Director of Public Prosecutions v Ivanov (a pseudonym)
[2018] VCC 834
•6 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEFAN IVANOV (a pseudonym)[1] |
[1] A pseudonym is used for both parties to avoid identification of the complainant who is a family member.
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 April 2018 | |
DATE OF SENTENCE: | 6 June 2018 | |
CASE MAY BE CITED AS: | DPP v Ivanov (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 834 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Rape – Sexual Penetration
Legislation Cited: Judicial Proceedings Reports Act – Sentencing Act
Cases Cited:R v Skura [2004] VSCA 53 – Palu (2000) 134 A Crim R 174 – R v Verdins (2007) 16 VR 269 – DPP v O’Neill [2015] VSC 25 – M C v The Queen [2011] VSCA 2 – The Queen v Kilic [2016] HCA 48 – DPP v Dalgliesh [2017] HCA 41 – Shrestha v The Queen [2017] VSCA 364
Sentence: TES: 9 years 6months’ with a minimum of 7 years to be served
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Roodenburg | OPP |
| For the Accused | Mr P. Morrissey SC with Mr J. Taafe for plea Mr J. Taafe for sentence | Doogue O’Brien George |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the accused and the complainant in these reasons. The accused will be known as Stefan Ivanov. The complainant will be called JL. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
2 You have pleaded guilty to two charges of rape, each involving multiple forms of sexual penetration.[3] Rape is an offence with a maximum sentence of 25 years’ imprisonment. It is also an offence that requires that a term of imprisonment be imposed.[4]
[3] Composite charges
[4] Section 5(2)(g) Sentencing Act
3 I sentence you on the basis of the prosecution opening[5], which is an agreed summary. In brief, you have pleaded guilty to raping your ex-wife multiple times on two days about 36 hours apart. I have also read her statement to police and the transcript of your interview with police.
[5] Exhibit A
4 The background to the offending is as follows. You met JL in 1995 and married in December 2002. Originally you lived in JL’s apartment in an inner city suburb, but after the birth of your first son in 2004, you all moved to live in a house you owned in an outer northern suburb.
5 A second son was born in early 2007, and a third son in early 2008. JL returned to the paid workforce as soon as possible after each birth; you were working at managing investment properties owned by your parents. Both sets of grandparents assisted with looking after the children, but for the most part you were the parent at home.
6 Your relationship with JL had at times been ‘off again, on again’ but was reasonably stable from the time you were married till after your third son was born in 2008. JL returned to full time work in 2009, sometimes working up to 60 hours per week. JL stated to police that you were resentful of her working long hours over many years, and you confirmed this in your interview with police.
7 In 2010, during an argument between you, you ‘mashed’ food into her face while she was feeding your youngest child; this led to JL calling the police, which resulted in a 12 month intervention order being taken out by them. According to JL’s police statement, as noted by Dr Danny Sullivan[6], you mashed food into her face on another occasion as well.
[6] Exhibit 3
8 In evidence on the plea, JL said that you were the main, if not the sole, care giver for the children, that you did everything, whereas she did not cook, and, while she made time on the weekends for the children, she described herself as the ‘glory’ parent. She also said in evidence that she was the dominant person in your relationship, describing herself as the ‘Alpha female’.
9 From your point of view, you said in your interview with police that you were ‘screaming for her attention’ and so tried to get her to reduce her working hours by saying you would apply for a divorce. You told police you were aware that JL knew exactly why you were doing this, which she confirmed in her evidence, and you stated to police that she said things would change, but they did not, and so you applied for the divorce, which was finalised in 2013.
10 As it transpired, nothing did change thereafter: the two of you continued to live in the same house, continued to have a sexual relationship, you continued to care for the children, JL continued to work long hours, and you and the children continued to spend all JL’s spare time together. The evidence before me on the plea is that your children were never informed that their parents had divorced. I accept that both of you believed you were still a couple, and that despite your offending, that is still the situation.
11 In 2012, JL met a man through her work, and a sexual relationship developed with him, which continued until you found out about it in May 2017, when you committed the offences for which I am sentencing you.
12 You had apparently been checking up on your former wife, by checking her phone as to who she had contact with, this despite you reporting that you trusted her. Upon discovery of her relationship with another man, you confronted her on Thursday 18 May, and, when the children were at your parents’ house, confronted her again on Friday 19 May and violently raped her in your home – Charge 1.
13 Charge 1 is a composite charge involving digital and penile penetration. Rape is of course a crime of violence, but you exerted more violence than the mere commission of the crime. You pulled her clothes aside to give you access to her body, roughly grabbed her vagina, grabbed her wrist to pull her to the bedroom, verbally abused her throughout the penetrations and spat at her a couple of times. After wiping your penis with her scarf, you took her phone and threatened to send the messages between her and her lover to her parents. A struggle took place over possession of the phone, in which you swore at her and again spat at her, and she received some very minor injuries. You questioned her further about her relationship, and then effectively asked her why she had let you do what you did to her.
14 From the outset, other than the struggle for the phone, JL did not say or do anything, in order to avoid further inflaming the situation. She left the house and stayed at a motel for the weekend.
15 There was no contact between you until Sunday, 21 May, when she indicated to you that she needed to pick up the van and some items for her work on Monday. It was necessary for you to be there as she did not have access to the house or garage.
16 You let her into the garage at about 11am and then asked her to come into the house as you ‘just wanted to talk.’ When she entered, you told her you needed to show her something in the bedroom and when she did not move, you ‘guided’ her to that room. Once there, you told her to take her clothes off as you wanted to have sex with her. She refused, reminded you that you had apologised after the events of Friday night, and asked you not to do this. You insisted, and when she refused to remove her clothing, you ripped her pants and pulled them down.
17 You pushed her onto the bed. JL tried to resist your attack on her but you forced her legs apart and penetrated her vagina with your penis, following which you aggressively licked and sucked her vagina, following which you inserted your fingers into her vagina before penetrating her again with your penis; all of this constitutes the composite charge of rape – Charge 2.
18 Throughout these penetrations you were rough, including slapping her vagina and turning her over to slap her buttocks so hard that it stung and hurt her. Also throughout, you made demands for her to call you by her lover’s name and asked, in effect, if what you were doing is how they had sexual intercourse.
19 Following your ejaculation, you struggled with her to force her mouth open and put some ejaculate in her mouth, causing her to retch, whereupon you told her not to vomit because you would not be cleaning it up. You dragged her body backwards and forwards across your ejaculate on the bed. JL had kept her arms across her body from the outset, and eventually you prised her arms from her chest and demanded that she unlock her phone.
20 JL was able to retrieve her phone from you by saying that she had made an arrangement to call someone and if she did not, they would call the police. You continued to verbally abuse her, and to interrogate her as to how the other relationship started. JL went to the van in the garage and got in, but you followed. She told you to look after the children as she did not know how long she would be around. I will return to this comment later.
21 You remained together in the van for 2 - 3 hours while you read the text messages between JL and her lover which you had obtained by taking screenshots of her phone. You told her you had a plan to ruin their lives.
22 Later, your eldest son rang to be picked up and you left JL in the van, taking the keys with you. After you came back, there was a return to normality, presumably for the children’s sakes, until after they were in bed, when JL left the house and ultimately returned to stay in the motel.
23 Your offending came to light in an unusual way. In her evidence before me, JL made it clear that she considered what happened to be the consequence of a relationship in disarray; that it was unpleasant and ugly, but was a private matter for you two to work out, and she never thought to report it to police. She was adamant that she did not identify herself as a victim.
24 Police became involved through your call to a mental health clinician on the Monday morning. You told the clinician that you were worried about JL, presumably as a result of her comment about not knowing how long she would be around. On the plea, JL said she meant by this that she might disappear, that is, leave the country. This is in contrast to the statement in the prosecution opening that she was thinking about doing harm to herself. In her statement to police she refers to both possible meanings.
25 In any event, you apparently had concerns for her reaction to your actions, and told the clinician that you had “forced yourself” on JL on the weekend, as well as other details. The clinician responded with “You raped her”, and according to what you reported to Dr Danny Sullivan[7], you then ‘realised what had happened’. I will return to this later.
[7] Exhibit 3
26 It was the clinician who contacted police who decided to conduct a welfare check on both you and JL. Police attended your house that evening and you told them about raping JL on the Friday night. You were arrested. JL was contacted at the same time and confirmed what had happened on the Friday night, as well as telling police about the Sunday morning. Interviewed late that night and into the next morning, you made full and frank admissions in respect of both sets of offending.
27 I have gone into the background in such detail because it provides the foundation for the findings that I will make during the course of these sentencing remarks.
28 First, I find that your offending on each occasion was very serious. Each involved humiliation, degradation, the exercise by you of power and control, additional personal and sexual violence, and abuse of trust. On the first occasion, you showed a complete lack of insight to what you had done, blaming JL for ‘letting’ you do what you did. The second occasion was made even more serious by reason of the time you had to reflect on your violent criminal behaviour, and the fact that despite the apologies you had made, you proceeded to inflict further sexual violence on JL.
29 JL chose not to make a statement about the impact on her of what you did. However, I find there is an impact on her, a substantial one, and it has nothing to do with calling her a victim, but everything to do with how her life has been affected by your criminal actions. She has to arrange for someone else to care full time for the children you have together, so that she can continue to pursue the dream she has for her business. She has the right to work in her business, and not for one second am I suggesting that she should not. The impact is that she will bear the full brunt of the fallout from your crimes against her, including the ongoing issue of what to tell your children about where you are now and where you will be for some time to come.
30 In my view, while there was an immediate psychological and emotional impact on JL with her distress at the “unpleasant and ugly”[8] acts you perpetrated on her, and a subsequent and protracted impact on her of dealing with the practical outcomes of your offending, I recognise that JL’s evidence is that she wants to try and repair the relationship and start family counselling on your release, which you were not able to engage in before now because of an Intervention Order made on the application of the police after these offences.
[8] JL’s words in evidence on the plea
31 While JL did not expressly say she has forgiven you, her wish to restore the relationship probably means that any psychological and emotional impact suffered by her is much less in the circumstances. Accordingly, I find there is some mitigation in that factor,[9] even though the possibility exists that JL’s wish to restore the relationship may have a practical basis in restoring the main caregiver to the children, and not be one arising out of forgiveness; and further, I am mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent.
[9]Skura [2004] VSCA 53
32 I know that it would not have been JL’s choice to have the police involved. The fact is that while these were crimes committed against her, sentencing is not a private matter between a person subject to the offending and the offender. A serious crime, as here, is a wrong committed against the community at large and it is the community that expects crimes to be detected and the community itself which is entitled to retribution[10].
[10]Palu (2000) 134 A Crim R 174
33 Senior counsel on your behalf submitted that I should impose an extremely clement sentence because of the combination of your good character up until you committed these offences, the voluntary report of your offending and admissions to police, your good prospects for rehabilitation, the impact on you of knowing your children and your parents will be without your care while you are in gaol, and the effect on your level of moral culpability of your emotional reaction to the discovery of JL’s sexual relationship with another man.
34 You are entitled to have your pleas of guilty, entered at an early stage, taken into account in your favour. Your plea has saved your former wife from having to give evidence about the offences, and in sexual offences cases that is a very important factor, even more so when the offences occurred in a family context.
35 Next, I treat your pleas of guilty, and your voluntary reporting of your acts, together with your confessional interview with police, as showing some remorse. I have qualified the level of remorse because first, you apologised profusely to JL after the first occasion, demonstrating remorse, but committed the same serious offences within 36 hours; second, you told Dr Sullivan that it was hard to remember what happened on the first occasion after the initial confrontation[11], and it is difficult to find a person is wholly remorseful for something they say they cannot remember doing; and third, your report to the clinician was really about JL, not about your crimes, and you reported to Dr Sullivan[12] that you did not realise what had happened was rape, even after the second occasion, until it was named as such by the clinician.
[11] Exhibit 3
[12] Ibid
36 I have received many references[13] attesting to your high level of remorse since then, and I take into account that you now fully accept responsibility for your criminal acts.
[13] Exhibit 2
37 Also, I take into account that the crimes would not have come to light if you had not yourself contacted the mental health clinician. I also take into account the full admissions you made to police in your interview.
38 Next, you are to be sentenced as a person who until committing these offences at the age of 49 was of good character. The many references attest to your friends and family being shocked at your offending, which is out of character for the man they know. Their support is vital for your rehabilitation.
39 I have also had regard to your personal circumstances. Apart from those I have already mentioned, you were born in Macedonia, came to Australia with your parents and are now aged 50 years. From a young age, you were the person looking after others: first your younger brother, then later your children, and more recently, your parents, who speak little English and rely on you heavily. The material I received from the medical professionals[14] seemed to indicate a lingering effect on you of being put in the positon of caregiver, but your counsel on the plea expressly submitted that you did not resent your role as a caregiver for the children, nor JL’s employment. You have had a sound work history, including managing your own and your family’s businesses.
[14] Exhibits 3 and 4
40 I turn now to the submission that the opinion of Dr Sullivan that your mental state ‘at the time of the offending’ attracts the operation of the principles in a case called Verdins[15]. Dr Sullivan considered your actions occurred at a time of emotional tumult, and the appropriate diagnosis would have been an adjustment disorder with mixed disturbance of emotions and conduct[16]. There was no reference by him to ‘the time of the offending’ being in fact two separate occasions, two days apart.
[15] (2007) 16 VR 269
[16] Exhibit 3
41 The prosecutor conceded that this opinion showed that your judgment was impaired and that there was a causal link with your offending, although it was submitted that the level of impairment was higher on the first occasion than the second because of the gap in time between them.
42 I asked senior counsel on your behalf to clarify for me why the diagnosis of adjustment disorder should be taken into account in the way he submitted. In response, Mr Morrissey submitted that the diagnosis was not excluded on the principles of law[17], and it explained your loss of control on receiving the news that shocked you, of your former wife’s other sexual relationship. It was put that your behaviour, in an otherwise good man, was caused by the adjustment disorder, that there had to be a psychological factor at play, but that it need not be the sole trigger for your behaviour.
[17]Verdins; O’Neill v R (2015) 47 VR 395
43 I have carefully considered the relevant principles, and Dr Sullivan’s report. I find it difficult to apply those principles to a situation where you report to him that you had years of built up resentment against your wife causing you to divorce her, and upon finding that she had engaged in another relationship, you became “profound[ly] ang[ry], [were] distress[ed], and desire[d] to humiliate [her]”[18], and did so in a very violent way. That loss of control, not once, but twice, clearly impaired your capacity to think clearly and make rational choices, or you would not have acted as you did, but that loss of control could simply be classified as blind rage, which you worked yourself up to from the Thursday and which you maintained over the weekend.
[18] Exhibit 3
44 However, in light of the prosecution’s concession, and without any oral evidence from Dr Sullivan or challenge to his opinions, I feel constrained to find that at the time of the offending on the first occasion, there is a realistic connection between your acute adjustment reaction and the offending and that reaction had the effect of impairing your ability to make calm and rational choices and to think clearly. I find that, as a result, there is a modest reduction in your moral culpability for charge 1, affecting the punishment that is just in all the circumstances.
45 However, I do not find that your acute adjustment reaction lessens the need for denunciation as a sentencing objective, nor does it moderate the need for general deterrence, where protection of people in intimate relationships from sexual offending is of vital concern to the community. Further I find there remains a need for specific deterrence, which means that my sentence must seek to deter you from re-offending. I make that finding because of Dr Sullivan’s opinion that although you are at low general risk of further sexual or violent offending, the continuation of your relationship with JL, which is the intention of both of you, may pose future emotional challenges which you may find difficult to manage.
46 For charge 2, I am not satisfied that a finding that your mental functioning was impaired by an acute adjustment reaction is open, because you apparently recognised your wrongdoing after the first occasion, as shown by your apologies, and you had time to further reflect on your actions before the events of Sunday morning. Moreover, you invited JL into the house on that occasion on a pretext of talking to her, but immediately took her to the bedroom where the second rapes took place. It follows from the finding that the Verdins principles do not apply to charge 2, that deterrence and denunciation remain as important sentencing objectives, and your moral culpability remains high.
47 I accept Dr Sullivan’s other diagnosis that you suffer from a major depressive disorder, the symptoms of which you reported to him were longstanding, and related to dissatisfaction with your relationship and feeling overwhelmed with being the predominant carer for the children. It was conceded by the prosecution, and I accept, that this condition will make your term of imprisonment more burdensome. I also take into account that you went into custody for the first time on the day of the plea as a first time offender. I also accept that you will find imprisonment harder because of the knowledge of the impact of your absence on your children and your parents.
48 Your lack of prior convictions, your strong, stable family background, and the support of your family and friends all signal reasonably good prospects of rehabilitation. However, some more work needs to be done to establish why you reacted as you did, in order to enhance your prospects of rehabilitation further.
49 You were referred to a psychologist on a mental health plan and have seen Dr Godfredson on many occasions from June 2017 until you were remanded in custody. In his report[19], he detailed his treatment of you, which was limited due to your persistent emotional distress. I take into account that you engaged with him in an effort to understand your offending, but you have not yet progressed very far towards that goal.
[19] Exhibit 4
50 Your counsel submitted that a merciful sentence should be imposed, with a lower head sentence and lower non-parole period than might otherwise be imposed because of the mitigating features and the unusual aspects to your case, despite the aggravating features, and despite the concession that moderate accumulation between the charges is appropriate. The prosecutor submitted that even with its unusual and mitigating features, this is a case of two changes relation to serious examples of rape with objectively high gravity, although it may be open to impose a lower non parole period.
51 I am not persuaded that a merciful sentence should be imposed in light of the very serious nature of the composite charges. The mitigating features will be reflected in both the head sentence and non-parole period, but having regard to the aggravating features, significant sentences must be imposed on both charges.
52 I was referred to a case of MC from the Court of Appeal that involved a man raping his former wife in circumstances where they continued to reside in the same house[20]. I do not consider the sentence range in that case to be helpful because the decision pre-dates the High Court cases of Kilic[21] and Dalgliesh[22], and relies on some of the principles which were addressed in those cases. Further, I do not agree that it is open to me to impose a sentence significantly less than was imposed in MC, even taking into account the mitigating features in your case, when the Court of Appeal has subsequently said that the sentences imposed for rape have been too low.[23]
[20] [2011] VSCA 2
[21] [2016] HCA 48
[22] [2017] HCA 41
[23]Shrestha [2017] VSCA 364
53 The last matter before I turn to sentence is the application that was made for an intimate forensic sample to be taken from you. Through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
54 Stand up, please. You are convicted and sentenced as follows:
55 On charge 1 of rape (composite) – 7 years’ imprisonment;
56 On charge 2 of rape (composite) – 8 years’ imprisonment.
57 The sentence on charge 2 is the base sentence. I direct that 18 months of the sentence imposed on charge 1 be served cumulatively on the sentence imposed on charge 2. That makes a total effective sentence of 9 years 6 months’ imprisonment.
58 I direct that you serve 7 years before becoming eligible for parole.
59 I declare that you have served 48 days in pre-sentence detention, not including today. These will be deducted administratively from your sentence.
60 Finally, if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is difficult to say, because the pleas were entered on composite charges. However, if you had been convicted of the equivalent six charges of rape after a trial, the sentence I would have imposed is 15 years with a minimum of 13 years.
61 No other orders required?
62 MS ROODENBERG: No, Your Honour.
63 All right. Thank you. The prisoner may be removed. Well, I thank counsel once again for their assistance and I will adjourn now until 9 o'clock tomorrow.
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