Director of Public Prosecutions v Jenkins (a pseudonym)
[2022] VCC 2229
•12 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN JENKINS (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 November 2022 | |
DATE OF SENTENCE: | 12 December 2022 | |
CASE MAY BE CITED AS: | DPP v Jenkins (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2229 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence - plea of guilty - Rape (13 charges), Attempted rape (1 charge) - Course of conduct charges (1-4) - Category 1 offences (11-14) - Standard Sentencing Regime (Charge 14) - Four victims - Expert opinion - Elevation on thought dysfunction and disorderly thinking but no impairment of mental function
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Convicted and sentenced to Total Effective Sentence of 9 years’ imprisonment with non-parole period of 5 years and 6 months’ imprisonment - 87 days pre-sentence detention declared as already having been served as part of the sentence imposed - s.6AAA Sentencing Act 1991 (Vic) declaration - SORA registration
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Thomas | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr J Desmond | Tipping Tyler Woods |
HER HONOUR:
1Alan Jenkins,[1] you have pleaded guilty to thirteen charges of rape and one charge of attempted rape.
[1] A pseudonym.
2The offence of rape has a maximum penalty of twenty-five years’ imprisonment, while attempted rape has a maximum penalty of 25 years’ imprisonment.
3I must have regard to the maximum penalties in sentencing you, as these reflect the seriousness with which Parliament regards the offences.
4Further, Charges 11 to 14 were committed on or after 20 March 2017 and are therefore Category 1 offences pursuant to new provisions of the Sentencing Act 1991, which came into effect at that time. Therefore, you must be imprisoned in relation to these offences unless one of the relevant exceptions apply – in your case, it was not argued that any of the exceptions apply. Also, Charge 14 was committed after the time that the Standard Sentencing Regime came in, meaning that the standard sentence for the offence of rape which applies to Charge 14, is 10 years’ imprisonment – this is also a matter to which I must have regard in sentencing you.
5There are four victims in this matter, all of whom were in relationships with you at the time you offended against them.
6The first complainant is Julia Brown,[2] who was Julia Stewart[3] at the relevant time. She was born in August 1990, and at the time you offended against her, she and you were both aged between sixteen and seventeen years. The offences pertaining to Ms Brown are Charges 1 to 4.
[2] A pseudonym.
[3] A pseudonym.
7I was told that you and Ms Brown were in a relationship from approximately 21 April 2007 to 23 January 2008. You had met when you were both in secondary school in regional Victoria. Although you attended different schools, you took a class at Ms Brown’s school.
8The second complainant is Ms Emily Perry,[4] who was born in November 1992. At the time you offended against her, she was about sixteen years old and you were about eighteen. Charge 5 relates to your offending against her. You and Ms Perry were in a relationship between mid-2008 and about March 2010.
[4] A pseudonym.
9The third complainant is Ms Annie Rogers,[5] who was born in January 1991. At the time you offended against her, you and Ms Rogers were both aged between approximately twenty-three and twenty-four years. The charges pertaining to Ms Rogers are Charges 6 to 8. You and Ms Rogers were in a relationship between 11 September 2010 and mid-2015. You married on 25 October 2014 and have a son together, Timothy,[6] who was born in August 2012.
[5] A pseudonym.
[6] A pseudonym.
10The fourth complainant is Nicole Hill,[7] who was born in October 1993. At the time you offended against her, Ms Hill was aged between twenty-three and twenty-four and you were aged between twenty-six and twenty-seven. Charges 9 to 14 pertain to Ms Hill. You were in a relationship with Ms Hill between April 2016 and October 2018.
[7] A pseudonym.
11I was told that Ms Hill was pregnant when she and you began your relationship and her son, Joshua,[8] was born in October 2016. You are not the biological father of Joshua.
[8] A pseudonym.
12Joshua was born with the assistance of forceps, which resulted in Ms Hill receiving a tear to her vagina requiring stitches. These stitches tore a week or so after Joshua’s birth, which caused a good deal of pain. She did not want any sexual contact as a result of this.
13After Joshua’s birth, Ms Hill developed post-natal depression and was prescribed medication for this condition, which included medication to help her with sleeping.
Offending – Julia Brown
14I was told that during your relationship with Ms Brown, you and Ms Brown would visit each other’s houses. Initially, you saw each other about twice a week. In about July 2007, Ms Brown and you began having regular sexual intercourse. You began spending more time at Ms Brown’s family home and eventually Ms Brown’s parents allowed you stay over regularly at weekends. Ms Brown and you also engaged in consensual sexual activity at your home.
15Ms Brown stated that, around the time that your relationship became sexual, you began performing sexual acts on her while other people were present, without her consent. This occurred at Ms Brown’s home and your home. Those who were present included Ms Brown’s stepfather and family members related to you.
Charges 1 and 2 – course of conduct charges
16I was told that during your relationship with Ms Brown, there were occasions when you were at each other’s homes together, doing things like watching movies together while other people were in the room. You would put your hands down her pants and insert your fingers into her vagina. Ms Brown would try and pull your arm out of her pants, or quietly say “stop” or “don’t”, however it was hard to make you stop, as there were other people present. Ms Brown learnt to sit apart from you when there were others present. She cannot remember exactly how many times this occurred.
Charge 1 – rape (finger/vagina) – 21 April 2007 to 31 December 2007; Charge 2 – rape (finger/vagina) – 1 January 2008 to 23 January 2008
17I was told that Charges 1 and 2 are course of conduct charges, and that the offending which occurred over the entire period encompassed by Charges 1 and 2 had to be separated by two separate charges due to legislative amendments during that period. Otherwise, the offending would have been represented by one continuous charge.
18Ms Brown recalled a specific occasion when she was digitally penetrated in the circumstances previously referred to. This occurred between April and July 2007, before you began staying over. You and Ms Brown were lying on the couch together in the loungeroom at Ms Brown’s home and her stepfather was sitting on another couch, watching TV with you. Ms Brown was wearing loose-fitting pyjama pants, a T-shirt and underwear. You put your hands down the back of Ms Brown’s pants and under her underwear. Ms Brown tried to push your hand away without being too obvious about this, to avoid her stepfather seeing what you were doing. You kept your fingers down her pants and put one or two fingers inside her vagina. She said you were being rough and she managed to get your hands out from her clothing. She was in extreme pain and discomfort when you were penetrating her, and went to the bathroom, where she discovered she was bleeding from her vagina. Ms Brown believed that this incident occurred the day before she and you had consensual sexual intercourse for the first time.
19When I asked for the number of times that you had engaged in this type of conduct, I was told that, at the committal hearing Ms Brown estimated that you digitally penetrated her in these circumstances ten to twelve or fifteen times. There was no clarification in respect of when the additional instances of digital penetration occurred so as to be able to apportion these instances between Charges 1 and 2. In circumstances where Charges 1 and 2 would have been one charge if not for the legislative changes previously referred to, I intend to impose a sentence in relation to Charges 1 and 2, which are concurrent with each other.
20The learned prosecutor told me that, after engaging in consensual sexual intercourse for the first time, you and Ms Brown had sexual intercourse regularly. On occasion, you would engage in sexual acts without Ms Brown’s consent, including when she was asleep.
Charges 3 and 4
21These are both course of conduct charges involving penile/vaginal penetration.
22I was told that, after you began staying over at Ms Brown’s house, on multiple occasions you penetrated Ms Brown’s vagina without her consent while she was asleep. Ms Brown became fearful that this would happen when you stayed over and tried to prevent this by giving you more sex before she went to sleep.
23Two of these occasions occurred in October 2007, two weeks apart. On each of these occasions, the penetration caused the complainant to bleed from the vagina. On the second occasion in October, you asked the complainant to marry you after the incident and became angry when she refused.
24Ms Brown would be asleep on her back and would wake to find you on top of her, penetrating her vagina with your penis. You did not use a condom when these incidents occurred. Afterwards, you would tell Ms Brown that you loved her.
25Ms Brown stated that the first of these incidents occurred in October 2007, when she was asleep. You and she had gone to bed together in Ms Brown’s room and before going to sleep you had engaged in consensual sexual intercourse. Ms Brown was wearing a T-shirt and underwear. She fell asleep after the consensual activity. She awoke to find you on top of her. You had moved her underpants aside and you were thrusting your penis in and out of her vagina. She asked you what you were doing and you said “don’t worry, relax. It will be alright”, before telling the victim that you loved her.
26Ms Brown felt trapped, as she was lying on her back and you were much stronger than she. She did not know how to get you to stop. You continued to rape her for five to ten minutes before ejaculating inside her vagina. This specific incident is part of the offending captured by Charge 3.
27Ms Brown got up and went to the toilet and discovered she was bleeding. She said you were rough when you were penetrating her and did not use a condom.
28On New Year’s Eve, being 31 December 2007, you spent the night at Ms Brown’s home. You watched the festivities, including the midnight fireworks on TV, and retired to bed at about 12.30 am on New Year’s Day.
29Ms Brown had her period at the time and was using a tampon. You attempted to initiate sex with her before going to sleep, however she told you that she was not in the mood and you should leave her alone. Ms Brown fell asleep, then awoke because she felt you removing her tampon. She asked you what you were doing and you replied “[d]on’t worry about it, it’ll be alright” and “you don’t bleed too much through the night”, and “if it gets too messy, I will just have a shower”. Ms Brown said that she did not want to have sex with you, but was unable to say anything further as you began to kiss her. You were on top of Ms Brown and touching her all over, in a bid to encourage her to have sex with you. Eventually you stopped and got off Ms Brown when she again told you she did not want to have sex. Ms Brown said that you were pinning her arms down and being forceful. She did not want to make a big show of things, because her stepfather was in the next room. When you got off her, she told you never to do this again, and not to touch her. She again fell asleep, but awoke again with you on top of her. You had again pulled her underwear to one side and you were penetrating her vagina with your penis. This is a specific incident, which is part of the offending giving rise to Charge 4.
30Ms Brown became angry and told you “[do]n’t fucken touch me”. You got off Ms Brown and told her she was overreacting. After this, Ms Brown did not allow you to stay at her house again.
31You and Ms Brown broke up on 23 January 2008.
32In relation to Charges 3 and 4, I understand that these are also divided due to changes in the legislation, and might well be otherwise the one charge, which is a matter I will factor in when sentencing you, however there is a presumption of cumulation in sentencing you after Charge 2 and these are separate instances of offending. I was told that, in relation to this type of activity, there were an additional twelve penile/vaginal penetrations which occurred during the overall charge period for Charges 3 and 4, however I was not advised as to when these additional instances occurred so as to be able to attribute them to a particular charge.
Complaints and representations
33In 2010, Ms Brown exchanged Facebook messages with another complainant, Emily Perry, about what you had done. She said that you had forced your way into her when she was asleep. In about 2010, she also told her mother that you had made her have sex with you when you did not want to. Subsequently, she exposed your offending to her partner in 2019.
Emily Perry
Charge 5
34I was told that when Ms Perry and you commenced dating, she was a secondary student. She described you as being controlling and somewhat paranoid about what she was doing. You would check her phone and not allow her to see certain friends. You would send untrue messages to her while she was at school. She related these behaviours to her twin sister at the time. This evidence was relied on as context or relationship evidence, albeit that this is a sentence arising from a plea hearing.
35On an occasion after November 2008, you and Ms Perry were together at Ms Perry’s home in Trafalgar. Ms Perry was feeling unwell and, at times, she was hyperventilating. You knew she was unwell and comforted her while she was awake. You and Ms Perry went to sleep together in Ms Perry’s bedroom. Ms Perry awoke to find you on top of her, with your penis in her vagina, thrusting your penis in and out of her vagina. You were not wearing a condom.
36Clearly, Ms Perry did not consent to the penetration and immediately she began crying and said “[d]on’t.” However, you continued. This gives rise to Charge 5.
37Ms Perry eventually managed to push you off her and grabbed a dressing gown. She left the address and went to a park nearby. You followed her and grabbed her before falling to the ground. She was crying while you kept apologising to her. She and you broke up before she turned eighteen in 2010.
38On 20 March 2010, Ms Perry exchanged Facebook messages with Ms Brown, where she described this incident. Ms Perry told her twin sister about the incident shortly after it occurred. She was distressed when she told her sister about this.
39In about 2010, Ms Perry and Annie Rogers had a conversation about you, and had a subsequent conversation after Ms Rogers and you had separated. She also told her partner about the incident.
Annie Rogers
40Around the time that you and Ms Perry broke up, you commenced a relationship with Annie Rogers. During the relationship, Ms Rogers observed you to be possessive toward her. You wanted to know where she was and who she was with, and attempted to attend her workplace, which was a bar in rural Victoria, to watch what she was doing. This was relied on as relevant context/relationship evidence, as I understand it.
41Ms Rogers and you moved to Ballarat when your son, Timothy, was about one. At this stage, you and Ms Rogers had become engaged.
Charge 6
42I was told between February 2013 and March 2014, Ms Rogers and you were in bed and Ms Rogers had fallen asleep. She awoke to find that her pyjama pants had been pulled down and that you were slowly inserting your fingers inside her vagina. When you realised that Ms Rogers was awake, you became much rougher and continued penetrating her vagina with your fingers. Ms Rogers pulled away from you and said, “what the fuck are you doing?” As I said, this gives rise to Charge 6.
43You claimed that you were not doing anything and did not know what Ms Rogers was talking about. Ms Rogers told you that what you had just done was not okay and grabbed her pillow. She left to sleep in the loungeroom.
Charge 7
44I was told that between July and October 2014, Ms Rogers’s sister, Jennifer, was visiting the victim and you.
45After returning home from dinner, Ms Jennifer Rogers went to sleep in the loungeroom. You and Annie Rogers went to sleep in your bedroom and Ms Rogers fell asleep on her side. She awoke to find that her underwear had been pulled down to her knees and your penis was inside her vagina, and you were thrusting it in and out. Ms Rogers reached behind her and tried to hit you away. She said, “You’re disgusting, you’re a pig. If you ever do that to me again, I will cut your dick off”. This gives rise to Charge 7. You apologised and explained you did not know why you kept doing this. Ms Rogers said that her sister was in the house and asked why you kept doing this. You kept apologising.
46Ms Rogers told her sister about the incident the following day. She felt ashamed about what had happened and did not tell anyone else.
47Although the relationship with this complainant continued to deteriorate, you and Ms Rogers married on 25 October 2014. You then moved back to the Latrobe Valley together, where you rented a house in early 2015.
Charge 8
48I was told that between February and May 2015, after Ms Rogers and you had moved to the Latrobe Valley, Ms Rogers’s cousin had asked her to go to a bar in Traralgon for a couple of drinks. Ms Rogers attended and became quite drunk during the evening.
49Timothy was staying with Ms Rogers’ mother on this night.
50You attended the bar and picked up Ms Rogers to take her home. She became ill from her alcohol consumption on the way home and you had to stop the car so she could vomit.
51When you arrived home, Ms Rogers got into bed and fell asleep. She was wearing a nightie and underwear.
52A couple of hours later, she awoke to find her underwear around her feet. She was lying on her side and you were positioned behind her, thrusting your penis in and out of her vagina.
53Ms Rogers was shocked and froze for about twenty seconds while you continued. Eventually, Ms Rogers pushed you away from her. This gives rise to Charge 8.
54After this, Ms Rogers left the bedroom and slept in the loungeroom. The following day, she told you the relationship was over. You apologised and attempted to persuade her to change her mind, but Ms Rogers refused and you moved out the next week. After you separated, you wrote to Ms Rogers, apologising for your behaviour.
55Ms Rogers complained to her sister the day after you raped her on this occasion. She also complained to the person she went to the bar with, saying she had woken in the middle of the night a few times to you helping yourself to sex with her. After the incident which gives rise to Charge 8, Ms Rogers also complained to her mother, saying that you had raped her.
56In 2015, after Ms Rogers and you separated, she disclosed the sexual abuse to police, however she declined to pursue the matter at this time.
57This complainant also spoke to Ms Perry and Ms Hill about your offending against her.
Nicole Hill
58You and Ms Hill commenced your relationship in about April 2016, a year after you separated from Ms Rogers.
59Ms Hill and you moved in together in about December 2016, when Ms Hill’s son, Joshua, was about two months old. You lived in a rental property in Warragul.
Charges 9 and 10
60In about January 2017, Ms Hill and you went to bed together. Ms Hill’s brother was staying with you at the time, and sleeping in another bedroom.
61In the early hours of the morning, Ms Hill awoke feeling pain and discomfort. You were penetrating both her vagina and her anus with your fingers. You had moved her pyjama shorts to the side and were breathing heavily as you moved your fingers in and out of the victim’s vagina and anus.
Ms Hill said, “No that hurts, what are you doing? Get off me”. You pretended to wake up and asked her what was wrong. You claimed to have been asleep and were unaware of what had happened. This conduct gives rise to Charges 9 and 10.62Ms Hill asked if you wanted her to call her brother and said that she would “kick your [arse]”. You attempted to hug the complainant and apologise, claiming you did not mean to hurt her and that you missed her.
Ms Hill told you that you were not asleep and that you did not do that sort of thing to someone you loved. You then told her to quieten down.Charge 11
63In about August 2017, Ms Hill and you went to bed. This victim was asleep, having taken medication which made her drowsy. She awoke to find you penetrating her anus with your fingers while you were masturbating with your other hand. She pulled away from you and saw you were naked from the waist down and had an erection. This gives rise to Charge 11.
64Ms Hill immediately burst into tears and yelled “How could you fucking do this again”. You claimed that you thought she was awake at the time.
65After this, Ms Hill made you sleep on the couch for a week. Her brother asked why this was and she told him that she and you were fighting. After this, she avoided sexual contact with you.
Charges 12 and 13
66In about November 2017, Ms Hill went out for drinks with a friend in Traralgon. She consumed alcohol and was still taking medication at that time. At about 9.00 pm you called and said she needed to come home as Joshua was not sleeping.
67You drove to Traralgon with Joshua to collect Ms Hill and drove her back home. You arrived back in Warragul at about 10.30 pm. Ms Hill took her medication, fed and changed Joshua, and went to bed. She felt dizzy and drowsy from the alcohol and medication. You got into bed about twenty minutes after Ms Hill. Ms Hill was in the habit, at this time, of placing a pillow between you and she. She fell asleep but awoke to you penetrating her vagina with your fingers. She was lying on her side at this time and you were naked from the waist down. This gives rise to Charge 12.
68You were also pushing your penis against the victim’s anus, attempting to penetrate her anus with your penis. This gives rise to Charge 13 – attempted rape.
69Ms Hill realised her pyjama pants had been pushed down and her T-shirt was still on. She panicked and rolled onto the floor, feeling sick as she struggled to pull her pants up. You claimed that you thought she was awake and enjoying it. Ms Hill said she did not wish to have sex with you again. You apologised and said you did not mean to hurt her.
70After this, Ms Hill made you sleep on the couch for the rest of the night and placed a table against the door to keep it closed.
71After this, you and Ms Hill had little sexual contact. In April 2018, you and this victim moved to another address in Traralgon.
Charge 14
72In May 2018, Ms Hill went out drinking with a friend, Stephanie Davis.[9] She became intoxicated and caught a taxi home in the early hours of the morning. When she got home, you were still awake and you were angry with her. You helped her take her medication and she got into bed while still wearing her dress, bra and underwear.
[9] A pseudonym.
73The victim fell into a deep sleep and later awoke to you penetrating her anus with your penis. Her underwear had been pulled to the side and you were fully naked. She told you to stop, however you continued to thrust your penis into her anus. This gives rise to Charge 14.
74Ms Hill tried to punch you in the genital area. She got out of bed and put on a pair of tracksuit pants. She told you the relationship was over and you went and slept on the couch.
75Ms Hill wanted to separate from you, but had trouble finding housing. You behaved possessively toward her and blocked her from leaving by locking the door or taking Joshua and refusing to hand him back. You told her the police would never believe her because she was mentally unstable. This was led by way of general background information in respect of your relationship with this complainant.
76On Sunday, 21 October 2018, Ms Hill and you had an argument, which resulted in you leaving the address and Ms Hill calling Triple 0. Subsequently, she reported the matter to police and an intervention order with full exclusion conditions was issued and served on you. She was then able to leave you.
Complaints and representations
77On 16 May 2018, Ms Hill was at a local bar with her friend, Michelle King.[10] She told Ms King she did not want to go back home because you were sexually assaulting her at home. In July 2018, this victim contacted Ms Rogers and asked why you and Ms Rogers had broken up. They met at Ms Rogers’ home and each complained to the other that you had raped them when they were asleep.
[10] A pseudonym.
78In August 2018, Ms Hill told her friend, Stephanie Davis, that you had forced yourself on her sexually when she was asleep. She also disclosed sexual offending to police when she called Triple 0 on 21 October 2018, saying that you had taken advantage of her a few times and raped her once. She also said she had been raped four times over the previous two years.
79Subsequently, she told her brother that you had taken advantage of her sexually a number of times when she was medicated and passed out.
80As a result of disclosure to police, an investigation into the offending took place and two police interviews were conducted.
81The first interview took place on 29 June 2019, in relation to complaints made by Ms Hill.
82In relation to the allegations giving rise to Charges 9, 10 and 11 (digital penetrations), you said that you did not recall these and later said that you were doubtful that you did these acts, but you could not say for sure.
83In relation to the allegations giving rise to Charges 12 and 13, you said you recalled that night and you also agreed the complainant had put a pillow between you and she in the bed at times. You denied the allegations giving rise to these charges, saying there was no sexual contact between she and you on that particular occasion.
84You denied the allegations giving rise to Charge 14 and said that you had slept on the couch that night.
85You took part in a second record of interview on 29 November 2020 in relation to the allegations made by Ms Brown, Ms Perry and Ms Rogers.
86You denied having any sexual contact with Ms Brown in the loungeroom, saying sex was kept in the bedroom and that you had only ever had penile/vaginal sex.
87You said you could clearly remember certain times and instances during your relationship with Ms Brown, but you had no recollection of any of the allegations she had made. You denied having sexual contact with Ms Brown on the couches, the subject of Charges 1 and 2, saying that your parents would never have allowed this and that you definitely would not do anything on your parents’ couches. In relation to Charge 3, you said you did not recall that ever happening and that you would always use a condom.
88In relation to Charge 4, you said that you thought the complainant and you had broken up well before New Year. You said that you and she could have slept that night together, but did not recall. You said that you would be told when the victim had her period and that you would not have had sex at this time, and you would not go and stay with her during this time.
89In relation to Ms Perry, you said you could remember specific details of your sexual relationship with her. In relation to Charge 5, you said you did not recall this incident at all, saying, it seems “Pretty fucked up from what you had read so far” and you also said “I’m not recalling it just yet” and “it’s nothing I can recall”.
90In respect of matters involving Ms Rogers, you could remember specific instances throughout your relationship and said that you could not remember the alleged offending. In respect of Charge 6, you said that it never happened. You said that you did not remember that night, but she never slept in the loungeroom before.
91In respect of Charge 7, you said that she had never worn a nightie before. You said that you did not recall the incident occurring – that it might have, but you did not recall it happening at all. You said that most of the time when you were having sex you were in bed and both of you were awake, and you would have a light on somewhere.
92In respect of Charge 8, you said you did not remember that particular occasion.
93During the second interview, you said that the alleged offending might have been something that you had subconsciously put out of your mind. You said that you hoped you would not have been capable of doing these things.
94Mr Jenkins, the offending in which you have engaged is most serious and calls for a punishment which is just in all the circumstances, and your conduct must be firmly denounced. You persistently and repeatedly engaged in sexual offending against the various complainants in this matter, despite being told on a number of occasions by them, and from the very outset with the first victim, that they did not wish to engage in the sexual activity which you forced upon them. On a number of occasions the complainants were particularly vulnerable as they were asleep. Despite their protestations and objections to your behaviour, you continued to behave in this most abject way, apparently thinking that, as long as you apologised, you could keep going.
95In sentencing you, I am most mindful of your age at the time you committed the offences, namely that you were sixteen and seventeen years old when you committed the offences reflected in Charges 1 to 4 and eighteen when you committed the offence against Ms Perry. Therefore, you were a young offender at this time and I have borne in mind that, if you were dealt with shortly after these occasions, while still barely an adult, you might have been a candidate for Youth Justice Centre rather than adult gaol.
96I also take into account the age at which you committed the balance of the charges, as set out in the prosecution opening.
97On a number of occasions, you engaged in unprotected penile/vaginal sexual intercourse, exposing the complainant in question to the risk of sexually-transmitted diseases and pregnancy – this was not relied on as an aggravating feature by the Crown, but it is relevant to my assessment of the seriousness of those particular instances of offending.
98I have also factored in that, on occasions, even after the victims expressly indicated their lack of consent, you continued to offend against them and that, on a number of occasions, you offended against the victims when they were in a vulnerable state, in that they were asleep, highly emotional, or you knew them to be affected by alcohol and/or medication.
99In my view, your offending was opportunistic and the repeated and persistent nature of it is most concerning.
100Sections 5A and 5B of the Sentencing Act 1991 applies to Charge 14, which means that the period of 10 years’ imprisonment is the standard sentence for this offence which “taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.” This is a matter to which I must have regard in sentencing you in respect of that offence and reflects the seriousness with which Parliament regards the offence. I will return to the relevant provisions in respect of Charge 14 a little later on.
Victim Impact Statements
101In sentencing you, I take into account the impact upon the victims which, as reflected by the Victim Impact Statements read to the Court, is profound:
Victim Impact Statements
102Three of the four victims made Victim Impact Statements in this matter. In relation to Ms Perry, who did not make a Victim Impact Statement, I presume that the effects of the offending upon her have been harmful. It takes no imagination to come to this view.
103Annie Rogers said, in her Victim Impact Statement, that she now struggles to attend social events or relax. She is hypervigilant, which she finds exhausting. She has difficulty in trusting people and your offending has caused her a good deal of strain with her family and friends. She said it has taken a long time to begin to repair relationships due to the psychological damage she has suffered.
104She said that she needs certainty to feel safe and in control and that she can suffer feelings of extreme anxiety in particular situations. She said that she has chosen to obtain help for the well-being issues she has been suffering as a result of your offending, which has meant that she has had to work four days a week, rather than five, which has caused a loss of income. She said she struggles on occasion with her own son, as sometimes he can remind her of you. She has found it difficult to interact with you, which she has had to do because of parenting arrangements. She fears not being able to trust anyone again and feels uncomfortable in her own skin. She struggles in her present relationship because of the impact of your offending upon her. She suffers from flashbacks, which make her fear that she cannot put herself in a situation where she might feel vulnerable. She has ongoing issues with intimacy and suffers from nightmares and sleeplessness. Consequently, she is tired during the day, which makes completing daily tasks and working difficult to maintain. She said that the impact of your offending would be a lifelong challenge for her, and she felt she would need to constantly care for her mental health. She had lived a calm and happy life before your offending, but now she lives in a state of fear and stress.
105Nicole Hill stated that, since ending her relationship with you, she had experienced many negative emotional impacts. She continues to work weekly with a counsellor to manage her diagnosed complex Post-Traumatic Stress Disorder, which she believes was a direct result of your offending. She had been dealing with stress and anxiety, fearing that her son and she were not safe from you. She feared the dark, which affected her ability to sleep, as she suffered nightmares and woke regularly during the night. She said she experienced waves of depression and suicidal thoughts. She had been relying on regular antidepressant medication and counselling to get through each week. She said that she found it hard to regulate her emotions, to the point where she felt it almost impossible to calm down at times. She often felt extremely paranoid, fearing that she might be spotted by you in public. This left her avoiding going to a store or leaving home. She said that she felt a sense of self-loathing and felt unsafe in her house, which caused her to get help from various local services to improve her security. She said she feared sexual intimacy or relationships, and if anyone made her feel uncomfortable, she often ended up having a panic attack, which she suffered at least once a week nowadays. However, immediately after she left you, she had multiple panic attacks each day. She said that, due to your offending, the tear in her vagina which she received during childbirth, did not heal properly and she was still suffering discomfort and pain during daily life. She might need to have further medical treatment and plastic surgery to repair this injury. However, she fears having any medical attention of any kind because of the impact of your offending. She said that, after leaving you, she had no money or job, car, clothes or furniture. She was too fearful to return to the house to take any of these. She did not know what happened to any of her belongings, such as her furniture or white goods. She said that she and her son lived with family for several months, but the cost of public travel to get her son to day care so she could commence study was too expensive in addition to the day care costs. She said that, eventually, her family could no longer support her and her son with housing or food and she and her son became homeless. They had no money other than Centrelink payments and they were forced to ask for help from various charities. She said that she had managed to survive financially with donations and assistance from various charitable organisations, as well as good Samaritans, in order to rebuild her life. She had no funds left over for healthcare, such as dental treatment, which she was badly in need of, due to neglect during the period of her depression. She is on a waiting list for public dental services which is two years’ long. She said that, socially, she had been withdrawn since the crimes and unable to regain social confidence or resume her friendships. She is now working on repairing relationships with her family, which were fractured during her relationship with you. She said she has felt lonely, but afraid to trust others or allow herself to meet new people. She spoke of her inability to work and study out of fear of being seen by you. She is now employed, but often needs to take days off to recharge her “social battery”. She fears trusting new people or work colleagues, which makes communication in the workplace difficult. She fears contact by phone from people she does not know. She said that she prefers to spend time indoors away from people and avoids leaving the house, which creates stress on friendships, as she often cancels plans and had to lie to get out of social commitments – this was all due to fear of seeing you or your family.
106She said that she had been unable to maintain any intimate relationships due to suffering panic attacks and felt she might never be able to have an intimate relationship again. She said that it was very difficult to explain to friends or family who had reached out to her since the offending, as to the details of it, or the effects upon her. She said it was very difficult to complete the Victim Impact Statement for the same reason.
107Julia Brown said that, before meeting you, she was a very outgoing person. She was heavily involved in her schooling and after-school activities. She was able to work full time while maintaining a B+ grade average. She was very driven and passionate about her future, despite some rough times in her early childhood.
108She said that you were her first boyfriend and she did everything she thought possible to make you happy, even if that included doing things she did not want to do. She said that, when her relationship with you ended, she struggled with the realisation that things had happened that she did not consent to in that relationship. She became increasingly more withdrawn from people in her life and spent less time worrying about her future, and more time sitting in her room withdrawing from the world. She found it hard to enjoy anything, or trust people, and was unmotivated. In mid-2008, her mother found that she was self-harming and she was then diagnosed as being clinically depressed. She was too ashamed to open up and tell anyone what had happened to her.
109She said that, for many years, she had uncontrollable emotions, without any goals, drive or motivation, or ability to stick with things that would help her future. This was because she could not see a future for herself. In 2009, she was diagnosed with Borderline Personality Disorder. She explained what this meant and how it could be caused. She believed that you caused this disorder, and the illness has had a significant impact on her life. For many years she was unable to work due to growing mental health issues and was admitted to a psychiatric ward due to a suicide attempt, and was in a number of emotionally and physically abusive relationships. This caused many financial issues due to not working or being able to study for a number of years in her early adulthood. She had issues with how she viewed and thought of herself physically and emotionally, treating herself as worthless, because this was the impact that your offending had on her. She had significant issues with trusting people and enjoying simple pleasures, such as anyone innocently touching her when she was asleep. She had difficulties with intimacy and affection from her present partner and had become anxious, cold and withdrawn, which had caused difficulty in her relationship. She is constantly haunted by your actions towards her and the fear that successive partners might behave in the same way.
110She has spent many years in and out of therapy and her mental health issues are under control, however, they still haunt her every day and affect her day-to-day life significantly. She said that she had suffered feelings of fear and shame in telling a psychologist or counsellor what had happened to her, somehow blaming herself for this.
111She said that once she started opening up about the offending to her counsellor, it re-opened old wounds, which revisited her repeatedly throughout the whole counselling process. She said that this still significantly impacts her life and that she has had to open up to loved ones and tell a story she thought she would never tell. She said that this has changed who she is today. She said her last relationship suffered and ended due to the whole process, because the trauma brought back feelings that were unbearable and made her question her self-worth. She said she would love to feel closure once you have been sentenced, however she believes she will be still living with the trauma of what happened to her at your hands for the rest of her life. She said that, while she had a good deal to look forward to in the future, she would always mourn what she had lost due to your offending.
112Mr Jenkins, these are the very real effects that your offending has had upon the victims in this case and are matters that I must take into account in sentencing you. As I do not have any expert reports in relation to causation of mental illnesses, as referred to in the victim impact statements, I accept that those afflicted feel as they do and have caused a number of difficulties, however, in the absence of expert opinion that is far as I can take those matters.
113In sentencing you, I factor in that, for the purposes of Charges 1 to 11 inclusive, you have no prior convictions, however, for the purposes of Charges 12 to 14, you had one prior matter of persistent contravention of a family violence order, for which you were dealt with by way of a fine on 11 January 2017.
114In sentencing you, I am mindful of the various matters put on your behalf in terms of lack of aggravation, such as being a sole offender, rather than offending in company, not engaging in premeditated conduct, and not physically or verbally threatening the complainants, or engaging in violent behaviour, apart of course from the rapes themselves, which of their nature, are violent.
115In sentencing you, I allow for a fairly substantial discount in the sentence you would otherwise receive due to your preparedness to plead guilty to the charges. Your pleas of guilty were not entered at the earliest opportunity – in fact, they were entered at a rather late stage after you had conducted a contested committal hearing in the Magistrates’ Court. While this is your right, it does not entitle you to as much of a discount in sentencing, as you did not save the witnesses the time and trouble of giving evidence at the committal hearing, nor did you save the community the time and expense of such proceedings. However, in pleading guilty in this Court after receiving a sentencing indication from me, you have saved the witnesses, especially the complainants, the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial. Further, the law says that in pleading guilty during the COVID-19 pandemic when the courts have a large backlog of trials, you must be allowed an extra and palpable discount in the sentence you would otherwise receive, as you have contributed to a reduction in that backlog.
116In sentencing you, I have taken into account that this is your first time in custody and although COVID restrictions in jail have alleviated to some extent, time in custody may well be more difficult from time to time due to various restrictions that are put in place because of the pandemic.
117In sentencing you, I take into account your background. This was set out in
bullet-point form in your counsel’s submissions and are more expansively set out in a report from Dr Aaron Cunningham, psychologist, dated 12 August this year.118You are now thirty-one years old.
119You were raised by your parents in Morwell and have two older brothers. Your father worked at a power station and your mother had worked at a supermarket before staying at home to care for you and your siblings. Your mother was “chill” in her approach to parenting, while your father was a strict parent. You had a stable childhood, with no indication of abuse or trauma, and your parents remained together. Your father was present at the sentence indication hearing, and the plea hearing, in support of you.
120You left home when you were twenty-one and moved in with your partner at that time, Annie Rogers. Your child is now ten years old and, until incarceration, you were exercising access to him on a weekly basis.
121I understand that you are currently in a relationship which commenced about three years ago. I understand you and your present partner own a home and you report that that relationship is pretty good.
122You continue to be supported by your family.
123You completed secondary education to the middle of Year 12, then left to undertake an apprenticeship. You did not experience any learning difficulties at school. You completed a diesel mechanic apprenticeship and worked in security as an additional job. You worked as a diesel mechanic until 2020, when Covid restrictions led to you having to leave Western Australia, where you were working at that time. Since then, you worked at a timber mill until being remanded in custody.
124According to Dr Cunningham’s report, you have taken various knocks to your head over the years, including when you were working in security when involved in fights, and you fell and hit your head when working in 2020. However, there is nothing which suggests that you have an acquired brain injury, according to the material before me.
125You do not use drugs and rarely consume alcohol.
126According to psychometric assessment by Dr Cunningham, you had a significant elevation on thought dysfunction, which indicated that you had a problem with disordered thinking. You held significant elevations in respect of your distrust and suspiciousness of others and their motives, as well as ideas of persecution against you. There were various other aspects of this testing which resulted in Dr Cunningham’s finding that you had a general perception that you were being persecuted in respect of your current charges, however your profile did not indicate a mental illness. The elevations that he noted were directly referable to your current court matters.
127Dr Cunningham found that you did not meet any criteria for a mental illness.
128He noted that, at the time of your grandfather’s death when you were twelve, you met with a psychologist a few times, as you were having some emotional outbursts where you would damage property. While you continue to have emotional outbursts during times of stress, you no longer damage property.
129Dr Cunningham found that you did not present with significant overt risk factors for sexual offending, such as mental illness, drug abuse and/or history of trauma and you did not report attitudes which would condone sexual violence.
130Dr Cunningham conducted this assessment at a time when you were pleading not guilty to the charges and I have not been provided with any updated material in this regard. Therefore, he was conducting the assessment on the basis that you pleaded not guilty to the alleged offences and, of course, you are now pleading guilty to these.
131You have no impairment of mental function which contributed to the offending and, therefore, nothing which reduces your moral culpability which, overall, I find is high. However, as I have previously said, I have borne in mind your fairly young age when you committed Charges 1 to 5, especially Charges 1 to 4.
132In sentencing you, I have taken into account the character references provided by Janet Morris[11] and Ruby Morris.[12] Ruby is your current partner and Janet Morris is her mother. The references were written at a time when you denied the charges and each of the character referees indicate their belief that the allegations were false. Of course, you have pleaded guilty to the offences, such that the allegations are certainly not false, and it is to be hoped that your partner and her mother will give you appropriate support in the future knowing, now, that you admit committing the offences. However, I note what they say in their character references as to their experience of you as being a person that they regard as being of good character and very hardworking. In this respect, I do take into account that you have a solid work history, which is a positive matter when it comes to assessing your prospects of rehabilitation.
[11] A pseudonym.
[12] A pseudonym.
133I was told by Mr Desmond who appeared on your behalf that you are remorseful for your offending. He said that you had instructed him to apologise to the complainants and the community for your offending. As against this, you offended over a significant period overall in respect of a number of complainants and despite being expressly placed on notice that you were behaving poorly, you continued to commit offences. Also, your record of interview did not reflect a good deal of remorse, nor did the contested committal hearing. However, I have also factored in your facilitation of justice in relation to your case, having received a sizeable sentencing indication, which reflects a measure of remorse on your part and a coming to terms with the fact of your guilt. Bearing in mind what you told Dr Cunningham, it appears to me that you have a good way to go in having heartfelt remorse for the way in which you have impacted each of the victims in this matter and developing appropriate insight into the seriousness of your offending – these are works in progress in my view.
134I have taken into account, in your favour, the fact that you have not committed any further offence since May 2018, albeit that the alleged offences were brought to your attention, at least in part, fairly soon after the last offence was committed. However, you have demonstrated, in the intervening period, that you are capable of not committing offences and you have been a solid support toward your present partner and her mother. Also, you have had the anxiety of these matters hanging over your head for a fairly lengthy period.
135In all the relevant circumstances, including the fact that you are now thirty-one years old, your lack of criminal history, your good family support, your solid work ethic, but also factoring in the protracted nature of your offending in respect of four different victims, I assess your prospects of rehabilitation as being guardedly fair. In making this assessment, I have factored in that there is no mental illness or drug- or alcohol-abuse issue which might impede such prospects. I place moderate weight on specific deterrence and protection of the community. I place strong weight on general deterrence in a bid to deter others from offending as you have.
136As I previously said, Charge 14 is a standard sentencing offence. This means that in sentencing you for this charge, I must take into account that the standard sentence of 10 years imprisonment is the sentence for an offence of rape, that, taking into account only the objective factors affecting the relative seriousness of an offence, is in the middle of the range of seriousness; these objective factors are to be determined without reference to matters personal to you or any class of offenders including you, and wholly by reference to the nature of the offending itself (ss 5A(1) and (3)) of the Sentencing Act 1991.
137Section 5B(2) of the Sentencing Act requires that in sentencing an offender for a standard sentence offence, a court:
(a) must take the sentence into account as one of the factors relevant to sentencing; and
(b) despite s5(2)(b), which requires a court to have regard to current sentencing practices, must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
138However, s5B(2):
(a) does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and
(b) is not intended to affect the approach to sentencing known as instinctive synthesis.
139Subsection (4) requires a court to state reasons for imposing the sentence that it did in relation to an offender who is being dealt with for a standard sentence offence.
140Section 5B(5) requires a court to refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence when giving its reasons as required under ss(4).
141In your case, s11A of the Sentencing Act requires me to fix a non-parole period of at least 60 per cent of the total effective sentence, unless I consider that it is not in the interests of justice to do so. If I fix a lesser period than this, then I must state my reasons for doing so.
142In sentencing you in respect of Charge 14, I have had regard to the standard sentence and applied the relevant provisions to which I have just referred.
143In respect of that offence, I have imposed the sentence that I have because of the lack of aggravating factors in respect of the offending, as pointed to by Mr Desmond, and factoring in the matters in mitigation, and partially to facilitate the principle of totality and proportionality. It relates to the standard sentence by being 3 years less than it for all these reasons and those set out in this sentence.
144At the sentence indication hearing I said that in view of your age and lack of criminal history, although also bearing in mind the repetitive nature of your offending, that I would have thought that you would be a candidate for a non-parole period that was less than it might otherwise be.
In view of the fact that I gave this indication and because of your fairly young age presently and the age at the time of the offending, your lack of prior convictions, your lack of subsequent offending over more than four and a half years, and other matters in mitigation, but also factoring in the repetitive nature of your offending over a considerable period, I have decided that it is not in the interests of justice to impose at least 60 per cent of the total effective sentence.
145You are to be sentenced as a serious sexual offender after the sentence on Charge 2, in circumstances where I am of the view that each instance of your offending warrants a term of imprisonment, all relevant matters considered. However, I do not consider it necessary to impose a disproportionate sentence in order to achieve protection of the community. The prosecution did not submit otherwise.
146The prosecution submitted that, in your case, I ought exercise my discretion and have you registered as a sexual offender for life. Your counsel submitted that this was not necessary and that the mandatory period of 15 years post-release from gaol was sufficient. Ms Thomas for the Crown submitted that you were a repeat and persistent sexual offender and there was a high degree of risk associated with you, which warranted you being registered as a sex offender for life. Mr Desmond pointed out that your offending was not against children, and that when I assessed the nature and magnitude of the risk you presented in
re-offending against the serious consequences to your future in being subjected to life registration, I ought not exercise my discretion to have you registered for life.147I have previously assessed your prospects of rehabilitation as being guardedly fair, which reflects my assessment as to the chances of you re-offending. Your offending commenced when you were seventeen and persisted for a number of years, notwithstanding protests from the complainants, which you chose to ignore or tried to smooth over along the way. However, since coming to the attention of police, you have not committed any further offence and you have a number of matters in your favour in terms of community support and ability to engage in hard work in the community. In all the circumstances, where Parliament has not seen fit to mandate life registration for offending such as yours, I am of the view that it is not necessary to exercise my discretion so as to impose life registration. Fifteen years post-release from gaol is an adequate period for you to be monitored in all the relevant circumstances, in my view. In the event that the relevant authorities assess you as being an ongoing risk when you are released from custody, it is open to them to apply for a supervision order so that they can still monitor you in the community. I do not speculate about whether this will occur in your case and cannot do so. However, in my view, it is relevant that, if there is concern as to your progress or lack thereof while in gaol, there is another mechanism for the relevant authority to apply for in order to monitor you upon release.
148In sentencing you, as I have indicated, I am most mindful of the sentencing indication that I previously gave in relation to the maximum total effective sentence that I would be prepared to impose in your case. This does not automatically mean that that is the sentence I will impose, however, in your case, I have arrived at a total effective sentence in keeping with this indication.
149You are to be declared a serious sexual offender after the sentence on Charge 2, which will be entered in the records, and there is a presumption of cumulation thereafter. However, in order to accommodate the principle of totality I have had to cumulate fairly modest periods in some instances and to forgo cumulation in others.
150In relation to the charges, you are convicted of each of them. As I have said, I will require you to be registered as a sex offender for a period of 15 years. I understand that there is a document there in the room with you and I would ask you to sign that document, which reflects an acknowledgement of your obligations in relation to reporting your details to police for 15 years from the time of your release from custody. Can I ask you to sign that now please Sir. Yes, thank you. You are sentenced to the following periods of imprisonment:
Charge 1: 12 months
Charge 2: 12 months
Charge 3: 18 months
Charge 4: 18 months
Charge 5: 2 years
Charge 6: 3 years
Charge 7: 3 years 4 months
Charge 8: 3 years 8 months
Charge 9: 5 years
Charge 10: 5 years 4 months
Charge 11: 5 years 8 months
Charge 12: 6 years
Charge 13: 3 years (Attempted rape)
Charge 14: 7 years which will be the base sentence.
151I direct that 2 months from the sentence on Charge 2,
4 months from the sentence on Charge 4,
6 months from the sentence on Charge 5,
8 months from the sentence on Charge 8,
and 4 months from the sentence on Charge 12
be served cumulatively with each other and with the base sentence but that otherwise, the sentences imposed be served concurrently.
152This produces a total effective sentence of nine years imprisonment, and I direct that you serve a non-parole period of 5 years 6 months before becoming eligible for parole.
153Pre-sentence detention.
154I declare that you have already served 87 days imprisonment which will be deducted from your sentence.
1556AAA.
156If not for your pleas of guilty, I would have sentence you to a total effective sentence of 12 years imprisonment with a non-parole period of ten years.
157Is there anything arising?
158MR DESMOND: No, Your Honour.
159MS THOMAS: No, Your Honour.
160HER HONOUR: All right. Now Mr Desmond, did you wish to speak to your client now or on another occasion?
161MR DESMOND: If possible, Your Honour. I note there is a number of people in the room.
162HER HONOUR: Well it will be once I adjourn the Court, if you wish to have a brief word with him.
163MR DESMOND: Just for a minute or so, thank you, Your Honour.
164HER HONOUR: Very well. Yes, thank you. We will now adjourn.
- - -
0
0
0