Director of Public Prosecutions v Hayne (a pseudonym)
[2024] VCC 402
•21 February 2024
| IN THE COUNTY COURT OF VICTORIA AT WARNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACKSON HAYNE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Warrnambool. (Sentence delivered from Melbourne) | |
DATES OF HEARING: | Trial 28 November 23 – 5 December 2023 | |
DATE OF SENTENCE: | 21 February 2024 | |
CASE MAY BE CITED AS: | DPP v Hayne (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 402 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords : 3 charges of rape. Found guilty on one charge. Offer to plead guilty to that charge rejected by DPP prior to trial. In relationship with complainant. Offender 27 complainant 18, pregnant. Specific deterrence minor – general deterrence important
Sentence: 2 years imprisonment non-parole period 12 months
Cases cited: Clarke v R [2022] VSCA 89 – Simon v R [2010] VSCA 66 – Coronado v R [2016] VSCA 86 – DPP v Keller [2021] VSCA 334 - Perry v R [2023] VSCA 218
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | OPP |
| For the Accused | Mr R. Thyssen | Gallant Law |
HER HONOUR:
1Mr Hayne[1], you have been found guilty by a jury of one charge of rape, which was the second charge on the trial indictment. The jury found you not guilty of two other charges of rape numbered 1 and 3.
[1] A pseudonym.
2
The background is that you were in a relationship with the complainant,
and you were living together. On 27 January 2021 the two of you were in bed and you asked her to have sex. She said no, she did not feel like it and she said that twice. However, you got on top of her sitting on her hip area so she could not move. You pulled her pyjama pants down and she wiggled around from side to side saying no. You pulled down her pants held her arm down and put your penis in her vagina. The complainant cried and said 'No, please stop.' You grabbed her neck and turned her head into the pillow. She was still saying, 'Please stop.' She was not able to move away. You did not say anything but ejaculated and then got off her and left the room.
3In your record of interview you agreed that she had said no, but you decided to keep going because you thought she might be keen. You said you stopped when she started crying. At this time the complainant was about six months pregnant and your son was born in April that year. You have another child now aged five born to your previous partner with whom you later reconciled and you are now living together expecting another child soon.
4The complainant provided a victim impact statement which she read to the court at the plea hearing. She referred to her embarrassment and humiliation because many people in her small country hometown knew about the case. She said the crime and the ongoing court process has impaired her mental health and having to take a lot of time off work has resulted in the termination of her employment. She has struggled with intimate relationships because of lack of trust following the crime, causing her to feel unsafe and vulnerable. I take those matters into account in assessing the seriousness of the offending.
Sentencing Considerations
5You have no previous convictions and have never had any involvement with the criminal justice system. You have been of good character as confirmed by many that have written to the court on your behalf. These include your parents, other family members, friends and work colleagues, and your current partner. I accept their assurances that you are a hard working and reliable man and that you regret what you did. Because the matter went to trial, regret or remorse in such circumstances is usually considerably curtailed. This case is somewhat different as you made an offer to plead guilty to the charge of which you were convicted, which was rejected by the prosecution. The jury acquitted you of two charges and found you guilty of the charge which you had largely admitted in your record of interview.
6You acknowledged that sex did take place as the complainant described but you said that her protest was less vehement than she stated. That acknowledgement also counts as taking responsibility for the offending, a matter which can be analogous to remorse, and I accept it as such. Accordingly, I can accept the regret you have expressed to two people, in particular, referred to in their letters to the court. This is not a case where you are a risk to the community, and indeed specific deterrence has little or no role to play. You clearly have good prospects for rehabilitation, and are unlikely to offend again in any way.
7
The need for general deterrence is a different matter. The seriousness of being determined to have sex without consent is reflected in the maximum penalty of 25 years' imprisonment for rape and in the legislative constraints on imposing a sentence other than imprisonment. In determining the appropriate sentence, I have considered other cases to which I was referred by Mr Thyssen on your behalf. These being four cases with suggested similarities. They indicate the wide range of sentences reflected, for example, in the sentence imposed in
Clarke v R[2]8In that case, the court referred to authorities dealing with the objective gravity of the crime of rape, and noted that the crime covers a very wide spectrum of acts carried out in a variety of circumstances of differing degrees of objective gravity. Therefore, the sentence for rape in any given case must turn on an individual consideration of the circumstances and features of the particular offence and of the offender [3].
[3] Ibid [at] para 26 quoting from Lawrence (a pseudonym) v R [2021] VSCA 291 [21] – [22]
9
The circumstances of that case were a 45-year-old man with no previous convictions, was sentenced to eight years' imprisonment with a
non-parole period of five years, for one charge of rape following a trial. The offence was committed using an object although in the absence of what might be characterised as aggravating features, the sentence was held to be manifestly excessive and was reduced to three years with a non-parole period of 18 months.
10
In Bergman v R, a young offender of Aboriginal heritage was sentenced to a total effective sentence of six years' imprisonment, with a non-parole period of four years. On appeal, a sentence was reduced to four years and four months with a non-parole period of two years and four months. The applicant in that case had had a dysfunctional upbringing and had an intellectual disability. In a separate judgement McLeish JA, while agreeing with Maxwell P and
Kaye JA, noted the case of Simon v R[4], where a 20-year-old offender convicted of rape was sentenced after trial to four years' imprisonment with a
non-parole period of two years.
[4] [2010]VSCA 66
11On appeal that was held to be manifestly excessive and was reduced to three years with a non-parole period of 18 months. The offender did not have a history of deprivation or cognitive problems and was older than the applicant in Bergman. Also noted was a similar case Coronado V R[5] where a sentence of five years' imprisonment with a non-parole period of three years, was reduced to four years' imprisonment with a non-parole period of two years. In DPP v Keller[6] the Director appealed against a sentence of 12 months' imprisonment in combination with a three-year Community Correction Order for a charge of rape, indecent assault, and other offences.
[5] [2016] VSCA 86
[6] [2021] VSCA 334
12The appeal was held to be incompetent, but the court nonetheless indicated that the sentence was within range. The offender had pleaded guilty and although he was not a young man, there were compelling matters in mitigation, particularly remorse, delay and rehabilitation.
13
In Perry v R[7], a 22-year-old man pleaded guilty to attempted rape and other charges and was sentenced to five years with a
non-parole period of three years. For the attempted rape the offender was sentenced to three years and this was unchanged on appeal. The total effective sentence was reduced to three years and three months with a non-parole period of 20 months, reflecting more lenient sentences for the other charges.
[7] [2023] VSCA 218
14Despite the differences between those cases, and in your case, the varying sentences indicate that some leniency can be accorded even when the offence is serious. I agree with Mr Thyssen's submission that the offending in those cases which was generally more serious than in your case. Because the crime of rape invokes the standard sentencing scheme under the Sentencing Act, I must consider the objective gravity of the particular offence. It is the context of the intimate relationship that places this offence in the serious category with your insistence on having sex against the complainant's wishes, and when she was distressed, being a breach of the trust implicit in such a relationship. Apart from ignoring the complainant's protests, there were no other aggravating features.
15
The prosecution submission was that the seriousness of the offending should be determined at about the mid-range, and that was not challenged by
Mr Thyssen in his sentencing submissions. It is difficult to be precise, but all indications are that just below mid range is an appropriate finding. It is of course a category one offence, meaning that a sentence of immediate imprisonment is required, in the absence of a special reason by which this might be avoided. It has not been put that there is a special reason in this case. Pursuant to the standard sentencing scheme, s11A of the Sentencing Act, requires that I must fix a
non-parole period that is at least 70 per cent of the head sentence, unless it is in the interests of justice not to do so.
Personal circumstances and background
16Turning now to your personal circumstances and background, Mr Hayne, you are now aged 28. You were 27 at the time of the offence. As I said at the outset, and returning to those matters, you and the complainant, were in a relationship at the time and were expecting your first child. The complainant was much younger than you aged only 18. Your son was born in April 2021. And you and the complainant separated in June 2021. You have not seen your son since then. Later that year, the complainant asked you for your permission to change the child's surname and you agreed to that. You continue to pay child support to the complainant. There were never any allegations of family violence against you and there was evidence during the trial of a loving relationship between you and the complainant throughout the relevant period, both before and after the offending.
17Your background more broadly is that you have worked as an arborist since soon after leaving school in Year 11, employed by the same company throughout. When charged you were released on bail and continue to live and work in the same hometown as the complainant without incident. You abided by all the conditions for over two years until the trial in December last year, and continuing until the plea hearing.
18The sentencing submissions made on your behalf by Mr Thyssen, was that a Community Correction Order be considered, or alternatively a head sentence with a significant portion by way of parole. Imprisonment is in effect mandatory under the Sentencing Act for a category one offence, and s52G precludes a Community Correction Order in combination with a prison term[8]
[8] In Keller, discussed in paragraph 18 above, a prison term was imposed for the charge of rape, and the CCO was an aggregate order covering the other charges, as well as the rape charge. There does not appear to have been any challenge to this. However, to have separated the CCO from the sentence for rape would not have altered the outcome in practical terms.
19The prosecution submission was that the mid-range objective seriousness calls for a prison term commensurate with that seriousness. I am bound by the principle of parsimony in imposing a sentence that is not more severe than necessary, and that in the circumstances is not crushing.
20I have had regard to all the matters to which I have referred and again I note particularly that you do not present as being at risk of reoffending and specific deterrence has little role to play. General deterrence is served by the prison sentence itself, taking into account the relative seriousness of the circumstances in this case, and the comments in the decision of Clark[9].
[9] [2022]VSCA 89
21
After careful consideration, I have concluded that the appropriate sentence is a term of imprisonment of two years with a non-parole period of one year, which is 50 per cent rather than 70 per cent of the head sentence. I am not persuaded that there is anything to be gained by increasing the term to be served. It is in the interest of justice that you would be released after serving one year, rather than any longer period, in order to return to the community and resume your rehabilitation as a responsible and contributing member of society. There are 12 days of pre-sentence detention not including today and I declare they are to be reckoned as already served. I shall cause that to be noted on the court record.
Mr Moore, are there any other matters?
22MR MOORE: No, that completes the matter, Your Honour.
23HER HONOUR: Thank you. Mr Thyssen, anything else?
24MR THYSSEN: No, Your Honour, thank you.
25HER HONOUR: All right.
[2] [2022] VSCA 89
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