Director of Public Prosecutions v Henderson (a pseudonym)

[2023] VCC 433

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY HENDERSON (a Pseudonym)

‑‑‑

JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2023
DATE OF SENTENCE:	9 March 2023
CASE MAY BE CITED AS:	DPP v Henderson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 433

REASONS FOR SENTENCE

‑‑‑

Subject:  CRIMINAL LAW

Catchwords:  Rape – Threat to kill – intimate partners - gravity of offending - delay in complaint – rehabilitation – serious sex offender

Legislation Cited:  Crimes Act 1958; Sentencing Act 1991; Serious Offender Act 2018

Cases Cited:R v MWH [2001] VSCA 196; R v Nikodjevic [2004] VSCA 222; Director of Public Prosecutions v Merrett & Ors [2007] VSCA 1; R v Talia [2009] VSCA 260; Director of Public Prosecutions v Bales [2015] VSCA 261; Tones v The Queen [2017] VSCA 118; Sayer v The Queen [2018] VSCA 177; Henson v the Queen [2018] VSCA 283; Clark v the Queen [2022] VSCA 89; Landale v the Queen [2022] VSCA 121.

Sentence:8 years 6 months imprisonment; Non-Parole Period of 5 years, 6 months.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Mellios	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. Page	Leanne Warren & Associates

HIS HONOUR: 

1Timothy Henderson,[1] on 30 November 2022, you were found guilty after trial of one charge made threat to kill contrary to s 20 of the Crimes Act1958 and three charges of rape contrary to s38(1) of the Crimes Act1958. 

[1] A pseudonym.

2The maximum penalties for these offences are as follows:  make threat to kill, 10 years imprisonment; rape, a maximum penalty of 25 years imprisonment. 

3The circumstances of your offending are as follows. 

4On a night in 2009, the victim in this matter, Deborah Cook,[2] your de facto partner, went out with a friend to a nightclub in Werribee. 

[2] A pseudonym.

5She returned home at about 5 am.

6She came into the bedroom where you were and sat down on the bed next to you.  She began to cry.  She told you that she had been unfaithful to you and that she had just had sex with another man.  At this point, the relationship was under strains and you had drifted apart. 

7You left the room and shortly afterwards returned with a large butcher's knife. 

8You told Ms Cook that she had to do what you said or you were going to kill her.  Those are the facts underpinning Charge 1, make threat to kill. 

9You directed her to take her clothes off and to give you oral sex. 

10She did not want to do this, but she was afraid that you would kill her if she did not.  She took her clothes off and you put your penis into her mouth.  Those are the facts underpinning Charge 2, rape. 

11After that, you picked her up and put her on the bed.  She was crying whilst this was happening.  She kept saying, 'Why?' and, 'Please do not do this.' 

12You told her that she had to do what you said or you would kill her.  You also told her that neither she nor you were 'leaving here alive.' 

13You asked her to spit on your penis and then sit on it.  At this point, you were either still holding the knife or it was within your reach. 

14Ms Cook was distressed, she protested, but you slapped her with the knife when she did. 

15You penetrated her vagina with your penis, and those are the facts underpinning Charge 3, rape.

16She did not want to do this, but was afraid you would kill her if she stopped.  She kept telling you to stop, but you just slapped her with the knife. 

17At some point, you stopped and allowed her to use the toilet.  You followed her to the toilet and stood watch while she used it. 

18The toilet was in the laundry.  After Ms Cook used the toilet, you put her down on the laundry floor tiles.  You were still holding the knife. 

19You put your penis again into her vagina.  She complained that the tiles were too cold.  You took her back into the bedroom, where you again penetrated her vagina with your penis, and those are the facts underpinning Charge 4, rape.

20Eventually, you stopped, dropped the knife and began to cry.  Altogether, the incident lasted some three to four hours. 

21Ms Cook called her mother later that night and told her that she needed to move out.  She did not tell her mother what had happened.  The next day, she started packing up her belongings, and within a week, she had moved out of the house she had shared with you. 

22She disclosed your offending to a friend of hers, Randy Wright,[3] about four to six weeks after it had happened.

[3] A pseudonym

23About a fortnight later, she told her friend, Jane Ramirez.[4]  She saw a doctor and told him that something really bad had happened and that she needed help, but she did not pursue counselling for many years.  She did not want to acknowledge what had happened. 

[4] A pseudonym.

24She engaged with counselling in 2018, and in 2019 she reported your offending to police.  You were charged later that year. 

Personal Circumstances

25You were born in a Central American country and moved to Australia in 1984.

26You have two siblings who are older than you by six years and one year respectively. 

27Your mother was a nanny and homemaker, and your father held a variety of jobs, including as a butcher and builder. 

28You attended various primary schools.  Your family moved around, eventually settling in the Werribee area.  You attended school until year 11, when you left and started an apprenticeship in stonemasonry.  You have since worked in that field, with the sole exception of one year when you studied sound engineering.

29You have been diagnosed with silicosis as a result of your work in stonemasonry.  I am told that your condition requires monitoring but is not expected to contribute to any hardship in custody. 

30I am told you have the full support of your family.  Character references from your mother and sister were provided to the court.  Your mother describes you as a hard worker with a big heart.  She speaks highly of the assistance you have given your family since your father's heart attack a few years ago.  Your sister describes you as an amazing human being with a big heart.  She has described you as being empathetic, affectionate, trustworthy, generous.  It is clear from these letters that you have a loving and supporting family, which speaks well for your prospects of rehabilitation. 

31I am also told that you are currently in a relationship with a new partner who fully supports you and speaks highly of the way you treat her.  Again, I was provided with a letter from her in which she describes you as a great partner and friend.  You have been a father to her son.  She says you have made her a better parent and person.

Victim Impact Statement

32Ms Cook read aloud her victim impact statement at your plea hearing.

33She described how her life has been changed since the offending.  She said that she had lost any self-worth that she had before the offending.  She said that since the offending, she tried to numb herself with drugs and alcohol.  She has become a nervous and frightened person, afraid of saying no to anyone for fear of an adverse reaction.  As a result of the drugs she took to numb herself she lost most of her friends and her family stopped associating with her. 

34She has developed anxiety and post-traumatic stress disorder. At night, she fixates over whether the doors to her home are locked.  She worries that she will never feel safe again. 

35It is clear from Ms Cook’s statement that your crimes have had a devastating effect on her.  She describes being hypervigilant, untrusting, and incapable of enjoying life.  She has a son now, and she has noted the same hypervigilance in him.  Her victim impact statement spoke powerfully and eloquently of the far reaching and enduring mark left on her by your offending.

Prosecution Submissions

36The prosecution concedes that you have not committed any offences before or after the offending against Ms Cook in 2009.  Prosecution counsel also conceded that your prospects of rehabilitation were positive. 

37The use of the knife to threaten, coerce and to slap Ms Cook, it is submitted, was an aggravating feature of the offending. 

38The Crown further submits that a term of imprisonment with a non-parole period is the only appropriate sentencing disposition available. 

39The Crown contends that the objective gravity of the offences and your culpability are high. 

40The Crown also contends that your offending falls in the middle range of seriousness for offences of this kind.

Defence submissions. 

41Mr Page, on your behalf, conceded that a term of imprisonment, comprising a head sentence and a non-parole period is inevitable. 

42He accepted that your offending falls in the middle range of seriousness for these types of offences. 

43He submits that you are of good character, and that aside from the subject offending, you have no criminal history. 

44Mr Page told the court that your life was unexceptional and that you were not a person who resorts to violence, noting that on Ms Cooks’ account, there had been two previous episodes prior to this offending when you had been physically abusive of her.  Those episodes were led at trial as context or relationship evidence.

45Mr Page submitted that delay is a significant mitigating factor in this case.  The subject offences occurred in 2009, some 14 years ago. 

46Mr Page emphasised that you have had two significant relationships in your life, and that your relationship with Ms Cook was the first. 

47It was put to Ms Cook in cross-examination that you had previously tried to end the relationship when you were studying and she was going out all that time, and in that context, had drifted apart, but she had implored you to stay in the relationship and extend the lease on the house you shared so that you would continue to live together. 

48Ms Cook accepted that history as accurate.  It demonstrates that your relationship was one Ms Cook valued, but it had unravelled and you had grown apart by the time you offended against her in the early hours of 26 January, 2009. 

49Mr Page did not suggest that alcohol or drugs had played any part in your offending behaviour. 

Gravity of offending and moral culpability

50The gravity of these offences is high.  They occurred in Ms Cook’s home and the crimes against her were perpetrated by someone she trusted, an intimate partner.

51The offending took place over a period of several hours, whilst she was crying and clearly terrified. 

52You wielded a knife during the whole episode and slapped Ms Cook with the broad side of it when she resisted you.  Although you gave evidence at your trial denying the charges, the jury by its verdicts, rejected your account, and you are to be sentenced on the basis that the account Ms Cook gave to the court was truthful and accurate.

53She describes an ordeal of coercion, threatened violence, sexual violence and subjugation.  When she needed to go to the toilet, you insisted on following her and stood watch.  You raped her on the floor of the laundry.  Your moral culpability is high.  You knew Ms Cook intimately at that time, and you knew how she would respond to your threats and how they would affect her. 

54Ms Cook, understandably, feared for her life.

55There is no suggestion that any of the principles in Verdins or Bugmy are engaged here. 

56I accept that these offences are at the midrange of seriousness for offences of these kinds.  This characterisation does not diminish the effect of your offending on Ms Cook.  It acknowledges that this kind of offending can be committed in any number of ways by strangers, men in company, at night after breaking into a home, accompanied by acts of degradation and extreme violence, and over long periods of time. 

57Here, despite the absence of some of these aggravating features, your offending is objectively grave because of the breach of trust involved, the use of a weapon to overbear Ms Cook’s resistance, the fear you instilled in her, your persistence in the face of her distress, your subjugation of her and the lengthy period over which you controlled her by force and fear of violence.

Delay

5814 years have passed since you offended against Ms Cook in the early hours of 26 January 2009.  Since you were charged in 2019, you have had these matters hanging over your head.  In that time, you have worked full-time, re-partnered, provided unstinting support to your family, and led a solid unexceptional life. 

59The oft cited passage from MWH, Callaway JA indicated that the delay between the commission of an offence and sentencing can be relevantly mitigatory in a number of ways, namely, and I quote:

“A prisoner's age at the time of sentencing may mean that he is less likely to reoffend.  His health or life expectancy may make service of a sentence of imprisonment more onerous than usual.  There may be considerations of fairness, especially whether the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.  There may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive list, and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways:  he may have given up a form of substance abuse that contributed to the offending, he may have reordered his life, he may have changed morally so that, quite apart from being older, he would not be likely to reoffend.  He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment.  So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed”[5]

[5]R v MWH [2001] VSCA 196 at [18] (Citations omitted).

60In Merrett, Piggott and Ferrari, Maxwell P identified the significance of delay as a matter in mitigation as follows: 

“On a proper analysis, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay.  There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable.”[6] 

…

“The relevance of delay lies, rather, in the effect which the lapse of time, however caused, has on the accused.  Delay constitutes a powerful mitigatory factor, in particular, it focuses on issues of rehabilitation and fairness.”[7] 

[6]Director of Public Prosecutions v Merrett & Ors [2007] VSCA 1 at [34].

[7] Ibid at [49].

61The length of the delay is also relevant to the wait in mitigation attributable to the delay where the delay is not the fault of the offender.”[8]

[8]R v Talia [2009] VSCA 260 at [22].

62Where an offender demonstrates efforts at rehabilitation between the time of offending and sentence, Maxwell P observed, and I quote,

“There is very great benefit to the community as well as to the individuals themselves and their immediate families if future criminal activity can be avoided.  It is important that this court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so.  It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders.  The preoccupation with retribution, which characterises much of the public comment on sentencing, is understandable, but it focuses only on one part of what the sentencing court does.”[9] 

[9]R v MWH [2001] VSCA 196 at [49].

63However, more recently the Court of Appeal in Tones v The Queen has observed that there are certain requirements to be met before full weight can be given to an offender's rehabilitation during lengthy delay, and I quote: 

There are two aspects to the rehabilitation limb.  The first is whether the offender has accepted responsibility for the offending, acknowledging its wrongfulness and expressed remorse.  The second is whether the offender has taken steps to reform, including by seeking counselling or other appropriate professional assistance, refraining from committing any further offences, and being a valuable member of the community.

…

Both aspects of rehabilitation, remorse and reformation must be demonstrated in order for the court to give full weight to that limb.[10] 

[10]Tones v The Queen [2017] VSCA 118 at [41]-[42].

64It should also be recognised that a mitigation of sentence as a consequence of delay is not an automatic discount and the sentencing court should look to the effect of the delay in each instance before deciding whether to mitigate a sentence, or to what extent a sentence should be mitigated.[11] 

[11]See Sayer v The Queen [2018] VSCA 177 at [47]; Director of Public Prosecutions v Bales [2015] VSCA 261 at [29]; R v Nikodjevic [2004] VSCA 222 at [21]-[22].

65I accept that you have remained in the jurisdiction and have not contributed to the delays in investigating these crimes, or the delays in bringing these charges to conclusion once they entered the court system.  I intend to moderate the sentence I impose on you to acknowledge the considerable steps you have taken towards your reformation and rehabilitation over these past years.

66It was not suggested to me that you have expressed remorse, unsurprisingly, since you contested these charges at trial, and I cannot give you the full weight referred to in the case of Tones v the Queen.  However, I acknowledge that a delay of this kind is very considerable, and in that time, your reformation and rehabilitation have been substantially completed. 

Sentencing Principles

67Section 5 of the Sentencing Act 1991 provides that the only purposes for which I may sentence you are: 

68firstly, to punish you in a manner and to an extent that is just in all the circumstances;

69secondly, to deter you and others from committing similar offences;

70thirdly, to establish conditions by which you may be rehabilitated;

71fourthly, to manifest the denunciation by the court of your offending behaviour; and

72fifthly, to protect the community from you.

73Given that you will be convicted as a serious sexual offender upon your third conviction for rape, that is Charge 4, the protection of the community becomes the principle purpose for which the sentence on that charge is to be imposed, pursuant to s 6D of the Sentencing Act. 

74In order to achieve this purpose, I am also entitled to impose a sentence which is longer than that which is proportionate to the gravity of the offence in light of the subjective circumstances.  I am required to undertake a risk assessment to determine whether a disproportionate sentence is required in order to protect the community from you.

75I am prepared to sentence you on the basis that you are not someone who is predisposed to violence, despite Ms Cook’s evidence of two previous fights.  It appears that you are not someone who ordinarily resorts to violence when confronted by stressful events.  However, your resort to a weapon, threats, intimidation and force on this occasion are to be deplored. 

76The Crown did not seek a disproportionate sentence and considering your lack of criminal history before and after the offending, I am not inclined to impose such a sentence. 

77I consider the most important sentencing purpose here is the need to manifest denunciation of your behaviour by the court, but general deterrence is also an important sentencing principle, as is just punishment. 

78This offending can be seen as one continuous episode.  I intend to order substantial concurrency as between the charges, in order to give effect to the principles of parsimony and totality, but I intend to partially accumulate the sentences for each charge to reflect their individual gravity.

79Your prospects of rehabilitation are clearly positive. 

80You have not engaged in any offending behaviour since these crimes were committed, and 14 years have now gone by. 

81You have a supportive family and partner.  Your mother in particular describes the very substantial assistance you have provided to her over the years. 

82Although your diagnosis of silicosis makes a return to the work – sorry, a return to work in stone masonry unlikely, you are not old, and you have no other conditions which would inhibit you finding work. 

83I accept that you are unlikely to reoffend.

Relevant Cases

84Prosecution counsel referred me to a number of cases for the purposes of illustrating current sentencing practices. 

85In Clark v the Queen,[12] the offender was convicted after trial to one charge of rape committed against his wife after they had separated.  The rape was a single, brief incident where a vibrator was used to penetrate the complainant's vagina.  There was no violence beyond this act of penetration.  The offender had no criminal history and demonstrated no remorse.  The Court of Appeal allowed an appeal against sentence, and the offender was resentenced to a term of three years imprisonment with a non-parole period of 18 months.

[12][2022] VSCA 89.

86In Henson v the Queen,[13] the offender was convicted after trial of three charges of rape and one charge of making a threat to kill, and one charge of assault.  The complainant was the offender's ex-partner.  The rapes occurred within the one prolonged incident and involved both oral and penile rape.  The complainant begged the offender to stop.  The offender had no criminal history and good prospects of rehabilitation.  The sentence of eight years and six months' imprisonment with a non-parole of period of six years and three months was not disturbed on appeal.

[13][2018] VSCA 283.

87In Landale v the Queen,[14] the offender was convicted after trial of four charges of rape, two charges of common law assault and one charge of false imprisonment.  The complainant was the offender's former partner.  The rapes occurred on the same occasion but were distinct and separated by short periods of time.  There was no significant violence, save the acts of rape, though there was a history of prior family violence in the relationship.  The offender had a significant and relevant criminal history.  The sentence of 11 years imprisonment with a non-parole period of seven years and six months was not disturbed on appeal.

[14][2022] VSCA 121.

88Your counsel submitted that Landale can be distinguished on the basis that the offender in that matter had a significant and relevant criminal history.  It was submitted by your counsel that the facts in Henson were the nearest to your case.  I note that this case is distinguishable from Clark, given the protracted duration, use of a weapon, and the level of control and restraint you exercised over Ms Cook as well as the number and types of rapes.

Sentence

89I now proceed to sentence you, Mr Henderson. 

90On Charge 1, made threat to kill, you are convicted and sentenced two years' jail to be served wholly concurrently with the sentence in Charge 4. 

91On Charge 2, rape, you are convicted and sentenced to six years' jail, one year of which is to be served cumulatively upon the sentence for Charge 4. 

92On Charge 3, rape, you are convicted and sentenced to six years' jail, one year of which is to be served cumulatively upon the sentence in Charge 4. 

93On Charge 4, rape, you are to be convicted and sentenced to six years, six months jail.  This will be the base sentence. 

94You are to be sentenced as a serious sexual offender in relation to this charge, and that is to be noted on the court records. 

95That produces a total effective sentence of eight and a half years.  I fix a non-parole period of five years, six months.

96Pursuant to s18(4) of the Sentencing Act 1991, I declare that you spent 98 days ‑ ‑ ‑ 

97MR PAGE:  I've got 99, Your Honour.

98MS MELLIOS:  I've got 99 as well.

99HIS HONOUR: Very well. Pursuant to s18(4) of the Sentencing Act, I declare that you have spent 99 days in custody by way of pre-sentence detention to be reckoned as served.  Very well.

100HIS HONOUR:  Are there any ancillary orders?

101MR PAGE:  No, Your Honour.

102HIS HONOUR:  All right.  Any questions?

103MS HENDERSON:  No, Your Honour.

104HIS HONOUR:  Very well, Mr Henderson, that is the sentence I impose.

105MR PAGE:  Sorry, Your Honour, can I just confirm that the summary Charge 6 was withdrawn, pursuant to the notice of summary offences?

106UNIDENTIFIED SPEAKER:  It has been withdrawn.

107HIS HONOUR:  It has been withdrawn.

108MR PAGE:  As the court pleases.

‑ ‑ ‑