Director of Public Prosecutions v Harding
[2022] VCC 2057
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-20-00328
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WADE HARDING |
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JUDGE: | HER HONOUR JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July, 16 November 2022 | |
DATE OF SENTENCE: | 25 November 2022 | |
CASE MAY BE CITED AS: | DPP v Harding | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2057 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentence
Catchwords: Assault with intent to rape; attempted rape
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269
Sentence: Total effective sentence: 3 years’ imprisonment; non-parole period: 1 year and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Fargher | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Pearson (For Plea) | Greg Thomas Barrister & Solicitor |
| Ms C. Blakeney | ||
| (For Sentence) |
HER HONOUR:
1Wade Harding, you have pleaded guilty to the following offences that arose from one incident on 2 December 2007:
Charge
Offence
Maximum Sentence
1
Assault with intent to rape
10 years’ imprisonment
2
Attempted rape
20 years’ imprisonment
2The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows.
3At the time this offending, you were 29 years old. The victim was 21 years of age. She left her home at around 12:40am and walked along Coburns Road to a local 7‑Eleven in Melton, which was about 15 minutes away. There were streetlights along the road, but it was quite dark in between them. She attended the 7‑Eleven, bought a packet of cigarettes, and then walked back towards her home, the same way.
4After about five minutes, the victim observed you walking towards her. You caught up to her at the front of a church, on the corner of Coburns Road and Richards Road. Without warning, you punched the victim to her face. You grabbed her arms from behind and said, “I'm not going to hurt you. I'm not going to hurt you.” The victim replied, “Don't hurt me, I have got kids, you can have my bag.”
5There were bushes at the front of the church and gravel on the driveway. You dragged the victim behind the bushes by her arms, where she could not be seen from the road. The victim was on the ground, lying on her back. You lifted her skirt, pulled her underpants aside and kissed or licked her vagina. This is an uncharged act, which provides context for your offending. I have not taken it into account when sentencing you.
6As you lay on top of the victim, you held her by the arms and pulled your pants down. Your penis was erect. You pushed your penis between the victim's legs and attempted to penetrate her vagina, for approximately 40 seconds.
7The victim heard a couple of bicycles go past. You put your hand over her mouth and said, “Don't scream” until they were gone. You then got off the victim and walked away. The victim stood up and felt “something wet” on her thigh. She then ran home.
8When the victim arrived home, she was crying and told her partner that she had been raped. He observed that she had grazes to her limbs and face. Her underwear was wet and pushed to the side, and her vagina was visible. Her partner immediately contacted the police, who attended at around 2:00am. The victim told the police that the offender was approximately 25 years old, 6 feet tall and had short, spikey, brown hair. She then accompanied them to the scene of the incident. The police took photographs of injuries to her limbs and face; they collected her clothing as evidence.
9The following day, a forensic medical examination of the victim was conducted by Dr Wendy Lim at the Sunshine Hospital. Swabs were taken from the victim's thighs and labia, as well as a buccal swab. The swabs were sent to the Victoria Police Forensic Services Centre, where a male DNA profile was extracted.
10Dr Lim observed that the victim had healing scabbed abrasions to the left side of her face and ear, bruising to her right armpit, upper arm and forearm as well as to her left upper arm, abrasions to her right forearm, right fingers and left hand, redness over her scapula on her back and scabbed abrasions on her right hip and ankle.
11Dr Lim opined that the linear abrasions were caused by a sharp edge, abrasions to the victim's hip were consistent with moving against an abrasive surface or object and the bruises had been caused by blunt force trauma of some kind.
12In 2019, your DNA was provided to a forensic database. Subsequent DNA analysis revealed that it was 100 billion times more likely that you were a contributor to the spermatozoa that was detected on the victim's right thigh, left thigh and labia.
13You attended an appointment at the Sunshine Police Station on 4 April 2019, where a record of interview was conducted. You told the police that you do not recall the events that occurred on 2 December 2007. You did not recognise the victim's name nor a photograph of her. When told of the DNA analysis, you did not deny the results but queried how it was possible, as you do not “remember doing it”. You said that you do not recall that time in your life as you have blocked it out; in particular, that you do not recall trying to rape someone. You were charged by police and released on bail.
14The filing hearing took place on 5 April 2019. A contested committal proceeded on 25 February 2020 where the informant and a forensic biologist were cross-examined. The victim was not required to give evidence. You were committed to stand trial and pleas of not guilty were entered.
15Your matter was initially listed for trial, to commence on 31 May 2021. The trial date was subsequently vacated. An application to cross-examine the DNA expert was granted and listed on 30 September 2021.[1] The hearing did not proceed, as your case resolved. You were arraigned on 8 October 2021 and entered your guilty pleas. The plea hearing listed on 7 April 2022 was adjourned after a Forensicare psychiatric report was sought. An amended indictment was filed on 18 July 2022, when your plea hearing commenced. A further plea hearing took place on 16 November 2022, after a psychological risk assessment was obtained.
[1] Pursuant to s 198B Criminal Procedure Act 2009 (Vic).
16While a victim impact statement has not been provided, it is accepted that your offending would have been terrifying and traumatic.
17In her statements made to police, on 2 December 2007 and 24 April 2019, the victim described that when you punched her, she was “startled” and “dazed for a second”. She said that she tried to push you off but was scared to fight back when you pushed her underpants aside. She did not know if you were wearing a condom. She struggled to shut her legs as you were “stabbing” your penis at her vagina. When she arrived home, she felt dirty. The victim stated, “I tried so hard over the years to forget this because it made me feel disgusting.” She confirmed that she does not know you.
18This was an opportunistic and violent incident that was of brief duration. The victim was not known to you, so the selection of her was a random one. She was vulnerable, walking on her own along the street, in the early hours of the morning. Fortunately, her physical injuries were not significant.
19You displayed immediate, actual violence towards the victim, then forcibly dragged her behind the bushes and attempted to commit the violent offence of rape. I consider that offences of this kind, by their nature, are inherently serious. This attack was brazen and unprovoked.
20Sexual offending can cause victims ongoing psychological harm, which needs to be given proper weight in the sentencing process and must be denounced. It must be made clear that violent sexual misconduct towards a vulnerable person is entirely unacceptable and reprehensible.
21The victim was present via Webex at your plea hearing. On your behalf, your counsel offered a “sincere apology”. It was admitted that you are appalled by your behaviour. You hope that your plea of guilty will assist the victim to move on “with a good and happy life”.
22Your plea of guilty is a significant factor. The DNA expert evidence was the subject of cross-examination at the committal, as you maintain that you have no recollection of your misconduct. You now admit that the evidence against you is overwhelming and have accepted responsibility for your offending. Your counsel submits that your plea is also consistent with remorse. I accept this submission, although the remorse was belated. I will return to the aspect of remorse later in these reasons.
23The prosecution accepts that while your matter did not resolve at the earliest opportunity, your plea of guilty has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You have spared the victim the ordeal of giving evidence. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that. Your plea of guilty has an additional benefit, given the delay in jury trials that has resulted from the COVID‑19 pandemic. I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered in October 2021. The prosecution agrees that the timing of a plea of guilty should attract a more pronounced amelioration of sentence than at another time.
24I turn now to your personal circumstances. You were born in April 1978 and are 44 years of age. You are the eldest of three siblings. You were raised in Melton by your mother and maintain a good relationship with her. You currently assist in the care of your elderly grandmother.
25When you were three years old, your father appeared in the Supreme Court of Victoria. He was convicted by a jury in a trial where he was charged with the murder of a three-year-old girl. Your father was later suspected of committing an unrelated murder at around the same time.
26On 4 August 1982, he was sentenced to imprisonment for the term of his natural life. On 4 May 1988, a minimum term of 14 years' imprisonment was fixed. He was released from custody when you were 17 years of age. Your father died in a car accident, three years after he returned to the community.
27Your family remained in contact with your father when he was in custody. You visited him, although you did not have a close relationship. The level of notoriety associated with your father's offending was well known in the local area. You struggled with severe bullying throughout your childhood, that was related to your father's offending. You were teased and physically assaulted.
28You attended several primary and secondary schools.
29Child Protection became involved when you were 11 years old, as a result of your involvement with police, as you started a serious fire at a shopping centre, which caused significant damage. You were obsessed with fires and expelled from secondary school in Year 7, due to attempting to set fire at the school. You were placed in the Turana Boys' Home partway through Year 9 and did not return to school after that.
30You have recently disclosed that you were sexually assaulted by your babysitter's child when you were young. You believe it occurred numerous times. You engaged in lighting fires at around the same time of the sexual abuse.
31Your criminal activity resulted in your consistent appearance at the Children's Court between 1989 and 1995. You were regularly sentenced to periods of supervision, including Youth Attendance Orders and periods of detention in youth training centres.
32Your first appearance in the adult jurisdiction was on 12 May 1995, where you were sentenced for offences including criminal damage by fire (arson), to a period of 10 months' detention in a youth training centre. Upon your release, you returned home to live with your parents, as your father had been released on parole.
33Your criminal history in the adult jurisdiction outlines 13 prior appearances in the Magistrates' Court before you committed the current offence. Your offending included drug-related, driving and dishonesty matters. You were placed on several Community Based Orders. On 22 October 1996, you were convicted of two counts of indecent assault and sentenced to four months' imprisonment, that was wholly suspended for 12 months.
34You also admit your subsequent offending, which consists of five appearances in the Magistrates' Court between 2008 and 2019. On 2 March 2009, you were found guilty of one charge of behaving in an offensive manner in a public place. On 27 August 2013, you were found guilty of one charge of indecent assault. You were convicted and sentenced to Community Based Orders for each of these offences. You have never been sentenced to an immediate term of imprisonment in adult custody.
35You were subject to reporting for an eight-year period under the Sex Offenders Registration Act, as part of the sentence imposed in 2013 for the offence of indecent assault. On 7 February 2019, you were convicted and fined for failing to comply with your reporting obligations.
36Your drug use commenced at the age of 15, when you started to use marijuana and amphetamine. You frequently used marijuana: up to approximately 1 ounce per week at the time of your heaviest use. You have described your drug use as a “coping mechanism”. It was significant at the time of your sexual offending conduct. You have previously consumed large quantities of alcohol and believe that you were highly intoxicated at the relevant time, although you maintain that you have no memory of that.
37I am told that you have been abstinent from most illicit substances, alcohol and cigarettes for at least one year. You have not been attending any drug and alcohol treatment but have developed “the will to change”. However, your cannabis use has recently relapsed, in an attempt to reduce your anxiety and anger issues.
38You have been involved in one significant relationship. It commenced when you were 20 and lasted for 10 years, despite being volatile. You have three children together, now aged 20, 16 and 15. Your contact with your children has not been consistent since your relationship with your partner ended. Child Protection are involved in their care, and they have been residing with their maternal grandparents or other family members since 2013.
39Your work history involves various jobs as a car detailer and a landscaper. You were unemployed for several years. On 21 September 2021, you commenced work mowing lawns for Citywide Service Solutions. Your supervisor has provided a letter to the Court dated 4 April 2022. He writes that you are an excellent employee who is respected by your workmates. He would not hesitate to re‑employ you in the future. A workmate has also provided an undated reference describing you as a dedicated and valuable worker. You ceased your employment in September 2022.
40Over the past few years your lifestyle has improved significantly. You now reside in an apartment in Yarraville and have lived there for the past four years. You maintain a positive, loving relationship with your mother, who was present at your plea hearing. She continues to support you. You are most fortunate in that regard.
41Your mother has written a letter to the Court, dated 18 July 2022.
42She describes that despite trying to provide you and your brothers with a positive upbringing, your family were “constantly judged and harassed” due to the stigma associated with your father's conduct. She confirms that you were teased at school, became introverted and lacked confidence.
43In her opinion, at the time of this offence your mental health was not good. You were unemployed, using drugs and in a toxic relationship. Your mother describes that you are truly horrified about the incident. After many years of trauma, unemployment, emotional and mental abuse, your mother writes that you now seem to be heading in the right direction to get your life back on track and to reconnect with your daughters.
44Four medical reports have been provided as part of your plea hearing and I will now summarise their content.
45Dr Aaron Cunningham, forensic psychologist, prepared a report dated 21 August 2013, for the indecent assault charge that was heard at that time. Dr Cunningham found:
· Your cognitive functioning was in the average range. There was no indication of an intellectual impairment.
· You were assessed with a schizotypal personality disorder and a Major Depressive Disorder.
· You reported a chronic and continuing dependence on cannabis.
· Your schizotypal personality disorder would have impaired your ability to exercise appropriate judgment with respect to the relevant offending behaviour and its consequences.
· You did not present with insight into the causes of your offensive behaviour. You misinterpreted the victim's behaviour, believing that she was “flirting”.
· Imprisonment would have a significant adverse effect on your mental health. You attempted suicide twice, while in custody when you were 16 years of age.
· You were assessed as a moderate risk of sexual reoffending.
· You would benefit from psychological and psychiatric assistance and treatment. You would also benefit from drug and alcohol counselling.
46At the request of your solicitor, you participated in an assessment with psychologist, Ms Gina Cidoni. In a report prepared for the Court, dated 15 March 2022, she made the following observations:
· Your cognitive function is intact.
· Your childhood was traumatic. Your father's offending had profound effects on you. You suffered a child serious emotional disturbance (DSM-5) resulting in functional impairments that interfered with your family, school and other activities as well as reducing your social capacity.
· These symptoms overlap with schizotypal personality disorder although you did not meet the full symptom criteria for this diagnosis.
· Your symptoms also overlap with autism spectrum disorder (“ASD”). You meet some of the criteria for this disorder.
· You meet the DSM-5 criteria for post-traumatic stress disorder (“PTSD”), persistent depressive disorder and generalised anxiety disorder. You had taken antidepressant medication for about two years.
· Your PTSD emerged from your adverse childhood experiences. It has affected your relationships, stability, employment and caused substance abuse.
· Your anxiety developed in parallel with your PTSD. Without treatment you have developed a chronic and persistent depression.
· You have a history of drug use and alcoholism. You report being highly intoxicated at the time of the offending. You have no recollection of it. You are disgusted by the possibility that you committed these offences.
· Your presentation indicates that your mental illness was operating at the time of your offending. Trauma represents a life altering experience, resulting in confusion that can lead to feeling psychologically overwhelmed and overloaded. It impairs the normal capacity to make sense of and modulate experiences and causes major thinking problems.
· Your mental state indicates a causal link to the offending, where your moral culpability was compromised.
· Your significant social issues and mental illness would make prison an extremely difficult place for you. You would be regarded as socially awkward, easily manipulated and potentially bullied.
· A custodial sentence would be more onerous for you, especially in light of your high anxiety levels and the high potential for re-traumatisation.
· Ongoing psychotherapy is recommended to address your trauma and develop your insight into your illness, in order to moderate your reactions and improve your social and other functioning.
· Your risk of sexual recidivism is assessed as mild to moderate, without any formal intervention. With appropriate treatment your symptoms would be expected to improve, and your risk of reoffending would reduce.
47A Forensicare assessment was undertaken by Dr Elena Bhattacharya, psychiatrist. She summarised your traumatic childhood. In a report prepared for Court, dated 12 July 2022, she made the following findings:
· Your traumatic childhood has resulted in your experiencing difficulty in processing emotions. You demonstrated maladaptive behaviours such as setting fires when you were a child.
· You stated that you were sexually assaulted as a child, which you believe contributed to your subsequent criminal behaviour, including starting fires. I note that this was not disclosed to Dr Cunningham or Ms Cidoni. Dr Cunningham noted that you had never been sexually assaulted.
· You developed a depressive disorder which has persisted for much of your life.
· You report significant anxiety and your depression.
· At the time of your sexual offending, you used drugs and alcohol heavily and you attributed your behaviour to this use.
· You admit that on multiple occasions, you touched females inappropriately when on public transport. The victims would usually shout at you, and you would walk away. You have not been charged with this sexual contact.
· You believe that your heavy use of cannabis contributed to your sexual offending in the past. You started to use cannabis at 15 years. You used illicit substances and alcohol excessively after the death of your father. Your sexual drive diminished significantly when you stopped using cannabis.
· There is evidence of symptoms of PTSD. There is also evidence of ASD. Many of these characteristics, however, overlap with behaviour that may arise from your past traumatic experiences.
· You benefit from stable accommodation, family support and employment that you enjoy.
· Given the traumatic incidents you have previously experienced in prison, a custodial sentence would be very difficult for you and may be re-traumatising. A custodial sentence may also weigh more heavily on you due to your anxiety and depressive disorder, than someone without these conditions.
· You should re-engage with psychological therapy to address your previous trauma and depressive symptoms and to look to your coping mechanisms for the future.
48Between 2013-2014 and in 2017, you engaged in intermittent counselling with clinical psychologist Ms Alison Mynard. She has recently conducted a risk assessment, over three sessions, with you.
49Ms Mynard was provided with and considered the three reports, to which I have already referred. In a report prepared for Court, dated 14 November 2022, she included a summary of your background and concluded that you suffered from a very unusual and difficult childhood. You appear to have a lack of trust in others, which may be part of your natural temperament, but also contributed to by the history of trauma being bullied, and sexually abused, with a high level of protective mechanisms to cover your anxiety and low self-esteem.
50She made the following observations and findings:
· You currently have an injury to your hand and are awaiting surgery.
· Your insight into the offending was very low. Your judgement of the offending was impaired by your substance use and your complex mental health presentation.
· She agrees with past assessments that you suffer from persistent depressive disorder, generalised anxiety disorder, and PTSD. You recently stopped taking anti-depressant medication, as you reported that it did not help you.
· You have prominent traits of schizoid personality disorder.
· You meet a significant proportion of criteria for autism spectrum disorder. A further assessment would assist in a definitive diagnosis.
· You scored within the borderline range of intellectual functioning.
· You do not recall the current offending and do not understand how you committed this crime. At the time, you were in a relationship with your partner and your third daughter had recently been born. You were using various illicit drugs, including cannabis, ecstasy, acid, and drinking problematically.
· There is evidence of repeated sexual offending between 1996 and 2013. I note that the current charges are the most serious, when considering your criminal conduct.
· You are a moderate risk in the category of sexual violence history.
· You admitted that you did touch women on the train. You have a very low understanding about issues of consent and how to communicate with a female about sexual contact. In terms of psychological adjustment, you are a moderate risk of reoffending.
· There are no indications that you have sexually deviant tendencies. You are found to be in a moderate risk category for mental disorder.
· You are in a high-risk category for social adjustment.
· You engaged in counselling with Ms Mynard on the Sex Offenders Register for several periods over the past nine years, although you have struggled with the therapeutic process. You failed to comply with reporting obligations in 2019.
· You are a moderate risk in the category of manageability.
· Overall, you are a moderate risk of reoffending. She writes,
“His risk factors are primarily around his history of offending, however he has not had further reoffending for the past decade. His risk factors also include his psychological factors and social factors, that also reflect the likely symptoms of being on the autism spectrum and with Cluster A personality factors, such as schizoid personality disorder.”
51Your counsel has submitted that in light of your significant history of childhood trauma the principles outlined in the decision of Bugmy v The Queen are applicable.[2] The prosecution agrees that this is a relevant consideration in your case.
[2] (2013) 249 CLR 571.
52I accept that your traumatic childhood had a significant impact on your personal development and that it reduces your moral culpability, which is a mitigating factor. These circumstances appear to have continued to play a part in your lifestyle choices. The relevance of the trauma does not diminish over time, notwithstanding your criminal history. You described that your addiction to drugs and alcohol was a “coping mechanism” to deal with your dysfunctional childhood and I accept there is a link between them.
53The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counterbalanced, however, by the principle of community protection which remains a relevant sentencing consideration.
54At the initial plea hearing, your counsel submitted that all the principles articulated in Verdins are applicable, which was disputed by the prosecution.[3] Your counsel did not persist with this submission in relation the first four limbs of Verdins. My view is that there is no cogent evidence that this offending was specifically related to mental illness, as opposed to the use of drugs and alcohol. I am not satisfied that your mental health was causally connected to the offending.
[3]R v Verdins (2007) 16 VR 269.
55There has been no dispute that limbs 5 and 6 of Verdins, being hardship in custody and the risk of deteriorating mental health, are relevant considerations, given your high anxiety levels, depressive disorder and the high potential for re-traumatisation. In light of your mental health issues, it is conceded that your time in custody will be more difficult than for other prisoners.
56Ms Mynard recommends that you require counselling to explore the reasons for your offending, AOD counselling, trauma informed care, Schema therapy, an ASD assessment and a functional assessment.
57I accept that you are more vulnerable to the effects of imprisonment than a person who does not have your mental health issues, particularly as you are likely to serve your sentence in protective custody as you have now been moved to the Hopkins Correctional Centre.
58These factors enliven the fifth limb of Verdins. I also accept that the sixth limb is enlivened, and a term of imprisonment may have an adverse or retraumatising impact on your mental health. You are not likely to have access to the most appropriate treatment in custody.
59I have already stated that the principles of Bugmy are clearly applicable here and, in my view, significantly moderate relevant sentencing considerations. I accept that the relevant Verdins principles have some application. I am required to take all these factors into account, although I am also obliged to impose a sentence that is proportionate to the overall gravity of your offending.
60Your plea of guilty demonstrates an acceptance of responsibility. The parties agree that it is consistent with remorse, although the prosecution position is that there is no specific evidence of remorse. Even though it was not immediate, you have now taken responsibility for your conduct. You have not provided any explanation for your offending behaviour, although I understand that you are horrified by what you have done. In those circumstances, I consider that you do have genuine remorse, and I have taken that into account in your favour.
61Your capacity to manage the lifelong effects of your traumatic youth appears to have improved, as your recent lifestyle has been more positive. You still require offence specific treatment to address your issues and I accept Ms Mynard's conclusion that you are a moderate risk of reoffending. Overall, I consider that your prospects are reasonable, given the amount of time since your last sexual offending.
62In written submissions filed on your behalf, your counsel outlined that a Community Correction Order (“CCO”) or a suspended sentence should be considered as the appropriate disposition. It is no longer submitted that a CCO on its own is an appropriate option. Your counsel has submitted that if a term of imprisonment is to be imposed, it would be appropriate to include a CCO as part of the sentencing disposition. The maximum term of imprisonment available for a combination disposition is 12 months. In my view, even if a CCO was imposed in combination with the maximum term of imprisonment, it is not a realistic sentencing option.
63Otherwise, in light of the evidence of your rehabilitation and the delay in these proceedings being finalised, it is submitted that a wholly or partially suspended term of imprisonment would be an appropriate sentencing disposition. The maximum penalty for a wholly or partially suspended sentence is up to three years' imprisonment.
64The prosecution submits that an immediate term of imprisonment with a non‑parole period is required.
65I consider that, notwithstanding the delay in these matters coming to Court and the mitigating evidence, the objective gravity of your conduct necessitates the imposition of a term of imprisonment on each charge.
66In sentencing you, I am aware that these offences occurred as part of the one incident almost 15 years ago. The principles of deterrence, denunciation and punishment remain relevant. Your history of sexual offending overall is also relevant, when considering your prospects.
67In my view, a wholly or partially suspended sentence is an inappropriate sentencing option. I consider that protection of the community is a significant component of the sentencing mix in this case. The supervision available by a period on parole offers additional protection and will assist with your rehabilitation.
68There is no dispute that you will be subject to the Sex Offenders Register for the mandatory period of life registration, upon the finalisation of this matter.
69The duration of the more onerous conditions within the custodial environment is unclear given the evolving nature of the COVID-19 pandemic. Additional restrictions in custody are currently reduced. Overall, I consider that any restrictions taken by Corrections may increase your level of hardship as a prisoner. These hardships justify a sentencing benefit. I take this into account, particularly as this is the first time you have been in adult custody.
70I take into account the principle of totality which is relevant, and I have taken care not to doubly punish you for these offences. I have considered current sentencing practices and I take into account the maximum penalties for each offence.
71I have decided that there must be some, but not total, cumulation in the sentences that I impose. I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct overall. I have imposed a slightly longer period on parole, given that you have not been charged with relevant offending for almost 10 years.
72Balancing these factors as best I can, I sentence you as follows:
Charge
Offence
Sentence
Cumulation
1 Assault with intent to rape 1 year imprisonment 3 months 2 Attempted rape 2 years and 9 months’ imprisonment Base Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 1 year and 6 months Pre-Sentence Detention: 9 days s 6AAA:[4] TES of 4 years and 6 months’ imprisonment
NPP of 3 years
Other orders:
· You are to be subject to the Sex Offender Registry for a mandatory life period.
[4] Sentencing Act 1991 (Vic).
73Are there any further orders sought, Ms Fargher?
74MS FARGHER: No, Your Honour.
75HER HONOUR: All right, thank you. So I'll now give Ms Blakeney in a moment an opportunity to speak with her client and his mother. I'll excuse the victim and the prosecution and the solicitor for the OPP from the link. Is there anything else that you wanted to say at this point, Ms Blakeney?
76MS BLAKENEY: No, Your Honour. As Your Honour pleases.
77HER HONOUR: All right. So I'll leave the Bench and excuse all the parties that aren't related with the defence and stand down. Thanks.
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