Director of Public Prosecutions v Iudice

[2020] VCC 316

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 20-00016

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA IUDICE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	24 March 2020
DATE OF SENTENCE:	24 March 2020
CASE MAY BE CITED AS:	DPP v Iudice
MEDIUM NEUTRAL CITATION:	[2020] VCC 316

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr C. Wareham	Victoria Legal Aid

HIS HONOUR: 

1Joshua Samuel Iudice, you have pleaded guilty to one charge of rape.  That crime carries a maximum penalty of 25 years' imprisonment.  This is a sentence subject to the standard sentencing regime and I note that the standard sentence is one of 10 years.  In those circumstances there must be a minimum term applied which is not less than 60 per cent of the sentence that I impose.  In these circumstances I am not satisfied that it would be in the interests of justice to go lower than that 60 per cent and I do not propose to, in this function, take that any further.

2You were 25 years of age at the time of the offending and you are now 27.  You are still a young person, though not necessarily a young offender.  Your plea of guilty came at the earliest opportunity.  You made admissions to police, you made admissions in a pretext tape and pleaded guilty as soon as the matter came into the court process.  I accept that your plea is accompanied by profound remorse.  You must get the utilitarian benefit of that plea.  But for your admissions it may have been a difficult matter for the Crown to prove and you get the benefit of that.

3More importantly, in my personal view, is that the victim of your behaviour has not had to go through an extended period of time fearing that she would be cross-examined and called a liar, as so often happens in these matters.  Those matters go very much in your favour.  A trial in this matter would have been very unpleasant indeed, as your counsel has very properly pointed out.  You have no prior convictions of any description and, as I understand it, you have no matters pending.

4The circumstances of the offending are outlined in the Crown summary.  I will go through those in relatively brief compass.  As I said, you were 25 and the complainant in the matter was 23 years of age at the time.  You have known each other for about a year and you had been friends.  I am assuming you had some knowledge of her personality over that time.

5On Tuesday, 6 November 2018 you asked her if she would be interested in going on a date.  She agreed and you arranged to meet for dinner on the Thursday, 8 November.  You met her at 8 pm at a restaurant and after dinner asked if she wanted to go back to your house to watch movies.  You at that time were living in a caravan in the front of your family's property.  The two of you entered the caravan and were lying next to one another, watching movies. 

6You began to touch her on the leg, started to grip and rub her ultimately towards her inner thigh.  She moved your hand away and said no.  You apologised and you continued to watch the movie.  After a few minutes you again began to rub the victim's thigh area.  You continued to slide your hand over her bottom before moving underneath the middle of her thigh and at that stage brushed her vagina.  She again pushed your hand away and said to you, 'Josh, I said no.  I'm just here to watch movies with you'.

7You ignored her and continued to touch her thighs near her vagina.  You attempted to touch her vagina, but she pushed your arm away.  You again apologised.  She was feeling anxious but did not feel that she could tell you that she wanted to go home.  She moved to a sitting position to move away from you.  You asked her if she wanted a cigarette, leaned over to reach for the cigarettes and, as you did so, you rolled onto your side and pulled her down underneath you.  You lay on top of her.  You forced your legs between her legs to separate them.

8She observed that you had an erection and were rubbing it on her vagina and stomach.  She tried to move you off by pushing your stomach and said to you, 'No, you need to stop'.  You told her to be quiet and you took your penis out of your pants and, after some attempts, penetrated her with it.  She continually told you to stop, but you kept going.  She said to you, 'Why are you doing this', to which you apparently replied, 'I don't know, because I'm horny'.  She felt scared and powerless to stop you.  After a time you began to thrust much faster and harder, which hurt her, and you then ejaculated, pulled your penis out of her vagina. 

9She then had a small panic, struggling for breath.  You asked what was wrong with her, got her a glass of water, and ultimately each of you fell asleep.  She said she did not know what to do.  When she woke up you had gone to work.  She left the caravan and made a complaint the following day to a friend and then the following day after that to her father and then ultimately the police.

10You were arrested and finally interviewed some months later and you said that you remembered what had happened.  You essentially agreed that you did it when you should not have and that you realised what you were doing was wrong.  You agreed that, 'She said, "No, I don't want anymore", and then I think I just kept rooting her'.  That is in brief terms the nature of the offending.

11Pursuant to the standard sentencing legislation I am required to take into account a number of things and the standard sentence is to be treated as a legislative guide post, having the same function a maximum penalty.  It does not affect the instinctive synthesis approach to sentencing, it does not require or permit two-stage sentencing and does not otherwise affect the matters which the court may or must take into account in sentencing.

12I do, however, look at comparative cases.  I have been shown those and in my view they were all objectively more serious than this.  I then looked at the actual objective seriousness of this particular act, not taking into account matters personal to yourself.

13The aggravating features of it are that it was a situation of a breach of trust.  She trusted you by going to your caravan.  It was not a simple incident of someone being asleep.  You were told no and you persisted.  You were, on evidence before me, not wearing a condom.  She was exposed to the risk of pregnancy and exposed to the risk of disease.  It was a persistent rape in the face of persistent nos. 

14On the other hand there were no threats made, there were no threats made about silence afterwards.  All rapes are violent, but there was no extreme violence.  One does not have the behaviour which is sometimes derogatory of the victim.  When I balance all those matters out in an objective sense before looking at matters personal to you I find that the offending is objectively at the lower to middle range of sentencing and I proceed on that basis.

15Her victim impact statement ultimately describes the consequences for her of this offending.  The victim impact statement was obviously read by me beforehand and read out by the learned prosecutor during the course of the trial. 

16The situation here is one where it is hard to escape the view, listening to that victim impact statement and reading it, that she was vulnerable, not through intoxication or anything along those lines but you had known her for a year or so; and I am not going to speculate about all this, but it is clear that she had difficulties of her own before this occurred and your conduct has severely affected her in terms of her endeavouring to get on with her life. 

17I do take those admissible matters that are contained within that victim impact statement into account and in the ultimate you are to be sentenced according.   You are not to be placed on the sex offenders register.  The situation is that gaol is inevitable.  This offending has to be regarded as serious even though, as I said, it is at the lower to middle range.

18It calls for the application of general deterrence; specific deterrence in your situation I do not think are that important.  You have been found to be at a low risk and I accept that, so community protection is not of great significance either.  But there must be denunciation and appropriate punishment for what on the face of it is a persisted-with rape.  Yours is not a situation where you are able to call into aid any mental illness or anything along those lines, but you do have a number of factors very much in your favour.

19As I said, you are young.  Your plea of guilty is a very important one in your particular situation.  It indicates, by the way you have also spoken to Ms Lechner, who is the psychologist who has examined you, that you do have insight into your offending.  You do not have cognitive deficiencies and I think that the prospects of your rehabilitation ultimately should be good.  As I said already, I accept her view that the risk of reoffending would be low.

20There are a number of matters put on your behalf and all form part of the instinctive synthesis.  The history is contained within Ms Lechner's report and it says that you have never married, you have no children, you were in a relationship that separated after this.  You were raised from eight to 24 in Hervey Bay.  You were diagnosed with mild cerebral palsy at the age of nine months that resulted in chronic leg and foot pain.  You stated to her that your memory was poor and that you lacked situational awareness.  You said that your writing was sloppy. 

21She found that you were of average intelligence and that you did not have cognitive defect.  After leaving school you worked in Coles part time.  You have had various jobs since then and before moving to Victoria you were on the verge of homelessness, as I understand it, in Queensland.  You told her that from about Year 8 on you began to feel sad and depressed.  You worked with a family friend for a while installing security cameras and have, as she pointed out, a long history of low mood.

22She said:

'Mr Iudice impressed as capable of reflecting consequential thinking despite his belief he is a slow learner, unskilled and "dumb".  He has average cognitive ability in terms of his verbal and non-skills.  He had a good ability to reflect on his offending behaviour, for example, stating that he feels awful about his actions and particularly the negative impact upon the victim'.

23As I have already indicated, that goes to insight and also, in my view, to remorse.

24You have had, in her opinion, a long-term mood disorder, I accept that, and a major depressive disorder or symptoms at least, and I accept that.  It does not give rise to the principles in Verdins, though other matters I think give rise to Van Boxtel and similar cases.  She said that in respect of the offence you acknowledged your responsibility, making not attempt to minimise the seriousness of your actions, and you told her that you had misread the situation.

25That may be the circumstance at the outset, as indicated during the course of discussion, but there is nothing to misread towards the end of all this.  She said importantly, and I will refer to this in a moment:

'He is likely to find the prison environment very challenging and may vulnerable to being stood over and bullied by more seasoned inmates.  Every care should be therefore given in respect of his management in the prison environment.  I anticipate a further decline in his mood state, hence this also needs to be closely monitored'.

26Again as your counsel described it very succinctly, you present as relatively immature and I have no doubt that gaol for you will be a difficult task indeed.  You are now going into the prison system in circumstances where the coronavirus has not as yet gone into the gaol but undoubtedly will.  I think I can safely take judicial notice that the gaols will very shortly be in lockdown.  I can take into account already that you will have no contact visits. 

27It is your first time in custody and hopefully your last, but it will be a frightening environment and you will not have the capacity to release that anxiety by the use of contact visits.  I think I can also fairly anticipate, having a degree of experience in this area, that, as these lockdowns come into place in a gaol and the circumstances worsen, prison will be a very scary place to be in.  I do not do that insofar as the risk of you catching the virus itself, but again common sense would say that prisoners do not relate well to being locked down for extended periods of time and you are going to be in the middle of all that.

28So those matters do I think matter in this situation of making it harder for you in gaol.  I will direct that the report of Ms Lechner remain on the court file.  I am not going to read out that report or take great extracts from it, I think it is sufficient to say that, despite some of the matters there, I have myself no doubt that you do feel horrible about what had happened and that you do have genuine remorse.  As I already said, rehabilitation should be good.  Risk of reoffending I think is low.  It then becomes a situation of what is the appropriate sentence. 

29The youth and the remorse are not to grossly outweigh the seriousness of the offending, the fact that it is a rape, and the same principles apply vice versa.  There is little assistance really in terms of a comparative range and again I am not going to go into that.  I know other judges have the same difficulty because of the legislation.  Until there is a comparative range, it does become difficult.  I have already indicated that the matters that were put before me were I think objectively more serious and I do not think I can take it much further than that. 

30However, in all the circumstances and having read the authorities that your counsel put before me, the sentence is that on the charge of rape you are sentenced to be imprisoned for a period of four and a half years.  I direct that you serve a minimum term of two years and nine months before becoming eligible for parole.  6AAA, six and a half with four and a half.  That two years, I might point out, is as low as I can go without breaching the 60 per cent rule.  Yes, all right.  Yes, thanks, gentlemen.

31MR WAREHAM:  Would Your Honour mind if we speak to him before he's taken away?

32HIS HONOUR:  Sorry?

33MR WAREHAM:  Would Your Honour mind if we speak to him before he's taken away?

34HIS HONOUR:  Sorry, yes, I'll just let the barrister speak to him for a moment.  Yes, but no one else go near him. 

35MR WAREHAM:  I'm grateful, Your Honour.

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