Director of Public Prosecutions v Henderson (a pseudonym)
[2023] VCC 539
•05 April 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONNOR DONALD HENDERSON (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | Trial: 20 April 2022, 21 April 2022, 22 April 2022, 26 April 2022, 27 April 2022 , 28 April 2022, 05 April 2022, 29 April 2022, 02 May 2022, 03 May 2022 Plea: 24 October 2022 | |
DATE OF SENTENCE: | 05 April 2023 | |
CASE MAY BE CITED AS: | DPP v Henderson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 539 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Causing Injury Intentionally; Threat to Kill; Conduct Endangering Life; Rape; False Imprisonment
Legislation Cited: Sentencing Act 1991
Cases Cited:Pasinis v The Queen [2014] VSCA 97; R v Mason [2001] VSCA 62; Director of Public Prosecutions v Mokhtari [2020] VSCA 161; Lawrence (a pseudonym) v The Queen [2021] VSCA 291; Jurj and Miftode v The Queen [2016] VSCA 57; The Queen v Verdins (2007) 16 VR 269; Brown v The Queen [2019] VSCA 286; McPherson v The Queen [2021] VSCA 53; Director of Public Prosecutions v Morey (a pseudonym) [2022] VCC 955
Sentence: 15 Years and 4 Months Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P. Kounnas | COB Lawyers |
HIS HONOUR:
Introduction
1Connor Henderson[1], on 3 May 2022, in relation to Indictment K10427404.1A ('the trial Indictment'), you were convicted by a jury of:
· one charge of causing injury intentionally, which carries a maximum penalty of 10 years' imprisonment;
· one charge of threat to kill, which carries a maximum penalty of 10 years' imprisonment;
· two charges of conduct endangering life, which carries a maximum penalty of 10 years' imprisonment;
· two charges of rape, which carries a maximum penalty of 25 years' imprisonment; and
· one charge of false imprisonment, which carries a maximum penalty of 10 years' imprisonment.
· With regard to the rape charges, pursuant to the relevant provisions of the Sentencing Act 1991, rape is a Category 1 offence, meaning in the circumstances of your case that a custodial disposition is mandatory.
[1] A pseudonym
2Subsequent to the jury's verdicts, you pleaded guilty in relation to Indictment K10427404.1B ('the plea Indictment'), which contained one charge of contravention of a family violence intervention order intending to cause harm or fear for safety, which carries a maximum penalty of 5 years' imprisonment.
3You also pleaded guilty to a related summary offence of committing an indictable offence, namely contravening a family violence intervention order, whilst on bail, which carries a maximum penalty of 3 months' imprisonment.
4You are now 33 years of age. At the time of your offending on 15 February 2019 you were aged 28. You admitted your criminal history, and accordingly you fall to be sentenced as a man with a concerning criminal history which includes a prior finding of guilt for rape, together with prior convictions for firearms offences, threats to kill and cause serious injury, violence offences, and breaching a family violence intervention order.
Circumstances of offending
5I turn now to a summary of your offending on 15 February 2019, including relevant background matters which place your offending in context.
6For approximately three years as at 15 February 2019, you had been in a rather volatile relationship with your victim, Phoebe Wick[2]. Some three years younger than you, Ms Wick was involved in a motor vehicle collision in May 2012, and as a result sustained an acquired brain injury. At some point prior to 15 February 2019 the two of you had been engaged.
[2] A pseudonym
7You have a documented history prior to your current offending, of committing family violence against Ms Wick. On 3 July 2017, an interim family violence intervention order was issued by the Ballarat Magistrates Court, listing you as the Respondent and Ms Wick as the protected person. That order prevented you from contacting Ms Wick by any means. Your subsequent repeated telephone contact of Ms Wick in the middle of the night on 19 May 2018 breached that intervention order, resulting in you receiving a term of imprisonment for that and other criminal conduct on 20 August 2018. You were on bail for this matter at the time of your current offending.
8On 8 January 2019, just over a month before the current offending, the Deniliquin Local Court in New South Wales found charges of breaching an Apprehended Violence Order and assaulting Ms Wick proven against you, in relation to a family violence incident on 17 November 2018.
9One month before your current offending, on 15 January 2019, a family violence intervention order was issued at the Ballarat Magistrates' Court, protecting Ms Wick by essentially preventing you from engaging in relevant family violence against her.
10Through your plea of guilty to the charge of contravention of a family violence intervention order intending to cause harm or fear for safety, with regards to the physical assault and verbal abuse of Ms Wick on 15 February 2019, you have acknowledged criminal responsibility for contravening this order. Through your plea of guilty to the related summary offence of committing an indictable offence on bail, you have also acknowledged criminal responsibility for breaching the intervention order in this manner whilst subject to a grant of bail in relation to your earlier conduct in May 2018.
11In relation to the charges contained in the trial Indictment, you exercised your right to plead not guilty, and those matters accordingly went to trial. As a result of the jury's verdicts, I proceed to sentence you on the basis that the jury were satisfied beyond reasonable doubt of the account of your victim, Ms Wick. I also proceed on the basis that the jury must have rejected your version of events as outlined in your police interview.
12The account of your victim, Ms Wick, was contained in a VARE conducted with police on 19 February 2019 and in her evidence at a special hearing on 17 February 2020. The following summary by me of your offending is based upon the amended summary of prosecution opening dated 22 June 2021, supplemented through a review of Ms Wick's account in her VARE and at the special hearing.
13On the evening of Valentine's Day, 14 February 2019, you and Ms Wick were at the premises owned by your father in Delacombe. At about 9 pm, after you had returned home from work, you and Ms Wick went to the local Bowls Club for some drinks. Over the ensuing hours, you shared several bottles of Moscato while using the gaming machines.
14You both arrived back at the Delacombe premises at about 1.50 am on 15 February 2019. Shortly after arriving, you suddenly became angry, and you began verbally abusing Ms Wick, before pushing her onto the bedroom floor, getting on top of her, and using your hands to strangle her, and spitting in her face. Ms Wick repeatedly asked you to stop, but you placed your hand over her mouth. She struggled to free herself. You then punched Ms Wick to the head and face before grabbing a pedestal fan and striking her with it. Ms Wick tried to protect herself with her hands as she lay on the ground, and the fan broke while you were hitting her.
15As a result of this assault, Ms Wick sustained injuries to her head, face and mouth. Photographs of Ms Wick, tendered at your trial, show head and face injuries. Injuries were also noted by Ballarat Health Services Emergency Department nurse Nola Poulter, who examined Ms Wick in the very early hours of 16 February 2019. She was noted, amongst other things, to have swelling along both sides of her jawline, tenderness to the left temporal area of the skull, tenderness and swelling around an abrasion on the skull, multiple scratches to the face and nose, and a chipped right incisor tooth with associated swelling and bruising to the lip immediately above the tooth.
16Your conduct in this regard forms the basis of Charge 1 on the indictment, intentionally causing injury.
17Ms Wick at this point was dazed and disoriented. She recalls blacking out. When she came back to, Ms Wick heard you referring to boiling the kettle to pour it over her, and she could hear the kettle boiling in the kitchen. She stood up and went to the front door and tried to open it. Upon hearing Ms Wick at the front door, you grabbed a knife from the kitchen, ran up to Ms Wick, and stood behind her, saying 'I'm going to slit your throat'. As she was trying to jiggle the key to the door, she felt a knife go across her neck as you scraped the knife across Ms Wick's throat. The photographs of Ms Wick revealed a horizontal marking across her neck, and Emergency Department nurse Ms Poulter later observed a single horizontal superficial incision across the crease of the neck.
18Your conduct in telling Ms Wick that you were going to slit her throat in these circumstances forms the basis of Charge 2 on the indictment, threat to kill.
19You then tackled Ms Wick to the ground and sat on top of her, placing both of your hands around her throat, squeezing her throat. Ms Wick could not breathe. You said, 'Die, you slut'. She thought she was about to die. She lost control of her bowels and bladder, causing her to defecate and urinate on the floor. After then verbally abusing her, you grabbed Ms Wick by the hair and dragged her into the bedroom, where you started strangling her a second time, grabbing her by the throat and putting all your weight on her neck so that she could not breathe. Again, this caused Ms Wick to lose control of her bowels and bladder, and she defecated and urinated on the floor.
20At your trial, forensic physician Dr Moller indicated various possible consequences from strangulation or compression of the neck, which include the possibility of death. According to Dr Moller, the loss of bowel or bladder control would indicate quite a profound neurological insult, likely due to reduced oxygenation of the brain.
21Your conduct in using your hands to strangle Ms Wick at the door and then further inside the premises forms the basis of Charges 3 and 5 on the trial indictment, engaging in conduct endangering life.
22After twice using your hands to strangle Ms Wick, resulting in her losing control of her bowels and bladder, you turned on the cold water in the shower and pushed Ms Wick into the shower, where she sat crying whilst you stood outside the shower. You continued to verbally abuse her. When the cold water caused Ms Wick to begin shaking and to lose feeling in her hands and body, you helped her out of the shower, dried her with a towel, and put clothes on her.
23You then led her to the bed. You lay on the bed and then rolled over towards her. With Ms Wick on her back, you pulled her tracksuit pants down and inserted your penis into her vagina. According to Ms Wick, after everything that had happened to her, she did not want to say anything to make you angry, she did not want to get strangled or hurt again, and so she let you do what you wanted. Through its verdict, the jury were clearly satisfied beyond reasonable doubt that this conduct was not consensual.
24Your conduct in this regard forms the basis of Charge 7 on the trial indictment, rape.
25Soon after the first rape, after you had removed your penis from Ms Wick's vagina, you tried to flip her over, but Ms Wick convinced you not to. You then again inserted your penis back into Ms Wick's vagina without her consent, where you had sex with her until ejaculating inside her vagina. In relation to the sex on the bed, you did not use a condom. You then rolled over and went to sleep.
26Your conduct in relation to the second episode of sexual penetration forms the basis of Charge 8 on the trial indictment, rape.
27After lying awake in bed and waiting for you to fall asleep, Ms Wick then checked the front and back door of the premises to see if she could escape. The keys to both doors had been removed. After unsuccessfully looking for the door keys, Ms Wick returned to bed.
28The following morning at about 8 am, Ms Wick woke you, reminded you that you needed to go to work, and indicated that she needed to go to hospital. At this point you had her car keys, mobile phone, and handbag. After refusing her request to go to her parents' place, you ultimately agreed that Ms Wick could go to hospital, and you then both left the premises.
29At your trial, the prosecution alleged that from the time you first punched Ms Wick until she was allowed to leave the premises the following morning, you had detained her against her will. By virtue of the jury's verdict of guilty with regard to Charge 9 on the trial indictment, false imprisonment, the jury were clearly satisfied beyond reasonable doubt of this allegation.
Procedural history
30The protracted procedural history of this matter was set out in some detail in the addendum to summary of prosecution opening for plea dated 20 October 2022. Your offending took place over four years ago, on 15 February 2019. You were arrested the following day and have been in custody ever since, a period of 1,496 days, excluding a 14‑day sentence of imprisonment imposed on 20 August 2019 in relation amongst other things to your breaching of the interim intervention order dated 3 July 2017, by contacting Ms Wick in the early hours of 19 May 2018. A police summary where the informant is McKenzie was tendered at your plea hearing, as part of a bundle of police summaries, and marked Exhibit 2. I will return to the issue of delay and its relevance later in my reasons for sentence.
31However, having participated in a VARE in February 2019 and given evidence at a special hearing in February 2020, your victim Ms Wick has lived with this matter effectively hanging over her for a protracted period of time. Of course, so have you. You have been in custody for a very substantial period of time whilst these serious charges hang over your head.
32Of course, as is now well known, since the early months of 2020, the impacts of COVID‑19 have had catastrophic impacts upon the administration of justice in this Court, no doubt contributing substantially to the delays associated with this matter. After a period of considerable emergency case management from early 2021 in the context of COVID‑19, two earlier trials in July 2021 resulted in jury discharge due to the conduct of your previous counsel. The matter ultimately proceeded before me on 20 April 2022, with the jury returning its verdicts on 3 May 2022. During the almost 12 months since the jury's verdict, your case has been further delayed whilst your legal representatives legitimately pursued psychological and psychiatric matters that had potential relevance to sentencing. Whilst the delay associated with these tasks was in my view inordinate, I accept that this is no fault of yours.
Nature and gravity of your offending and your level of culpability for it
33In assessing the objective gravity of your offending overall, I consider a number of features elevate the seriousness of your conduct. Ms Wick was a person who had been in an intimate relationship with you for a protracted period of time. At some point prior to your offending you had been engaged. By virtue of her acquired brain injury of some years' standing, she was a vulnerable person, a matter surely known by you. Clearly, the relationship was volatile. In addition to the intervention orders protecting Ms Wick from you, I accept that an intervention order protecting you from Ms Wick was also issued by the Ballarat Magistrates' Court. However, just one month prior to your offending, a family violence intervention order was issued by the Ballarat Magistrates’ Court, protecting Ms Wick from you engaging in family violence with her. Just over one month prior to your offending, you had been bailed on a charge of contravening a family violence intervention order by telephoning Ms Wick in contravention of an earlier intervention order imposed on 3 July 2017 at the Ballarat Magistrates' Court. Accordingly, you engaged in the current offending whilst subject to an intervention order preventing family violence, and whilst subject to a grant of bail for an allegation of breaching a family violence intervention order. These matters elevate the seriousness of your overall offending, in my view.
34Furthermore, I have concluded that the offending captured by the trial indictment is emblematic of the very definition of family violence. You started the evening on Valentine's Day 2019 by attending a venue for drinks with a woman with whom you had been in a relationship for some three years, a woman whom you presumably had feelings for. Instead of showing her love, care, and affection, you subjected your vulnerable victim to a sustained and brutal episode of physical and sexual violence over the ensuing hours. You treated her as nothing more than a chattel, a possession over which you sought to exercise complete dominion and control.
35Whilst no victim impact statement was provided by Ms Wick, she must surely have been terrified throughout this horrific ordeal. The photographs showing Ms Wick’s injuries, tendered at your trial, show a traumatised woman. Whilst of course you will not be punished for exercising your rights to plead not guilty, in doing so Ms Wick was forced to relive her humiliating and degrading ordeal in evidence, and I formed the view that, in giving evidence, Ms Wick was indeed extremely traumatised by the process.
36Both specific and general deterrence remain very important factors in sentencing with regard to family violence offending.[3] In particular, as the Court of Appeal stated in the often-quoted decision of Pasinis:
'General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.'[4]
[3]Pasinis v The Queen [2014] VSCA 97 at paragraph [53].
[4]Ibid, at paragraph [57].
37In my view, the fact that your offending occurred in a family violence context elevates the gravity and seriousness of each of the offences for which you have been found guilty. Bearing that in mind, I turn now to my assessment of the gravity with regard to each of the charges on the trial indictment.
38Your conduct in relation to Charge 1 on the trial indictment, intentionally causing injury, involved not only striking Ms Wick but utilising a pedestal fan in the assault. The fan broke while you were hitting Ms Wick, indicating in my view that a degree of force must have been used by you. Ms Wick sustained injuries to her head and face region, making this in my view a concerning example of the offence of intentionally causing injury.
39In relation to Charge 2 on the trial indictment, threat to kill, your threat to slit Ms Wick's throat was accompanied by your physical actions in scraping a knife across Ms Wick's throat, no doubt emphasising the seriousness of the threat to Ms Wick, and elevating the seriousness of this particular offence.
40I turn now to the conduct endangering life charges, Charges 3 and 5 on the trial indictment. They both involved strangulation by you placing your hands around the neck of Ms Wick with force, causing her to defecate and urinate on the floor. The risk to life was clear, in my view, based upon the expert evidence at your trial. Furthermore, your conduct with regard to these two charges was particularly degrading and humiliating for Ms Wick. In particular, having seen the humiliating consequences for Ms Wick from your first act of strangulation, the fact that you repeated this conduct elevates, in particular, the second conduct endangering life charge.
41I turn now to the rape charges, Charges 7 and 8 on the trial indictment. Rape is an intensely personal crime, involving the physical invasion of a person and their security, and the more intangible loss of their rights and freedoms.[5] It is an inherently serious crime, simply by virtue of the invasion of the victim's bodily integrity without consent. It is inherently an act of violence, whether or not accompanied by other violent conduct.[6] In addition to the physical violation, the crime of rape involves the psychological and emotional violation of an individual. The depth of the injury and harm caused to victims is well established. The crime of rape covers a very wide spectrum of different activities, carried out in a wide variety of circumstances of differing degrees of objective gravity.[7] Within this spectrum, there are a number of features which are typically taken into account by sentencing courts in assessing the gravity of a particular incidence of rape.[8]
[5]R v Mason [2001] VSCA 62 at paragraph [8].
[6]Director of Public Prosecutions v Mokhtari [2020] VSCA 161 at paragraph [41].
[7]Lawrence (a pseudonym) v The Queen [2021] VSCA 291 at paragraph [21].
[8]Jurj and Miftode v The Queen [2016] VSCA 57 at paragraph [80].
42As I have stated, you committed the rapes in the context of family violence, and whilst subject to a family violence intervention order, and whilst on bail with regard to an allegation of committing family violence against Ms Wick. Whilst the rapes did not involve any additional aspects of violence above and beyond the inherently violent nature of the crime of rape, they occurred after you had engaged in truly brutal treatment of Ms Wick. You had assaulted her with a pedestal fan, threatened to slit her throat whilst running a knife across her throat, and strangled her twice to the point of defecation and urination. You had dragged her to the shower and essentially stood over her whilst she sat shivering under the cold water, before moving her to the bed and raping her. Whilst in and of themselves the rapes were not accompanied by some of the aggravating features sometimes seen by this court, the overall context, as I have described it, very much elevates the seriousness of this particular offending.
43Whilst I accept in all likelihood that the rapes, together with all of the offending on this evening, were not pre‑planned or premeditated, your offending, including the rapes, appears to have been triggered by an inexplicable explosion of temper or rage on your part. As seems clear from Ms Wick's account, the rapes did not involve the use of condoms on your part. On the second occasion, according to Ms Wick, you proceeded to the point of ejaculation. The risks associated with unprotected sex further accentuate the seriousness of these particular crimes.
44Whilst the two rapes could be seen as part of one overall episode of sexual activity, you have nevertheless been found guilty of two separate rape charges, reflecting the distinct conduct on your part. In particular, the second rape occurred in the context of Ms Wick's attempts to prevent you flipping her over after the first rape. In my view, the second rape demonstrates a determination on your part to commit these acts of rape against Ms Wick's will, and your ejaculation with regard to the second rape no doubt accentuated her sense of violation.
45In relation to the second rape, you fall to be sentenced as a serious sexual offender, having been convicted of threat to kill, a violent offence as defined in the Sentencing Act 1991. Pursuant to the relevant provisions of that Act, there is a presumption of cumulation with regards to other sentences imposed, and the protection of the community becomes the primary sentencing purpose. Having regard, as always, to the overarching principle of totality, there is in my view a need for a degree of cumulation with regard to the sentences relating to the two rapes.
46Finally, with regard to Charge 9 on the trial indictment, false imprisonment, in my view your conduct represents a serious example of this particular crime. Again, this offence occurred in a family violence context. Your victim, Ms Wick, was detained against her will for a sustained period of time, from the moment you assaulted her with regard to Charge 1 until you allowed her to leave the premises after 8 am the next day. Your brutal and sustained criminal conduct within this period of time would have no doubt emphasised the gravity of Ms Wick's predicament. The following morning, you initially, it seems, ignored Ms Wick's protestations with regard to being released. In all the circumstances, this is in my view a serious example of the crime of false imprisonment.
47In all the circumstances, I find your level of culpability or responsibility for your offending to be high. Ultimately, your counsel did not submit that your moral culpability was in any way reduced by virtue of the Verdins[9] mental impairment principles.
[9]The Queen v Verdins (2007) 16 VR 269.
48You have a relevant and concerning criminal history, accentuating, in my view, your level of culpability for the current offending.
49You have previously been found guilty of the offence of rape, when, on 17 March 2009 at the Ballarat County Court, on appeal from a decision of a Children's Court, you were found guilty with regard to a digital rape, and sentenced to a youth attendance order.
50You also have prior convictions with regard to matters of violence, possession and use of firearms, threat to kill, threat to cause serious injury, contravene family violence intervention order, and conduct endangering life.
51As I earlier indicated, you have a prior finding of guilt in the New South Wales jurisdiction with regard to assaulting Ms Wick. As I have stated, you were on bail at the time of the offending with regard to an allegation of breaching a family violence intervention order with regard to Ms Wick. That you would engage in such serious offending, with this relevant and concerning criminal history, in my view, elevates your level of culpability for the current offending.
52In your police interview, you essentially denied any responsibility for your conduct, and sought to attribute blame to Ms Wick, indicating that she started the fight as usual when you both returned home; that she snapped and flipped out; that this occurred after you had had intimate sexual activity, which she initiated; and that she grabbed a knife and tried to slit your throat. Clearly the jury rejected your account, by virtue of its verdicts.
53In submissions at your plea hearing, your counsel sought to portray the relationship between you and Ms Wick as a volatile one, involving mutual instances of aggression. Whilst the fact that Ms Wick also had been the Respondent to an Intervention Order in the weeks preceding your offending, there is in my view no evidentiary basis to support a finding that Ms Wick in any way was an aggressor on this evening. In any view, I reject the suggestion that your culpability for this serious offending is in any way reduced due to the conduct of Ms Wick. Your culpability for this offending is high.
Personal circumstances
54I turn now to your personal history. I have drawn much of this information from the psychological report of Mr Patrick Newton dated 19 October 2022, together with the neuropsychological report from Mr Mathew Staios dated 27 February 2023. You were assessed by Mr Newton on 6 October 2022, and by Mr Staios on 16 February and 22 February 2023.
55You are now 33 years of age. You are the second of three brothers in your family. You grew up in the Ballarat area. Your father works as a diesel mechanic, and your mother is an aged care nurse. You remain on good terms with your parents and brothers, who appear to be your main supports.
56You were educated in the Catholic school system in the Ballarat area, completing primary school before attending St Patrick's College in Ballarat for your secondary schooling. You were educated to the completion of Year 10 level, and have indicated that whilst your grades remained poor, you managed to pass, preferring more hands-on activities than academic pursuits. You were, it seems, an accomplished athlete, ultimately competing at a national level in the area of swimming.
57At the age of 17, after leaving school, you moved to Western Australia and started an apprenticeship in diesel mechanics. You then worked in the mines in Western Australia before returning to Ballarat to complete the final year of your apprenticeship. You also worked in regional New South Wales for a period. You informed Mr Newton that you had been in relatively stable employment from 2015 to 2018. To your credit, and notwithstanding the understandable anxieties resulting from the jury's verdict, you have at times worked within the prison system, most recently being employed in the prison bakery.
58You informed Mr Newton that you have had three or four serious relationships, the most serious being with Ms Wick, whom you met when you were aged 21, and to whom, as I have previously indicated, you were reportedly at one point engaged to be married. You reported to Mr Newton an awareness of Ms Wick's acquired brain injury, and you indicated that she experienced significant mental health problems and that the relationship had been unstable, tumultuous, unpredictable and challenging.
59In terms of your physical health, you have apparently experienced a number of serious injuries due to motor vehicle accidents. These injuries have included a 'broken back', 'shattered vertebrae' - to use your words - and shoulder damage. You have apparently undergone surgery for the insertion of a prosthetic vertebrae and rods, and as a result you have experienced ongoing chronic pain. In the past this has been managed with a combination of opiates such as Endone and Panadeine Forte. You were apparently transferred to methadone after your reception into custody. You have reported that you continue to experience chronic pain, but you have learnt to live with it.
60You have reported a history of binge drinking up until the age of 25 on weekends, but you had reduced your alcohol consumption when working in the mines due to daily breath-testing. You informed Mr Newton that you had ceased drinking in 2015 and had not returned to alcohol consumption. This of course appears to be at odds with your alcohol consumption on 14 February 2019, where you appear to have shared multiple bottles of Moscato with Ms Wick at the Sebastopol Bowls Club.
61In terms of your mental health, you have reported having previously been diagnosed with Asperger's disorder, now subsumed within the autism spectrum disorder, whilst in prison. A previous psychological report from Mr Mackinnon was suggestive of such a diagnosis, though this was not supported by Mr Newton, who recommended a neuropsychological assessment. According to the subsequent neuropsychological assessment from Mr Staios, you do not meet the criteria for a diagnosis of autism spectrum disorder; rather, your history with regard to difficulties in social relationships is more likely a reflection of anxiety and underdeveloped social skills.[10]
[10]Neuropsychological Report by Mr Staios dated 27 February 2023 at paragraph [7.3].
62Whilst you reported to Mr Newton having previously spoken with several counsellors and psychologists over the years, you reported not feeling comfortable talking about your problems. As at the time of Mr Newton's assessment, you were not participating in any counselling and you were not prescribed any medication.
63As I have indicated, you have a criminal history which is both relevant and concerning. In March 2009, on appeal at the Ballarat County Court, you were found guilty of digital rape committed in 2007 when you were 17 years of age. According to Mr Newton, you contested this charge and, it seems, still maintain that you did nothing wrong.[11]
[11]Psychological Report of Mr Newton dated 19 October 2022 at paragraph [27].
64You have subsequently been convicted of various offences both in Victoria and New South Wales. You have a prior conviction for threat to kill and contravening an intervention order from 2013. You have a prior conviction for conduct endangering life from September 2015, and the police summary provided in relation to that matter refers to your discharge of a firearm in the vicinity of another individual as forming the basis of that offence. You have a prior conviction for threatening to inflict serious injury from 2018.
65As I have previously indicated, you have a prior finding of guilt with regard to assault and contravention of an intervention order relating to Ms Wick, those matters being found proven just one month before your current offending. As I have earlier indicated, you were on bail at the time of the current offending with regard to allegations of breaching an intervention order relevant to Ms Wick, for which you ultimately received a gaol sentence on 20 August 2019.
66In addition to being relevant with regard to your culpability for the current offending, your criminal history informs an analysis with regard to your prospects of rehabilitation and the need for any penalty to reflect the important sentencing purpose of specific deterrence.
Matters relevant in mitigation
67I turn now to an analysis with regard to matters raised in mitigation on your behalf.
68As I have indicated, you are not to be punished for exercising your right to plead not guilty. However, the jury's verdicts with regards to the trial indictment preclude any mitigatory allowance with regard to any plea of guilty, acceptance of responsibility, or remorse. Indeed, it is readily apparent that you are completely lacking in any insight or remorse with regard to the serious offending for which you now fall to be sentenced.
69In sentencing you, I have had regard to the fact that you have, however, pleaded guilty to the plea indictment containing the charge of contravening a family violence intervention order and the related summary offence of committing an indictable offence whilst on bail. Sentencing discounts with regard to your pleas of guilty to those charges are appropriate.
70I return now to the issue of delay. Without repeating my earlier sentiments, there has clearly been a most significant delay associated with the finalisation of your matters. Whilst I express a degree of disquiet with regard to the conduct of your previous counsel, which very much elongated the criminal process, you are not to be punished for such matters. The fact remains that you have been in custody now since mid-February 2019. I have little doubt that this extended delay has caused you significant anxiety, as you await the outcome of these serious charges.
71Furthermore, a significant proportion of this period has been spent in custody in the context of the COVID‑19 pandemic. Whilst your counsel did not refer me to any specific consequences relevant to your time in custody, I accept that for all prisoners the impacts of COVID‑19 in the custodial environment has been significantly adverse. As is well known, prisoners have had to live with added restrictions in the custodial setting, with restricted movement, access to visits, and access to employment and therapeutic activities. Furthermore, all prisoners have had to live with the anxieties associated with the incursion of COVID‑19 into the custodial setting with its compromised demographic. A mitigatory allowance is warranted in your case.
72Furthermore, based upon the opinions of psychologist Patrick Newton, I am satisfied that your physical and psychological makeup has exacerbated your time in custody. You appear to have suffered a number of serious injuries from motor vehicle accidents, which have at times required opiate medication. I have little doubt that this has made your time in custody difficult.
73According to Mr Newton, you are experiencing elevated symptoms of anxiety and depression.[12] You have struggled to come to terms with the verdict of the jury. You have largely isolated yourself within the prison system and have remained concerned about the welfare of your family. You have, according to Mr Newton, been distressed by your chronic pain, which has added to your challenges. According to Mr Newton, you may benefit from the prescription of anti-depressant medication to ameliorate your symptoms.
[12]Psychological Report of Mr Newton dated 19 October 2022 at paragraph [30].
74I turn now to other aspects of the Newton report, which was commissioned by your legal representatives. Mr Newton, a highly respected expert, conducted a risk assessment using the well-known static and dynamic risk assessment tools. Mr Newton concluded that the two risk estimates were congruent with each other in suggesting that you represent a high risk of recidivism to sexual offending. Your risk of reoffending is well above average relative to other sex offenders undergoing sentence. Of concern, Mr Newton opines that the review of dynamic risk factors identified a large number of risk factors of relevance both from the time of your offending and more recently. According to Mr Newton, the indications are that with the passage of time the risk of recidivism has increased. Mr Newton concludes:
'There is a clear need for offence-specific intervention and for other containment strategies to be implemented in his case. Regrettably, his denial of culpability may render this an especially difficult task.'[13]
[13]Psychological Report of Mr Newton dated 19 October 2022 at paragraph [46].
75The opinions and conclusions of Mr Newton very much impact upon an assessment with regard to your prospects for rehabilitation. I accept that throughout your life you have shown a degree of aptitude, firstly with regard to sporting pursuits, and secondly with regard to varied employment. Significantly, you maintain, it seems, the support of your family.
76However, the fact remains that you have a very concerning criminal history, and it seems to me a demonstrated problem with regard to your attitude and behaviours towards intimate partners, particularly Ms Wick. You have now been found guilty with regard to extremely serious and concerning offences. You continue to maintain a denial of any wrongdoing with regard to the offences for which you have been found guilty. In these circumstances, I find that your prospects for rehabilitation must be viewed as very guarded.
Other sentencing considerations
77In formulating an appropriate sentence in your case, I have had regard to the only purposes for which sentences may be imposed, set out in s5(1) of the Sentencing Act 1991.
78As I have already indicated, both general and specific deterrence are primary sentencing purposes in your case. Furthermore, any sentence I impose must manifest the denunciation by the Court of the type of conduct in which you engaged. You must be appropriately and justly punished for your egregious conduct with regard to Ms Wick. Given the jury's verdicts, your ongoing denial of responsibility, and the concerning risk assessment of Mr Newton, the community needs protection from you through your containment, and any sentence I impose must appropriately reflect this.
79I must of course also seek to establish conditions within which your rehabilitation may be facilitated. In my view, this is most appropriately accommodated through a parole eligibility component to the sentence which I will shortly impose.
80Charges 7 and 8 on the trial indictment, rape, are standard sentence offences. As these offences were committed after 1 February 2018, the standard sentence scheme contained in the Sentencing Act 1991 applies to the sentence I am to impose on each charge of rape. The applicable standard sentence is 10 years' imprisonment.
81Pursuant to s5A(b) of the Sentencing Act 1991, this period is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
82Pursuant to the standard sentencing scheme set out in s5A and 5B of the Sentencing Act 1991, I am required to take the standard sentence into account as one of the factors relevant to sentencing.
83The standard sentence is a legislative guidepost only and does not affect the established instinctive synthesis approach to sentencing.[14] The difficult task of sentencing with regard to a standard sentence, which is designed to represent a 'mid-range' example of the relevant offence, was acknowledged by the Court of Appeal in the decision of McPherson v The Queen,[15] where the plurality stated with regard to a mid-range example of an offence that:
'it is an intangible concept, and judges ought to be wary of affording it too much weight in the sentencing exercise. In particular, as this Court has said, judges must avoid engaging in "two-stage" sentencing, whereby a vague, essentially intangible concept is used as a starting point from whence the sentence is adjusted upwards or downwards as the case dictates. It is a factor in the application of the intuitive synthesis, in the same way that the maximum sentence is. No more, no less.'[16]
[14]Brown v The Queen [2019] VSCA 286 at paragraph [4].
[15][2021] VSCA 53.
[16]Ibid, at paragraph [31].
84Pursuant to s5B(2)(b), I must only have regard to sentences previously imposed for the offence as a standard sentence offence when considering current sentencing practices for the offence of rape imposed under the standard sentence scheme.
85I was provided by the prosecution with, and have considered, a table of cases involving the offences of rape, sentenced pursuant to the standard sentencing scheme. My attention was also drawn to a County Court decision of her Honour Judge Chambers in the matter of the Director of Public Prosecutions v Morey (a pseudonym).[17] In that case, the offender was sentenced with regard to multiple rape offences, committed in degrading and humiliating circumstances, following a trial, to a total effective sentence of 12 years and 4 months' imprisonment with a non-parole period of 8 years. Mr Cordy, who appears on behalf of the prosecution in this matter, submitted that the decision of Morey was not quite as serious objectively as this case. I agree.
[17][2022] VCC 955.
86In formulating an appropriate sentence in your case with regard to the rape charges, I have had regard to the standard sentencing scheme and previous sentences for the crime of rape imposed pursuant to that scheme, acknowledging as I must that each case is fact-specific, that these matters represent just one of the many applicable sentencing factors in your case, and that ultimately I have an overarching duty to impose a just and appropriate sentence in accordance with orthodox sentencing principles.
87The individual sentences I am about to impose on each of the two rape charges fall just below the standard sentence. Having identified and considered the relevant factors in assessing the sentence, including the standard sentence; the objective seriousness of the offending; and matters available in mitigation, particularly the effects of the most substantial delay in these proceedings, compounded by the impact of COVID‑19 on the custodial setting; these are the sentences I have determined to be appropriate.
88In my view – and noting my earlier comments with regards to the operation of the serious sexual offender provisions in the Sentencing Act 1991 with respect to the second rape - there must be a degree of cumulation ordered with regard to the sentences imposed, subject to the overarching principle of totality. That principle essentially means that a significant degree of concurrency is nevertheless appropriate. In relation to the rapes in particular, there is in my view a need to reflect the distinct criminality and the escalating seriousness of the second rape in the circumstances, through a degree of cumulation. There is a need, in my view, to further reflect the distinct criminality attaching to each of the offences on the trial indictment through a measure of cumulation.
Sentence to be imposed
89For the reasons I have articulated, and consistent with the parsimony principle, nothing short of a significant sentence of imprisonment is warranted for your serious offending. Whilst the sentence I am about to impose will contain a parole eligibility component, I agree with the prosecution that there is nothing to justify a shorter than usual non-parole period in your case.
90In relation to the two charges of rape, pursuant to s11A(4)(b) of the Sentencing Act 1991, I must fix a non-parole period of at least 70 per cent of the relevant term unless I consider that it is in the interests of justice not to do so. For the sake of clarity, I do not believe that it in the interests of justice to impose a non-parole period lower than the statutory minimum. Mr Henderson, I now come to the part of my sentencing remarks where I impose the sentences with regards to all of the charges.
Trial indictment
91In respect of the trial indictment:
92On Charge 1, intentionally causing injury, you are convicted and sentenced to three years' imprisonment.
93In relation to Charge 2, threat to kill, you are convicted and sentenced to three years' and six months' imprisonment.
94In relation to Charge 3, conduct endangering life, you are convicted and sentenced to four years' imprisonment.
95On Charge 5, conduct endangering life, you are convicted and sentenced to four years' and six months' imprisonment.
96On Charge 7, rape, you are convicted and sentenced to nine years' and six months' imprisonment. This is the base sentence.
97On Charge 8, rape, you are convicted and sentenced to nine years' and six months' imprisonment. Pursuant to s6F of the Sentencing Act 1991, I declare that you have been sentenced on this charge as a serious sexual offender, and I order that this fact be entered into the records of the Court.
98On Charge 9, false imprisonment, you are convicted and sentenced to four years' and six months' imprisonment.
Plea indictment
99In respect of the plea indictment:
100On the charge of contravention of a family violence intervention order, intending to cause harm or fear, you are convicted and sentenced to 12 months' imprisonment.
Related summary offence
101On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 90 days' imprisonment.
102I order that six months on Charge 1, nine months on Charge 2, 10 months on Charge 3, 12 months on Charge 5, 15 months on Charge 8, and 18 months on Charge 9, be served cumulatively upon each other, and upon the base sentence imposed with regard to Charge 7 on the trial indictment, making a total effective sentence of 15 years' and 4 months' imprisonment.
103I fix a non-parole period of 11 years' imprisonment before you are eligible for parole.
104Pursuant to s18 of the Sentencing Act 1991, I declare that 1,496 days of pre-sentence detention has been served and is reckoned as already served and deducted administratively from your sentence.
105Pursuant to s6AAA of the Sentencing Act 1991, in relation to the charges to which you pleaded guilty, I declare that had you pleaded not guilty but been found guilty, I would have imposed a sentence of 18 months' imprisonment on the contravention of family violence intervention order charge, and two months' imprisonment on the related summary offence of committing an indictable offence whilst on bail, with four months of these sentences being served cumulatively upon the trial indictment offences, making a total effective sentence of 15 years and 6 months' imprisonment.
106In relation to the rape charges, pursuant to s11(3) of the Sex Offender Registration Act 2004, having considered all relevant matters, including in particular the Report of Mr Newton, I am satisfied beyond reasonable doubt that you pose a risk to the sexual safety of one or more persons, or of the community, and accordingly I order that you comply with the reporting obligations of this Act, for a period of 15 years.
107Finally, I make the forfeiture order sought by the prosecution, noting that it is not opposed by you.
108Mr Cordy, turning firstly to you, any issues or ambiguities with regards to the sentence imposed?
109MR CORDY: Could I will just ask Your Honour to repeat the sentence for the related summary offence?
110HIS HONOUR: Convicted and sentenced to 90 days, nine zero.
111MR CORDY: Nine zero days?
112HIS HONOUR: Yes.
113MR CORDY: All right. Yes, thank you, Your Honour. That's the only matter, Your Honour.
114HIS HONOUR: Yes, thank you. Mr Irwin, any matters to raise?
115MR IRWIN: Nothing, Your Honour.
116HIS HONOUR: Yes, thank you.
117(Short adjournment.)
118HIS HONOUR: Yes, thank you for reconvening, gentlemen. I just wanted to indicate the need to correct the record with regards to the sentence for the related summary offence. I indicated in open court the sentence was 90 - nine zero - days' imprisonment. No order with regards to cumulation. However, I misspoke. The sentence to be imposed with regards to the related summary offence is 45 days' imprisonment. That is consistent with my subsequent 6AAA reference with regards to that charge, that declaration being two months. So it does not impact upon the total effective sentence, that is 45 days' imprisonment for the related summary offence.
119Mr Irwin, your client is not present for this hearing due to logistics difficulties. Do you indicate that there is no issue from your point of view? You will convey that to him tomorrow, I think.
120MR IRWIN: No issue, sir. I am happy to discuss this with Mr Henderson when I speak to him.
121HIS HONOUR: Yes.
122MR IRWIN: There is no issue with him not being here, no.
123HIS HONOUR: Yes. And you understand the correction that's been made?
124MR IRWIN: Yes, I do.
125HIS HONOUR: Yes, thank you. Thanks, Mr Cordy, any issues from the prosecution's perspective with regards to the correction, or indeed the absence of Mr Henderson from this portion of the hearing?
126MR CORDY: No, none at all, Your Honour.
127HIS HONOUR: Yes, all right. Thank you very much both of you for reconvening so quickly. That completes this matter. Adjourn the Court please.
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