Director of Public Prosecutions v Ladd
[2023] VCC 730
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01663
CR-22-02323
Indictment No. K13051480.1
K13051480.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LADD |
---
JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 5, 6, 7, 11 October 2022 (Trial 1); 9,12,13 December 2022 (Trial 2); 12 April 2023 (Plea) | |
DATE OF SENTENCE: | 14 April 2023 | |
CASE MAY BE CITED AS: | DPP v Ladd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 730 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law - Sentence
Catchwords: Two trials – first trial majority guilty verdict – one charge of sexual assault – second trial unanimous guilty verdict – one charge of rape and one charge of sexual assault – standard sentence – serious sexual offender – delay – no relevant criminal history – low risk of reoffending – offender’s age and good work history
Legislation Cited: Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016 s 38(1), s 40; Sentencing Act 1991 s 18
Cases Cited:DPP v Mokhtari [2020] VSCA 161; The Queen v Cockerall [2021] VSCA 239; Babar v The Queen [2022] VSCA 122
Sentence: 5 years and 4 months imprisonment with a minimum non-parole period of 3 years and 2 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Menon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr D. Brustman KC Mr M. Radzaj | Martin Irwin & Richards Lawyers Pty Ltd |
HIS HONOUR:
1David Ladd, on 11 October 2022, after a five-day trial held in Bendigo, you were found guilty by majority verdict of one charge of sexual assault on Indictment K13051480.1. The jury was not able to reach a verdict on Charges 2 and 3 of rape and sexual assault and they were discharged without verdict in relation to those two charges. I adjourned those charges for a trial in Melbourne in December of last year. That trial commenced on 9 December 2022. A fresh Indictment was filed, K13051480.2, which covered the rape and sexual assault charges, which became Charges 1 and 2 on the new indictment. On 13 December 2022, you were found guilty by the jury of Charges 1 and 2 on that indictment, namely one charge of rape and one charge of sexual assault and that was a unanimous verdict. All charges arose out of the same circumstances.
2The relevant facts of this matter arise largely from the evidence of the victim. It is clear from the verdicts that her evidence was accepted.
Circumstances of the offending
3The victim met your cousin, Bonus Keating, over the internet as part of a group who played an online game called World of Tanks. The victim lived in Melbourne. She then became friends with Mr Keating on Facebook and they spoke on the phone. Mr Keating lived in Mildura, as did you.
4Eventually, the victim and Mr Keating decided to meet face-to-face and in January 2019, arrangements were made for you to drive the victim to Mildura to meet Mr Keating. You were a truck driver who regularly drove between Melbourne and Mildura. The victim said in evidence that on that first trip you made sexual comments to her and that it was an awkward journey because she was in your truck for a long time, and you were a stranger to her.
5The victim and Mr Keating started a sexual relationship on that visit. They stayed overnight at your house in Mildura.
6A second trip was arranged for 5 March 2019. The victim took an Uber from South Yarra to Port Melbourne where she met you and the trip to Mildura commenced from there in your truck. The plan was that you would drive her to Robinvale, and she would get a bus from Robinvale to Mildura. She was going to meet Bonus Keating in the main street of Mildura, and they were intending to go to a motel together which he had booked.
7When the two of you got to Robinvale however, you swapped over to a Ute and you told her you wanted to go home, have a shower, and then call your boss to see if you could change your trip. You offered to take her all the way to Mildura.
8When the two of you arrived in Mildura, you drove straight to your house. Inside the house you said that you were going to have a quick shower. The victim went to the back room where she had previously stayed with Mr Keating on the first visit and sat down on the bed with her luggage. She laid back on the bed and closed her eyes for a short time and then you came into the room.
9She felt something pushing around her, what she described as her 'bum'. The next thing she knew, you were on top of her, and you put your tongue into her mouth. You pinned her down and you put your hands down her pants and up her top. You said to her, 'Oh, you are a hot little thing' and 'I told you I'd take it out on your hide'. She said to you that, 'Bonus will be here any moment'. Eventually you got off the bed and left the room. Mr Keating arrived very soon after, pretty much as you were leaving.
10After you had left, she noticed a black vibrator which she picked up and put into a drawer next to the bed.
11She said that the initial touching with the vibrator was against her left leg and bum, like something was being jabbed into her, poked into her, through her jeans. This took a few seconds. This conduct is the basis of Charge 1 on Indictment K13051480.1, which you were found guilty of by majority verdict in Bendigo. She said when you put your hand down her pants, she could feel your fingers in her vagina inside her underwear. She believed you used two fingers. She described the penetration as taking place over a few seconds. This conduct is the basis of Charge 1 on Indictment K13051480.2, the rape. She said she was scared and 'shitting herself' during the incident. She said that she hoped by saying that 'Bonus will be here any minute', that this would put you off. She said that when you touched her breasts, you put your hand underneath her bra onto her skin. This touching took place also over a few seconds. This conduct is the basis of Charge 2 on the second indictment K13051480.2.
12She said that after you first left the room you came back and said, 'You should come to Sydney with me, and you can suck my cock while I'm driving the truck.'
13She said that after you left, Mr Keating came in and that she was still on the bed crying.
14She described the vibrator as black or dark purple.
15She said that when Mr Keating came into the room, he asked her what happened, and she told him to look into the top drawer of the bedside table. Her intent was for him to see the vibrator in the drawer.
16She and Mr Keating stayed at the house for several hours. The victim said she felt horrible and wanted to have a shower, which she did. She then left and went to the motel. She stayed there for two nights and then flew back home. She did not feel capable of taking public transport. Mr Keating paid for the flight. She said that she could not face the 10-hour train trip after what happened.
17Bonus Keating gave evidence that the victim rang him on the way to Mildura to tell him that she was going to your house rather than getting the bus from Robinvale to Mildura. He said that he had booked a room at the Kar-Rama Motel. He then said that he received text messages from the victim telling him to hurry up in getting to your house. He caught a taxi there. He said that when he arrived you were standing out the front and you left. He went inside the house, and he heard a crying, whimpering noise from the back bedroom. He went into the back bedroom and saw the victim lying in a foetal position, crying, 'sort of screaming, whimpering'. He said that the victim was extremely distressed. He asked her what had happened. It took her at least 5 or 10 minutes to respond. When she could respond, she told him that you had raped her. She pointed to a cupboard, and he opened the cupboard and saw a black vibrating dildo inside. They were at the house for some hours. The victim needed a shower. Eventually they left and went to the motel.
18This is the substance of the victim’s evidence, which the jury plainly accepted.
19Your defence was based on the account you gave in the record of interview, which was conducted on 27 May 2019, in which you denied that anything like this incident took place. In the interview, you did refer to having told the victim on a previous visit where the vibrator was, in case she wanted to use it, but you denied the events described by the victim. You said that when you left, Mr Keating was arriving, but you denied the offending.
Victim impact
20The victim in this matter elected not to make a victim impact statement, so I have no evidence about any ongoing impact of the offending on her. However, in my opinion it was apparent from her evidence that she found reliving the incident in the trial an unpleasant, traumatising experience and it was apparent from all of the evidence in the trial that the impact on her at the time of your offending and in the period that followed was very substantial.
Gravity
21Rape is an inherently serious offence as reflected in the maximum penalty of 25 years' imprisonment and the standard sentence of 10 years' imprisonment. In the case of Mokhtari,[1] the Court of Appeal said this:
'The very act of rape is inherently serious, simply by virtue of the invasion of the victim’s bodily integrity without consent. It is, quite simply, an act of violence, whether or not accompanied by any other violent conduct. The violation is physical, emotional and psychological. It follows that, aggravating features apart, all acts of non-consensual penetration are objectively serious, irrespective of the form and the extent of the penetration.'[2]
[1][2020] VSCA 161
[2]Ibid, at paragraph [41]
22In this case the victim and your cousin Bonus were relying on you to bring her to Mildura. She was alone with you for the trip and then at your house. Both the victim and Mr Keating had an expectation that you would treat her respectfully and she would be safe with you.
23Both the prosecution and the defence submitted that this was not a premeditated offence. You had though engaged in sexualised conversation with her on the way up and by suggesting on another occasion that she use the vibrator in the room. I think it is likely that you held the deluded belief the victim might be prepared to engage in sexual activity with you.
24I accept in these circumstances the offending was opportunistic, but you treated her as an object for your own gratification, taking advantage of the circumstances. There was little she could do to stop you other than to call Mr Keating.
25When the incident occurred, the victim was alone and vulnerable in your house and the incident, although brief, was obviously terrifying to her. You pinned her down by getting on top of her, taking advantage of your superior size and strength.
26Her description and that of Mr Keating as to the severity of the immediate impact underscores the gravity of what you put her through.
27The overall incident here was relatively brief as was the penetration - that is clear from the victim’s evidence; not that the shorter duration of the offending was of any real comfort to her. The incident came to an end soon after the victim told you Mr Keating was on his way and indeed, as I have observed, he did arrive as you left. However in the end, as a marker of objective gravity, the duration is one factor to which I must have regard.
28Mr Brustman KC submitted that the offending lacks the features of aggravation that can be seen in the most serious examples of rape such as the use of violence or threats, the use of weapons, the risk of pregnancy or sexually transmitted disease. Although there was a level of force used to pin the victim down, it is true that these aggravating circumstances are not present but that is not in the end mitigating. This remains a serious crime.
Standard Sentence
29Rape is a standard sentence offence. The standard sentence applies to an offence in the middle range of seriousness considering only its objective factors. A standard sentence is just one of the many matters to which I must have regard in deciding the sentence in this case. It is a legislative guidepost. It is not a mandatory sentence; nor is it a starting point from which to add or subtract time.
30In fixing the sentence in this matter I have had regard to the standard sentence amongst all the matters to which I must have regard in deciding the appropriate sentence. The sentence I will impose in this matter is lower than the standard sentence.
31In this case, the defence submitted that the offending can be placed in the lower end of the spectrum whereas the prosecution submitted the offending falls somewhere below the middle range. I do not think a great deal turns on these marginally different characterisations of the offence seriousness. As I said during the plea hearing, I do not regard this case as falling right at the bottom end of seriousness for offences of rape. I accept it falls below the mid-range, but in the end such assessments risk trivialising what was a very serious crime against a woman who was terrified by what you did.
Personal history
32Your personal history is set out in the defence submissions and in the psychological report of Ms Christine Kennedy and Mr David Ball, which was tendered as an exhibit on the plea.
33You are 54 years old. You were born in Mildura. You had an unremarkable childhood growing up in Mildura. Your family was a stable one. You have an older brother and a younger sister. Your parents got on well together and you always felt cared for. They separated amicably when you were about 17 years old. Your father died from a brain tumour when you were 23 years old, and your mother died when you were around 45 years old.
34You went to secondary school at Mildura Tech to Year 9. You had learning difficulties. You had a tutor at one point and attended remedial classes. I am told you cannot read. You had no difficulties in your relationships with other students at school.
35You left home at the age of 16 to live in a caravan because you had obtained employment picking oranges and the caravan park was closer to where you were working than your parents' place.
36Although you cannot read, you have a good visual memory which allows you to read maps and remember the layouts of towns which has assisted you in your employment as a truck driver.
37You were married at the age of 20 and that marriage lasted for 10 years, ending in 1998. You have a son who is now 31 years old. You have lost contact with him because as you say, 'he’s gone his way, I've gone mine'. You and your wife also had a son who died after 11 days from pneumonia.
38After your marriage broke down, you moved to Melbourne for work opportunities. You worked at a rubber company testing tyres for two years and then you worked as a truck driver doing delivery work around Melbourne and after that, driving tip trucks.
39From the age of 37 you were in a de facto relationship for a period of seven years. When that relationship ended, you returned to Mildura to work.
40Since then, you have worked mainly as a truck driver. You have been with your current employer for the last 15 years or so and at the same workplace for the last four years. I am told and I accept that you can return to employment as a truck driver when you are released from prison.
41You described a history of regular beer drinking in relatively significant amounts, but you do not believe that your alcohol use has been a problem. You have no history of drug use and there is no suggestion that alcohol had anything to do with this offending.
42There was a risk assessment for sexual offending conducted by the psychologist in this matter and the result was that you are considered a low risk of further sexual offending. The most significant risk factor was your failure to acknowledge the impact of the offending on the victim and because you have not completed a sex offender treatment program, you would benefit from doing so. I will return to your prospects of rehabilitation.
Delay
43Mr Brustman KC submitted that the sentence to be imposed should be moderated having regard to the delay in resolving this matter of almost four years since the time you were interviewed by police. He submitted this delay has weighed heavily on you and that in that time you have not committed any further offences. You were interviewed in May 2019 and charged in November 2019. A committal hearing did not take place until November 2020 and the trial did not take place for more than two years after that. It is not suggested this delay was your fault. It seems clear the delay was a result of the disruption to the court's operations caused by the pandemic.
44In sentencing you I take into account you have not offended since you committed this offence which is consistent with the absence of a relevant criminal history prior to the offending. Secondly, you have had to wait a very lengthy period to learn your fate in respect of these charges and that is not your fault. I accept this has weighed heavily on you. I take these matters into account as significant matters in mitigation. I apply the principles set out in the case of The Queen v Cockerall[3] cited in the comprehensive written sentencing submissions filed on your behalf.
[3] [2021] VSCA 239
45Of course, the victim has also had to wait four years for closure in respect of this incident. This is not an aggravating factor. You are not to be punished for running a trial in this matter, that is your right. However, you do not have the significant mitigatory benefits of remorse or insight as indicated by a guilty plea and you do not have the considerable benefit of the utilitarian value of a guilty plea which includes sparing the victim the experience of reliving the incident.
COVID-19 and prison conditions
46It was submitted and I accept, in line with the authorities cited, that you will experience potentially more onerous conditions in custody than the ordinary prisoner because of restrictions in place in response to the COVID-19 pandemic. I am told and I accept that for a month after you were remanded you were not able to receive your prescribed medication for gout and you were therefore in pain during that period. I take into account the ongoing uncertainty of prison conditions in response to the pandemic consistent with the authorities relied on by Mr Brustman KC on your behalf.
Character and rehabilitation
47You have a previous appearance for offensive behaviour and being drunk in a public place in 1996. I regard that prior conviction of no significance to sentencing in this case and I treat you as a person of good character prior to this offending.
48You do not suffer from any mental illness or any personality disorder, mood disorder or substance use disorder. You have been assessed as being a low risk for recidivism. It was submitted that given your age, family support, employment, and lack of relevant prior convictions, I should assess your prospects of rehabilitation as very good. Some caution is called for, given you have shown no remorse or insight, but I do accept that you have good to very good prospects of rehabilitation given your age, the absence of relevant antecedents and what will be the significant deterrent effect of a significant prison sentence for you, in your fifties which will be the first time you have been in custody.
Current sentencing practices
49Current sentencing practices are a relevant matter for me to consider but not the dominant or controlling factor in sentencing. In considering current sentencing practices for a standard sentence offence, I must have regard only to sentences imposed since the introduction of the standard sentence scheme.
50I have read and had regard to the two cases in the prosecution table where the standard sentence was applied. The offending in those cases have some similarities, but some significant differences as well. In the case of Babar v The Queen[4], an offence involving what seemed to be a relatively brief digital penetration committed by an Uber driver on his passenger, was met with a sentence of five years with a minimum of three years, described by the Court of Appeal in that case as 'comfortably within the range' and at another section of the judgment as 'lenient'. As I say, those current sentencing practices are a guide but not a controlling factor in the imposition of the sentence in this case.
[4] [2022] VSCA 122. This case involved a guilty plea.
The totality principle
51The totality principle requires that any sentence I impose must be just and proportionate having regard to the total criminality of your offending. In this case the three charges for which I must sentence you arise from one incident and were separated by seconds; the charges occurred within a very short timeframe. Charge 1 on the first Indictment was relied on in the second trial as contextual evidence. It is in fact the sort of conduct that is routinely not charged and relied on for a contextual purpose. In my view it adds little to the overall criminality of your offending. I propose in these circumstances to order a short prison sentence wholly concurrent with the other charges.
52Charge 1 on Indictment K13051480.2 of rape is obviously the most serious of the offences in this case and captures the essential criminality of the offending. The second sexual assault charge, again in my view does not add a great deal to the total criminality of the offending in this case and occurred almost immediately after the rape offence. For that offence you are to be sentenced as a serious sexual offender because I will impose prison sentences on Charge 1 on the first indictment and Charge 1 on the second Indictment. This means I must regard protection of the community as the principal purpose of sentencing and sentences imposed for serious sexual offender offences are to be cumulative unless otherwise ordered. However, the second sexual assault, as I have observed, adds little to the overall criminality and nor does it add a great deal to the need for community protection. Further I have found in this case you have good prospects for rehabilitation. I do think at your age and in your circumstances, it is unlikely you will reoffend and therefore, the importance of community protection is substantially moderated notwithstanding the serious sexual offender provisions. Furthermore, the totality principle is highly significant for an offence that occurred so close to the rape offence in this case.
53In sentencing you I must have regard to general deterrence and denunciation of your conduct as important sentencing principles. Specific deterrence, although reduced significantly by the absence of relevant prior convictions, and my views about your prospects of rehabilitation, still remains a purpose of some importance for a serious offence such as this. I must also give some emphasis to just punishment.
54Having regard to those sentencing principles there is no doubt that the only appropriate sentence in this case is a significant sentence of imprisonment with a non‑parole period. A non‑parole period mitigates punishment in favour of rehabilitation, though it must be commensurate with the objective gravity of the offence. In sentencing for standard sentence offences, I am constrained to impose a non‑parole period of no lower than 60 per cent of the head sentence unless I am satisfied it is in the interests of justice to do so. Given the gravity of the offending in this case, in my view a ratio of 60 per cent is appropriate and in fixing such a period, I allow for a significant period of supervision if the Adult Parole Board releases you at the expiration of your non‑parole period.
Sentence
55David Ladd, you are sentenced as follows:
· On Indictment K13051480.1, for Charge 1 of sexual assault, you are convicted and sentenced to a period of imprisonment of 4 months.
· On Indictment K13051480.2, Charge 1 of rape, you are convicted and sentenced to a period of imprisonment of five years and two months. On Charge 2, sexual assault, you are convicted and sentenced to a period of imprisonment of 12 months.
56I order that two months of that sentence is to be cumulative on the sentence that I have imposed for the rape charge. The sentence on Charge 1 is entirely concurrent, which makes a total effective sentence of five years and four months.
57I fix a non-parole period in this matter of three years and two months, which I think is very close to 60 per cent.
58It will be noted in the records of the court that in relation to Charge 2, you are to be sentenced as a Serious Sexual Offender and just going back - did you say it was 122 pre-sentence detention?
59MR MENON: Yes, Your Honour.
60HIS HONOUR: Yes. So I allow 122 days of pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 to be deducted administratively from the sentence that I have imposed.
61Are there any other orders?
62MR BRUSTMAN KC: Was the confiscation order made?
63HIS HONOUR: Yes, I will make that.
64MR MENON: There was a disposal order.
65HIS HONOUR: Yes, I will make the disposal order.
66MR MENON: As Your Honour pleases.
67HIS HONOUR: I just want to check my maths, I think it is 60, that is what I intended. It might be just marginally below; it is as close as I can get. I am not going to change it, Mr Menon. I am satisfied it is close enough. It's a fraction, so you have to pick one or the other. That is the sentence I will impose in this matter. I will now adjourn.
68MR BRUSTMAN KC: If it pleases the Court.
69MR MENON: As Your Honour pleases.
- - -
0
3
0