Director of Public Prosecutions v Humphreys (a pseudonym)

[2023] VCC 1616

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND HUMPHREYS (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2023
DATE OF SENTENCE:	8 September 2023
CASE MAY BE CITED AS:	DPP v Humphreys (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1616

REASONS FOR SENTENCE
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Subject: Criminal law – sentence   

Catchwords:              Plea of guilty to one rolled-up charge of rape – complainant and offender separated after long marriage – intermittent occasional sexual relationship continued for some years– consent - remorse - delay.          

Legislation Cited: Sentencing Act 1991

Cases Cited: DPP v Elfata [2019] VSCA 63

Sentence:                  Total effective sentence 2 years 6 months, with non-parole period 12 months         

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J Piggott	Office of Public Prosecutions
For the Accused	Mr D Connors with Ms M Edwards	Collards Solicitors

HER HONOUR:

1Raymond Humphreys[1], you have pleaded guilty to one charge of rape. It is a rolled-up charge encompassing two instances of rape on the same occasion.

[1] A pseudonym.

2The background was that you and your wife had separated in 2014 but had continued to have an intermittent sexual relationship from time to time. In April 2020 this ended when she told you that she did not wish to have sex with you, and that henceforth you were only friends.

3On 19 August 2020 the complainant was a guest at your house, for a family gathering which included your son and his child. She stayed for dinner there but told you that she would be leaving after dinner. You then suggested the two of you have sex. The complainant said the sexual relationship was over and you were to be friends only. The discussion became heated, and the complainant reiterated that she would not be having sex and was going home.

4The following day, 20 August 2020, you visited her home and after some time asked for sex. She rejected your advances when you touched her bottom and vagina; she told you she would not be having sex with you, and it was time you went home.

5She began walking away and you followed her towards the front door. When parallel with her bedroom door, very close to the front door, you pushed her from behind into the bedroom, causing her to lose her balance and she fell backwards onto the bed. She tried to stop you from pulling down her pants, but you forced yourself between her legs.

6She said 'Stop, I'm not having sex with you.' But you continued and pulled her underpants off. You then put two fingers into her vagina. That is the first part of the charge of rape. She rolled away from you and partially fell off the bed. You pursued her and pushed her back onto the bed, removed your clothes and got on top of her. You said to her to put your cock in, and she said no. You then put your penis into her vagina, forcefully, whilst not wearing a condom. That is the second part of the charge of rape.

7A short time later you asked her if she was ready for round two. She said no.

8Afterwards in the kitchen you had a discussion about what had occurred. The next day the complainant ignored many calls from you but finally answered a call, in which she told you that you had hurt her and had raped her. You replied that you had no intention of hurting her, and that it was 'make up sex'.

9Two weeks later, on 4 September 2020, the complainant told her daughter in a FaceTime conversation some of the events of 20 August. She said you had chased her down the hall after she said she did not want to have sex with you. She described falling off the bed, and things that were said. She was crying and upset as she told her daughter these things, and said she felt numb afterwards. She said you had asked her if she was ready for round two. However, she did not disclose to her daughter any sexual activity.

10On 19 September 2020 the complainant went to a police station and inquired about reporting sexual abuse. She was given information in the event she decided to report the matter, which she did not do until early February 2021. 

11On 9 May 2021 you were interviewed by the police and you denied any rape. You said you and the complainant had had consensual sex. You stated that she had said no at first but you kept on touching her and then she said okay. You thought she enjoyed it, but you said that afterwards she did seem regretful, and that the next day she called you and accused you of raping her.

12You were not charged until 16 February 2022, but over the next few months quite quick progress was made, with a contested committal in June that year. The complainant, her daughter and her sister were all cross-examined. Following a directions hearing in July, a trial date for 21 August 2023 was obtained. You accepted a sentence indication and pleaded guilty on 17 August, with the trial date being vacated.

Victim Impact Statements

13The complainant read aloud to the court her victim impact statement in which she described her feelings resulting from the breach of trust implicit in your behaviour. She loved you and had hoped to grow old with you. She stated that on the day in question you acted without her consent at every step from when you arrived at the house uninvited.

14This has had a serious effect on her life. She has had counselling. She has had to explain to her children what happened, and has had to re-live the event many times over, in order to hold you accountable for what you did.

Mitigating circumstances

15I turn now to the circumstances which go towards some mitigation of your culpability.

16You are aged 58, and you were 55 at the time of the offending. You and the complainant were married in 1990 and had two children, a daughter and a son. You separated in 2014, as I have already described.

17The delay in this case is a matter to be taken into account. The initial delay in your being charged has not been fully explained, but the second period of delay from the committal date until the expected trial date was probably due in large part to the backlog of trials caused by the pandemic. It is two years and three months since you were interviewed, so you have had the prospect of facing charges of rape and a possible prison sentence hanging over your head for that duration.

18You have pleaded guilty, although at a late stage, but that plea still has utilitarian value in assisting the criminal justice system, and sparing the complainant and witnesses from having to give evidence again, this time before a jury. I accept it also as an indication of remorse and the acceptance of responsibility, which was not present earlier, but which may indicate a process of increased maturity and insight, relevant to your prospects for rehabilitation. It therefore warrants a discount on your sentence.

19I was informed during the hearing of the application for a sentence indication that a number of references would be provided, and I took that into account in my decision.

20In giving evidence at the plea hearing your sister described you as reliable and responsible, providing very caring support for your ageing parents. She said that your 84-year-old father is severely disabled after three strokes and suffering dementia, and is dependent on others. When hospitalised last year the staff there had considerable difficulties caring for him, as his dementia causes him to reject physical contact. This required your regular assistance at the hospital for his physical care.

21Your mother is 83 and now struggles to manage your father at home, even with help from external sources, and therefore much of this falls to you. Your sister has three school age children to look after, all of whom struggle with various issues, preventing her from offering the same level of assistance. Your only other sibling cannot assist owing to work commitments.

22Your son writes in similar terms to your sister, as to your good qualities as a family man, and also as to the care you give to your father. He describes you as being broken and devastated about the charges, coming to court, and going to gaol. He said: 'I don’t think he can really understand that this has happened between him and mum because he has loved her all his life.'

23Hardship caused by your absence due to imprisonment is a matter for the court to take into account only in exceptional circumstances, and that has not been argued on your behalf. But any anguish you might suffer in custody at being unable to assist with your father's care, is a matter I take into account, as something which will increase the burden of incarceration for you.

24You yourself have written a letter to the court, in which you apologise to the complainant, to both your children and to your extended family, for what you have put them through. Ms Piggott, for the prosecution, submitted that the letter contains no indication that you are sorry for having raped the complainant, but Mr Connors asked me to interpret the contents of the letter more broadly, given that you wrote it without any assistance, and that I should conclude that you did intend to apologise for the rape.

25I accept that this is a fair interpretation.

26Your son's friend who knows you and your family well, writes of your kindness to him and others, stating that you are loyal, respectful and honest.

27A report from psychologist, Mr Cummins, refers to a diagnosis of Major Depressive Disorder which Mr Cummins considers has existed since about 2014 and was a result of the marital turmoil between you and the complainant over many years. You have been medicated for depression since then. Mr Cummins raised the issue of the applicability of the Verdins' principles, stating his opinion that your moral culpability should be regarded as reduced by reason of the state of your mental health.

28However, Verdins was not relied upon by Mr Connors in his submissions on your behalf. Ms Piggott submitted that Verdins did not apply in a case where a depressive disorder such as yours was diagnosed. I do not consider that there are any indications for the application of the Verdins principles, save for the likelihood that you will experience considerable anguish in prison, knowing that your mother will be struggling to look after your father in your absence.

29Mr Cummins also stated that in his opinion you do not present as having well-developed skills in terms of the subtleties and nuances of interpersonal communication, particularly within an intimate relationship. Mr Cummins noted that you lack real understanding of the idea of consent in sexual relationships and this should be addressed through therapy and should be considered an essential part of your rehabilitation. As I mentioned earlier, although it appears that you are remorseful and have offered your apologies, this was not the case when you were interviewed by the police.

30Your prospects for rehabilitation are good, as indicated by evidence of your good qualities and the help you give your parents in particular. It was submitted by your counsel that the absence of animosity by you towards the complainant should be regarded as a positive attribute, but the fact that you have raised the issue of current family law property proceedings between you as a motivation for the complainant's stance suggests that this may not be the case. On balance, I place no weight on your absence of animosity insofar as it relates to your prospects for rehabilitation.

31As to your criminal history, you were fined without conviction for some minor firearms charges more than 10 years ago and received a similar non-conviction penalty for assaulting the complainant in 2011. The age of those matters renders them of little importance, except for the latter charge indicating the volatility in your marriage.

32The crime of rape is a serious offence, recognised as being so by the legislature with a maximum penalty of 25 years' imprisonment.

33It is a category 1 offence, meaning a custodial sentence must be imposed.

34

The standard sentencing scheme applies to the offence of rape. The standard sentence is 10 years, with the requirement that the non-parole period is to be

60 percent of the head sentence. In effect, that is a guide to an appropriate sentence, taking into account the gravity of the offending, but without affecting the intuitive synthesis approach.

35I place some weight on what is described in paragraph 5 of the written defence submissions as the unusual sexual relationship between you and the complainant, which implied that because your intimacy was often characterised by 'playing hard to get', this clouded the notion of consent and diminished its importance.

36Some of the weight to be applied in this way relates to general deterrence, which has an important role to play in any case where consent to sexual acts is involved. In this case its significance is somewhat reduced by the unusual circumstances of the long relationship and its continued intermittent nature.

37Even within the strictures of the standard sentencing scheme I can give weight to other matters relevant to the offending, including the deficit in emotional intelligence attributable to you by Mr Cummins, in the context of your long and seemingly volatile marriage. The complainant made it clear to you that the marriage was over, and you were no more than friends, but your periods of separation in the past had always resolved.

38Mr Connors addressed this point by noting at the sentence indication hearing that after the occasion of the offending you accepted that the complainant did not wish to have sex again and there was no further occurrence during the months before the complainant went to the police.

39Taking into account as of primary importance the objective gravity of the offence, but also weighing the other relevant maters, I have concluded that the sentence should be moderated by the mitigating factors referred to.

40At the earlier hearing I was referred to the case of Elfata[2] which bears some similarity to this case. The circumstances of the offence were different, but the context of a longstanding relationship in which intimacy occurred throughout, is similar. In Elfata the incident was described as a single, impulsive act, unpremeditated, of relatively brief duration, and not involving excessive violence. It involved digital rather than penile penetration.

[2] DPP v Elfata [2019] VSCA 63

41In that case the total effective sentence of 2 years and 3 months with a non-parole period of one year was described by the Court of Appeal as lenient but within range.

42Having heard the application for a sentence indication recently, I indicated that if you were to plead guilty to the proposed rolled-up charge, I would sentence you to three years' imprisonment with a non-parole period of 18 months. At the plea hearing Mr Connors expanded on his original submissions, with the inclusion of the reference material and today I have heard submissions on delay. I now take those matters into account as further mitigating factors.  Would you stand please now, Mr Humphreys?

43I sentence you to two years and six months' imprisonment. In the interests of justice I fix a period of 12 months which you must serve before being eligible for parole.

44If you had pleaded not guilty to this charge I would have sentenced you to 3 years and six months' imprisonment, with a non-parole period of 2 years.  Are there any other matters, Ms Piggott?

45MS PIGGOTT:   There is one matter, PSD, Your Honour, I think it is seven days.

46HER HONOUR:  Do you agree with seven days, Mr Connors, for the pre-sentence detention?

47MR CONNORS:  Yes, Your Honour.

48HER HONOUR:  Thank you.  I declare there are seven days of pre-sentence detention which are to be reckoned as already served, and I shall cause that to be noted on the court record.

49MR CONNORS: Your Honour, just in terms of the way in which you have pronounced the sentence, there is the requirement under s5B of the Sentencing Act to state where there is a departure from the 60 percent.

50HER HONOUR:  I have made that clear by referring to the interests of justice.

51MR CONNORS:  Thank you, Your Honour.

52HER HONOUR:  It is encompassed within that section.  I will ask my associate to record on the gaol order that this is the first time Mr Humphreys has been in custody and if there are any other matters please alert me to that, Mr Connors.

53MR CONNORS:  Yes, Your Honour.

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