Director of Public Prosecutions v Kington

[2019] VCC 95

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02285

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK KINGTON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2019
DATE OF SENTENCE:	8 February 2019
CASE MAY BE CITED AS:	DPP v Kington
MEDIUM NEUTRAL CITATION:	[2019] VCC 95

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Mr S. Anger	Tony Hannebery Lawyers

HIS HONOUR: 

1Mark Steven Kington, you were found guilty by a jury on 19 November last year of four charges of rape and one charge of common assault.  Those crimes carry maximum penalties of 25 years and 5 years, respectively.  You had in late October of 2018 been involved in a previous trial where you had been convicted of a charge of criminal damage, for which you have already been sentenced and were acquitted of various other charges.  Accordingly, the November trial was in fact a re-trial.

2You are 42 years of age, you have no prior convictions.  You were convicted by a jury and accordingly do not get the benefit of any plea of guilty.  It is a situation where you maintain your innocence and accordingly you are sentenced totally absent of remorse and, in my view, with no insight into the seriousness or the nature of your offending.  Those matters of course do not aggravate the situation, they just take away what is in these sorts of circumstances is usually by far the most important piece of mitigation.

3Before I commence to briefly summarise the matters of which you have been found guilty, I do indicate that from the outset, that the offending was situational.  It was in the course of a domestic circumstance, which in one sense makes it worse but I regard in those circumstances the need for specific deterrence as being ameliorated.  The evidence of the complainant was clearly accepted by the jury and her evidence in general terms, and you are not to be sentenced for the relationship itself, was that within that relationship you were bullying and threatening to her.  No doubt that is correct if the demeanour you displayed in your record of interview and in the evidence you gave in the first of the trials is typical of your demeanour towards her.  It is totally confirmatory of what she was saying.

4But in any event, the offending occurred over a period of about a year.  What I am going to do and I have been through all the evidence of the two trials again over the last few days, is simply refer to the Crown opening.  There were some, what I believe to be minor differences in the actual evidence that was given.  But that opening provides the gist of what the complainant swore to and what you were convicted of.  There is certainly nothing of a mitigatory nature which I have not taken into account.

5In mid- to late-2013, you formed a relationship with the complainant.  At that time she was living with her brother in Lalor.  Your relationship became sexual.  In late 2013 or early 2014, she moved from Lalor to live with your parents in Deer Park.  She remained there for roughly 12 months and had a separate room there.  In January 2015 she rented a property in Thomastown or Lalor and moved there and you eventually came to at least stay there on a very regular basis or, in one view, live there.

6During the course of this relationship, you and the complainant smoked and used the drug ice or puff or stonk as you refer to it and used marijuana together.  The relationship over time deteriorated.  In about November of 2014 on a Friday night you came home to your parent's place in Deer Park and you had been absent for a couple of days.  You were smoking ice.  You handed the ice pipe and a lighter to her.  As she was about to light it, you pulled her pants down and threw her on the bed.  You became angry and assaulted her.  Called her a "Drug slut" and "Cock-for-rock slut" and you sexually penetrated her vagina with your penis.  You told her that she made you feel sick.

7After having that sex you gave her $50 and told her she had to pack her stuff and leave.  She collected some of her things and loaded up her car.  There are some differences in evidence as to what occurred after that but I do not think it is of any pertinence in this situation.  That is Charge 1 of rape.  She, some time later, a relatively short time, went to live with a friend, a Jasmine, who lived in Deer Park.  That was a friend of your as I understand it and she stayed there for a couple of weeks.

8One Sunday afternoon while she was staying there, she got a phone call from you and you told her to go over to your parents house, which she did.  In your bedroom, you put your arm around her and indicate you wanted to have sex.  She said she was not interested and went to go to her own bedroom.  You burst in and she said she was leaving.  You grabbed her arms from behind, gripping hard and said, "Enough".  You pushed her onto the double bed, started pulling down her T-shirt and put your hand on her breast.  A lot of this is simply context evidence, I interpolate.

9You pinned her arms on the bed.  You started pulling her pants down.  She screeched really loudly, clearly objecting to what was happening and managing to get up and move towards the bedroom door.  You pushed her into your bedroom, then pulled down her pants, pushed her face-first on the double bed and sexually penetrated her vagina.  She at that point said nothing.  You had a shower.  After that she began packing more of her things.  There was later an argument in the car.  She gave evidence as to how you, after that, drove the car, told her you were going to take her out in the middle of nowhere and hog-tie her.  You made various threats and she was in fear and hysterical.  Those threats obviously included some form of psychiatric intervention and bearing in mind the circumstances of her mother's mental illness, those threats, I have no doubt, were taken very seriously by her.

10In any event, not long after that she went to her parent's house for a short time and then began renting the property in - it was in fact Magnolia Court in Thomastown or Lalor.  In February of that year, you began staying overnight on occasions, frequently turning up late at night.  Again, ice was used together and you were to pay board and had separate rooms and it becomes very difficult as to what sort of sexual relationship continued and I will come to that in a moment.  You would both argue.  On one occasion you put a pillow over her face.  That is simply context evidence and used to threaten her in various ways.  Again you threatened to call a CAT team to take her to an institution and, on her evidence, of getting people to bash and gang-rape her.

11Clearly that evidence does not need to be proved beyond reasonable doubt as do the elements of the offence, and I do not make a guess as to what the jury made of it.  I simply say that it places all this into a context that these were not just isolated events, they were part of a toxic relationship and I have heard her evidence and accept it as to how all that came about.  On 16 August 2015, early in the morning, you returning to Magnolia Court, again, having been absent for a period of a couple of days.  You were yelling to the complainant to come to your room.  She eventually got up and went to your room, where she found you passed out on the beanbag.

12She believed that you had been drinking and using drugs and she believed that you had been with another woman.  She was out during the day and returned in the early evening.  You again began yelling for her to come to your room.  She eventually went to the room and you suggested you have sex.  She said she did not want to and said so.  She lay down on the bed.  You pulled down her jeans.  She tried to flick your hands away.  She told you that she did not want to do it and it sickened her.  You then masturbated her with your hands, giving rise to a charge of rape by touching inside her vagina and you then performed oral sex, again doing the same thing.  That gives rise to Charge 4.  Because the two rapes occurred in such immediate proximity, it is my view that total concurrency would be appropriate in respect of those two.

13I point out that pursuant to provisions of the Sentencing Act, you will be sentenced as a serious sexual offender on Charges 3 and 4.  I am aware that they are therefore to be cumulative unless otherwise ordered and totality demands that they be at least partially very significantly concurrent where the community protection is the principle sentencing purpose.  But in your situation, I think it was indicated I think specific deterrence are not all that necessary and the Crown do not seek a disproportionate sentence.  In any event, that gives rise to the offending that occurred and in a very general sense, and I am not going to go into great detail, the nature of the relationship. 

14At the first trial you gave sworn evidence and the second trial, your record of interview was played.  I heard a pre-text tape from the first trial and a 000 tape from the second trial which, in each of those, she indicated fear of you and I have no doubt that is the case but I do not think I need to go to it in any more detail.  The circumstances were that she ultimately reported it to police, you were interviewed and denied any offending.  As I have indicated, you have given sworn evidence denying any offending.

15The offending is indeed serious.  It took place over a significant period of time.  It cannot be viewed that any one of these charges as being in isolation.  In a domestic violence situation, this sort of - she described herself as being used effectively as a household utensil.  General deterrence has to play a significant part.  And there is also be denunciation and appropriate punishment.  A very significant gaol sentence is the only sentencing option.

16I have taken into account the contents of victim impact statement which has been filed.  There are a number of matters in that which relate to the overall relationship and the effect of the entire relationship upon her.  Clearly they are not matters for which you are to be sentenced, they simply form a context into which the offending occurred.  However, she has indicated quite clearly in aspects of that victim impact statement that the - she believes she was preyed upon in that situation.  She was clearly, in my view, vulnerable.  It must have been obvious to you.  She said that the crimes have crushed her self-esteem and she has all sorts of other psychological difficulties arising from it.

17It is clear and it was clear from the, I think the way the trial was conducted, that she has had mental health issues in the past and is very fragile.  I am not going to try and do any sort of derivative judgment as to what effect this offending had on her, other than it is serious and, as I say, without going into great detail, clearly had a dramatic effect and ongoing effect upon her.  Then look to matters pertinent to you and point out firstly, I am very aware that you have no prior convictions.  You do, on the face of it, have a longstanding good work ethic and that stands very much in your favour.  I am assuming for the purposes of these sentencing remarks that there are no subsequent matters pending.

18Insofar as the rapes are concerned, that is the summary.  The assault matter which is of real concern in this overall circumstance is that you, with a T-shirt tied into a knot strangled her to the point where she was at least feeling faint and approaching unconsciousness.  Again, the jury have accepted that that is what you did.  And you have categorically denied that that ever occurred and, as has been indicated previously, you maintain your innocence of any of these charges.

19You have now been on remand for slightly over 80 days.  You have done a number of courses in prison, which is very much to your credit.  It is a matter for you whether you ultimately do sex offending courses.  I do not buy into that.  It is clearly obviously in this situation, a situation of a very significant custodial sentence with an opportunity for parole and that is a matter for others, not for me.  I have taken into account the references and a number of them, which filed on your behalf.  And that I accept for these purposes that the behaviour you have engaged in towards this complainant has not been engaged in towards others.  They speak highly of you and, as I have indicated, you have no prior convictions and a good work ethic.

20Tendered on your behalf was a report from Mr Warren Simmons, a psychologist.  Mr Simmons says in that, when he interviewed you, that your speech patterns were normal in rate and rhythm which is not in accordance with what I saw at least in evidence and in your record of interview.  You say that you have not used ice for a period of 12 months.  Whether that is true or not, I do not know.  Certainly, this offending cannot be said to give rise to any of the moral culpability issues that are created in Verdins.

21You swore in this court that you were not using ice during the week and just used it a bit on the weekends.  You have told the psychologist that you were using daily.  Your barrister put in the first trial that you were using it heavily.  I do not know what the truth of all that is.  My view is that the most - far greater likelihood is what the complainant said.  It was being used everyday and to a significant extent.  You also swore under oath that basically the sexual relationship had ceased before the complainant left your parent's house.  And yet I have a report from Mr Simmons saying that you claim that this - these rapes occurred within the context of an ongoing sexual relationship, having sworn that there was no such relationship.  Again, they do not aggravate the situation, they just give me very little faith in your assertions as to how all this came about and what is going to happen in the future.

22There are matters about your prior history in that report and I direct that the report remain on file.  It will be sent to the parole board.  Of significance is that you have had previous relationships.  You have three children and I accept that you care for those children.  Over the last 12 months, I am told from the Bar table and accept, that the 15-year-old child has been living with you, the older child has autism, if that is the correct diagnosis these days.  And I accept that you being in prison and being away from those children and bearing - knowing that they will have to be cared for by others and that you will not be able to, will make imprisonment a harder proposition for you than a person who is not in those circumstances.

23The matters that are contained in the references, I have already said, I take into account and the general history that is referred to by Mr Simmons, I also take into account.  There is nothing to indicate why all this should have come about.  He says you have average intelligence and he says that you - there is little suggestion you pose a significant risk to the community and I think that, in my view, on all the materials that are before me, is right and I do accept that as I have already indicated.

24That is about all that can be said in relation to all this, Mr Kington.  As I understand the situation, you denied the matters and that falls upon me to do now is give an appropriate sentence for the objective seriousness of the offending, in circumstances where there is no remorse and no insight into the seriousness of what you did to this woman.  The prospects of your rehabilitation are really up to you.  I have already indicated that the risk of your reoffending and certainly in this way, I do not regard as being high.

25In any event, on Charge 1, four years.  On Charge 2, five years.  On Charge 3, four years.  On Charge 4, four years.  On Charge 5, 12 months.  I direct that Charge - the sentence on Charge 4 be served concurrently with the sentence imposed on Charge 2.  I direct that 18 months of the sentence imposed on Charge 1, 18 months of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 5, be served cumulatively upon each other and upon the sentence imposed on Charge 2.

26That gives a total effective sentence of eight years and three months.  In all the circumstances where you have no prior convictions, I direct that you serve a minimum term of five years before becoming eligible for parole and I direct that 81 days be reckoned as having been served under this sentence.  Are there any other orders I have to make gentleman?

27MR BUCKLAND:  No, Your Honour.

28HIS HONOUR:  No.  All right, yes, move the prisoner, thank you.

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