ability to complete her police statement, which she referred to in her evidence. There has, however, been considerable delay for which you have not been responsible since the complainant made her complaint to the police. Some explanation was provided by the prosecution in relation to further investigations and workload pressures.
40You have had this matter hanging over your head since the allegation was first made eight years ago and now for some four and a half years since you were interviewed by the police in this matter. These are matters that I take into account.
41You are now aged 60 and a half, facing your first term of imprisonment, whereas when the offence was committed you were aged 47 and a half. The delay is also relevant to the issue of your rehabilitation. In the period since the offence and indeed in the period since you ceased your relationship with the complainant you have established a new relationship. You had been in the workforce until you were forced to cease, you have not committed further offending. These are matters that I take into account in your favour.
42Further, in sentencing you, I take into account that in the COVID environment a sentence of imprisonment will be more burdensome than in earlier times. You will be required to undergo a period of quarantine upon admission into prison. Programs and visits are limited and access by your partner to visit you in prison is likely to be limited given where she currently lives. In addition, you will have the concern that you face as to her ability to continue to maintain your rural property while you are in prison. These are all matters that I take into account in your favour.
Current sentencing practices
43In sentencing you, along with other matters such as the seriousness of the offence, the impact of the offence on the complainant and your personal circumstances, I am required to have regard to current sentencing practices. Although this offence occurred nearly 13 years ago, the authorities state that I am to have regard to current sentencing practices rather than practices that would have been applicable at the time of the offence unless there has been a material change in those practices.
44Both counsel referred the court to relevant sentencing statistics as to sentences, the average sentence for the crime of rape, in the period between 2005 and 2010 and between 2015 and 2020. It is unnecessary to refer to the sentences in any detail save to say that the average sentence is around five years, although the average sentence was six and a half years in 2018 and five years and seven months in 2019 and 2020.
45Sentences for the crime of rape have increased slightly over the years and the crime from February 2018 is now the subject of a standard sentence of 10 years' imprisonment for a crime objectively in the mid-range of seriousness. Sentences under the standard sentencing regime are irrelevant to my consideration.
46In support of the principle of equal justice the learned prosecutor referred to a decision of DPP v Li(a pseudonym) of Judge McInerney in this court in November 2018 where the accused, who was aged 54, was found guilty of a charge of rape against his wife.[9] A period of two years elapsed between the offending and the sentence and he was a successful businessman and had good prospects of rehabilitation. He faced the risk of deportation at the end of his sentence. The learned judge sentenced him to five years' imprisonment with a non-parole period of three years.
[9][2021] VCC 1815.
47Your counsel submitted that this decision was of limited assistance given that in your case there was an issue of significant delay and no issue in relation to deportation. Other distinguishing features can be noted, including that arguably the violence accompanying this offending here made your offence more serious. Each case turns on its own facts, but considerations of equal justice will require reference to comparable cases and I have had regard to this case as providing something of a yardstick.
Purposes of sentencing
48The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offending, your culpability for it and your personal circumstances and those of the complainant. I am required to balance the interests of the community in denouncing criminal conduct and the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into society.
49In sentencing for the crime of rape, denunciation is a very important sentencing consideration. In the case of DPP v Short the Court of Appeal said:[10]
'Those who are minded to engage in such behaviour and exercise either their physical power or that arising from their dominant relationship position over vulnerable persons must anticipate the imposition of substantial terms of imprisonment. The courts, when dealing with such cases, must have regard to the vindication of the community's social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens. They must punish, justly, those whose criminal conduct causes harm to others, and, through the sentencing process, endeavour to deter potential offenders from acting in this fashion'.
[10] [2006] VSCA 120 at [42].
50General deterrence is thus also a consideration. Specific deterrence has little work to do in your case. You have very good prospects of rehabilitation. At the end of the day, however, having taken into account all the matters put on your behalf and giving full weight to the delay, the impact of a sentence of imprisonment on you on your mental health and the need to serve a sentence as a 60-year-old and in the COVID environment, denunciation and just punishment call for a significant sentence.
51Could you please stand.
52On the charge of rape you are sentenced to four years and nine months' imprisonment. I direct that you serve two years and 10 months before being eligible for parole. I declare that you have served four days' pre‑sentence detention.
53Are there any other matters from the prosecution, Madam Prosecutor?
54MS RADZAJ: No, Your Honour.
55HIS HONOUR: I want to thank counsel in the trial and in the sentence and those who participated in this sentencing hearing and adjourn the court sine die.
‑ ‑ ‑
0
3
0